Shri Sadanand Raghunath Gharat vs Union of India And Ors

This application has been filed on 07.08.2012 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

"a) That this Hon'ble Tribunal will be pleased by exercising the powers conferred on/vested in it under the AT Act, to call for the records and proceedings underlying the impugned order dated 11.09.2008 and 20.04.2011(Annexure A-3 and A-1 hereto) and after examining the legality, validity, regularity and propriety thereof be pleased to quash and set aside the same with all the consequential reliefs.

b) That the costs of this Application and orders to be made thereof be directed to be paid to the Applicant.

c) That such further orders and /or directions as this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case be granted."

The applicant was appointed to a temporary post of Inspector of Central Excise by the then Collector of Central Excise, Bombay in Order No. F.No. II/31-8/77 AI(2) dt. 03.12.1977 following Establishment Order No. 374/1977 against Scheduled Tribe(ST) category. The orders of the Collector mentioned: "You should also produce in original the Certificates of educationalqualifications/age/domicile/caste (if belonging to S.C./S.T.), at the time you take up the appointment. If you claim to be a member of the Scheduled Caste or Scheduled Tribes, you should state specifically, to which of the Castes or Tribes mentioned in the Constitution(Scheduled Castes) Order, 1950, or under the Constitution(Scheduled Tribes) Order, 1950, you belong and produce a certificate in the form attached." The Establishment Order also required the office to obtain the necessary declaration and Caste Certificate from the applicant. On 29.12.1979(Annexure A-9), after verifying Service Books, the applicant, who was part of a list of 16 candidates of reserved category, was asked to produce the Caste Certificate from the Competent Authority in the prescribed format so that it could be kept with his records. The applicant had received promotions thereafter. However, it transpires that the applicant failed to submit the required certificate in the prescribed format to the respondents. At the time of appointment and joining on 03.01.1978, the applicant appears to have produced a certificate dt. 11.05.1977 from one Shri ? . G. Khedekar, Special Executive Magistrate(Greater Bombay) certifying that he knows the applicant for the last three years and that he belongs to Hindu Mahadeo Koli Community which is classified as Scheduled Tribe by the Government of Maharashtra and that to the best of his knowledge and belief, he bore good moral character. Although his appointment letter was dispatched to an address in Byculla, where he was residing, his Service Book records his father as nominee and residing at Post Uran-Vinayak of District Kolaba, now part of Uran Taluk in a record dt. 19.01.1978. This first volume of the service register also records in his bio-data that his date of birth was 24.07.1952 as verified from the School Leaving Certificate(SLC) Book issued by the General Education Institute, Uran and further, that he was not a member of a Schedule Caste/Tribe. The applicant was promoted Superintendent on 04.03.1993. The respondents claim to have issued a Notice No. II/39-I/2004/BI dt. 20.08.2004 and from the Assistant Commissioner bearing No. I/39-1/VIG/Belapur/2007 dt. 29.04.2007 more than two decades later asking him to produce the Caste Certificate as already notified but no reply was received. Instead, it appears that the applicant filed a request on 03.04.2007 seeking voluntary retirement with three months notice but this was denied. His request of voluntary retirement was rejected in letter of respondent No. 2 bearing No. F.No.II/3C-1/2007 T.II/BEL/2732 dt. 25.06.2007 declining his request for voluntary retirement on the basis that major disciplinary proceedings were contemplated against him. Meanwhile, respondents who had communicated with the Tahsildar, Uran in their letter dt. 09.04.2007 received a reply stating that the said certificate referred by the respondents was not issued from Uran Taluk, the native residence of the applicant but by a Special Executive Magistrate of Greater Bombay and therefore, requested a certificate that had been issued from their Taluk. They also stated that in terms of Circular of the Government of Maharashtra by the Tribal Development Department dt. 04.04.1985, there were no persons belonging to Scheduled Tribe Community, Mahadeo Koli, in Uran Taluk. At the same time, the applicant, in response to the letter from Vigilance mentioned above dt. 09.04.2007, also wrote to his Office requesting two months' time for obtaining a proper certificate(Annexure A-15). Further letters were sent by respondents to Tahsildar, Uran on 26.04.2007 & 04.05.2007 to which the Tahsildar, Uran replied that the applicant had presented himself on 15.05.2007 without documentary evidence and asked for eight days' time which was granted but after that, did not appear in the Office nor did he give any explanation. They had meanwhile recorded his statement on 15.05.2007 including details of his family which were identified as Mali Caste belonging to Other Backward Class(OBC) and enclosed his Birth Register Extract(Certificate) and of his brother's which categorically stated his caste as Mali. Thereafter, the applicant was placed under suspension on 15.06.2007 and Disciplinary Proceedings commenced based on which, Charge Memo was issued, Enquiry Officer's Report received and the Disciplinary Authority, respondent No.2, agreed to the Enquiry Report and dismissed the applicant from service w.e.f. 11.09.2008.

The applicant filed an appeal to the Appellate Authority namely, the President, arguing that his School Leaving Certificate(SLC) showed that he belonged to the Koli Mahadev Tribe which is recognized as Scheduled Tribe(ST) in the State of Maharashtra. Further, he stated that the authors of the 13 documents filed during the enquiry were not examined and he could not, therefore, cross-examine them. He also alleged some defects in the charge-sheet. Further, he has stated that after he was appointed on 06.12.1977, the Seniority List and subsequent promotions mentioned his caste as Scheduled Tribe and date of birth as 24.07.1952 which has now been contested by the respondents based on the birth register extract communicated by the Tahsildar. The Charge-sheet was issued, according to him, after 30 years and was clearly after excessive delay. Further, he has argued that during the enquiry, he was not given any extension of time to submit his defense. In his final request, he has also requested to be heard before deciding the appeal. The impugned orders of respondent No.1 on behalf of the President have examined his appeal with reference to the advice of the UPSC which was also communicated to him and his views obtained and had agreed that the applicant had clearly falsified his community and date of birth and although the respondents had commenced action nearly 30 years after his initial appointment when they should have actually obtained all the necessary documents, the penalty of dismissal was not excessive. The Appellate Authority therefore considered that in view of the documentary evidence available, the views of the Disciplinary Authority and the weak defense put forth by the appellant and the advice of the UPSC, the punishment of dismissal was confirmed. During the final hearing, the learned counsel for the respondents pointed to the fact that the birth register extract showed the correct date of birth but he was not pressing that issue for decision since the major issued involved in the present case was the falsification of the Caste Certificate. The learned counsel for the applicant, on the other hand, has also argued in his departmental appeal and in his present application, contending that the respondents erred in making a reference to the Tahsildar, Uran when both under the rulings of the Hon'ble Apex Court in Kumari Madhuri Patil & Anr. Vs. Addl. Commissioner Tribal Development & Ors. (1994)6 SCC 241 and in terms of the orders on the procedure mandated by The Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category(Regulation of Issuance and Verification of) Caste Certificate Act, 2000, the reference had to be made to a Caste Scrutiny Committee.

For this purpose, the applicants relied on the procedure set out in Kumari Madhuri Patil(supra), and that a decision on terminating the service of a Government employee could be done only after the Caste Certificate was invalidated by an appropriate Caste Scrutiny Committee. Learned counsel also referred to the decisions of the Hon'ble Apex Court in the cases, viz: (a) State of Maharashtra vs. Milind (2001) 1 SCC 4; (b) Kavita Salunkhe vs State of Maharashtra (2012) 8 SCC 430 and (c) Shalini vs. New English High School Association (2013) 16 SCC 526, in support of the fact that the appointment had become final, that he had received several promotions and further, as he argues, that the respondents had not contended that the Caste Certificate produced by the applicant was false, fabricated or manipulated by concealment or otherwise.

The learned counsel for respondents stated that the format required for Caste Certificate was prescribed as early as 28.01.1952 and revised on 29.10.1977. This Caste Certificate required details of the individual, parents, village, district, division and State as also by reference to such certificate issued to the individual's close relatives and further, certifying that:

"Shri/Shrimathi*/Kumari*................ and/or* his/her* family ordinarily reside(s) in village/town*........... of ........... District/Division* of the State/union Territory* of .........".

The applicant had not produced such a certificate. The certificate that the applicant had produced was also submitted for the perusal of the Court in tattered form and a copy was provided for the records which reads as below:

May, 11, 1977.

Certificate

"This is to certify that I know Shri Sadanand Raghunath Gharat for the last 3 years. He belongs to Hindu Mahadeo Koli Community which has been classified as Scheduled Tribe by the Government of Maharashtra. To the best of my knowledge and belief, he bears good moral character."

The respondents have argued that in the absence of Caste Certificate in the required format, they referred the matter to verify the community of the applicant to the Tahsildar, Uran and received a negative reply based on which disciplinary proceedings were initiated and all opportunities were granted to the applicant.

In regard to the citations, they have referred to the decision of the Hon'ble Apex Court in Chairman & MD FCI & Ors. vs. Jagdish Balaram Bahira & Ors. in which the three citations relied upon by the applicant of State of Maharashtra vs. Milind, Kavita Salunkhe vs State of Maharashtra and (c) Shalini vs. New English High School Association mentioned supra had been overuled as not the settled law on the issue.

We have gone through the O.A. alongwith Annexures A-1 to A-14, Rejoinder, Misc. Petition 736 of 2016 for condonation of delay, filed on behalf of the applicants.

We have also gone through the reply alongwith Annexures R-1 to R-8, Reply to Rejoinder, filed on behalf of the respondents.

We have heard the learned counsel for the applicant and the learned counsel for the respondents and carefully considered the facts and circumstances, Written Submissions, law points and rival contentions in the case.

At the outset, it is necessary to consider the fact that this applicant was decidedly appointed against the Scheduled Tribe quota in 1977 and the letter of appointment was addressed to him at Byculla address. Perhaps, he has moved now to Dadar where he now resides. However, the service book states categorically that he does not belong to any Scheduled Caste/Tribe which does not reflect the truth of his appointment and suggests that there was manipulation at that point of time itself. Further, it is also evident that the applicant had nominated his father who was then resident in Uran Taluk. This fact has also been certified by the Tahsildar, Uran who has referred to his birth register extract which shows that he originates from Uran Taluk. Reference to the orders of the Government of Maharashtra in No. CBC-1474/60873-J-1 dt. 01.07.1975 notes that the earlier Justices of Peace(JP) appointed in Greater Bombay had been replaced by Special Executive Magistrates appointed under Section 21 of the CRPC. This Circular orders in the name of the Governor that: "xxx. Government is pleased to clarify that as the case certificates issued by Justices of Peace in Greater Bombay and the Honorary Magistrates in Mofussil areas, were not treated as valid for the purpose of recruitment, the Caste Certificates issued by the Special Executive Magistrates appointed under Section 21 of the Code of Criminal Procedure, should not be treated as valid for the purpose of recruitment." Therefore, a Caste Certificate issued by the Special Executive Magistrate and which was produced by the applicant is patently void of any authority and was clearly a fraudulent exercise of power in violation of the orders of the Government issued in the name of the Governor under Article 166 of the Constitution. Moreover, the applicant was not originally resident in Greater Bombay and was actually a resident of Uran and therefore, the appropriate Magistrate authorized by the District Magistrate included the Tahsildar of Uran. This position changed in subsequent years and with the rulings of the Hon'ble Apex Court in Madhuri Patil supra, a compulsion was also placed on the applicants themselves, who had secured such Caste Certificate to obtain within six months, a confirmation from the relevant Caste Scrutiny Committee and this was to be done by the applicant prior to obtaining a job with an employer including the respondents. None of these aspects have been done by the present applicant.

The applicant contends that the so-called Certificate that he had produced from the Special Executive Magistrate, Greater Bombay should have been referred to the appropriate Caste Scrutiny Committee in terms of the rulings of the Hon'ble Apex Court. This is a correct position for cases in which the respondents had already accepted such certificates and they had the option of either directing the employee to obtain such verification within a period of time or else, and/or additionally, to directly address the Caste Scrutiny Committee for such verification. However, in the present case, the so-called Certificate produced by the applicant was itself void as discussed above and non-existent in law since it has been issued by an authority not competent to issue such certificates and who had no knowledge evidently of the original residence of the applicant. Nor was this certificate issued in the format prescribed because, if this has been done, the fraud would have become obvious.

A brief objection had been raised by the learned counsel for the applicant on the format required but this is eventually required to be done as set out in the Scheduled Tribes order of 1952 and there could be no deviation that the applicant would take advantage of.

The applicant has contested the fairness of the enquiry and made general statements that he was not given extension of time for filing his reply and further that he was not allowed to cross-examine the authors of the thirteen documents presented during the enquiry because the prosecution itself did not examine those authors. Reference to the 13 documents shows that they are the following:

"1) Estt. Order No. 374/1977 dt. 16.12.1977 issued by the Astt. Commr.(Hqrs) Mumbai-I appointing Shri S R Gharat as Scheduled Tribe Candidate(EXP-1).

2) Caste/Character Certificate:

Certificate issued by the specific Executive Magistrate, Greater Bombay(EXP-2).

3) Copy of School Leaving Certificate mentioning Shri S R Gharat's Caste as "Mahadeo Koli"(EXP-3).

4) Service Book abstract maintained by the Office in respect of S R Gharat Supdt. C.EX.(EXP-4).

5) Letter dt. 29.12.1979 issued by Administrative Office, Customs Preventive, Alibaug asking to produce SC/ST Certificate.(EXP-5).

6) Copy of the relevant page of Seniority List of Inspectors issued as on 01.01.1990(Page BO 58 Sr. No. 827)(EXP-6).

7) Estt. Order No. 42/1993 dt. 04.03.1993 issued by Collector, CEx. Mumbai I promoting Shri S R Gharat a Supdt. Against the reservation of ST Candidate.(EXP-7).

8) Letter dt. 10.03.2005 of Shri S R Gharat reying in response to Administrative Officer, Mumbai-II(EXP-8).

9) Letter F.No.I/Estt/39-1/BeIII/2003 dt. 24.01.2007 issued by Administrative Officer, C.Ex Bel II Dn.(Exp-9).

10) Letter F.NO.II/39-1/Vig/Belapur/2007 dt. 29.04.2007 asking Shri S R Gharat to produce the Caste Certificate (EXP-10).

11) Letter F.No. No/Admn./Kaal-9/511.4./2007 dt. 13.04.2007 issued by Tahsildar, Uran stating that as per Circular No. CBC-1684/8303/KA-II, dt. 04.04.1985 that there is no population of Scheduled Tribe "Mahadeo Koli" in Uran Tehsil, Raigad District.(EXP-11).

12) Letter F.No. No/Admn./Kaal-9/511.4./2676/2007 dt. 25.05.2007 issued by Tahsildar, Uran along with Shri Gharat's Birth-records stating that Shri Gharat belongs to Mali Community classified undr OBC Community and his actual date of birth is 24.07.1948.(EXP-12).

13) Relevant page of recruitment rules for the post of Inspectors of Central Excise(OG) at the material time i.e. in the year 1975 by the Under Secretary to the Government of India, Central Board."

Considering that these were all letters well within the knowledge of the applicant and their veracity has not been questioned at any stage and many of the letters of appointment, promotion, direction to produce Caste Certificate and so on including the letter of the Tahsildar, are official communications for which the applicant would need to produce specific evidence casting doubt on them. He has done nothing of that kind and therefore, considering the nature of these documents and the baseless character of the request, the request of the applicant was rightly rejected. Moreover, there was nothing disabling the applicant from citing these authors as defence witnesses but he has not done so.

The applicant has in his appeal also sought personal hearing from the Appellate Authority. In this regard, there is no provision in the CCS Rules for a personal hearing at the Appellate stage. The Hon'ble Apex Court has held that when the relevant rules do not make such a provision for personal hearing at the Appellate stage, there is no compulsion upon the Appellate Authority to grant such hearing as decided in State Bank of Patiala V. M.K. Singhal [1994 SCC (L&S) 1017]. In the present case, both by the rulings of the Hon'ble Apex Court in FCI supra, further in its overruling of the three decisions relied by the applicant in State of Mahrashtra vs Milind(supra) and further, as held in the decision of the Hon'ble Apex Court in R. Vishwanatha Pillai Vs. State of Kerala & Ors.[2004 SCC (L&S) 350], if the Caste Certificate of the employee was found to be false, notwithstanding his involvement in the matter, the appointment itself would become void and the employee would be denied any consequential benefits of his service although the Hon'ble Apex Court also did not consider the aspect of whether all the benefits accrued to him in the past had to be recovered from the employee. In the present case, the Caste Certificate produced by the employee was void ab initio and issued without any semblance of authority. When asked to produce a proper Caste Certificate, he declined to do so and now attributes his continuance in service as the fault of the respondents. While the respondents are no doubt responsible, that does not provide an escape route for the employee to claim some special consideration and therefore, there appears to have been no basis or grounds adequate enough for him to be specially heard in a personal hearing before passing final orders by the Appellate Authority and therefore, we hold the orders of the Appellate authority also in order.

In the circumstances, the OA is dismissed as lacking merits.

As discussed above, the record shows that not only did the Special Executive Magistrate provide a bogus caste certificate without any authority of Government and the applicant was clearly a willing and knowledgeable participant in obtaining such certificate, the respondents officials accepted this certificate and appointed the applicant in disregard of the provisions of the Act and Rules and further, without analyzing the entries in the Service Book to record "No" against the entry for Caste and Community. Again, the staff of the respondents failed to take action on the direction of their office in 1979 for follow up on the requirement of a Caste Certificate in the requisite format from the applicant. All these suggests the existence of criminal intent. The respondents are, therefore, directed to consider initiating criminal prosecution against the applicant who submitted a fraudulent certificate, attesting false entries in the Service Book and for refusing to conform to lawful orders requiring production of necessary documents; the then Special Executive Magistrate, Greater Bombay; and the officials of the respondents who allowed appointment, prepared a false Service Book, and failed to follow up on obtaining the Caste Certificate and this exercise for initiating prosecution shall be considered and initiated within a period of four weeks of receipt of a certified copy of these orders. These actions are in accord with the mandates contained in the judgment of the Hon'ble Apex Court in Madhuri Patil supra and in The Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category(Regulation of Issuance and Verification of) Caste Certificate Act, 2000 and such action shall be initiated within eight weeks of receipt of these orders.

On the aspect of costs, although the applicant claims to be a cancer patient, he has obtained substantial benefits over 30 years of service and promotions to very responsible positions in the Customs Department. By filing this application, he has engaged in irresponsible litigation and caused further waste of the respondents' time and money and is therefore directed to bear the legal costs of respondents which are quantified at Rs. 40,000/- and may be recovered as per law.