IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.04.2010 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.No.1148 OF 2008 & M.P.No.1 of 2008 S.Namachivayam ..Appellant Vs. The Bharat Heavy Electricals Limited rep.by its General Manager Trichy-620 014. ..Respondent Prayer: Writ appeal against the order dated 12.06.2008 passed by this court in W.P.No.16468/1998. For Appellant : Mr.V.Vijayashankar For Respondent : Mr.B.T.Seshadri ----------- JUDGMENT
K.K.SASIDHARAN, J
This writ appeal is directed against the order dated 12 June, 2008 in W.P.No.16468 of 1998 whereby and whereunder the learned Single Judge negatived the request of the appellant to drop all further proceedings pursuant to the charge sheet issued to him on 23 September, 1998, in view of the decree granted by the Civil Court in O.S.No.274 of 1996.
THE FACTS:-
2. The appellant was appointed as an unskilled labourer in the Cold Mill Production Unit of Bharat Heavy Electricals Limited at Trichirappalli under the quota reserved for Scheduled Tribes. At the time of his appointment, he had produced a community certificate indicating that he belonged to Konda Reddy Community notified as Scheduled Tribe under the Constitution (Scheduled Tribes), Order, 1950 issued by the President under Article 342 of the Constitution of India. The Community Certificate issued by the Tahsildar, Thuraiyur dated 21 September, 1977 was counter signed by the Village Munsif and the Revenue Inspector. Subsequently, as per the directions of the employer, another community certificate was produced on 19 January, 1979 obtained from the First Class Magistrate, Kulithalai. The appellant was later promoted as a semi-skilled worker.
3. While so, an enquiry was commenced in the year 1988 with respect to the community status of the petitioner on the basis of anonymous petitions received from third parties. The District Collector, Trichirappali conducted the enquiry and passed an order cancelling the community certificate issued to the appellant. The said order was challenged by the appellant along with others in W.P.No.5724 of 1991. The said writ petition was allowed with liberty to the authorities to conduct fresh enquiry. Subsequently, the District Collector conducted fresh enquiry and passed an order on 7 February,1991 confirming the earlier order of cancellation. Since the District Collector has cancelled the Community Certificate of other individuals also, batch of writ petitions were filed before this Court.
4. The appellant along with others filed a writ petition in W.P.No.603 of 1995. The writ petition was dismissed by this Court taking note of the Civil Suits filed by some of the aggrieved parties. The appellant was also given liberty to file a Civil Suit. Accordingly, he filed a Civil Suit in O.S.No.274 of 1996 and the said suit was decreed as per judgment and decree dated 10 July, 1997.
5. Though, initially a charge memo was issued in the year 1988 on the basis of the order passed by the District Collector, Trichirappalli cancelling the community certificate, no follow up action was taken to proceed with the disciplinary proceedings. However the respondent initiated further action after the Civil Court decree in O.S.No.274 of 1996 and therefore the appellant filed a writ petition to quash the charge memo dated 23 September, 1988.
6. The learned Single Judge was of the view that the Civil Court has no jurisdiction to set aside the order passed by the District Collector in the matter of cancellation of community certificate and as such concluded that no case was made out to quash the charge memo. Accordingly, the writ petition was dismissed. It is the said order which is impugned in this writ appeal.
SUBMISSIONS:-
7. The learned counsel for the appellant contended that it was only on the basis of the liberty granted by this court in Writ Petition No.603 of 1995, the appellant has filed a civil suit and therefore the finding rendered by the learned Single Judge to the effect that the civil court has no jurisdiction to entertain the suit is liable to be set aside. According to the learned counsel, the appellant has obtained a valid decree from a civil court and so long as the said decree stands, it was not open to the respondent to proceed with the disciplinary proceedings on the basis of the non-existing order passed by the District Collector. The learned counsel further contended that there was no occasion for the appellant to prove that he belongs to Scheduled Tribe and it was only in such circumstances and that too as permitted by this court, he has filed the civil suit. Since the Civil Court has granted a decree nullifying the order passed by the District Collector, the respondents are not entitled to proceed with the disciplinary proceedings. The learned counsel made an alternative submission that in case this Court is also of the view that the civil court has no jurisdiction, the appellant should be given liberty to approach the State Level Committee to prove that he actually belongs to Scheduled Tribe.
8. The learned counsel for the respondent submitted that the appellant mis-represented the facts before the learned Single Judge as well as before the Division Bench and filed a Civil Suit long after the disposal of the writ appeal on 18 August, 1995. According to the learned counsel, Writ Appeal No.475 of 1995 was disposed of by the Division Bench on 18 August, 1995 taking note of the pending civil suits. However, the very suit in O.S.No.274 of 1996 was instituted only on 6 March, 1996. Therefore it was not open to the appellant to claim that the suit was instituted on the basis of the liberty granted by this court, when in fact the order passed by the learned Single Judge and the Division Bench contains a statement made by the appellant that he has already filed the civil suit.
DISCUSSION:-
9. There is no dispute that the appellant obtained a community certificate describing him as a person of Scheduled Tribe and got appointment in Bharat Heavy Electricals Limited in the quota ear marked for Scheduled Tribes. The Community Certificate issued by the Tahsildar gives an indication that the appellant belongs to Konda Reddy Community which is declared as a Scheduled Tribe in the State of Tamil Nadu. The community certificate produced by the appellant was sent to the Collector for verification. After such verification, the Revenue Authorities informed the respondent that the appellant was not a member of the Scheduled Tribe. Therefore, the respondent was of the view that the appellant was not entitled for appointment under the reserved category. Accordingly, a charge memo was issued to the appellant on 23 September, 1998 calling upon him to show cause as to why he should not be terminated from the service of Bharat Heavy Electricals Limited.
10. The original order of cancellation was challenged by the appellant before this Court on the ground that the enquiry was conducted behind his back. Accordingly, the order was set aside and the Collector was granted liberty to conduct a fresh enquiry. The District Collector, Thiruchirappalli conducted an enquiry afresh and as per order dated 7 February, 1991 the community certificate issued to the appellant was cancelled.
11. The appellant along with others challenged the disciplinary proceedings initiated on the basis of the cancellation of community certificate. When the said writ petition in W.P.No.603 of 1995 was taken up for consideration, the learned Judge was appraised of the fact that the some of the petitioners have already filed civil suits challenging the order cancelling the community certificate. However, the learned Judge was of the view that it was not possible for the Court to interfere in the charge sheet and the connected enquiry. Accordingly the writ petition was dismissed. However while dismissing the writ petition, the learned Judge observed that it was open to the appellant also to file a civil suit like others.
12. The order dated 18 April, 1995 in W.P.No.603 of 1995 was taken up before a Division Bench in W.A.No.475 of 1995. The Division Bench dismissed the writ appeal as per judgment dated 18 August, 1995 with an observation that it is open to the appellants in the writ appeal to pursue the suit.
13. The appellant has filed a Civil Suit in O.S.No.274 of 1996 on 6 March, 1996. Therefore it is evident that as on the date on which the writ appeal was dismissed, the appellant was not before the Civil Court. The Civil Court granted an ex parte decree, declaring that the proceedings of the District Collector cancelling the community certificate on 7 February, 1991 is illegal and un-sustainable in law with a consequential injunction restraining the authorities from implementing the order of cancellation. There was a further declaration to the effect that the appellant belonged to Scheduled Tribe community. The said decree was sought to be enforced by the appellant by filing the writ petition in W.P.No.16468 of 1998.
14. The core question is as to whether a civil suit was maintainable to declare that a particular person belongs to Scheduled Tribe.
15. Article 342 of the Constitution of India provides for specifying the tribes or tribal communities or part of or groups within tribes or tribal communities to be declared as Scheduled Tribes in relation to a particular State. Therefore, the only authority to declare the status of Scheduled Tribe is the President of India. The Civil Court has absolutely no jurisdiction to grant a declaration in respect of Scheduled Caste and Scheduled Tribes within the meaning of Articles 341 and 342 of the Constitution of India.
16. The issue as to whether the Civil Court has jurisdiction under Section 9 of the Code of Civil Procedure to entertain a suit in the matter of declaration of Scheduled Caste/Scheduled Tribes status came up for consideration before the Supreme Court in S. SWVIGARADOSS v. ZONAL MANAGER , F.C.I. (1996(3) SCC 100). The Supreme Court after considering Article 341 of the Constitution of India held that the Civil court has no jurisdiction under Section 9 of the Code of Civil Procedure to entertain a suit in the matter of declaration of Scheduled Caste and as such, the suit was not maintainable. The said judgment was delivered on 25 January, 1996. Admittedly the civil suit instituted by the appellant was only after the declaration of legal position by the Supreme Court. Therefore the suit filed by the appellant on 6 March, 1996 was clearly not maintainable and as such, no reliance could be placed on the said decree, declaring the appellant as a member of the Scheduled Tribe.
17. It is true that the disciplinary proceedings initiated by the respondent was only on the basis of the order passed by the District Collector cancelling the community certificate of the appellant. It is for the appellant to defend the proceedings by submitting his explanation. The alternative contention taken by the learned counsel for the appellant with respect to the inability of the appellant to test the validity of the order passed by the District Collector on 7 February,1991 is a matter to be agitated before the respondent. The legality or correctness of the order passed by the Collector is not an issue in the present appeal. The decree passed by the civil court in the matter is a nullity. Therefore the learned Single Judge was perfectly justified in dismissing the writ petition. It is open to the appellant to raise all his defences before the disciplinary authority.
18. The writ appeal is dismissed with the above observation. No costs. Consequently, the connected MP is closed.
Tr
To
The General Manager
The Bharat Heavy Electricals Limited
Trichy 620 014