Ritlal Prasad Mandal vs The Chief General Manager Mahanadi Coalfield Ltd.

Dr. B.R. Sarangi, J—The petitioner, who was working as a Production-cum-Safety Assistant, Lakhanpur Opencast Project, Lakhanpur under Mahanadi Coal Field Limited has filed this application seeking to quash the order of dismissal passed by the Project Officer vide Annexure-8 dated 25.07.2008.

The short fact of the case in hand is that the mother of the petitioner Bhatri Devi @ Parwatiya Korin belonging to ''''Kora'''' caste of S.T. community of village Palra married to Govind Mandal of village Chunglo and they gave birth to Ritlal Prasad Mandal, the present petitioner and ''Kora'' society admitted the petitioner as ''Kora'' which comes under S.T. community. The petitioner having belonged to S.T. community pursuant to the advertisement for filling up of the post of Mining Sirdar in Technical Supervisory Grade-C category applied for the same. He having been selected, was appointed in the said post on 16.01.1995 vide Annexure-1. While he was so continuing, the opposite party issued a charge-sheet calling upon the petitioner to show cause as to why a disciplinary proceeding shall not be initiated against him in accordance with the provisions of the Certified Standing Orders of the company under which his service conditions are governed on the ground that he was considered as a Scheduled Tribe candidate for appointment to the post of Mining Sirdar against the vacancy reserved for Scheduled Tribe candidates and accordingly appointment order was issued in his favour vide MCL/GM/IDV/PER/Mining/22522 dated 19.01.1995. But in course of verification of the certificate submitted by him bearing No. 336 dated 15.6.1992 issued by the Block Development Officer, Jamua in the district of Giridih, it came to light that the said certificate produced by the petitioner before the M.C.L. is a fake/forged one, on the basis of which the petitioner has secured employment in MCL fraudulently which constitutes misconduct under clauses 26.1 and 26.9 of the Certified Standing Orders of the company. Therefore, he has been called upon to give explanation within seven days by letter dated 30/31.3.2006 vide Annexure-2. On receipt of such charge-sheet, the petitioner on 10.10.2006 sought for time and also sought for supply of documents so as to enable him to give explanation. Subsequently the petitioner participated in the proceeding duly assisted by Sri K.N. Mishra, Special Grade Accounts Clerk, Belpahar O.C.P., Lakhanpur Area as Co-worker. The Inquiry Officer come to a conclusion that the caste certificate against which Ritlal Prasad Mandal was offered employment against S.T. vacancy was found to be false as per letter issued by the Dy. Commissioner, Giridih addressed to the Chief Vigilance Officer, M.C.L. stating that the petitioner along with five others to be of Other Backward Caste category and Ritlal Prasad Mandal belongs to ''''sundhi'''' by caste under Other Backward Caste category. Therefore, the inquiry officer found the petitioner guilty of charges levelled against him and held that petitioner is guilty of act of misconduct under Clause Nos. 26.1 and 26.9 of the Certified Standing Order of the company. Consequentially, the order impugned in Annexure-8 dated 25.7.2008 was passed dismissing him from service. Hence this application.

Mr. A.A. Das, learned counsel for the petitioner states that the petitioner''s father being ''''sundhi'''' by caste married to a S.T., who is the mother of the petitioner who belongs to ''''Kora'''' by caste and as such ''''Kora'''' community have accepted the father of the petitioner, who by his conduct assimilated in the family of the S.T. and if after their wed-lock, the petitioner has been born and has been assimilated to the family of ''''Kora'''' community belonging to S.T. community, basing upon which certificate was provided to the petitioner on the basis of the notification dated 03.03.1979 of Government of Bihar and on that basis since the petitioner got an employment, without appreciating the same, the order of dismissal passed by the authority cannot sustain. It is stated that the reliance placed on subsequent notification of the Jharkhand Government in 2004 withdrawing the benefit of granting S.T. status to a child of S.T. mother cannot have any application in view of the fact that the benefit of S.T. status had already been availed since 1992 pursuant to 1979 notification. More so, the S.T. certificate issued by the competent authority having not been cancelled by following the principle laid down by the apex Court in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, AIR 1995 SC 94 : (1994) 5 JT 488 : (1994) 3 SCALE 935 : (1994) 6 SCC 241 : (1994) 3 SCR 50 Supp , the consequential action taken dismissing the petitioner from service also not justified. It is stated that the petitioner had also earlier approached this Court by filing W.P.(C) No. 2138 of 2008 raising selfsame contention and on consideration of the same, this Court vide order dated 18.02.2008 permitted the petitioner to make a representation before the authority during inquiry/termination proceeding, so that the same shall be considered in accordance with law. Since there is no adherence to the direction given by this Court and order of dismissal was passed on the selfsame inquiry conducted by the authority without affording opportunity, the order impugned dismissing the petitioner from service cannot sustain in the eye of law. Even if alternative remedy is available under Clause-30 of the Certified Standing Order by preferring an appeal before the competent authority but that ipso facto cannot disentitle this Court to exercise jurisdiction under Article 226 of the constitution of India, if the order has been passed without application of mind. To substantiate his contention, reliance has been placed on the judgments in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, AIR 1995 SC 94 : (1994) 5 JT 488 : (1994) 3 SCALE 935 : (1994) 6 SCC 241 : (1994) 3 SCR 50 Supp , L. Hirday Narain Vs. Income Tax Officer, Bareilly, AIR 1971 SC 33 : (1970) 78 ITR 26 : (1970) 2 SCC 355 : (1971) 1 SCR 683 , Bhajaman Pattnaik v. Union of India and others, 1998 (I) OLR 494 , Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 : (1998) 7 JT 243 : (1998) 5 SCALE 655 : (1998) 8 SCC 1 : (1998) 2 SCR 359 Supp : (1998) AIRSCW 3345 : (1998) 8 Supreme 176 , Suvendu Kumar Mohanta Vs. Union of India and Others, (2014) 1 ILR (Ori) 1083 and Guru Prasad Bose Vs. District Magistrate (ADM) Administration, OSRTC, (2014) LabIC 4420 : (2014) 2 OLR 627 .

Per contra, Mr. B.M. Pattnaik, learned Sr. Counsel for the opposite party states that the main question that arises for consideration in the writ petition as per the charge-sheet whether the petitioner belongs to S.T. as he has been appointed as per the S.T. certificate produced by him. This question was raised before the confidential department of the M.C.L., consequentially show cause notice was issued and on inquiry it is proved by the management with documentary evidence i.e. letter dated 575 dated 8.3.2006 issued by the Dy. Commissioner, Giridih that the S.T. certificate produced by the petitioner is a forged one as he belongs to backward classes and on that basis inquiry having been concluded, the action taken for dismissal of the petitioner from service is wholly and fully justified. It is further urged that due to availability of alternative remedy under Clause-30 of the Certified Standing Order of M.C.L., the order being appealable one, the writ petition is not maintainable before this Court. Accordingly, he seeks for dismissal of the same.

From the facts pleaded above, it appears that admittedly the petitioner has been selected and appointed as Mining Sirdar in Technical Supervisory Grade-C category of the M.C.L. under S.T. community on 16.01.1995 vide Annexure-1. The petitioner''s father Govind Mandal belongs to ''''sundhi'''' by caste which comes under Other Backward category whereas the mother belongs to ''''Kora'''' by caste which belongs to S.T. community. Since the father of the petitioner assimilated to the family of his wife, the mother of the petitioner and the petitioner having been born out of their wedlock, he has been treated as S.T. pursuant to the circular dated 3.3.1979 issued by the Govt. of Bihar, Personnel and Administrative Department bearing No. 11/Est.1-1040/77 Per.106. On perusal of the said circular, wherein the subject was whether born child from pure Hindu father and schedule tribe caste mother, then their born child would be graded in schedule caste/schedule tribe or not. Accordingly, direction was issued by the Bihar Govt. that if such type of born child be found and schedule tribe caste community accept him in schedule tribe caste, then child would be accepted in grade schedule caste on the basis of the decision/judgment passed by the Supreme Court in Shri V.V. Giri Vs. Dippala Suri Dora and Others, AIR 1959 SC 1318 : (1960) 1 SCR 426 . Therefore, request was made to all the Govt. Department, all Department Superintendent, all Commissioners and all District Collector that in such type of cases inquiry is essential that non-schedule caste male got child born from schedule caste lady then he has been accepted by the schedule tribe caste community or not? After inquiry the preference which are given to schedule tribe caste, availing, can be given to them.

In the present case, the father of the petitioner belongs to ''''sundhi'''' by caste and he married to the mother of the petitioner who belongs to ''''Kora'''' by caste under S.T. category and having assimilated to the family of schedule tribe and the petitioner having been born through the S.T. mother and the community having recognized him as S.T., due certificate has been given by the competent authority describing him as belonging to S.T. community. On the basis of the certificate done by the competent authority, he joined in service under the opposite parties in the year 1995. The issuance of certificate having been granted in conformity with the circular issued by the Govt. of Bihar on 3.3.1979 and on that basis right having accrued in favour of the petitioner by continuity in service as a S.T. member, the same cannot and should not have been dislodged without following due procedure of law.

In Kumari Madhuri Patil and another (supra), the apex Court has been pleased to formulate a guideline for issuance of a social status by evolving a procedure therein. In paragraph-12 of the judgment it has been dealt with elaborately, which reads as follows:

"12. The admission wrongly gained or a appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinized at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following:

The application for grant of social status certificate shall be made to the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level.

The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate.

Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.

All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any office higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.

Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial and dead bodies etc. by the concerned castes or tribes or tribal communities etc.

The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine'''' or "doubtful'''' or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the Committee and the Joint/Addl. Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-�-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.

Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.

The inquiry should be completed as expeditiously as possible preferably by day-today proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.

In case of any delay in finalizing the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.

The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

No suit or other proceedings before any other authority should lie.

The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/Miscellaneous petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.

In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament.

As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post."

In Anjan Kumar v. State Govt. and others (Civil Appeal No. 6445 of 2000), the apex Court held that the born child from Hindu father and schedule caste/schedule tribe mother cannot claim for the gradation of schedule caste/schedule tribe and not entitled for reservation in the category of Government service. After this judgment, the Govt. of Jharkhand issued a circular on 12.8.2004 bearing No. 7/Bhu.Ma.Sachi, Personnel, wherein the Jharkhand Govt. has taken a decision that the born child from pure Hindu father and Schedule Caste/Schedule Tribe caste mother cannot be given in the grade of schedule caste and schedule tribe caste. While passing such circular, the Jharkhand Govt. has taken into consideration the circular issued by the Personnel and Administration Department, Govt. of Bihar bearing No. 11/Est.1-1040/77 Per.106 and letter No. 605 dated 11.12.1985. Since the certificate has been granted to the petitioner pursuant to circular dated 3.3.1979 even after commencement of circular dated 12.8.2004, the said certificate cannot be cancelled because the circular dated 12.8.2004 will apply prospectively. The certificate has been granted pursuant to circular dated 3.3.1979 and on that basis right has already accrued in favour of the petitioner and basing upon the same the petitioner was continued in service and has taken all the benefits as a S.T. candidate. If the authorities have decided to take away that right, then principle evolved in Kumari Madhuri Patil and another case should have been adhered to. Without adhering to the procedure envisaged in Kumari Madhuri Patil and another (supra), the authority could not have proceeded against the petitioner stating that the certificate issued by the authority is a forged one.

Nothing has been brought to the notice of the Court by Mr. B.M. Pattnaik, learned Sr. Counsel for the opposite party that the certificate granted by the competent authority has been cancelled by following due procedure of law. Therefore, any action taken contrary to the certificate issued cannot sustain in the eye of law in view of the judgment in Kumari Madhuri Patil and another case (supra), wherein detail mechanism has been prescribed by evolving a procedure. As the action has been taken contrary to the same without following due procedure of law, the impugned order cannot be sustained. The contention raised that due to availability of alternative remedy under Clause-30 of the Certified Standing Order by way of preferring appeal against the impugned order, this Court should not entertain this application under Article 226 of the Constitution of India. That argument of opposite party also cannot sustain in view of the fact that even though there is availability of alternative remedy, but in appropriate case there is no bar to exercise jurisdiction under Articles 226 and 227 of the Constitution of India to prevent miscarriage of justice.

Considering the above facts and law, this Court is of the considered view that the order of dismissal from service vide Annexure-8 dated 25.07.2008 having not been passed inconformity with the provisions of law, the same cannot be sustained in the eye of law. Accordingly, the same is hereby quashed. The opposite parties are directed to reinstate the petitioner in service with all consequential service benefits as due and admissible in accordance with law within a period of four months from the date of receipt of this order.

The writ petition is allowed. However, there is no order to costs.