High Court
Facts
Writ Petition No.951/2023:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.951 OF 2023 WITHCIVIL APPLICATION NO.12074 OF 20231)Central Provident Fund Commissioner, Employees Provident Fund Organization,Head Office, Bhavishya Nidhi Bhavan,Bhikaji Cama Place, New Delhi – 110 0662)The Additional Central Provident FundCommissioner, Employees Provident FundOrganization, Zonal ACC Office, Maharashtra(Excluding Mumbai), 2nd Floor, Pune Cantonment Board Building, Near Golibar Maidan, Camp, Pune, Maharashtra – 411 0013)The Regional Provident Fund Commissioner-IEmployees Provident Fund Organization,Regional Office, Bhavishya Nidhi Bhawan,Plot No.2, Town Centre, Commercial Area,CIDCO, New Aurangabad – 431 029 … PETITIONERSVERSUS1)Subhashchandra Nandanwar(son of Sadashiv Paikuji Nandanwar)Age 63 years, Occ. Retired,R/o Chandranagar, Naik Nagar Road,Near Bhagwan Nagar, Nagpur State of Maharashtra – 440 0272)Union of Indiathrough Secretary,Ministry of Labour & Employment,Shram Shakti Bhawan, New Delhi- 110066(Res.No.2 formal party)… RESPONDENTS
Legal Reasoning
Writ Petition No.951/2023:: 15 ::which has remained unverified shall not be released. It is notthat all the doors for respondent No.1 are closed. He can stillsubmit his tribe certificate for verification and once the ScrutinyCommittee validates his certificate, the petitioners would bebound to release all the retiral benefits. It is surprising that, therespondent No.1 does not wish to submit his tribe certificate forverification. It is true that, some of the other employees placedsimilar to the case of respondent No.1 have been granted theirretiral benefits. However, in our view, there cannot be a parityin case of illegality. The petitioner- employer may hold enquiryagainst those employees who are responsible for release ofsuch benefits and even may recover the loss suffered by theUnion in that regard.21.On the ground of delay and laches is concerned, itis not that the petitioner has approached this Court after7 or 8years. The petition has been filed before 3 years of passing ofthe order impugned herein. The meanwhile period wascovered by Covid-19 pandemic. Moreover, in paras No.15 and16 of the petition, the petitioner has explained the delaycaused in approaching this Court. Writ Petition No.951/2023:: 16 ::22.It is true, in the following cases relied upon bylearned Advocate for respondent No.1, it has been observedthus :-(1)John. A. Fernandes & anr. Vs. Secretary (Transport)Government of Goa & ors. [ 2018 (5) Mh.L.J.862 ]Constitution of India, Arts. 226 & 227 – Writ Jurisdiction –Petitioner must approach Court diligently and without laches – Courtis entitled to refuse exercise of equity jurisdiction if Court finds thatpetitioners have not approached Court diligently and is responsiblefor resultant prejudice to innocent parties.(2)Sayaji s/o Mahadu Gavhane & ors. Vs. Bajaj Auto Ltd.[ 2018(3) Mh.L.J. 296 ]Constitution of India, Arts. 226 & 227 – Writ Jurisdiction –Exercise of – Is discretionary and it is not required to be exercisedunless substantial injustice has ensued or is likely to ensue.The employer did not institute Writ Petition within reasonabletime from the Industrial Tribunal’s impugned order dated 19/1/2011.Writ Petition was not even instituted within reasonable time from thedate of institution of Writ Petition by the workmen. Writ Petitionwas instituted almost 18 months after order of High Court dated30/1/2015, allowing the Review Petition and restored Writ Petition tothe file. If the employer was indeed aggrieved by any findingrecorded by the Industrial Court in its order dated 19/1/2011, then, itwas the duty of the employer to institute a petition to question thesame within reasonable time from the date of institution of WritPetition by the workmen. The employer, however, took its chanceand has chosen to institute Writ Petition after inordinate andunexplained delay. The technical objection, raised by the employer,that application of the employees for restoration of Complaint (ULP)was allegedly instituted 07 days beyond prescribed period oflimitation, in the petition which has been instituted almost five years Writ Petition No.951/2023:: 17 ::after the finding of maintainability was rendered against theemployers, would certainly, not constitute any promotion of justice,which is the very purpose for which such extraordinary powers toissue writs have been vested in the High Court.(3)Pathapati Subha Reddy (Died) by L.Rs,. & ors. Vs.The Special Deputy Collector (L) [ Special Leave Petition (Civil) No.31248 of 2018, decided on 8th April 2024 ]Limitation Act – The interplay between Sections 3 and 5 –Section 5 needs “sufficient cause” to be proved as a conditionprecedent to condone delay.Held: Section 3 being a substantive provision of mandatory natureneeds to be interpreted strictly – Section 5 being a discretionaryprovision has to be interpreted liberally because it helps the Courts todo substantial justice – Based on the object of the law of limitation,viz., public policy, both these Sections have to be construedharmoniously – The existence of “sufficient cause” for condoningdelay in filing the suit, appeal or application is a condition precedentto exercise the discretionary power of Courts to condone the delay.23. The order impugned herein was passed on21/2/2020. The Hon’ble Supreme Court of India, in Suo MotuWrit Petition (C) No.3 of 2020, passed the order on 23/3/2020as under :Human and Civil Rights – Humanitarian and NaturalDisasters, Epidemics and Pandemics – Outbreak ofCoronavirus (COVID-19) pandemic in country -Difficulties faced by lawyers/ litigants in physical filingof their cases within period of limitation prescribedunder general law or special law provided by Stateand/or Central laws.Period of limitation in all such proceedings, irrespective Writ Petition No.951/2023:: 18 ::of the limitation prescribed under the general law orspecial laws whether condonable or not, held, shall standextended w.e.f. 15/3/2020 till further orders to be passedby Supreme Court – present order binding on all Courtsand Tribunals within the country – High Courts tocommunicate this order to all subordinate Courts withintheir jurisdiction – Limitation Act, 1963 – Generally –Practice and procedure – Delay/ Laches/ Limitation. Again on 27/4/2021, the Apex Court passed thefollowing order in Misc. Application No.665/2021 :-Practice and Procedure – Delay/Laches/Limitation- COVID-19 Pandemic – Hardship of litigant-public – Relief -Second surge in COVID-19 Pandemic –Earlier orders relaxing limitation periods, restored andextended indefinitely till further orders – Clarificationsissued – Period(s) of limitation, as prescribed under anygeneral or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shallstand extended till further orders. Again the Apex Court, in Misc. ApplicationNo.21/2022 in the very Suo Motu Writ Petition, passed theorder on 10/1/2022 :-“5.1The order dated 23/3/2020 is restored and incontinuation of the subsequent orders dated 8/3/2021,27/4/2021 and 23/9/2021, it is directed that the periodfrom 15/3/2020 till 28/2/2022 shall stand excludedfor the purpose of limitation as may be prescribedunder any general or special laws in respect of alljudicial or quasi-judicial proceedings.5.2Consequently, the balance period of limitationremaining as on 3/10/2021, if any, shall become
Arguments
Writ Petition No.951/2023:: 2 ::.......Mr. Nitin K. Chaudhari, Advocate for petitioners Mr. Suresh Kulkarni, Advocate for respondent No.1. Mr. Rahul Bagul, Standing Counsel for respondent No.2. ....… CORAM : R.G. AVACHAT ANDSANDIPKUMAR C. MORE, JJ.DATED : 5th May, 2025ORAL JUDGMENT (PER R.G. AVACHAT, J.) :Rule. Rule made returnable forthwith and heardfinally with the consent of learned counsel for the parties.2.The challenge in this Writ Petition, under Article226 of the Constitution of India, is to clause Nos.4 and 5 of theoperative order passed by the Central Administrative Tribunal(CAT), on 21/2/2020, in Original Application, (OA)No.741/2018. For better appreciation, the entire operativeorder passed by the CAT is reproduced as it is below :“(I)The impugned orders dated 27/3/2018, 28/3/2018and 4/4/2018 (Annexure A-1) are quashed and setaside.(II)The applicant shall deem to have voluntary retiredon 1/3/2018 or the date when three months noticegiven by the applicant vide his notice dated30/11/2017 expired. Writ Petition No.951/2023:: 3 ::(III)The respondents shall pass necessary orders withregard to (ii) above within four weeks of receipt ofa certified copy of this order.(IV)The respondents shall also grant the consequentialbenefits i.e. payment of retiral dues to theapplicant within eight weeks of passing of theorder as directed at (iii) above.(V)The applicant shall be entitled for the interest onthe arrears of pension and pensionary benefits atthe rate of 6.5% p.a. from the date the same havebecome due to him till payment thereof.”3.FACTS :The respondent No.1, representing himself to havebelonged to "Halba" Scheduled Tribe (ST), applied forappointment to the post of Lower Division Clerk (LDC). As hewas successful, he got the appointment on the post of LDCreserved for Scheduled Tribe candidate. It was anemployment with the petitioner– Employees Provident FundOrganization (EPFO). Respondent No.1 was initiallyappointed in Mumbai region and after having subjected tovarious transfers, his last posting was at Aurangabad. On30/11/2017, the respondent No.1 preferred application forvoluntary retirement in terms of Rule 48 of the Central CivilServices (Pension) Rules. According to him, he had Writ Petition No.951/2023:: 4 ::completed little over 33 years of service and his health was noton his side to work any longer. His application was notresponded to by the concerned authorities. It was a notice fora period of 90 days as is mandatorily required in terms of thesaid rule. It is only in March 2021, the employer turned downthe petitioner's request. Even therebefore, the VigilanceDepartment had given him a certificate indicating nodepartmental enquiry was pending against him.4.The record indicates that, in the year 2007 and2008, the employer, at least not less than 4 occasions, calledupon the respondent No.1 to submit his caste certificate forsubmitting to the Caste/ Tribe Certificate Scrutiny Committeefor its verification. The respondent No.1 did not respondthereto.5.Admittedly, in the meanwhile, the Apex Courtpassed the judgment in case of Chairman and ManagingDirector, Food Corporation of India & ors. Vs. JagdishBalaram Bahira & ors. (2017) 8 SCC 670. A detailedreference to the observations therein would be made a littlelater. Writ Petition No.951/2023:: 5 ::6.After the statutory notice period was over, therespondent No.1 asked his employer for release of his retiralbenefits. Since his request was turned down, he approachedthe CAT by filing OA No.741/2018.7.Heard. We do not propose to reiterate thesubmissions advanced by learned Advocate for the petitionerssince those may be our reasons in support of the order. Onthe other hand, learned Advocate for respondent No.1 wouldsubmit that, the petition has been filed about three years afterthe order impugned in this petition was passed. He relied on ahost of authorities to submit that, this Court shall not exercisediscretionary powers in favour of the petitioners since it is acase of huge delay and laches as well. He would furthersubmit that, due to passage of time, rights have been accruedin favour of respondent No.1. Turning to the merits of thecase, the learned Advocate would submit that, the CentralGovernment employees are not governed by the provisions ofthe Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, OtherBackward Classes and Special Backward Category Writ Petition No.951/2023:: 6 ::(Regulation of Issuance and Verification of) Caste CertificateAct, 2000 (hereinafter referred to as the Act of 2000). Hewould further submit that, it was sufficient for the employer toverify the certificate submitted by the candidate at the time ofsecuring employment with it. It was a business between theemployer and the District Magistrate (competent authority) whohas issued such certificate. He relied on number of officememorandums in this regard. He would further submit that,the other authorities of the petitioner had in fact been ready torelease all the retiral benefits of the respondent No.1. Hewould further submit that, not less than 10 similarly placedemployees have been benefited. The employer i.e. thepetitioner herein has, without demur, released all the retiralbenefits of those employees. Their names figure in theaffidavit-in-reply. According to him, it is a completediscrimination and violative of Articles 14 and 16 of theConstitution of India. The main limb of submission of learnedAdvocate for respondent No.1 is that, once the respondentNo.1 issued a notice of voluntary retirement and the statutoryperiod of 90 days was allowed to be passed post receipt of thenotice, the retirement is automatic and no employer-employee Writ Petition No.951/2023:: 7 ::relationship thereafter remains between them. The respondentNo.1 thus became entitled for all the retiral benefits. Thelearned Advocate has relied on host of the judgments of thisCourt, indicating directions to release the retiral benefits of theemployees whose case was placed similar to that of therespondent No.1 herein. He would further submit that, thescope of Articles 226 and 227 of the Constitution of India isdiscretionary in nature. 8.He would further submit that, an employee who hasrendered not less than 33 years of service, would be on streetif his pensionary benefits are not released, when the similarlysituated employees have been granted the same reliefs evenwithout approaching the Courts of law.9.We have considered the submissions advanced.Perused the order impugned herein. Also perused theauthorities relied on by learned Advocate for respondent No.1.Most of them are the authorities of Division Bench of thisCourt. Although, the relief in respect of the similarly placedemployees has been granted therein, we are unable topersuade ourselves by those authorities in the face of the Writ Petition No.951/2023:: 8 ::judgment of the three judge Bench of the Supreme Court incase of Food Corporation of India (supra). Admittedly, therespondent No.1 had obtained the job with the petitioner asLDC on the post reserved for Scheduled Tribe category. Thattime, he submitted a copy of his tribe certificate. The originalwas with him. It is true that, until 2007, the employer did notask him to submit his original tribe certificate for verification.There are, however, communications in the year 2007,indicating the petitioners to have time and again called uponthe respondent No.1 to submit original tribe certificate forsubmitting it for verification along with Form E.10.Section 6 of the Act of 2000 reads thus :6. Verification of Caste Certificate by ScrutinyCommittee.—(1) The Government shall constitute by notificationin the Official Gazette, one or more ScrutinyCommittee(s) for verification of Caste Certificatesissued by the Competent Authorities under sub-section(1) of section 4 specifying in the said notification thefunctions and the area of jurisdiction of each of suchScrutiny Committee or Committees.(2) After obtaining the Caste Certificate from theCompetent Authority, any person desirous of availingof the benefits or concessions provided to theScheduled Castes, Scheduled Tribes, De-notified Writ Petition No.951/2023:: 9 ::Tribes (Vimukta Jatis), Nomadic Tribes, OtherBackward Classes or Special Backward Category forthe purposes mentioned in section 3 may make anapplication, well in time, in such form and in suchmanner as may be prescribed, to the concernedScrutiny Committee for the verification of such CasteCertificate and issue of a validity certificate.(3) The appointing authority of the Central or StateGovernment, local authority, public sectorundertakings, educational institutions, Co-operativeSocieties or any other Government aided institutionsshall, make an application in such form and in suchmanner as may be prescribed by the ScrutinyCommittees for the verification of the CasteCertificate and issue of a validity certificate, in case aperson selected for an appointment with theGovernment, local authority, public sectorundertakings, educational institutions, Co-operativesocieties or any other Government aided institutionswho has not obtain such certificate.(4)The Scrutiny Committee shall follow suchprocedure for verification of the Caste Certificate andadhere to the time limit for verification and grant ofvalidity certificate, as prescribed. 11.A Division Bench of this Court, in case of AshabaiBhila Koli & ors. Vs. Bharat Sanchar Nigam Ltd. & ors. (WritPetition No.9885 of 2019 with companion petitions, decided on13/3/2020, has observed in paragraph No.15 thus :"15.The Apex Court in case of Chairman andManaging Director, Food Corporation of India andothers Vs. Jagdish Balaram Bahira and others (supra)was dealing with the matter of an employee from a Writ Petition No.951/2023:: 10 ::public sector undertaking and as observed above SubSection 3 of Section 6 of the Maharashtra Act No.XXIII of 2001 even covers public sectorundertakings. Sub Section 3 of Section 6 of theMaharashtra Act No. XXIII of 2001 is mandatory.”12.The submission of the learned Advocate forrespondent No.1 that the Central Government employees areno way governed by the provisions of the Act of 2000 holds nowater.13.The Apex Court, in case of Food Corporation ofIndia (supra), has given the following directions:-69.5.By Maharashtra Act 23 of 2001 there is alegislative codification of the broad principlesenunciated in Madhuri Patil (State of Maharashtra Vs.Milind, (2001) SCC 4 : 2001 SCC (L&S) 117. Thelegislation provides a statutory framework forregulating the issuance of caste certificates (Section4); constitution of Scrutiny Committees forverification of claims (Section 6); submission ofapplications for verification of caste certificates(Sections 6(2) and 6(3); cancellation of castecertificates (Section 7); burden of proof (Section 8);withdrawal of benefits obtained upon the invalidationof the claim (Section 10); and initiation of prosecution(Section 11), amongst other things.69.6The power conferred by Section 7 upon theScrutiny Committee to verify a claim is both inrespect of caste certificates issued prior to andsubsequent to the enforcement of the Act on18/10/2001. Finality does not attach to a caste Writ Petition No.951/2023:: 11 ::certificate (or to the claim to receive benefits) wherethe claim of the individual to belong to a reservedcaste, tribe or class is yet to be verified by theScrutiny Committee.69.7Withdrawal of benefits secured on the basis of acaste claim which has been found to be false and isinvalidated is a necessary consequence which flowsfrom the invalidation of the caste claim and no issueof retrospectivity would arise. Directions No.69.6 and 69.7 are material one.Those directions in so many words state that, finality does notattach to a caste certificate which has remained to be validatedor verified by the Scrutiny Committee.14.It has further observed that, withdrawal of benefitssecured on the basis of a caste claim, which has been found tobe false and invalidated is a necessary consequence whichflows from the invalidation of the caste claim and no issue ofretrospectivity would arise.15.It is true that, in the case in hand, the castecertificate of the respondent No.1 has not yet been held tohave been forged or invalidated. The respondent No.1's standappears to be adamant. In response to the various lettersissued by the employer, it was his contention in his response/ Writ Petition No.951/2023:: 12 ::communication dated 27/3/2007 as follows :"I, therefore, fail to understand why and how, youroffice is adopting, the procedure other than establishedby your own department in similar cases. This issuemay kindly be got clarified from the superior offices.Moreover, a Form-E sent by you vide your letter dated8/3/2007, it is actually an application form which hasto be filled in and signed by the employee. As amatter of fact and you will agree that, it is myprivilege whether I should apply for the same or notand I cannot be complied to do so. The rules ofverifications are same for all categories i.e.SC/ST/OBC. Accordingly, the verification has to begot done from all the employees of all the categories.But this is not being done. Only the employees ofspecific categories are being harassed. This istherefore nothing but discrimination and breach ofprovisions made under the constitution of India, aswell as disregard to the orders/ instructions issued byGovernment of India from time to time. 16.According to learned Advocate for respondentNo.1, this stand was based on office memorandums issued bythe DOPT from time to time.17.The respondent No.1 was even forwarded with acopy of Form-E for being submitted by him along with certaindocuments for being sent to the Tribe Certificate ScrutinyCommittee. All along he did rest his claim on the officememorandums. His further stand is that, once the employer Writ Petition No.951/2023:: 13 ::allowed him to retire without any demur, the necessary benefitsarising from his retirement must flow in his favour.18.The Apex Court, in case of Chief Regional Officer,the Oriental Insurance Company Ltd. Vs. Pradip & anr. (2020SCC OnLine SC 95), referred to para 65 of the judgment incase of Food Corporation of India (supra) which reads thus :“17.In the decision in Food Corporation of India & ors.Vs. Jagdish Balaram Bahira & ors. (2017) 8 SCC 670,this Court held :65.Administrative circulars and governmentresolutions are subservient to legislative mandate andcannot be contrary either to constitutional norms orstatutory principles. Where a candidate has obtained anappointment to a post on the solemn basis that he or shebelongs to a designated caste, tribe or class for whom thepost is meant and it is found upon verification by theScrutiny Committee that the claim is false, the servicesof such an individual cannot be protected by takingrecourse to administrative circulars or resolutions.Protection of claims of a usurper is an act of deviance tothe constitutional scheme as well as to statutory mandate.No government resolution or circular can overrideconstitutional or statutory norms. The principle that theGovernment is bound by its own circulars is well settledbut it cannot apply in a situation such as the present.Protecting the services of a candidate who is found not tobelong to the community or tribe for whom thereservation is intended substantially encroaches uponlegal rights of genuine members of the reservedcommunities whose just entitlements are negated by thegrant of a seat to an ineligible person. In such a situationwhere the rights of genuine members of reserved groups Writ Petition No.951/2023:: 14 ::or communities are liable to be affected detrimentally,government circulars or resolutions cannot operate totheir detriment.”19.In view of the aforesaid dictum, all the officememorandums which run counter to the directions issued bythe Apex Court in case of Food Corporation of India (supra)have been held to be void.20.So far as regards the contention of the learnedAdvocate for respondent No.1 that since the employer did notrespond to the voluntary retirement notice and allowed to lapsethe statutory period of 90 days, the employer now cannot beheard to say (estopped) that it will not release the retiralbenefits are concerned, it is true that the employer sat on thenotice and it is only in the fourth month of the notice, it camewith a stand to have refused to accept the petitioner's requestfor voluntary retirement in terms of the phraseology of Rule 48.The respondent No.1 really stood retired for want of inactionon the part of the petitioner- employer in not refusing to accepthis notice. However, here again the direction of the ApexCourt in Food Corporation of India (supra) would come intoplay, whereby the benefits attached to the caste certificate
Decision
Writ Petition No.951/2023:: 19 ::available with effect from 1/3/2022.”24.We, therefore, find it to be not a case to dismiss thepetition on the ground of having approached this Court afterlittle over two and half years of passing of the impugned order.25.The CAT appears to have not addressed the issueraised by the petitioners therein relying on the judgment incase of Food Corporation of India (supra). It straightawayinterpreted Rule 48 and allowed the OA. In our view, the orderimpugned herein is contrary to the law laid down by the ApexCourt in case of Food Corporation of India (supra). Aninterference therewith is, therefore, warranted. 26.In the result, the Writ Petition succeeds. It is allowed interms of prayer clause (B). Rule made absolute accordingly.27.In view of disposal of the Writ Petition, CivilApplication No.12074/2023 stands disposed of.(SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.)fmp/-