R Sundaram v. The Tamil Nadu State Level

R SUNDARAM v. THE TAMIL NADU STATE LEVEL SCRUTINY COMMITTEE & ORS. (Civil Appeal No. 1770-1771 of 2023) MARCH 17, 2023 [ANIRUDDHA BOSE AND KRISHNA MURARI, JJ.] Service Law – Scheduled Tribe – Community Certifica te – Validity – Post Retirement Benefit – Effect – Appellant w as appointed as clerk-cum-shroff in the respondent bank on the b asis of the community certificate – The appellant served in service f or 38 years and was to set to retire but just before 2 days of his s uperannuation, he received a cessation order on the ground that his caste ce rtificate being false and all his retirement benefits except PF we re withheld from him – Aggrieved by this, the appellant approached High Court – High Court remanded the matter back to the scrutiny commi ttee – The scrutiny committee held that the caste certificate of the appellant was not correct based on vigilance and experts reports – Aggr ieved by this, the appellant again approached the High Co urt, but the writ petition and the contempt petition were dismissed on t he ground that despite fair opportunity being granted to the appellant, he did not abided by the same – On appeal, held: Appellant before appl ying for the said post had supplied all documents supportin g his claim as a ST candidate – However, re-evaluation of the a uthenticity of the documents were kept pending for 19 years – In the pres ent case the clear pattern of harassment is visible as the cessation o rder was received by the appellant just two days before his su perannuation after completing a service of 38 years and that on the date o f passing of cessation order, no case was pending against the appellant – Also, it is evident that the appellant was not given an oppor tunity of being heard in the fresh scrutiny which was being conducted a s the notice issued to the appellant was not actually served up on him as admitted by the postal department since the same wa s served to someone else – Further, the respondents’ claim that appellant’s community certificate was fake, was not proved – Tw o reports declaring the community certificate of the appellant as fake were submitted after inordinate delay and both reports have not allowed participation of appellant – Thus, impugned orders set aside – Appellant entitled to post-retirements benefits. Allowing the appeal, the Court HELD: 1. After serving the Respondent bank for 38 years, the Appellant, two days before his superannuation re ceived his cessation order without there being any proper enquiry. Further, on communication made to the respondent no.1, it was found that on the date of passing the cessation order, no case was pending against the Appellant. It is a very clear pattern of harassmen t is visible, and there appears to be a sinister motive against the Appellant and his right to pensionary benefits. Even after 38 years of service, irrespective of the merits of the case, the fact that the Appellant has not been treated with any respect is sad to see, and the use of delayed procedure as a dangling sword can onl y be interpreted as harassment. [Para 14][1044-C-E]

¶2It has been explicitly stated by this Court that the exercise of verification of community certificate m ust be completed expeditiously. In the present case howeve r, as has been mentioned above, there has been an inordinate and unexplained delay of 19 years, an amount of time which cannot be fathomed within the ambit of “reasonable time”. Further, the Respondent committee finally, after years of superannua tion of the Appellant submitted its first report, however t he same was struck down by the High Court on grounds of it being violative of principles of natural justice, as the appellant was n ot given an opportunity to lead his evidence and cross examine the wit nesses. Subsequent to this, a fresh enquiry was conducted, and another report was submitted again, however even this report suffers from the same fallacy as the previous report because even h ere, the Appellant has not been afforded the opportunity to be heard. [Paras 16 and 17][1046-B-D]

¶3The High Court in its findings in the impugned judgment stated that the subsequent report was passed ex-part e because the Appellant, even after receiving notice of the proce edings did not attend the same. The Appellant however claims that h e never received notice. A bare perusal of the material at hand would show that the notice which was to served to the Appellant was in fact served upon one Mr. Sudarshan, and the same ha s been admitted by the postal department and can be seen in the postal sheet. This fact was brought upon by the Appellant d uring the review proceedings, however, the High Court failed to c onsider such finding and dismissed the review without adverti ng to the grounds raised therein and thus the judgment suffers from an error apparent. By not allowing the Appellant an opportunit y to be heard, the principle of “Audi Alteram Partem” , a principle of natural justice has also been violated. The Appella nt, in proceedings where the genuineness of his belonging to a community is under question, must have a right to be heard , and must be given the right to cross-examine the witnesse s, for the nature of the proceedings are not just a question pertain ing his employment, but also something that strikes at the core of his being, i.e., his identity. [Paras 18, 19 and 20][1046-D-H]

¶4A community certificate in cases of scheduled tr ibe communities, unlike any other piece of paper, is an acknowledgment of a person belonging to a community wh ich has faced years of oppression. The Constitution of India guarantees certain rights to people from Scheduled Tribe communities on grounds of historical injustice, and for the translation of such rights from paper to real life, the c ommunity certificate in most cases becomes an essential docu ment. This certificate, whilst being an acknowledgment of history, is also a document that tries to rectify such historical injustice by becoming a tool that fabricates constitutional rights into reality . In such a scenario where the validity of a community certificate is put to question, keeping in mind the importance of the docum ent and the effect it has on people’s rights, the proceedings questioning the document cannot, except in the most exceptional circumstances, be done ex-parte. Any person, whose entire identity, and their past, present and future rights are challenged, must at the least be given an opportunity to be fairly heard . In the case at hand however, such a right has been denied to the SCRUTINY COMMITTEE Appellant, and hence the burden of proof on the respondent s to disprove the nature of the certificate, has not been di scharged. In the absence of the discharge of such burden of proof, this Court must presume the community certificate of the Appella nt to be genuine. [Paras 22 and 23][1047-C-G] State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr. (2013) 12 SCC 210 : [2013] 8 SCR 177; Dr. Uma Agarwal v. State of U.P. (1999) 3 SCC 438 : [1999] 2 SCR 42; Madhuri Patil and Another v. Additional Commissioner, Tribal Development and Others (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50 – relied on. Case Law Reference [2013] 8 SCR 177 relied on Para 11 [1999] 2 SCR 42 relied on Para 12 [1994] 3 Suppl. SCR 50 relied on Para 15 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1770-1771 of 2023. From the Judgment and Order dated 13.02.2020 of the High Court of Judicature at Madras in RA No.157 of 2019 and dated 16.04.2019 in WP No. 28295 of 2018. R. Balasubramanian, Sr. Adv., Dr. Ram Sankar, Vishwanathan Iyer, A. Vasantha Kumar, G. Jai Singh, Ms. Sujathad Bagadhi, Ms. R. V. Sharumathi, M/s. Ram Sankar & Co., Advs. for the Appellant. Sanjay R. Hegde, Sr. Adv., D. Kumanan, Sheikh F. Ka lia, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi, Ms. Vaidehi Rastogi, Shiv Ram Sharma, Vishwaditya Sharma, Ms. Vas undhara Sharma, Advs. for the Respondents. The Judgment of the Court was delivered by

KRISHNA MURARI, J. Delay condoned. Leave Granted.

¶2The present Appeal is directed against the final or der and judgment dated 13.02.2020 in Review Application No. 157 of 2019 passed by the High Court of Madras, and against order dated 16.04.2019 in W.P. No. 28295 of 2018 passed by the High Court of Madras (hereinafter referred to as “High Court”) whereby the Appellants’ challenge to the denial of his post-retirement benefits was dismissed. BACKGROUND FACTS

¶3The Appellant was appointed as a clerk-cum-shroff in the Respondent bank on the basis of a community certificate dated 15.11.1975 certifying that he was from the Konda Reddy Community. After a tenure of 38 years, the Appellant retired as a Scale 3 officer, howe ver, two days before his superannuation, he received a cessation order on grounds of his caste certificate being false, and all his retirement benefits except PF were withheld from him.

¶4During the Appellant’s tenure in the respondent bank, T he District collector (sixth respondent herein), without conducting any enquiry, cancelled the community certificate granted to the Appellant. Aggrieved by the same, the Appellant filed WP No. 12546 of 1998. The High Court vide order dated 09.08.2009 remanded the matter back to the Tamil Nadu State Level Scrutiny Committee (first respondent herein) to conduct a fresh enquiry. However, even after the High Court order, the verification with regard to the communal status of the Appellant wa s still not concluded, and this led to the Appellant’s retirement without realization of his retirement benefits.

¶5The Appellant then, to seek his post-retirement benefits f iled WP No. 19006 of 2013 in the High Court, however the same was disposed off vide order dated 04.07.2014 , and the first respondent was directed to complete the enquiry within a period of eight wee ks. The Appellant then preferred an SLP in the Supreme Court against the above mentioned High Court order, and during the pendency of the SLP, an interim order was passed by this Hon’ble Court directing the Appellant to appear before the first respondent for enquiry. Subsequently, the said SLP was withdrawn. SCRUTINY COMMITTEE

¶6In the meantime, the fifth respondent concluded the enquiry and submitted a report dated 29.11.2017 with the finding that the Appellant in fact did not belong to the Konda Reddy Community. Based on this report, a show cause notice was issued to the Appellant dated 07.12.2017. As against this, the Appellant filed another W.P No. 33207/2017 seeking to set aside the show cause notice and the enquiry report. The High Court, vide order dated 19.12.2017 allowed the same, and remanded the matter back to the scrutiny committee whilst quashing the show cause notice and the enquiry report.

¶7Subsequent to the order of the High Court remanding the matter back to the scrutiny committee, the committee again procee ded and held that the caste certificate of the Appellant was not correct based on vigilance reports and other expert reports.

¶8The Appellant, aggrieved by the above mentioned report of the scrutiny committee filed another W.P No. 28295/2018 and along with a contempt petition seeking for a restoration of the community certificate, however both were dismissed by the High Court vide i mpugned judgement dated 16.04.2019 on grounds that despite fair opportunity being granted to the Appellant, he had not abided by the same; The Appellant then preferred a Review Application No. 157/2019 in the High Cour t, however, this was also dismissed vide second impugned judgement dated

13.02.2020. ANALYSIS

¶9Mr. R. Balasubramanian and Mr. S. Prabakaran, Senior Counsel appearing on behalf of the Appellant vehemently argued that as per the directions of the High Court in order dated 19.12.2017, the Appellant was to be given due opportunity to cross-examine the witne sses, and copies of all documents relied on by the Respondents was to be furnished to the Appellant, however, the same was not done. It has be en further contended that at the time when the Appellant was given the cessation order, no enquiry against him was pending, and that in the entire process he has been subject to harassment for almost 19 years.

¶10Per Contra, Mr. Gopal Sankaranarayanan, Senior Advovate and Mr. Joseph Aristotle, AOR, appearing on behalf of the respondents argued that notice was duly served on the Appellant, and it wa s the Appellant who did not show up in the proceedings. It was also a rgued that due to the Appellant not showing up, the proceedings were adjourned, but even after the adjournment the Appellant did not show up, and hence the committee had no option but to pass its decision ex-parte.

¶11Keeping in mind the submissions of both the parties, at the very outset we would like to state that the right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification as has been held in the case of State Of Jharkhand & Ors. vs Jitendra Kumar Srivastava & Anr.1. The relevant paragraph of the judgment is being extracted herein: “15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] this Court recognised that even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty-fourth Amendment ) Act, 1978 w.e.f. 20-6-1979, the right to property n o longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A of the Constitution. R ight to receive pension was treated as right to property. Ot herwise, challenge in that case was to the vires of Rule 10( 1) of the West Bengal Services (Death-cum-Retirement Benefit) Rul es, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under cer tain circumstances and the said challenge was repelled b y this Court.

¶16The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recogn ised as a right in “property”…Once we proceed on that premise , the answer to the question posed by us in the beginning o f this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A o f the Constitution. It follows that attempt of the appella nt to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbra ge of administrative instruction cannot be countenanced.”

¶12Further, in the case of Dr. Uma Agarwal vs. State of U.P.2, this Court held that the grant of pensionary benefits is not a bounty, but 1 (2013) 12 SCC 210 2 (1999) 3 SCC 438, a right of the employee, and as such cannot be denied without pr oper justification.

¶13At the very beginning, we would like to state that this Court is appalled at the treatment given to the Appellant by the R espondents herein. The Appellant, before applying to the post reser ved for ST candidates supplied all documents required in support of his claim as a ST candidate, and got the documents verified and approved. After being given employment however, the re evaluation of the authenticity of the documents of the Appellant have been kept pending for 19 years, dangling like a sword on the Appellants head.

¶14After serving the Respondent bank for 38 years, the Appellant, two days before his superannuation received his cessation order without there being any proper enquiry. Further, on communication made to the respondent no.1, it was found that on the date of passing the cessation order, no case was pending against the Appellant. To us, a very clear pattern of harassment is visible, and there appears to be a sinister motive against the Appellant and his right to pensionary benefits. Even after 38 years of service, irrespective of the merits of the case, the fact that the Appellant has not been treated with any respect is sad to se e, and the use of delayed procedure as a dangling sword can only be interpreted as harassment.

¶15In the case of Madhuri Patil and Another Vs Additional Commissioner, Tribal Development and Others 3, this Court gave fifteen guidelines as to how the exercise of verification of community certificate ought to be completed. The relevant extract from the said judgment are reproduced hereunder: “The admission wrongly gained or appointment wrongl y obtained on the basis of false social status certif icate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoine d in the Constitution of the benefits conferred on them by the , constitution. The genuine candidates are also denie d admission to educational institutions or appointments to offi ce or posts under a State for want of social status cer tificate. The ineligible or spurious persons who falsely gaine d entry resort to dilatory tactics and create hurdles in completi on of 3 (1994) 6 SCC 241 the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational instituti ons are generally made by a parent, since on that date many a ti me the student may be a minor. It is the parent or the gu ardian who may play fraud claiming false status certificat e. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitud e. For that purpose, it is necessary to streamline the p rocedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following : (emphasis supplied) 9…The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceeding s the result of enquiry to the parent/guardian and the applicant.

¶10In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the ba sis of the social status certificate already issued or an a ffidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admissio n or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 15…. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The principal etc. of the educational institution resp onsible for making the admission or the appointing authority, sh ould cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study o r continue in office in a post.”

¶16It has been explicitly stated by this Court that the exercise of verification of community certificate must be completed expeditiously. In the present case however, as has been mentioned above, there has been an inordinate and unexplained delay of 19 years, an amount of time which cannot be fathomed within the ambit of “reasonable time”.

¶17Further, the Respondent committee finally, after yea rs of superannuation of the Appellant submitted its first report, however the same was struck down by the High Court on grounds of it being violative of principles of natural justice, as the appellant wa s not given an opportunity to lead his evidence and cross examine the witnesses. Subsequent to this, a fresh enquiry was conducted, and another report was submitted again, however even this report suffers from the same fallacy as the previous report because even here, the Appellant has not been afforded the opportunity to be heard.

¶18The High Court in its findings in the impugned judgment stated that the subsequent report was passed ex-parte because the Appellant, even after receiving notice of the proceedings did not attend the same. The Appellant however claims that he never received notice . A bare perusal of the material at hand would show that the notice which was to served to the Appellant was in fact served upon one Mr. Sudarshan, and the same has been admitted by the postal department and can be seen in the postal sheet.

¶19This fact was brought upon by the Appellant during the review proceedings, however, the High Court failed to consider such finding and dismissed the review without adverting to the grounds raised therein and thus the judgment suffers from an error apparent.

¶20By not allowing the Appellant an opportunity to be heard, the principle of “Audi Alteram Partem”, a principle of natural justice has also been violated. The Appellant, in proceedings where the genuineness of his belonging to a community is under question, must have a right to be heard, and must be given the right to cross-examine the wit nesses, for the nature of the proceedings are not just a question per taining his employment, but also something that strikes at the core of his being, i.e., his identity. CONCLUSION

¶21At this stage we would like to clarify that in cases w here employment is based on a fake community certificate the law is settled that post-retirement benefits cannot be granted. In the p resent case however, there exists a very clear difference. While the Respondents have claimed the Appellant’s community certificate to be fake, such a claim has not been proven. Even though two reports decl aring the community certificate of the Appellant as fake were subm itted after inordinate and unexplained delay, however, both the reports hav e not allowed the participation of the Appellant.

¶22A community certificate in cases of scheduled t ribe communities, unlike any other piece of paper, is an acknowledgment of a person belonging to a community which has faced years of oppression. The Constitution of India guarantees certain rights to pe ople from Scheduled Tribe communities on grounds of historical injustice, and for the translation of such rights from paper to real life, the community certificate in most cases becomes an essential document. This certificate, whilst being an acknowledgment of history, is also a document that tries to rectify such historical injustice by becoming a tool that fabricates constitutional rights into reality. In such a scenario where the validity of a community certificate is put to question, keeping in mind the importance of the document and the effect it has on people’s rights, the proceedings questioning the document cannot, except in the most exceptional circumstances, be done ex-parte.

¶23Any person, whose entire identity, and their past, present and future rights are challenged, must at the least be given an opportunity to be fairly heard. In the case at hand however, such a right has been denied to the Appellant, and hence the burden of proof on the respondents to disprove the nature of the certificate, has not been discharged. In the absence of the discharge of such burden of proof, this Cour t must presume the community certificate of the Appellant to be genuine.

¶24On the basis of the abovementioned discussions, we are of the opinion that both the impugned orders are liable to be set aside, and the Appellant is held to be entitled to the post-retirement benefits accrued to him by way of his 38 year long service. The Respondent bank is directed to grant all post-retirement benefits to the Appellant which were denied to him along with 6% Simple Interest on account of unnecessary withholding of payment, from the date the payment was due to the date of actual payment.

¶25As a consequence, the appeal stands allowed. No order as to costs. Ankit Gyan Appeal allowed. (Assisted by : Mahendra Yadav, LCRA)