Principal Secry., Labour and Others vs Vidya Narayan and Others

Both the special appeals arise out of a common judgment and order of a learned Single Judge of this Court dated 25 August 2015 setting aside an order passed by the Principal Secretary (Labour) on 11 September 2013. The Principal Secretary (Labour) held that the three respondents (Vidya Narayan, Satya Narayan and Girja Sharan, who are brothers) obtained employment in the State Government on the basis that they belong to the Majhwar Scheduled Caste though they do not belong to that Scheduled Caste. The learned Single Judge has ordered reinstatement in service together with back wages. Since one of the respondents (Vidya Narayan) has retired from service, a direction has been issued that he would be entitled to all his retiral benefits.

For convenience of reference, parties are referred to by their description in the writ proceedings before the learned Single Judge. All the original petitioners who are brothers were employed by the State:

"(i) Vidya Narayan was appointed as a Junior Clerk in 1974 and retired as an Administrative Officer on 31 July 2012 on superannuation;

(ii) Satya Narayan was appointed as a Stenographer on 18 August 1989 in the office of the Labour Commissioner and was promoted as Labour Enforcement Officer; and

(iii) Girja Sharan was appointed as a Peon-cum-Chowkidar on 26 March 1981 in the office of the Home Inspector in the Industrial Labour Colony at Kanpur and was working in the Labour Head Office at Kanpur."

A complaint was made to the State Government to the effect that the petitioners belong to the Mallah community (an OBC in the State of U.P.) and had obtained employment on the basis of false caste certificates declaring them to belong to the Scheduled Castes of Majhwar community. A report was submitted to the State Government. On 21 April 2006, the Department of Labour called upon the Commissioner of Labour to make an inquiry. On 23 May 2007, certain specific issues were required to be determined by the Labour Commissioner including, more particularly, how the petitioners had obtained caste certificates as Majhwar when their father (who it is admitted, was a State employee) had been certified by the Collector to be of the Mallah community. A report was submitted by the Tehsildar to the Sub Divisional Magistrate, inter alia, recording that his office did not have any record of the issuance of the caste certificates to the petitioners. Moreover, it was stated, that upon inquiry at the place of residence of the father of the petitioners, it was found that he belonged to the OBC category, being a Mallah. The State Government by an order dated 9 April 2009 called upon the Labour Commissioner to take appropriate action. A writ petition was filed before the Lucknow Bench by one Bashir Khan raising a grievance that the three brothers were appointed under the Scheduled Castes category though they belong to the OBC category. A Division Bench of this Court at Lucknow, while entertaining the writ petition Service Bench No. 877 of 2012 (Bashir Khan v. Shailesh Krishna IAS) directed the Principal Secretary (Labour) to enquire into the matter and take an expeditious decision. In pursuance thereof, a notice to show cause was issued by the Principal Secretary (Labour) to the original petitioners on 23 August 2013 calling upon them to appear on 5 September 2013. All the petitioners appeared before the Principal Secretary (Labour) and submitted their defence. By an order dated 11 September 2013, the Principal Secretary came to the conclusion that the petitioners do not belong to a Scheduled Caste and do not belong to the Majhwar category which is designated as such. The Principal Secretary (Labour) relied upon a report of the Collector dated 12 November 2008 in coming to that conclusion. This led to the filing of a writ petition challenging the decision of the Principal Secretary (Labour). In the meantime, the petitioners were terminated from service, save and except for one of them who had attained the age of superannuation. The learned Single Judge allowed the writ petition by the impugned order dated 25 August 2013.

The finding of the learned Single Judge is that caste certificates of the petitioners that they belong to the Majhwar community treating it to be a Scheduled Caste were issued to the petitioners. In the view of the learned Single Judge, the caste certificates had not been cancelled by the competent authority at any time. No disciplinary inquiry was held against the petitioners who had been appointed to substantive posts in the State in 1974, 1989 and 1981 respectively and hence their services could not have been terminated otherwise than in accordance with the U.P. Government Servants (Discipline and Appeal) Rules, 19991.

The first submission which has been urged in support of the special appeals by the State is that the learned Single Judge was manifestly in error in holding the termination to be invalid on the ground that a disciplinary inquiry was not held. In the present case, it was submitted that the caste certificates which were issued to the three brothers, copies of which are annexed with the record, would indicate that they purport to have been issued on the basis of a recommendation made by a Member of the Legislative Assembly. Moreover, it was submitted that the father of the original petitioners was employed with the State. A copy of his service book has been produced on the record which indicates that he belonged to the Mallah community. Hence, it was submitted that it is inconceivable that the respondents would be persons who would belong to the Majhwar community which is alone described as a Scheduled Caste in relation to the State of U.P.

The basic submission of the State in the special appeals is that when a person who has obtained employment on the strength of a caste certificate indicating that he belongs to a reserved category is found to have obtained employment on the basis of a false claim, there is no occasion to direct the holding of a disciplinary inquiry because there is no misconduct as such, post-employment, but the very grant of employment stands vitiated and is void ab initio since it has been obtained on the basis of a fraudulent claim. In support of the submission, reliance was placed on the judgment of a Bench of three Hon''ble Judges of the Supreme Court in R. Vishwanatha Pillai v. State of Kerala , (2004) 2 SCC 105.

As we have noted, the principal ground which has weighed with the learned Single Judge is that no disciplinary inquiry was held. A disciplinary inquiry is required to be held within the meaning of Article 311 of the Constitution, or as in the present case under the Rules of 1999, for an act of misconduct. In the present case, the allegation was that the petitioners obtained employment on the basis of a fraudulent claim of belonging to a Scheduled Caste and once it is found that the claim is false, the appointment is void ab initio. The issue as to whether a disciplinary inquiry is to be held in such a case is concluded by the decision of the Supreme Court in R. Vishwanatha (supra) where a submission similar to that which had found favour with the learned Single Judge in the present case was repelled. In that case before the Supreme Court, it was also urged on behalf of the employee whose appointment was terminated on the basis of the caste certificate having been found to be false or fraudulently obtained that a disciplinary inquiry consistent with the Rules of 1999 ought to have been held. Rejecting the contention, the Supreme Court observed as follows:

"We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for a Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post."

This principle proceeds on the foundation that if the caste claim is found to be fraudulent then the employment which is obtained by the person concerned on the basis of a claim which is fraudulent or false stands vitiated and would be void ab initio. There is no occasion to hold a disciplinary inquiry. In the present case, the principal ground which has weighed with the learned Single Judge is unsustainable.

The learned Single Judge has also noted that the caste certificates which were granted to the original petitioners had not been cancelled. In this regard, we have noted from the report which is submitted by the Tehsildar Sadar, District Kanpur Nagar on 10 November 2008 that no record of the issuance of any such caste certificates was in his office. However, on behalf of the original petitioners, it is sought to be submitted that the caste certificates were validly issued to them after a due and proper inquiry at the material time and several inquiries were conducted where it was found to be correct.

In our view, the proper course of action would be for the District Level Scrutiny Committee which has been constituted by the State Government in pursuance of the judgment of the Supreme Court in Kumari Madhuri Patil v. Additional Commissioner Tribal Development , (1994) 6 SCC 241 to scrutinize the caste claim of the petitioners in accordance with law. In the event that the caste claim of the petitioners is invalidated, necessary consequences under the law would follow having due regard to the principle which has been laid down in R. Vishwanatha (supra). However, while arriving at this determination, the Scrutiny Committee shall furnish to the three original petitioners an opportunity of being heard consistent with the principles of natural justice.

Accordingly, and for the aforesaid reasons, we allow the special appeals and set aside the judgment and order of the learned Single Judge dated 25 August 2015. However, we direct that the caste claim of the original petitioners shall be duly scrutinized by the District Level Scrutiny Committee by furnishing a due opportunity of being heard to them and a final decision thereon shall be arrived at within a period of two months from the receipt of a certified copy of this order. We are not directing the reinstatement of the two petitioners at this stage or release of retiral dues to the third. During the hearing, it has not been disputed by the petitioners that the record of service of their father as a government employee indicates that he was a Mallah (OBC). On these facts it would be only proper to expedite the decision of the Scrutiny Committee, which we have directed. However, we clarify that all issues on the merits of the caste claim are kept open to be decided by the Scrutiny Committee and the above observations are not a final expression of opinion.

Upon the decision of the Scrutiny Committee, the Principal Secretary (Labour) shall pass fresh orders based on the basis of the determination that may be made by the Scrutiny Committee.

The special appeals are accordingly disposed of. There shall be no order as to costs.

This application seeks condonation of delay of 96 days in filing the special appeal.

Since the delay has satisfactorily been explained in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned.

The application is, accordingly, disposed of. There shall be no order as to costs.

1Rules of 1999