R. Nandakumar vs Oil and Natural Gas Corporation Limited and Another

P. Sathasivam, J.—Aggrieved by the order of the 1st respondent dated 27.5.1997 suspending the petitioner from service pending criminal

offence under investigation, the petitioner has filed the above writ petition to quash the said order on various grounds.

The case of the petitioner is briefly stated here-under:

According to him he belongs to Konda Reddis community, which is one of the communities listed as a Scheduled Tribe under the Constitution

(Scheduled Tribe) Order, 1950 passed by the President. The respondents-Corporation is an undertaking controlled by the Government of India.

The petitioner was appointed for the post of Assistant Grade-III under the quota reserved for Schedule Tribes on 19.4.1982. At the time of

appointment he produced a community certificate dated 17.5.1979 issued by the Headquarters Tahsildar, Saidapet. After completion of one year

his services were confirmed. In 1987 he was promoted as Assistant Grade-II and in 1993 he was again promoted as Assistant Grade-I with effect

from 1.1.1993. While so, during first week of May, 1997 the 1st respondent directed the petitioner to produce certain records i.e., S.S.L.C.

Book, Caste Certificate and employment particulars. As (sic) he furnished all the particulars. However, (sic) sudden he came to know that the 1st

respondent has passed an order dated 27.5.1997 which is impugned to the effect that a criminal offence is under investigation as such he has been

placed under suspension. Thereafter, he came to know that an investigation with regard to his community status is likely to commence. The

respondents instead of referring the matter to the District Collector as per the Brochure, they made a complaint to the police. In any event the

respondents cannot come to a prior conclusion as if he had committed a criminal offence and thereby placing him under suspension unless and until

the certificate obtained by him stands cancelled by the competent authority, viz., District Collector. The impugned order is passed against the

natural justice and in total violation of the procedures to be adopted in the matter of verification of community status of an individual. Being left with

no other remedy petitioner has filed the above writ petition.

On behalf of the respondents, Deputy Manager P & A of the respondents Corporation filed a counter-affidavit disputing various averments

made by the petitioner. It is stated that the petitioner had secured his appointment under the, quota reserved for Scheduled Tribe only on the basis

of the community certificate. On receipt of a complaint from All India SC/ST Employees Welfare Association stating that the petitioner did not

belong to the Scheduled Tribe, they called upon the petitioner to produce his S.S.L.C. book. They also verified and collected certain documents to

check-up the claim of the petitioner. After verification of the school certificates as well as other connected documents they realised the fraud

played by the petitioner and accordingly concluded that the community certificate produced by the petitioner was a bogus one. Thereafter, they

made a complaint to the police for investigation. In the light of the criminal investigation they are justified in placing the petitioner under suspension.

Accordingly, they prayed for dismissal of the writ petition.

In the light of the above pleadings, I have heard Mr. N. Kannadasan, learned Counsel appearing for the petitioner and Mr. A.R. Nagarajan

learned Counsel appearing for the respondents.

The point for consideration is whether the respondents are justified in placing the petitioner under suspension in pursuance of a criminal

investigation?

There is no dispute that, at the time of appointment in the year 1982, the petitioner produced a community certificate dated 17.5.1979 issued by

the Headquarters Deputy Tahsildar, Saidapet. According to him the said certificate was issued by the said authority on verification of relevant

records and after local enquiry. His service were confirmed and later he was promoted as Assistant Grade-II in the year 1987, again in the year

1993 he was promoted as Assistant Grade-II, with effect from 1.1.1993. It is seen that on the basis of a complaint from the All India SC/ST

Employees Welfare Association, petitioner was called upon for production of first page of the S.S.L.C. book and other certificates relating to his

community. It is the case of the petitioner that as requested he had produced relevant documents in order to prove his community. It is further seen

that not satisfied with the particulars furnished the respondents themselves enquired several un-known persons without intimation to the petitioner

and on that basis came to a conclusion that the community certificate dated 17.5.1979 issued by the Headquarters Deputy Tahsildar, Saidapet is

not genuine. After arriving to such a conclusion they also made a complaint before the Crime Branch, CID for investigation and for appropriate

action. Pending investigation the service of the petitioner was placed under suspension with immediate effect by the impugned order dated

27.5.1997.

Now, I shall consider whether the respondents are justified in passing the impugned order without referring the matter before the competent

authority, viz., District Collector for verification of the community certificate of the petitioner dated 17.5.1979. Even at the outset, Mr. A.R.

Nagarajan, learned Counsel for the respondents after placing particulars regarding their enquiry and investigation would contend that, in view of

Rule 33(1)(c) of Conduct, Discipline and Appeal Rules, 1994 (hereinafter referred to as ''Rules''), they are justified in passing the impugned order

of suspension. Rule 33(1)(c) is as follows:

Rule 33: Suspension: (1).....

(a) ....

(b)....

(c) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

It is true that by virtue of the abovementioned provision, it is open to the appointing authority to place the employee concerned under suspension if

any one of the conditions prescribed in (a) to (c) are not satisfied. For this it is stated that, investigation of a criminal offence regarding his

community certificate is in progress, accordingly he has been placed under suspension. First of all no details have been furnished either in the

impugned order or in the counter-affidavit filed by the respondents. Apart from this, the respondents are not justified in passing an order of

suspension merely on the basis of criminal investigation regarding genuineness of the community certificate when no reference has been made to the

District Collector/District Magistrate to ascertain the genuineness of the community certificate. In this regard, Mr. Kannadasan, learned Counsel for

the petitioner has very much relied on the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Service, Eighth Edition,

Government of India, Ministry of Personnel. Public Grievances & Pensions Department of Personnel and Training, New Delhi. Chapter 13 deals

with Verification of the claims of Scheduled Castes and Scheduled Tribes. 13.1 prescribes certain authorities for issuance of community certificates

as well as verification. It is clear from 13.1, 13.2 and 13.3 that on receipt of a report from the authority prescribed therein, viz., District

Magistrate/District Collector etc., it is open to the employer or appointing authority to take appropriate action for termination in accordance with

their relevant Rules/Orders. The said Brochure is issued by the Government of India to safeguard the genuine persons and for the benefit of

reservation and other scheme of concession meant for SC/ST should go only to the rightful claimants and not those who become disentitled to

them. In the light of the Brochure, if the respondents have any doubt regarding the genuineness of the community certificate obtained by the

petitioner, instead of making enquiry by themselves, the proper course would be to refer the community certificate to the concerned District

Collector for verification and report. On receipt of a report from the said authority it is open to the respondents to take appropriate action not only

for terminating him from service, but also for criminal prosecution. Admittedly, though the respondents have received some communication from

the Tahsildar or certain authorities working under the District Collector, they have neither referred to the District Collector in terms of the Brochure

nor obtained any report from the person concerned before passing the impugned order.

Now, I shall consider various decisions referred to and relied on by Mr. Kannadasan as well as Mr. A.R. Nagarajan. Even at the foremost, Mr.

Kannadasan has very much relied on a Division Bench decision of this Court reported in Sakthi Devi v. The Collector of Salem 98 L W. 105,

before the said Division Bench a similar and identical contention as contended by Mr. A.R. Nagarajan has been raised, viz., the respondents have

necessary disciplinary jurisdiction to enquire and decide whether the caste certificate relied upon by the petitioner is genuine or not. After

considering the matter in detail, more particularly with reference to the directions (Brochure) issued by the Central Government relating to SC/ST,

arrived the following conclusion:

Caste/Community certificate issued by an empowered public authority under seal continues to be a valid document till it is cancelled by the said

authority or by his superior authority.

Their contents are to be treated as correct and every public authority, undertakings, bodies, institutions, etc., which are bound by instructions

relating to such certificates, are bound to act upon them, so long as they are not cancelled.

If on disciplinary proceedings, their genuineness or correctness of their contents can be gone into. It is open to the department or employer or

organisation, to ask the issuing authority or District Collector, as the case may be, to verify whether the certificate as issued could be still valid, on

materials which have since come to their knowledge. They can appear in the verification enquiry and place the materials.

If the certificate is cancelled, then disciplinary proceedings can be initiated for having furnished false information.

Appointing authorities have the right to verify the genuineness of the certificate by approaching the District Magistrate-Collector of the District or

such other constituted authority and once the report is received that the certificate is genuine, thereafter the certificate holder cannot be further

harassed to prove his case/community in any other manner.

In causing verification, the Collector is bound to follow the procedure laid down in letter dated 7th July, 1983 of Government of Tamil Nadu.

In view of what is stated in Chapter 19 of Brochure on Reservation for Scheduled Castes and Scheduled Tribes, in services, 6th edition (1982),

the instructions issued by the Central Government from time to time relating to Scheduled Castes and Scheduled Tribes, pertaining to issue of caste

certificates are binding upon public sector undertakings, statutory and semi-Government bodies and voluntary agencies receiving grant-in-aid from

the Central Government, as provided therein.

By drawing my attention to direction Nos. 3 and 4 of the Division Bench, Mr. N. Kannadasan submitted that, in the absence of any enquiry by the

District Collector so long as a certificate is valid, it is not open to the employer to pass any order with regard to petitioner''s employment on the

basis of some complaint or contemplation of criminal or departmental proceedings. In the light of the said directions, in the absence of any enquiry

by the District Collector and the ultimate order cancelling the community certificate issued earlier, I am of the view that the respondents are

estopped from passing any order including the order of suspension merely on the basis of complaints from third parties.

I had an occasion to consider identical question in Writ Petition Nos. 7110 and 7559 of 1997 dated 25.7.1997 against the very same

respondents Organisation. After referring S.P. Shakthi. Devi ''s case 98 L.W. 105 and after holding that in the absence of any report from the

District Collector cancelling the community certificate, quashed the order of suspension passed in that case. In the said decision of mine I have

referred to the Division Bench decision in S.P. Shakthi Devi''s case, decision of Mishra, J. (as he then was) in Writ Petition Nos. 15934 of 1988

etc., batch dated 13.7.1990 and another Division Bench decision consisting of Hon''ble Chief Justice and J. Kanakaraj, J. in Writ Petition No.

12758 of 1994, dated 7.3.1996 and concluded:

All the above decisions clearly show that even though the respondents are competent to take action against the delinquent officer with regard to

community certificate, only on receipt of report or order from the Collector, it is open to them to take appropriate steps. The decisions referred to

above clearly show that with regard to community certificate the Collector or any other authority should give all and proper opportunity to the

persons in order to prove the genuineness of same.

The said decision of mine is directly applicable to the present case.

In Writ Petition No. 15267 of 1997, dated 6.2.1998 K.P. Sivasubramaniam, J. in another identical case after referring the Division Bench

decision in Writ Appeal No. 241 of 1996, dated 8.3.1996, in the absence of any enquiry and report by the District Collector quashed the

suspension order which is based on the criminal investigation regarding the community certificate.

The following observation of the learned Judge also supports the case of the petitioner:

It is true that if the order of suspension is referable to the entire charges under the F.I.R., the contention of learned Counsel for the respondents can

be accepted. But it is very clearly stated in the order of suspension that the order of suspension is with reference to the investigation relating to the

submission of bogus caste certificate vide F.I.R., CB, CID, Metro Cr. No. 4 of 1997. Therefore, the background in which the suspension order

was issued, is only on the production of the alleged bogus caste certificate and in view of the said circumstances, having regard to the ruling of the

Division Bench, the order of suspension cannot be allowed to stand. Hence, the writ petition is allowed and the order of suspension is quashed.

The very same respondents are the respondents in our case also.

I have also taken the same view in another identical case reported in M. Sanjeeva Moorthy Vs. The Revenue Divisional Officer and Others, .

It is also useful to refer the following conclusion of their Lordships of the Supreme Court in R. Kandasamy Vs. Chief Engineer, Madras Port Trust,

, wherein it is stated,

In our opinion the community certificate issued to a Scheduled Tribe candidate by the Tahsildar prior to 11.11.1989 is a good and valid

community certificate for all purpose so long as such a certificate is not cancelled. The authorities cannot decline to take that into consideration and

insist upon a fresh community certificate from the Revenue Divisional Officer.

J. Kanakaraj, J. in Writ Petition No. 4709 of 1987, dated 21.11.1990 after referring the S.P. Sakthi Devi''s case 98 L.W. 105, has

concluded,

It has been laid down by this Court on more than one case and very emphatically that unless and until the community certificate issued in favour of

an employee is cancelled in a manner known to law, no disciplinary action could be taken against the such an employee on the basis of the validity

of the community certificate. So far as the Central Government Organisations and statutory bodies are concerned, the Division Bench has also held

that a certificate issued by the Tahsildar is a valid certificate. The Division Bench has also held that if the genuineness of the certificate is disputed, it

is open to the authorities to refer the matter to the Collector of the District and the Collector shall cause an enquiry to be made following the

principles of natural justice. If on the basis of such an enquiry, it is found that the community certificate earlier produced by the employee is not

genuine, the competent authority must cancel the certificate. It is only on such cancellation that the employer gets a right to initiate disciplinary

action on the ground that the community certificate is not a valid certificate....

No doubt, Mr. A.R. Nagarajan, learned Counsel appearing for the respondents placed before this Court xerox copy of a letter of Tahsildar,

Aathur dated 30.5.1997 addressed to the Deputy Manager P & A, Oil and Natural Gas Corporation, Karaikal, stating that the community

certificate intended to R. Nandakumar (petitioner herein) is bogus and not issued from the Taluk Office, Saidapet. As stated earlier, mere

communication from the Tahsildar or any one without an enquiry and report by the District Collector, it is not open to the employer to take any

disciplinary proceedings. Mr. A.R. Nagarajan has also very much pressed into service the decision of Apex Court reported in G. Sundarasan Vs.

Union of India and another, . The perusal of the said decision shows that,

Where it was found on evidence in a departmental enquiry that the appointee did not belong to a Scheduled Caste and that he had procured

appointment in reserved quota by submitting a false certificate, imposition of punishment of forfeiture of his pension is valid.

Absolutely there is no dispute with regard to the above proposition. However the important fact is that the respondent-Management did not

request the District Collector to submit a report regarding the genuineness of a community certificate. As repeatedly said, on the basis of the report

of the Collector cancelling the community certificate, undoubtedly the respondents are competent to take appropriate action departmentally and

criminal prosecution.

Mr. A.R. Nagarajan has also relied on the decision of Andhra Pradesh High Court reported in Polam Veerabhadra Rao Vs. The Government

of A.P. and others, . In that case, writ petition was filed primarily against a show cause notice issued by the 3rd respondent therein. Learned Judge

of the Andhra Pradesh High Court after holding that writ petition against show cause notice is normally not maintainable directed the petitioner

therein to participate in the ultimate enquiry and still if he has any grievance, it is open to him, to approach the court thereafter. The said decision is

not at all applicable to our case.

Apart from the; abundant legal position in a matter like this, if the respondents, viz., the Management are permitted to take appropriate

disciplinary action merely based on their own enquiry, certainly it would affect the interest of genuine community certificate holders. For example, it

is brought to my notice a letter Na.Ka.A.1.5684/97 dated 25.10.1997 sent by the Divisional Officer, Nagercoil to the District Collector,

Nagercoil. In that letter the said Officer highlighted the high-handed action of the Offences of the respondent-Corporation, in obtaining signatures

from various persons who have nothing to do with the issue in question. The concluding para from that letter is relevant, which says:

The reading of the said letter speaks the way in which the Officers of the respondents-Corporation enquired unconnected persons and obtained

signatures. In such circumstances, it is not safe to initiate departmental proceedings merely on the basis of the enquiry by their own officers in the

matter of verification of the community certificate. When directions of the Government of India are therein the form of Brochure, the respondents

the Government of India undertaking is bound by the same and ought to have resorted to the said procedure by asking the District Collector to

submit a report regarding the genuineness of the community certificate. The said procedure has not been followed by the respondents. As stated in

various decisions referred to above, if the genuineness of the community certificate is disputed, it is open to the authorities to refer the matter to the

Collector of the District and the District Collector shall cause an enquiry to be made following the principles of natural justice. If on the basis of

such an enquiry it is found that the community certificate produced by the employee is not genuine, the competent authority must cancel the

certificate. It is only on such cancellation that the employer gets a right to initiate disciplinary action on the ground that the community certificate is

not a valid certificate. Therefore, the impugned order of suspension cannot be allowed to stand. Accordingly, the order of suspension dated

27.5.1997 passed by the 1st respondent is hereby quashed and the writ petition is allowed. No costs. However I make it clear that this order will

not stand in the way of the respondents making a reference to the District Collector concerned for necessary enquiry and report.

In view of the disposal of the main writ petition, connected W.M.Ps., are closed.