IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 30.01.2006
CORAM
THE HON'BLE MR. JUSTICE D. MURUGESAN
W.P.No.2192 of 2006
and
W.P.M.P.Nos.2458 and 2459 of 2006
Balagovinda Rao .. Petitioner
-Vs-
1. The Deputy Chairman
Chennai Port Trust
Rajaji Salai, Chennai-1.
2. The Chief Engineer
Chennai Port Trust
Rajaji Salai, Chennai-1. .. Respondents
Petition filed under Article 226 of the Constitution of India, praying
this Court for the issue of a Writ of Certiorari, calling for the records
relating to the 2nd respondent's proceedings made in E6/5302/96/E dated
11.8.2005 and quash the same.
!For Petitioner ... Mr.L. Chandrakumar
^For Respondents ... Mr.Jagadeesan
:ORDER
The petitioner hails from Dharmavaram in Vizianaragam District of
Andhra Pradesh. According to the petitioner, he belongs to “Konda kappu”
community, which is notified to be a Scheduled Tribe. On the strength that
the petitioner was issued with a community certificate dated 1.7.1983 issued
by the Tahsildar, S-Kotta, certifying himself to be belonged to “Konda Kappu”
community, which is notified to be a Scheduled Tribe, he secured appointment
as Mazdoor (PW) in Chennai Port Trust on 17.7.1984. It appears that
thereafter he was promoted to higher post and presently he is working as
Maistry.
2. Chennai Port Trust, on verification of the certificate produced by
the petitioner, came to a prima facie conclusion that the said certificate was
bogus/fake, called for a report from the District Collector,Vizianagaram as to
the fact whether such certificate was issued to the petitioner by the
authority competent to issue the same in the letter dated 23.11.1995. By the
proceedings dated 24.02.1996 the District Collector, Vizianagaram sent the
communication to the Chennai Port Trust which reads as follows:
“(M) D.Dis.2473/95C7 dt.24.2.96. Collector’s Office
VizianagaramFrom To
Sri T.Vijkaykumar IAS The Secretary
Collector,Vizianagaram Port Trust,Madras
Sir,
Sub: Establishment-Verification of the
community certificate produced by
Sri Balagovinda Rao, Asst.Maistry
T.No.2840 Dept.,-Information-reg.
Ref: Your Lr.No.SCT2/13371/93 dt.23.11.95
With reference to your letter cited, the
required information is given below:-
i.Whether an enquiry was There is no such
conducted and the indivi person in Dharmavaram
dual given opportunity as (V)of S. Kota(M) as per
is being done by Tamilnadu the enquiry of the Mandal
Government. Revenue Officer, S.Kota
ii.Whether cancellation According to the report
of the community certi- of the Mandal Revenue
ficate dt. has ordered Officer,S.Kota no S.T.
Caste certificate was
issued. Hence issue of
cancel orders does not
arise.
iii.Whether the original Since the certificate
community certificate produced by the candi-
of the individual for date might be a fake
cancellation one, the Port Trust
authorities Madras may
take further action
after giving an oppor-
tunity to the individual
for being heard.
Yours faithfully,
S/d. Pardhasaradhi
for Collector
Vizianagaram.
3. On the basis of the above communication, a charge memo dated
9.7.1996 was issued to the petitioner asking him to show cause as to the bogus
community certificate. Questioning the same, the petitioner had earlier
approached this Court in W.P.No.2737/1998. It was argued on behalf of the
petitioner that the report sent by the District Collector, Vizianagaram
stating that the certificate produced by the petitioner is fake and that
action has to be taken cannot be relied upon nor it could be a basis or
foundation to initiate disciplinary proceedings. It was also argued that the
respondent Port Trust was not at all justified in accepting the said report,
as such, a reply has been sent behind the back of the petitioner by the
District Collector, Vizianagaram without enquiry. It was argued that enquiry
could have been conducted as to the social status claimed by the petitioner
and an opportunity ought to have been given to the petitioner. All the above
contentions were considered and ultimately, this Court by order dated
18.02.2003, passed the following order:
” The charges have been framed and the petitioner
It is well open to the petitioner to raise all
the objections with respect to the contents of
the report received from the third respondent
and also rely upon the various pronouncements
referred to before this Court by Mr.P.K.Raja-
gopal,learned counsel. It is equally well open
to the petitioner to get fresh certificate or
declaration as the case may be, with respect
to the social status claimed by him and produce
the same before the Domestic Enquiry Officer,
As and when such materials are placed, the
Enquiry Officer shall take into the materials
into consideration and also consider the law
laid down by this Court as well as Supreme
Court in such matters and thereafter, further
appropriate action should be proceeded. Further,
if still the respondents are of the opinion
that action has to be taken with respect to
the alleged bogus claim of social status it is
open to them to proceed according to law. This
is not a fit case, where this Court could be
justified in interfering with the disciplinary
proceedings initiated by the competent authority
at the stage of enquiry and it cannot be stated
that the authorities initiated proceedings
without any basis or authority.
In the circumstances, the Writ Petition is
dismissed while giving liberty to the petitioner
to raise all objections including legal objections
as well before respondents 1 and 2. Consequently,
W.M.P.no.4070 of 1998 is also dismissed. No
costs”.
4. Pursuant to the said order, present impugned notice of enquiry
dated 11.8.2005 has been issued which is as follows:-
Chennai Port Trust
E6/5302/96/E Dt. 11.8.05
Memo
Sub: Establishment-Alleged production of
Bogus community certificate by Shri
Balagovinda Rao, Maistry (PW)-
Disciplinary action-Fresh enquiry
to be conducted-reg.
It is informed that the Hon’ble Justice
Shri E. Padmanabhan of High Court of Madras vide
his judgment dated 18.02.2003, on the Writ
Petition No.2737/1998 filed by Shri Balagovinda
Rao against the Chairman, Chennai Port Trust
and the chief Engineer, Chennai Port Trust had
dismissed the petition while giving liberty to
the petitioner to raise all objections including
legal objections, as well as before the Chairman
Chennai Port Trust and the Chief Engineer,Chennai
Port Trust. In this connection, a fresh enquiry
is ordered to be conducted by Shri S.C.Shankar
Engineer of D.C.’s Department and Shri Pitchai
Jr.A.O. as Presiding Officer on the following
charges:
” That at the time of his initial appointment
as Mazdoor(PW) in the Trust he had produced
Bogus Scheduled Tribe Community Certificate
and gained employment in the Trust”
The above act is a serious misconduct under
regulation 4(4) of Madras Port Trust Employees
(Conduct) Regn.1987. The date, time and place
of enquiry will be informed to him by Enquiry
Officer in due course.
In case the charges are proved he is liable
for severe disciplinary action under Madras
Port Trust Employees CCA Regulation,1988.
He may file a written statement before the
Enquiry Officer on the charges framed against
him, if he desires, within seven days from
the date of receipt of this memo. If his
written statement is not filed within the
specified period it will be assumed that
he has no statement to make and the enquiry
will be proceeded with.
A form of questionaire is enclosed, which
is to be filed in, signed and returned to
this office along with his statement.
If he desires to avail the assistance, which
is to be filled in, signed and returned to
this office along with his statement.
If he desires to avail the assistance of his
co-workers to defence in the enquiry he may
submit a panel of three names of his co-
workers of this department, who are not
connected with any other enquiry duly obtaining
their concurrence in writing. Any one in the
panel as found convenient to the administration
will be allowed to assist him in his defence.
In case he fails to submit the panel as
mentioned above, it will be assumed that he
does not wish to avail the opportunity for
his defence.
If he fails to attend the enquiry on the dates
to be notified, the enquiry will be conducted
ex parte and further action will be taken as
deemed fit.
Encl: One Questionaire Sd..x.x.x.x.x.x.
Chief Engineer
To
Shri Balagovinda Rao
Maistry, T.No.2840
P.W.Engineering
5. Mr.L.Chandrakumar, learned counsel appearing for the petitioner
has submitted that in challenging the impugned Notice that inasmuch as the
genuineness of the certificate of the petitioner has not been verified by the
committee constituted, as per the directions of the Supreme Court in the
judgment reported in MADHURI PATIL VS ADDITIONAL COMMISSIONER, TRIBAL
DEVELOPMENT (A.I.R. 1995 Supreme Court 94), the respondent Port Trust has no
right to proceed with the enquiry.
6. I have heard Mr.Jegadeesan, learned counsel appearing for the
respondent Port Trust.
7. The issue relates to community status and genuineness of the
community certificate came up for consideration before the Supreme Court in
the decision referred to above and the Supreme Court had issued the following
directions:
” 4. All the State Governments shall constitute
a Committee of three officers, namely, (1)
an Additional or Joint Secretary or any
Officer higher in rank of the Director
of the concerned department, (II) the
Director, Social Welfare/Tribal Welfare/
Backward Class Welfare, as the case may be,
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
groups of tribes or tribal communities”
8. As per the judgment of the Supreme Court, the community status of
a person with reference to the community certificate already issued can only
be verified by the committee constituted in accordance with the directions of
the Supreme Court in the above Judgment. There cannot be any dispute to this
extent. However, on the facts of the present case, whether the petitioner
would be justified in relying upon the judgment of the Supreme Court and
challenging the action of the respondent on the ground that the community
certificate issued to the petitioner has not been so far either verified or
cancelled by the committee constituted in accordance with the judgment of the
Supreme Court.
9. In my opinion, while the Supreme Court had laid down thelaw by issuing
directions to the State Governments to constitute committees to go into the
genuineness of the community certificates, it only directed that such of those
certificates issued either by the authority who was competent to issue or by
the authority who was incompetent to issue to go into the genuineness of such
certificates if it is so warranted. The said judgment would be applicable
only when issuance of such certificate is not in dispute and whether the
individual in whose favour such certificate was issued would be entitled to
the same or not. On the other hand, when the Officer who is said to have
issued the community certificate himself disown the issuance of such
certificate on the verification of the records from the office, the question
of verification of the genuineness of the certificate may not arise. For
applying the judgment of the Supreme Court the factum of issuance of
certificate from the office must be first satisfied and thereafter only the
genuineness of the said certificate would be verified. When the issuance of
such certificate itself is disowned by the authority who is said to have
issued, it must be presumed that the same is either bogus or fake and the
question of verification of the genuineness of such certificate does not arise
and consequently, the judgment of the Supreme Court may not be applicable to
the said case.
10. On the above principle, the facts of this case should be looked
into. In the communication dated 24.2.1996, the District Collector has not
only reported that there is no such person in Dharmavaram (V) of S. Kota(M)
as per the enquiry of the Ma Revenue Officer, S. Kotta but also that no
Scheduled Tribe caste certificate was issued to the petitioner from the said
office. The District Collector has also said that as there was no such
certificate issued, the certificate produced by the petitioner might be a fake
one and the Port Trust Authority was entitled to take action. From the report
it is clear that no such certificate was issued by the office from which the
petitioner claims to have obtained the same. In fact, while the proceeding of
the District Collector was sought to be relied upon by the respondent Port
Trust, this Court after considering the same, negatived all the contentions by
holding that” though the argument is attractive, this Court will not be
justified in examining such a contention in this Writ Petition at this stage”.
In my opinion, considering the facts of the case, the judgment of the Supreme
Court in KUMARI MADHURI PATEIL will not be applicable to contend that so long
as the certificate is cancelled by the authority competent, the respondent
cannot proceed on the ground that the certificate is false. Under these
circumstances, it would not be correct to say that the respondent cannot
proceed with the enquiry.
11. The enquiry which is sought to be conducted is in respect of the
fact as to whether the petitioner has got employment by furnishing bogus/fake
certificate or not and the issue does not relate to whether such certificate
was genuine or not. As already referred, the power to enquire by the
committee constituted in terms of the guidelines framed by the Supreme Court
in the judgment referred to above, could be exercised only in respect of the
genuineness of the certificate is sought to be made. In the event, such
issuance of certificate itself is denied, the question of verification of
genuineness of the same does not arise. In such event, the respondent Port
Trust is entitled to conduct enquiry to find out as to whether the petitioner
has got employment by producing bogus/fake certificate. Of course, as already
directed by this Court, the petitioner is entitled to participate in the
enquiry and satisfy the respondent that the certificate produced by him was
not a fake one and it was a genuine one and in such event, till such time, no
action can be taken by the respondent Port Trust. When such a right is
available to the petitioner, I am not inclined to entertain the Writ Petition.
12. In view of the above, the Writ Petition is dismissed. No costs.
Consequently, W.P.M.P.Nos.2458 and 2459 of 2006 are also dismissed.
vbs
To
1. The Deputy Chairman
Chennai Port Trust
Rajaji Salai, Chennai-1.
2. The Chief Engineer
Chennai Port Trust
Rajaji Salai, Chennai-1.