Shantipuram , Visakhapatnam v. Food & Agriculture (Co-op) Department

Order

(Per P. Swaroop Reddy, J.) This writ petition is filed against the order of the A.P. Administrative Tribunal, Hyderabad in O.A.No. 210 of 1992 dated

11.03.1998.

2. The relevant facts are as follows: The writ petitioner, who is no more and is now represented by his wife and children, who are impleaded as petitioner Nos. 2 to 6. (In this order, wherever petitioner is referred, it has to be treated as the first petitioner herein only). The petitioner joined in service in 1954, claiming himself to be a person belonging to Konda Kapu community. Much later, on a complaint, an enquiry was conducted with regard to his social status, as it is alleged that he belongs to Toorpu Kapu community of Srikakulam District and not to Konda Kapu community. A criminal case in C.C.No. 117 of 1986 was also filed against him, wherein he was charged under section 471 IPC and that he was acquitted in that case. It appears that an appeal was also filed, which was dismissed. A departmental enquiry was conducted against him by the Regional Joint Registrar of Cooperative Societies, Visakhapatnam for two charges - (i) That he secured employment in Cooperative Department as Junior Inspector during the year 1954 by producing false Caste Certificate by claiming himself to be belonging to Scheduled Tribe community cheating the Government and (2) failed to produce the original caste certificate and SSLC Register for verification by the Registrar of Cooperative Societies, AP, Hyderabad, on some plea or the other.

3. Both the charges were held to be proved. Consequently he

was dismissed from service vide G.O.Ms.No. 1169, Food and Agriculture (Coop.II) Department dated:28.12.1991, against which he filed O.A.No. 210 of 1992 which was also dismissed. Aggrieved by the order in O.A., the petitioner filed the present writ petition.

4. The main contention of the petitioner is that the allegations against him are not proved; the departmental proceedings were not properly conducted and were in violation of A.P. Civil Services (Conduct, Clarification and Appeal) Rules, 1963, (for short ‘the Rules’), as well as the principles of natural Justice; that he was dismissed one month before his retirement after he rendered thirty nine years of service. According to the written arguments, the petitioner initially joined on temporary basis as Junior Inspector on 3.7.1952; he was appointed on regular basis on 3.7.1953 having been selected by Andhra Pradesh Public Service Commission. That his appointment was made after due verification of the certificates, including the Caste Certificate produced by him. He was promoted as Deputy Registrar of Cooperative Societies in October, 1983. All through there were no complaints against him. The trouble started when he filed R.P.No. 1172 of 1997 before the Andhra Pradesh Administrative Tribunal seeking retrospective promotion to the post of Deputy Registrar with effect from 1965 basing upon an Order issued by the Government of Andhra Pradesh, which contemplated reservations in promotion to the members of SC/ST categories. Certain persons that would be effected, in case, the request of the petitioner was considered, made an anonymous complaint to the effect that the petitioner submitted a false caste certificate. Pursuant to that, apparently, an enquiry was conducted by the Tahsildar, Srikakulam behind the back of the petitioner without any notice to the petitioner and a report was submitted to the effect that he does not belong to Konda Kapu community and he belongs to Turpu Kapu community. The finding of the Tahsildar was apparently based on the fact that the petitioner is residing in Srikakulam, where Konda Kapu community does not exist; family of the petitioner migrated Bhadrachalam was ignored by the Tahsildar. Basing on the report of the Tahsildar, the petitioner was placed under suspension on 1.2.1984 and the Regional Joint Registrar of Cooperative Societies was appointed as Enquiry Officer under Rule 19 (2) of the Rules. The Enquiry Officer issued a Charge Memo on 15.05.1984, framing two charges, as already referred to.

5. It is the case of the petitioner that he submitted a detailed explanation on 15.08.1984 denying the charges. He requested for oral enquiry and also examination of four witnesses in support of his case in Form No.I, which is enclosed to the Charge Memo. The Enquiry Officer conducted the enquiry in utter violation of Rule 19 (2) of the Rules. He did not conduct oral enquiry. He just relied on the report of the Tahsildar and the statements recorded by the Tahsildar from certain persons behind the back of the petitioner. Neither the Tahsildar was examined nor the other persons that have allegedly given statements were examined to prove the statements and in order to enable the petitioner to cross examine them. The petitioner was not permitted to examine the defense witnesses, whom he wanted to examine.

6. The petitioner filed R.P.No. 6329 of 1987 before the Andhra Pradesh Administrative Tribunal seeking stay of the departmental proceedings, pending criminal case, as the criminal case was instituted on the same set of facts. Subsequently the petitioner was acquitted the criminal case. Thereafter, the departmental proceedings were continued and the petitioner was dismissed from service.

7. The grounds taken by the petitioner in the written arguments are: i) The respondents have no jurisdiction to institute the impugned disciplinary proceedings and impose punishment as long as the Caste Certificate issued by the competent authority is subsisting. ii) Under Rule 19(2) of the Rules, the disciplinary proceedings for imposition of major penalty like dismissal can be instituted only by the punishing authority. In this case, the punishing authority as per Sub-Rule 17(b) of Rule 11 is the Government when major penalty like dismissal is sought to be imposed. As such the enquiry could not have been instituted by the second respondent. iii) The charge in the criminal case, as well in the disciplinary proceedings are same, based on the report of the Tahsildar, depending on identical set of facts and evidence. When the petitioner is acquitted in criminal case for want of material and the charge is held to be not proved, the respondents could not have proceeded against the petitioner. iv) The disciplinary proceedings are vitiated as the Enquiry Officer prejudged the issue and conducted the enquiry with a prejudicial mind. v) The charge is based on the report of the Tahsildar, Srikakulam, who conducted the enquiry behind back of the petitioner. vi) The Tahsildar did not take into consideration the record of enquiry conducted by the Tahsildar, Tekkali, pursuant to which the Caste Certificate was issued. The original report and the record relating to the enquiry conducted by the Tahsildar was destroyed. A copy of the enquiry report was not furnished to the petitioner. The Enquiry Officer did not examine the Tahsildar, who prepared the report or any other revenue official, to prove the report. As such the report could not have been relied upon and therefore, the disciplinary proceedings are vitiated. vii) The Enquiry Officer has not followed the procedure. No witnesses were examined. He just relied on the report of the Tahsildar and the statements recorded by the Tahsildar and none were examined. The Enquiry Officer has got the Municipal records verified by his Personal Assistant; but no witnesses were examined and copies of the documents were also not furnished.

8. Written arguments were also filed by the Respondent- Government and the petitioner filed reply arguments also.

9. Now the point that arises for consideration is whether there are any grounds for allowing the writ petition?

10. Ground No.1: Coming to ground No.1, the contention of the petitioner that the respondents have no jurisdiction to institute disciplinary proceedings and impose punishment, as long as the Caste Certificate issued by the competent authority was subsisting, cannot be accepted, as throughout, the Original Caste Certificate was not produced by the petitioner; who alone was in possession of the same. He claimed that he submitted the Original Caste Certificate and the S.S.L.C., Register to the Postal Department where he initially joined in service and those documents were never returned. Thus, there is no material on record to show that, in fact, such a certificate ever existed or whether he has simply filed a fabricated material saying that he belongs to ST community. It is not in dispute that the petitioner has not produced original caste certificate, at the time he joined the employment, though it is contended by him, at some stage that he did not get employment on the basis that he belongs to ST community. Fact remains that he filed R.P., in 1995, claiming that he should be given retrospective promotion claiming that he belongs to ST community. Thus, it cannot be denied that he claimed that he belongs to ST community. The petitioner has failed to produce the copy of the ST caste certificate and therefore, the question of cancellation of caste certificate by the competent authority does not arise. It is open for the disciplinary authority to enquire into the question as to which caste the petitioner belongs to.

11. Ground No.2: The contention of the petitioner is that punishing authority as per Sub-Rule 17(b) of Rule 11 Government, for imposing major penalty and as such the Enquiry Officer could not have been appointed by the second respondent. In support of his contention he relied on the decision of this Court in Rallapalli Satyanarayana v. State of AP.[1], wherein it was held that when the punishing authority has not instituted the disciplinary proceedings, the disciplinary proceedings stand vitiated.

12. The learned Government Pleader relied on a Larger Bench Decision of this court in K. Swarna Kumari v. Govt. of AP[2], wherein it was held that when no prejudice is caused on account of the disciplinary proceedings being instituted by the subordinate authority, the proceedings cannot be said to be vitiated. In the present case also, there is no material to show that prejudice is caused to the petitioner on account of the disciplinary proceedings being initiated by the authority subordinate to the competent authority. As such this ground is also not available to the petitioner.

13. Ground No.3: The next ground taken by the petitioner is that the charge in the criminal case, as well as in departmental proceedings are based on the same report of the Tahsildar, on identical set of facts and evidence and as he is acquitted in the criminal case, the respondents are precluded from proceeding with the disciplinary enquiry.

14. A perusal of the judgment in C.C.No.117 of 1986 passed by the learned Judicial Magistrate of First Class, Srikakulam shows that the petitioner was prosecuted for the offence under section 471 IPC. S. 471 IPC deals with “Using as genuine a forged document”. The learned Magistrate has acquitted the petitioner holding that the prosecution failed to produce the forged document that was alleged to have been used by the petitioner. The offence therein could not be proved as the Original certificate, on the basis of which the petitioner secured employment claiming himself to be a person belonging to ST community was not on record at all. The petitioner, who was in exclusive possession of the same, never produced it in spite of repeated instructions contending that it was held-up with the Postal Department, where he applied for a post As the original certificate was never produced, he was acquitted.

15. The prosecution in C.C.No.117 of 1986 on the file of the Judicial Magistrate of First Class, Srikakulam was for the offence under Sections 461 and 471 of the Indian Penal Code and he was acquitted only on the ground that the prosecution failed to produce the copy of caste certificate said to have been issued by the Revenue Authorities and therefore, it cannot be said that the accused has produced a false certificate. When the certificate itself is neither in existence nor produced, he was acquitted.

16. The Departmental enquiry was initiated under Andhra Pradesh Civil Service C.C.&A Rules, 1963 by issuing a charge Memo alleging that the petitioner secured employment in Co-operative Department as Junior Inspector by producing a false certificate claiming himself to be belonging to Schedule Tribe Community and that he failed to produce the original caste certificate and S.S.L.C. Register for verification by the Registrar of Co-operative Societies, Andhra Pradesh on some plea or other and an explanation was called for vide proceedings in Rc.No.910/84-A, dated15-5-1984, for which an explanation was submitted on 15-8-1984. Thereupon a regular departmental enquiry was conducted and the enquiry officer submitted Enquiry Report in Rc.No.910-84-A, dated 18-12-1984, recording a finding that the petitioner does not belong to “Konda Kapu”, caste as claimed by him, but he belong to “Thurupu Kapu”. With reference to charge No.2, the enquiry officer held that the petitioner failed to produce the caste certificate and S.S.L.C. Register for verification by the Registrar of Co-operative Societies. In fact, the petitioner never submitted even a copy of the caste certificate at any time from the date of initiating enquiry by the department till date. He never produced the copy of caste certificate either before the Department or before the Andhra Pradesh Administrative Tribunal or before this Court. Though there was some ambiguity in charge No.1, but we are of the opinion that charge Nos.1 and 2 shall be read together and the fact remains that the petitioner failed to produce even the copy of the caste certificate for referring the matter to the competent Revenue Authorities for cancellation of the so called caste certificate. When the caste certificate itself has not been produced at any time by the petitioner, it cannot be said that the enquiry initiated by the department to find out whether he belong to Schedule Tribe or not is, illegal.

17. The learned counsel for the petitioner relied on a decision the Hon’ble Supreme Court in Cpt. M. Paul Anthony v. Bharat Gold Mines Ltd.[3], in support of his contention that acquittal in a criminal case would prohibit the departmental proceedings on the same set of facts. That was a case where the Security Officer was allegedly found in possession of a gold ball for which he was prosecuted and acquitted and on the same set of facts disciplinary proceedings were held to be not maintainable. Here, the facts are different and as already referred to; the petitioner was acquitted for a charge of “forgery”, whereas the departmental proceedings are instituted for obtaining job on the false claim of ST status.

18. Ground Nos.4 to 7: (a) The case of the petitioner before the Tribunal is that in fact he belongs to “Konda Kapu” community and obtained certificate to that effect, and therefore, it cannot be said that he has obtained employment basing on a false caste certificate. It is further stated that cast certificate issued by the competent authority is subsisting and it is for the competent authority to verify the caste certificate and decide that the caste certificate produced by the petitioner is genuine or false but not by the enquiry officer or disciplinary authority. From the beginning the case of the petitioner is that he does not belong to “Turupu Kapu”, but he belongs to “Konda Kapu” community and “Konda Kapu” community is ST community. (b) In support of the contention of the petitioner that he belongs to “Konda Kapu”, no material has been placed before the Enquiry Officer. The Enquiry Officer recorded a finding that even as per the explanation of the petitioner, who stated that he was born on

14.02.1934, but not in 1931, the birth registers disclose that the caste of the child born on the aforesaid date was “Kapu”, but not “Konda Kapu”. “Kapu” community is not the Scheduled Tribe community. In spite of the requests made by the Enquiry Officer to furnish the originals of SSLC Register and Caste Certificate issued by the concerned revenue authorities or the certificate issued by the Municipal High School or photo copies of the same, the petitioner failed to produce the same for causing an enquiry or to examine the concerned persons. The explanation of the petitioner is that the originals which were submitted to the Divisional Engineer, Telegraphs, Kurnool in connection with his selection for the post of clerk were not returned. No material to that effect has been placed before the Enquiry Officer and if those documents were lost, nothing prevented the petitioner from obtaining duplicate copies of the same and produce. The petitioner has also not produced any Caste Certificate relating to his relations i.e. his brothers, uncles or near relatives. It is stated that the uncles of the petitioner have stated before the Tahsildar that they belong to “Kapu” community. The transfer certificate of the brother of the petitioner K.Suryaprakashrao shows that he belongs to Hindu Kapu, but not “Konda Kapu”. The petitioner has failed to furnish the particulars of his ancestors and properties owned at Bhadrachalam to enable the Enquiry Officer to enquire into the genuineness or otherwise of the caste of the petitioner. (c) In fact, the Registrar of Cooperative Societies, vide his letters in Rc.No.1197/84-G2, dated 29.06.1984 and 26.07.1984 sent the copies of the statements recorded from his paternal uncle by the Tahsildar, Srikakulam that the charged officer belongs to “Kapu” community. The statement of the Village Officer stating that the petitioner belongs to “Turupu Kapu” was not rebutted. There was no explanation from the petitioner for the aforesaid material furnished to him. Therefore, the Enquiry Officer held that the charged officer has failed to adduce any evidence in support of his claim that he belongs “Konda Kapu” which is the Scheduled Tribe community, and accordingly, concluded that the charged officer does not belong to “Konda Kapu” as claimed by him and he belongs to “Turupu Kapu” and hence charge No.1 is proved. (d) In so far as charge No.2 is concerned, admittedly, the petitioner has failed to produce the original caste certificate and SSLC certificate for verification by the Registrar of Cooperative Societies, and the plea of the petitioner that the original certificates were submitted the Divisional Engineer, Telegraphs, Kurnool verification and return in connection with his selection to the post of Clerk in the Department in the year 1955 and that they have not returned the said documents to him is found to be baseless, as no material was placed to that effect. When there is no certificate at all produced by the petitioner stating that he belong to “Konda Kapu”, question of verification of the genuineness of the said certificate said to have been issued by the competent authority does not arise. The enquiry relating to cancellation of the caste certificate is distinct and different from that of departmental proceedings. There cannot be any dispute that the petitioner had secured the job claiming that he belongs to “Konda Kapu”, which is a Scheduled Tribe community, by concealing his original caste “Turupu Kapu” which is not a Scheduled Tribe community. Therefore, we are of the opinion that the Enquiry Officer has rightly held that the petitioner does not belong to “Konda Kapu” and he has willfully failed to produce the caste certificate as well as the SSLC Register with a view to protect his job which was secured claiming that he belongs to “Konda Kapu” by playing fraud on the Department. (e) There appears to be no serious dispute about the petitioner obtaining a false certificate and claiming the benefits under the same. In spite of repeated instructions, he never produced his Original SSLC Register and the Caste Certificate on the basis of which he got the employment. Both the above documents could have thrown substantial light on the factual aspect of the case. The SSLC Register would have revealed as to whether the petitioner belongs to “ST Community” and the Caste Certificate would have revealed the exact position with regard to its genuineness etc. It is difficult to believe that the petitioner kept quiet, when such important documents were not returned to him by the Postal Department, as without those there was no possibility of his getting employment elsewhere subsequently and at the relevant time, it would not have been difficult for him to get a Duplicate SSLC Register in case, actually, the original was lost. Obviously, he wanted to suppress both the above documents, and the above suppression has to be treated adverse to him. Therefore, none of the grounds raised by the petitioner are tenable.

19. In Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir [4] the Hon’ble Apex Court held that when a false Caste Certificate is produced, in spite of there being long service, there is no place for sympathy and generosity. In the present case, petitioner was in service for more than three decades and just before a month of his retirement, he was dismissed from service. But, in view of the above Judgment of the Hon’ble Apex Court, no sympathies can be shown towards him.

20. In view of the aforesaid facts and circumstances, we are of the opinion that the petitioner played fraud on the Department in securing the employment and the Enquiry Officer rightly held that he does not belong to “Konda Kapu” community and he has intentionally failed to produce the relevant documents, SSLC register and caste certificate. Fraud vitiates every thing and therefore, procedural irregularities pleaded by the petitioner that the Enquiry Officer has not followed all the technicalities in conducting the enquiry cannot be accepted.

21. Thus, we hold that the Tribunal has rightly appreciated the rival contentions and dismissed the application filed by the petitioner, and we do not see any error committed by the Tribunal warranting interference, and accordingly, we dismiss the writ petition. No order as to costs. _______________________ V.ESWARAIAH, J ___________________________ P.SWAROOP REDDY, J Dated: 05.02.2010 Bvs/Dsr