ORDER
1. The petitioner has joined the services of the respondents-Bank as Clerk/ Typist on 12-08-1974. His services were confirmed on 12-02-1975. A Show Cause Notice was given to him bearing No.PMK: 15224 dated 02-09-1975. The petitioner had sought selection and appointment on the ground that he was a member of the Scheduled Tribe. After he got appointed a Show Cause Notice was given to him by which he was asked as to why his services should not be terminated as the caste to which he belonged had been denotified as a Schedule Tribe. The Show Cause Notice was based on terms contained in Clause 1(9) of the Appointment Order which reads as under:
‘”Your services are liable to be terminated with appropriate notice if it is revealed at any time after your appointment that the information given and the particulars furnished by you in the printed application form and its enclosures are materially incorrect or false, or any particulars called for by the Bank therein or thereafter are wilfuly suppressed by you.”
2. That notice was replied on
22-09-1975. In his reply the petitioner had stated that he had obtained the certificate of being a member of Scheduled Tribe which was a genuine certificate when issued in the year 1973. G.O.Ms.No.1793 Edn. dated
23-09-1970 was in force at that time and the caste i.e., Mangali (Nayi-Brahmin) to which the petitioner belonged was declared to be a Scheduled Tribe. The certificate was accordingly issued to him on 30-06-1973. He further stated that he was appointed in the Bank through a competitive test. He further stated that when he was asked by the Bank to submit a certificate on the proforma supplied by the Bank, he approached the Tahsildar Office where he was informed by the Tahsildar that Mangali (Nayi-Brahmin) was now denotified to be a member of the Scheduled Tribe, but, he was treated as backward class.
3. On seeing this explanation, the competent authority passed the following order on 03-5-1976:
“In view of the details apprised by you, it is decided to take a lenient view of the matter and caution you in this behalf.
Accordingly, you are hereby cautioned to be more careful in future in such matters.”
4. The petitioner submits that the matter was closed in the year 1976 and after that he was always treated as general candidate and he was promoted during his service. But, surprisingly, a notice was issued on 25-02-1997 whereby an enquiry was ordered against the petitioner for the charges which
have been sent along with the memorandum ordering enquiry. The charge levelled against the petitioner is as follows:
“That you joined the Bank in clerical cadre on 12-08-1974. For securing the employment in the Bank, you had submitted an application mentioning that you belong to Scheduled Tribe. You had falsely declared that you belong to Mangali which is a Scheduled Tribe. In support of your belonging to Scheduled Tribe, you submitted undated certificate from Tahsildar, Bobbili purportedly certifying that you belong to ‘Mangali’ (Nayi-Brahmin) which is a Scheduled Tribe (denotified).
In the prosecution case No. 14/83 you had appeared as 19th witness wherein you have admitted that you had submitted a false caste certificate claiming that you belong to Scheduled Tribe and secured employment in the Bank.
The afore-said act on your part of submitting a false caste certificate to secure employment in the Bank is a gross mis-conduct in terms of para 19.5(n) of the Bipartite Settlement dated 19-10-1966″
5. This memorandum and also the charge-sheet have been challenged in this petition. Counter affidavit has been filed.
6. I have heard the learned Counsel
for the parties at length.
7. The petitioner’s ground of attack of the impugned memorandum and charge-sheet is that once a Show Cause Notice was issued to him 20 years before and once the appropriate authority decided to close the matter with a warning to the petitioner, it was not open for the respondents to re-open the matter. Since the matter has already been decided and in fact the petitioner has been punished with a warning, therefore, the matter could not be re-opened. The learned Counsel for the petitioner states that in fact the petitioner had not given any false certificate and he had submitted his explanation in reply to the Show Cause Notice issued to him in
the year 1975. Caste to which the petitioner belonged was included in the Scheduled Tribe, he had obtained a genuine certificate, but, after some time the caste was denotified which fact was not known to the petitioner and since he was asked by the Bank to give a fresh certificate on the proforma furnished by the Bank, he came to know that his caste was denotified. Therefore, he cannot be at all punished for giving a certificate which was not forged or a false certificate.
8. The respondents in their counter affidavit stated that in the year 1974 the petitioner had submitted his application in which he had staled that he belonged to a community which was Scheduled Tribe, but, while giving evidence in Criminal Case C.C.No. 14 of 1983 before a Special Judge for C.B.L Cases the petitioner admitted that he had produced a wrong certificate as Scheduled Tribe and secured a job in the Bank. It has further been stated that the petitioner has not been given any punishment earlier, therefore, it was open for the respondents to initiate disciplinary proceedings against the petitioner. The learned Counsel for the respondents states that it is open to the respondents to re-open the matter when new facts came to light. According to him, the new fact which came to light was an alleged statement made by the petitioner in criminal proceedings. Even if it is true that the petitioner had admitted during the course of evidence in a criminal proceedings that he had obtained the job by claiming that he belonged to Scheduled Tribe whereas he was not a member of Scheduled Tribe, even then this was not a new matter, because this had been admitted by the petitioner himself even in reply to the Show Cause Notice which was given in the year 1975. Therefore, even if it is true that the petitioner had made any statement in criminal proceedings, I am of the view that it was not a new or fresh material which was not known to the respondents for the last 21 years. In fact, when a Show Cause Notice was issued to the petitioner in the year 1975, he had admitted that he was not a member of the Scheduled Tribe, but, had justified in submitting a certificate which had been issued in his favour when the caste
to which the petitioner belongs was a Scheduled Tribe and his explanation had been accepted by the competent authority at that time. Therefore, I am of the view that the matter could not have been re-opened and there were no reasons for the respondents to re-open the matter.
9. My attention has been drawn by the learned Counsel for the respondents to a Judgement of the Supreme Court in G. Sundarsan v. Union of India, . According to the learned Counsel for the respondents in this Judgment it has been held that if a person claims appointment on the basis of reservation under the quota, the onus to show that he belongs to such reserved category is a continuous one and at any point of time if it is known to the authorities that the person did not belong to such reserved category, then he cannot claim that his appointment cannot be withdrawn because of his being in continuous service for a long lime. The facts before the Supreme Court were that the petitioner was appointed in the quota of Scheduled Castes in the Income Tax Department and ultimately during his career he rose to the category of Income Tax Inspector. However, three years prior to his retirement he was called upon to prove that he is a Scheduled Caste. A departmental enquiry was held. He was given an opportunity and it was found in the enquiry that he was not a member of the Scheduled Caste and as such he was not eligible to enjoy the status as a Scheduled Caste in the Government service. In terms of Rule 14 of CCs (CCA) Rules punishment was given to him of forfeiting his pension. He questioned this order before the Tribunal. The Tribunal confirmed the finding of the disciplinary authority holding that the petitioner had wrongfully gained appointment against a post which was reserved for the Scheduled Caste and forfeiture of pension was upheld. The finding of the Tribunal was challenged before the Supreme Court which upheld the finding. But, the facts of this case are altogether different from the facts of the case which was being considered by the Supreme Court.
10. In the present case, it is not the case of the respondents that they never knew that the petitioner did not belong to Scheduled Caste. They knew it all along and in fact a Show Cause Notice was issued to the petitioner in the year 1975. In a way, the learned Counsel for the petitioner is right that not that a Show Cause Notice was given to the petitioner but he was punished also. The final order dated 03-05-1976 says “it is decided to take a lenient view of the matter and caution you in this behalf”. He submits that warning is one of the forms of minor punishment. Therefore, the case could not have been re-opened after 20 years.
11. The learned Counsel for the respondents further stated that when the Show Cause Notice was issued to the petitioner only an action was contemplated in accordance with the terms of the appointment order, and no departmental enquiry was contemplated. Now a departmental enquiry was contemplated against the petitioner, therefore, the respondents are within the rights to initiate a departmental enquiry.
12. It is an undisputed fact that when the respondents knew about the controversy right from the year 1975, why was not enquiry initialed 20 years before. This is no answer that the petitioner has now stated in some criminal proceedings that he had presented an incorrect certificate. The respondents are aware of the statement made by the petitioner in some criminal proceedings, but, they are not aware of the statement he made himself in response to Show Cause Notice in the year 1975 where he had admitted that he did not belong to the Scheduled Caste. Therefore, the delay in initiating the departmental enquiry goes to the root of the matter. In this case, the learned Counsel for the petitioner has referred to a Judgment of the Supreme Court in State of Madhya Pradesh v. Bani Singh, AIR 1990 SC 1308. In that case, the irregularity which was a subject matter of the enquiry had taken place between the years 1975 and 1977. It was not the case of the department that they were not aware of the said irregularities. It was not their case that
They came to know about the irregularities in the year 1987. According to the respondents themselves even in April, 1977, there was doubt in the minds of the officials of the Department and investigations were going on But the enquiry was started in the year 1987 i.e. after 12 years of the alleged irregularities were committed. The Supreme Court on these facts held that if that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. It was further held that there was no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.
13. The present case is squarely covered by the Judgment of the Supreme Court (supra). In the year 1975 itself the respondents were aware of the alleged wrong committed by the petitioner. Although they issued a Show Cause Notice, they closed the matter, but, no further action was taken for more than 20 years.
14. There is another aspect of the matter. The present memorandum and the charge-sheet have been issued by the Deputy Zonal Manager who claims to be disciplinary authority whereas in the year 1975 the Show Cause Notice was issued by the Regional Manager and he passed the order on 03-05-1976. That order of 03-05-1976 passed by the Regional Manager stands. It was not been challenged before anybody, unless that order has challenged and got set aside, no further proceedings would be taken in the matter.
15. Therefore, in view of the order passed on 03-05-1976 and in view of the fact that from 1976 till 1997 no action was taken in the matter, I consider the memorandum and the charge-sheet issued by the respondents are illegal and are accordingly quashed by allowing this writ petition.
16. In the result, the writ petition is allowed No costs.