ORDER
C.K. Prasad, J.
1. By this writ petition filed under Articles 226 and 227 of the Constitution of India, petitioner prays for quashing of the show cause notice dated 29-11-1994 (Annexure K) whereby the petitioner has been asked to show cause as to why penalty of removal from service under regulation 39 (f) of the Life Insurance Corporation of India (Staff) Regulations, 1960 be not imposed against him.
2. Short facts giving rise to the present writ petition are that the petitioner claiming to be the member of the Scheduled Tribe, belonging to the Lodhi caste, applied for his appointment to the respondent-Life Insurance Corporation of India (hereinafter referred to as the Corporation). By order dated 29- 8-1989 (Annexure B) he was appointed as Peon on probation for a period of six months. As the confirmation of the petitioner was being delayed, even after expiry of the period of probation, he filed an application before the Assistant Labour Commissioner for conciliation and for reference of the dispute to the Industrial Tribunal for adjudication. During the course of conciliation proceedings no settlement could be arrived at and accordingly the Central Government referred the dispute pertaining to the non-confirmation of the petitioner after the expiry of the probationary period, for adjudication to the Central Government Industrial Tribunal by order dated 23-7-1992.
2. It is relevant here to state that before the aforesaid reference was made, petitioner was served with the charge sheet stating therein that he had obtained appointment by submitting a false caste certificate. On receipt of the aforesaid charge sheet, petitioner submitted his reply and departmental enquiry continued against him. However, before the Industrial Tribunal respondent-Corporation filed an application stating therein that the petitioner has been confirmed vide order dated 21-4-1992, w.e.f., 1-3-1990 and, therefore, no dispute exists between the petitioner and the respondent-Corporation. It was the stand of the respondent-Corporation that as the petitioner has received all benefits of confirmation, no dispute subsists and reference be answered accordingly. Petitioner, however, filed an application for stay for the disciplinary proceeding before the Tribunal and the Tribunal by its order dated 5-8-1992, restrained the respondent-Corporation from passing final order in the disciplinary proceeding initiated against the petitioner. Ultimately, by award dated 8-11-1994 the Industrial Tribunal observed that since the petitioner’s service has been regularised, w.e.f. 1-3-1990 dispute pertaining to his non confirmation stands settled. The Tribunal further directed that since the reference has fully been answered the need to keep alive prohibitory order dated 5-8-1992 does not exist and consequently order prohibiting the respondent-Corporation to pass final order in the Departmental Enquiry was vacated. After the departmental enquiry, petitioner has been served with the impugned show cause notice dated 29-11-1994 asking him to show cause within a period of 15 days as to why penalty of removal from service be not imposed on him. In this writ petition petitioner prays for quashing of the aforesaid show cause notice.
3. Mr. R.K. Gupta appears on behalf of the petitioner. Respondents are represented by Shri R.P. Agrawal. Mr. Gupta submits that once the petitioner has been confirmed to the post of Peon, departmental proceeding against him cannot be initiated on the alleged ground that the petitioner has obtained employment by misrepresentation that he belongs to Scheduled Tribe. He submits that the conduct of the respondent-Corporation clearly shows that it has condoned the act of the petitioner in obtaining the employment by misrepresentation. In support of his submission he has placed reliance on the judgments of this Court in the case of The State v. Mansinghrao, AIR 1958 M.P. 413; M.P. State Road Transport Corporation v. Omprakash Joshi and Ors., 1989 M.P.L.J. 575; Lal Audhraj Singh Lal Rampratap Singh v. State of M.P..
4. Mr. Agrawal, however, appearing on behalf of the respondent submits that reference before the Tribunal was in relation to non confirmation of the petitioner and although the petitioner has been confirmed, w.e.f. 1-3-1990 by its order dated 21-4-1992, same shall not preclude the respondent-Corporation to initiate departmental enquiry against the petitioner on the charge that he has obtained employment by misrepresentation. He submits that principle of condonation by an act of the employer is not even remotely attracted in the facts of the present case.
5. Having appreciated the rival submissions, I find substance in the submission of Shri Agrawal. It is not in controversy that the petitioner obtained appointment by representing that he is a Scheduled Tribe as he belongs to Lodhi caste. It is not disputed before me that the caste Lodhi is not Scheduled Tribe in the State of M.P.. In my opinion confirmation of the petitioner shall not in any way prohibit the respondent-Corporation to proceed against the petitioner on the charge that he has obtained employment by misrepresentation. Confirmation, in my opinion, shall not in any way stop the respondent-Corporation from proceeding against the petitioner for commission of any misconduct or for that matter initiating a proceeding against him that he has obtained the employment by misrepresentation. In the facts of the present case principle of condonation is not remotely attracted and as such the authorities relied on are clearly distinguishable.
6. Mr. Gupta then submits that the petitioner obtained employment in the light of the caste certificate granted by the competent authority and the same cannot be ignored by the appointing authority. His submission is that the caste certificate having not been cancelled by the authority, who has issued the same, no departmental enquiry can be initiated against the petitioner and hence the show cause notice issued against the petitioner as a result of the departmental enquiry is fit to be quashed. He further submits that before cancelling the caste certificate petitioner is required to be given notice in tune with the principles of natural justice. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Gulzar Singh v. Sub-Divisional Magistrate and Anr., (1999) 3 S.C.C. 107. My attention has been drawn to paragraph 3 of the aforesaid judgment which reads as follows:–
“It is clear from the facts on record that prior to the cancellation of the Scheduled Caste Certificate by the impugned order dated 3-6- 1997, no show cause notice was issued to the appellant. It cannot be denied that with the issuance of the Scheduled Caste certificate, certain rights accrued to the appellant. If this certificate was to be cancelled on the basis of some enquiry which had been conducted by the department, it was incumbent upon the department, keeping in view the principles of natural justice, to issue a show cause notice to the appellant requiring him to explain as to why the Scheduled Caste certificate which had been issued should not be cancelled. If there were statements of other persons which were recorded, as seem to have been done in the present case, on the basis of which the department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian, then fairness would require that the said statements should be put to the appellant before a final decision is taken.”
Another decision on which Shri Gupta has placed reliance is the judgment of the Supreme Court in the case of The State of Andhra Pradesh and Ors. v. Nagam Chandrasekhara Lingam and Ors., AIR 1988 S.C. 1309. My attention has been drawn to paragraph 5 of the aforesaid judgment which reads as follows:–
“In view of this, it appears to us that the Commissioner clearly violated the terms of the enquiry which have already set out earlier to the effect that while conducting the proceedings of the enquiry, the Enquiry Officer should give notice to Chandrasekhara and should record the statements of persons in his presence. It may further be pointed out that the learned counsel for the Central Government fairly conceded before the High Court that the enquiry conducted was not fair and proper, as set out in the impugned judgment. In this view of the matter there is no doubt that the aforesaid order, namely, G.O. Ms. 51 dated March 20, 1984 is clearly vitiated and the Division Bench of the High Court of Andhra Pradesh was fully justified in setting aside the order.”
7. Mr. Gupta has also drawn my attention to the Judgment of the learned Single Judge of this Court in W.P. No. 5143/98 disposed of on 8-4-1999 (Sanjay Kumar Puravia v. State of M.P. and Ors.). My attention has been drawn to the following passage from the said judgment:–
“The case of Abhay Parate (supra) was followed in the case of Kumary Mradulla Gupta v. State of M.P. and Ors. (W.P. No. 975/97) wherein this Court distinguished some decisions and accepted the principles laid down in the case of Abhay Parate (supra). In the case of Ku. Mradulla Gupta (supra) this Court has laid down as under:–
“In view of the preceding analysis, I am of the considered opinion that the order of cancellation as contained in Annexure P-13 as far as it relates to the petitioner and Annexure P-16 are untenable and are liable to be quashed. However, it would open to the authorities concerned to proceed against the petitioner in accordance with law laid down in the case of Ku. Madhuri Patil (supra), and followed by this Court in the case of Abhay Kumar Parate (supra). Needless to emphasis that in view of quashing of order of cancellation the petitioner has to reap the consequences.”
Present writ petition similar to the case of Ku. Mradulla Gupta (supra) the order of cancellation is quashed and the writ petition is disposed of in the similar terms and conditions as mentioned in the case of Mradulla Gupta (supra).”
8. Mr. Agrawal appearing on behalf of the respondents submits that the petitioner was given reasonable opportunity in the departmental proceeding to establish that the claim made by him that he belongs to Scheduled Tribe is just and proper and hence the judgment on which the counsel for the petitioner has placed reliance is of no consequence.
9. Having appreciated the rival submissions I do not have the slightest hesitation in accepting the submission of Shri Gupta that once the petitioner has obtained employment by stating that he belongs to the Scheduled Tribe, before cancelling his appointment principle of natural justice requires that he be provided with adequate opportunity to defend his case. Departmental enquiry was initiated against him and after the enquiry the petitioner has been served with the show cause notice. In case, petitioner’s grievance is that he was not given opportunity to defend his case it is for him to raise such plea before the disciplinary authority. At this stage when final order has not yet been passed, it is inexpedient to go into this question. It has to be borne in mind that employment obtained on the basis of the false caste certificate necessarily have the effect of depriving genuine Scheduled Tribe candidates from getting employment. Hence I do not find it a fit case for interference at this stage and the authorities relied on has no bearing at all, right now.
10. Mr. Gupta lastly submits that caste certificate granted by the competent authority cannot be ignored by the respondent-Corporation so long same is not cancelled by the competent authority itself. In support of his submission he has placed reliance on the judgment of the Supreme Court in the case of Ku. Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors., AIR 1995 S.C. 94. My attention has been drawn to the following paragraph of the said judgment:–
“Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or Backward Classes, as the case may be are notdefeated by unscrupulous persons.”
11. Neither on principle nor on precedent, I am inclined to accept this submission of Shri Gupta. In the present case caste certificate shows that petitioner is a Lodhi still the competent authority has certified that he belongs to Scheduled Tribe. It is an admitted position that the caste Lodhi does not find place as one of the castes which belong to Scheduled Tribe. In a case where the authority is possessed of sufficient material to establish that the certificate obtained by an employee does not qualify him to be the member of the Scheduled Tribe, the caste certificate given by the competent authority can be ignored. Caste certificate granted by the competent authority raises a presumption that the employee belongs to the category, certified by the competent authority, but in the face of overwhelming evidence negativing the same, the presumption is rebutted and notwithstanding the fact that the caste certificate has not been cancelled by the competent authority, employer may take decision contrary to what has been stated by the competent authority in the caste certificate. Ratio of Madhuri Patil (supra), on which reliance has been placed by Shri Gupta does not in any way supports the case of the petitioner. In the said case Supreme Court enunciated the procedure for cancelling the caste certificate. This decision in no way precludes the employer from initiating departmental enquiry against its employees on the ground that appointment was obtained by misrepresentation.
12. Shri Gupta prays for quashing of the show cause notice on the plea of equity. He submits that petitioner having obtained employment as back as on 29-8-1989, respondents may not be permitted to rescind the same after a lapse of a decade. It is relevant here to state that till date final decision has not been taken by the respondent-Corporation. Further, in case, the respondent-Corporation finds that petitioner has obtained employment by misrepresentation going to the root of the matter, plea of equity does not lie in the mouth of the petitioner. To beneficiary of misrepresentation, no sympathy and equitable consideration can be resorted for his rescue. In my opinion, the plea of estoppel is not germane to the beneficial constitutional concession. Courts would be circumspect and vary in considering such case. Before I part with the case I may state that observations made in this judgment have been necessitated because of the plea of the petitioner, and be confined for the decision of the present writ petition. Disciplinary authority shall not be influenced by any observation made in this judgment.
13. Having negatived all the submissions made on behalf of the petitioner, I do not find any merit in this writ petition and it is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to cost.