IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.11.2017 CORAM :
THE HON’BLE MR. JUSTICE C.T.SELVAM AND THE HON’BLE MR. JUSTICE M.V.MURALIDARAN Writ Petition No.10531 of 2017 L.Elumalai .. Petitioner Vs The Tamil Nadu State Level Scrutiny Committee, Rep. by its Chairman and Secretary, Adi Dravidar and Tribal Welfare Department, Namakkal Kavingar Maligai, Secretariat, Fort St. George, Chennai – 9. .. Respondent PRAYER: Petition under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records of the respondent in its Proceedings No.18629/CV4(1)/2009-11, dated 8.12.2016 and quash the same.
For Petitioner : Mr.V.Vijay Shankar For Respondent : Mr.S.N.Parthasarathy Government Advocate ORDER (Order of this Court was made by M.V.MURALIDARAN,J.) Calling into question the proceedings dated 08.12.2016 of the respondent, in and by which the respondent held that the claim of the petitioner that he belongs to “Hindu Kattunayakan” Scheduled Tribe Community is not genuine, the present writ petition is filed.
2. The facts in a nutshell are as under:
According to the petitioner, he belongs to Kattunayakan Community, which is a Scheduled Tribe Community, and it is pleaded that his own family members and close relatives, to wit, his wife, son, brother, and cousins, have been issued community certificates to that effect.
3. It is averred that even though the petitioner applied to the Revenue Divisional Officer for issuance of community certificate, such request was declined and the matter was referred to the respondent/State Level Scrutiny Committee. It is alleged that the respondent, in turn, referred the matter to the Vigilance Cell for enquiry and the Vigilance Cell conducted discreet enquiry and collected materials behind his back. It is pleaded that the petitioner, during the course of enquiry, furnished community certificates pertaining to his family members and close relatives. However, the Vigilance Cell submitted a report ruling against the petitioner.
4. It is the case of the petitioner that the report of the Vigilance Cell was forwarded to him by the respondent vide notice dated 29.03.2016, of course, without furnishing the enclosures and documents relied on by the Vigilance Cell. The petitioner submitted his explanation on 07.04.2016 specifically pleading that several crucial documents submitted by him, including the community certificates issued to his family members and close relatives, were not considered by the Vigilance Cell and that the documents relied on by them were not furnished to him and he was not given an opportunity to cross-examine the witnesses relied on by the Vigilance Cell.
5. When things stood thus, it is alleged that the respondent, without furnishing the documents as sought for by the petitioner, has passed the impugned order dated 08.12.2016, solely by placing reliance on the report of Vigilance Cell. Hence, the present writ petition is filed for the relief stated supra.
6. The learned counsel appearing on behalf of the petitioner submits that the bare bones of principles of natural justice have not been followed while passing the impugned order. He added that the documents relied upon by the respondent/Committee and formed the basis for the vigilance report were not furnished to the petitioner at the first instance and that he was not afforded an opportunity to cross-examine the witnesses examined by the authorities.
7. He further pleaded that neither the Vigilance Cell nor the State Level Scrutiny Committee conducted an independent assessment of the anthropological and ethnological traits, customs and practice, which is mandatory,and, therefore, the findings of the respondent are liable to be set aside.
8. On the contrary, the learned Government Advocate appearing on behalf of the respondent submitted that the respondent passed the impugned order after following the procedure contemplated in law and conducting thorough enquiry and, therefore, the same does not warrant interference.
9. We have heard Mr.V.Vijay Shankar, learned counsel appearing for the petitioner and Mr.S.N.Parthasarathy, learned Government Advocate appearing for the respondent and perused the documents available on record.
10. First off, we would like to note that pending writ petition, this Court, by order dated 17.08.2017, directed the learned Special Government Pleader appearing on behalf of the State Level Scrutiny Committee to hand over a copy of the report of the Vigilance Cell along with all documents attached thereto as well as the report regarding anthropological and ethnological aspects to the learned counsel for the petitioner on or before 18.08.2017, to enable the petitioner to show the prejudice caused to him due to the non supply of the said documents.
11. In compliance of the above said order, the respondent supplied all the documents to the petitioner and on receipt of the same, the petitioner filed an additional affidavit dated 01.11.2017 specifically pleading that the report of the Vigilance Cell indicates that statements have been obtained from various persons, but, in any event,the petitioner was not given an opportunity to cross-examine any of the witnesses, whose evidence was relied upon by the respondent. It is also pleaded that the documentary evidence submitted by him was not given due credence by the respondent nor discarded. It is specifically pleaded that the petitioner had no inkling about the report of the Anthropologist and as to the basis for such report of the Anthropologist.
12. The primordial plea of the learned counsel for the petitioner is that the impugned proceedings have been passed in gross violation of the principles of natural justice.
13. The affected should be appraised is a cardinal constitutional creed flowing from Article 14 of the Constitution of India and unless the affected is appraised there is no compliance of principles of natural justice and fair play in action. A decision-making authority is duty bound to disclose any and every adverse material collected by it before using them against a person and an adverse decision is taken, and if it is not done the order made by such authority will be vitiated only on that count. Bearing in mind this trite principle, let us analyse the factual aspects of the case on hand.
14. It cannot be gainsaid that under G.O.(Ms.)No.106, Adi Dravidar and Tribal Welfare (CV1) Department, dated 15.10.2012, the Government has constituted Vigilance Cell and modified the functions of the Committees ordered in G.O.(2D)No.108, Adi Dravidar and Tribal Welfare Department, dated 12.09.2007, to verify the certificate issued to a person. In the context of the Government Order thus passed, before taking final decision, the State Level Committee shall have the benefit of report from the Vigilance Cell. Wherever any such report is given, the same shall be furnished to the individual concerned in compliance of principles of natural justice. In the said Government order, it is emphatically specified that anthropological and ethnological traits should be thoroughly examined, but such examination as prescribed, prima facie, was not done in the case on hand as is evident from the report of the Vigilance Cell.
15. The Hon'ble Supreme Court in Kumari Madhuri Patil case, referred supra, held as under:
"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
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4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, 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 or groups of tribes or tribal communities.
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5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
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6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Addl. Secretary as Chair-person who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-today 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 proceedings the result of enquiry to the parent/guardian and the applicant.
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10. In 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 basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/Miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
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 educational institution concerned 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 responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
16. The issue as to whether the 15 guidelines given in the case of Madhuri Patil (supra) were valid and whether it amounts to legislation was referred by the two Hon'ble Judges Bench of the Apex Court to a larger Bench. The reference was answered by the three Hon'ble Judges Bench of the Apex Court in the case of Dayaram v. Sudhir Batham, (2012) 1 SCC 333. In effect, the Hon'ble Supreme Court held that the directions issued in Madhuri Patil's case were intrinsic to the fulfilment of the fundamental rights of the backward classes of citizens and were issued to preclude denial of such fundamental rights. It noted that the directions given in the case of Madhuri Patil were working satisfactorily for decades. Therefore, the guidelines laid down in Madhuri Patil case, supra, hold the field and the action of the authorities should hew to the same.
17. In the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., (2013) 4 SCC 465, wherein the issuance/verification of caste certificate was under consideration, the Hon'ble Supreme Court, after referring to a plethora of decisions, held that not only should the opportunity of cross examination be made available, but it should be one of effective cross examination, so as to meet the requirement of principles of natural justice. In the absence of such opportunity, it cannot be held that the matter has been decided in accordance with law, as cross examination is an integral part and parcel of the principles of natural justice.
18. This Hon'ble Court in the following cases clearly held as follows:
(i) G.Appusamy v. The Chairman, State Level Scrutiny Committee and Secretary to Government, Adi Dravidar and Tribal Welfare Department, Fort St. George, Secretariat, Chennai-9, in WP.No.30862 of 2014, dated 17.11.2016, it is stated as follows:
“11.While disposing of the writ petition, it is required to be observed that time and again the orders passed by the State Level Scrutiny Committee came under challenge on one ground or the other, finding fault with the procedure adopted by the respondent Committee while verifying the caste status of the candidate concerned. The Committee has been entrusted with the important role of verifying the caste status and any decision by the committee will have far reaching implications for the candidate either positively or negatively. Such being the task assigned to the respondent Committee, it is needless to mention that the Committee must carefully follow the mandatory procedures giving little scope for the Courts to intervene in such matters. It is high time the Committee developed its understanding in regard to all the fundamental principles of natural justice which have been mandated through the Government Orders/instructions as well as directives of the Hon'ble Supreme Court and this Court. The Committee must ensure that proper procedure is followed in all cases so that the interest of both administration and candidate will be safeguarded one way or the other. Otherwise, the determination of caste status status will always remain in a state of fluidity with frequent intervention by the Courts. Therefore, the Committee is called upon to ensure that proper procedure is followed in every case so that the determination of caste status attains finality at some stage leaving no room for any uncertainity for years together.
http://www.judis.nic.in 12.In the instant case, as already held above, since there was no transparency and openness in the enquiry conducted by the Vigilance Cell and the impugned order passed by the respondent Committee by relying upon the report of the Vigilance Cell is in complete negation of the directions of this Court as well as the procedure envisaged in the various G.Os, this Court is of the view that the impugned order passed the respondent Committee, is not sustainable and accordingly, it is set aside.
With the above observations, the Writ Petition is allowed. No costs. Consequently, connected MP is closed. The respondent Committee is directed to hold enquiry afresh from the stage of submission of fresh Vigilance Cell report after following the directions of this Court as extracted in foregoing paragraph and after issuing a fresh show cause notice with all the documents annexed therewith and pass appropriate orders as expeditiously as possible.”
(ii) K.R.Uma Ramani Deva Sena v. The Chairman, State Level Scrutiny Committee, Adi Dravidar and Tribal Welfare Department, Namakkal Kavingar Maligai, Secretariat, Chennai-9 and another, in W.P.No.8323 of 2015, dated 14.06.2017, it is stated as follows:
“9.In the result, the order dated 13 March, 2015 is set aside. The matter is remitted to the State Level Scrutiny Committee for fresh consideration. The Committee is directed to furnish all the documents to the petitioner, so as to enable her to offer her response. In case, the Vigilance Cell has examined witnesses and opportunity was not given to the petitioner to cross examine witnesses, necessarily those witnesses should be summoned for cross examination by the petitioner. There is no need to send the matter back for examining the witnesses. It would suffice if summons is issued to the http://www.judis.nic.in witnesses for appearance before the State Level Committee, so as to enable the petitioner to cross examine them with reference to the statements given by them earlier. In case, the Committee is of the view that the witnesses are examined in the presence of the petitioner and she shall be given an opportunity to cross examine them in the light of the statements given by them. In any case, the Committee shall see that principles of natural justice is followed in all respects.
10.Since the matter is pending for long, the State Level Scrutiny Committee is directed to conclude the proceedings as expeditiously as possible and in any case, within a period of four months from the date of receipt of a copy of this order. It is needless to point out that the petitioner shall co-operate with the Committee for an early disposal of the matter.”
(iii) K.J.Arunmozhi v. The Chairman, State Level Scrutiny Committee and Secretary, Adi Dravidar and Tribal Welfare Department, Fort St. George, Chennai and others, in W.P.No.17741 of 2016, dated 18.04.2017, it is stated as follows:
“11.In the result, the order dated 7 April 2016 is set aside. The matter is remitted to the State Level Scrutiny Committee for fresh consideration.
12.The State Level Scrutiny Committee is directed to supply a copy of the Vigilance Report and the statements of witnesses examined by the Vigilance Cell. In case, those statements are against the claim made by the petitioner, necessarily, he should be given liberty to cross-
http://www.judis.nic.in examine the witnesses, by summoning them in the office of the Scrutiny Committee. Since the matter is pending for years together, every effort should be taken by the State Level Scrutiny Committee to conclude the proceedings. The petitioner should be given reasonable time to appear before the Committee and to cross-examine the witnesses, in case, the Committee is relying on the statements given by the witnesses. The petitioner is directed to cooperate with the Scrutiny Committee for an early disposal of the matter. In case, it is made out that the petitioner is prolonging the matter with a view to evade the disciplinary proceedings, it is open to the Scrutiny Committee to take a decision on the basis of the available materials. There shall be a further direction to the State Level Scrutiny Committee to complete the verification process as expeditiously as possible, and in any case, within a period of three months from the date of receipt of a copy of this order.”
19. It is well settled that principles of natural justice have to be respected by quasi-judicial or administrative authorities while taking action if they adversely affect the interest of a person or that the action involves criminal or civil consequences. Obviously, the rules of natural justice include cross examination of the witnesses relied by the administrative authority/quasi-judicial authority and denial of the same is a serious violation of principles of natural justice. Opportunity to lead evidence in defence is also another salient feature of the principles of natural justice.
20. In the instant case, the petitioner was not furnished with all the documents referred to in the report of the Vigilance Cell, which formed the basis for the finding rendered by the respondent at the first instance, to wit, before passing an order against him. He was neither granted an opportunity to cross-examine the witnesses. We are, therefore, of the firm view that the order impugned in this writ petition has been passed in gross violation of the elementary principles of natural justice.
21. Accordingly, we allow the writ petition and set aside the impugned order in Proceedings No.18629/CV4(1)/2009-11, dated 08.12.2016 with the following directions:
i. The matter is remanded to the State Level Scrutiny Committee for fresh consideration.
ii. It is made clear that in case the State Level Scrutiny Committee seeks to rely on such statements, necessarily opportunity should be afforded to the petitioner to cross examine those witnesses. The cross examination should be conducted in the presence of the State Level Scrutiny Committee and such cross-examination should be an effective one. The State Level Scrutiny Committee must ensure the presence of the witnesses, so as to enable the petitioner to cross examine them on the very same day. In any case, the petitioner is not entitled to the assistance of lawyers for cross examination of witnesses.
iii. If the Committee is of the view that the issue can be decided even without reference to the deposition given by the witnesses, there is no need for summoning them. In such event, the Committee shall give an opportunity to the petitioner to produce documents in support of his claim and thereafter, decide the matter on merits and as per law.
iv. The petitioner is directed to co-operate with the State Level Scrutiny Committee for an early disposal of the matter. In case, the petitioner is prolonging the matter on one pretext or the other, it is open to the State Level Scrutiny Committee to decide the matter on the basis of available materials.
v. The above said exercise shall be completed within a period of three months from the date of receipt or production of a copy of this order.
vi. There will no order as to costs.
vs Index : Yes/No Internet : Yes/No (C.T.S., J.) (M.V.M.,J.) 20.11.2017 To The Chairman and Secretary, Tamil Nadu State Level Scrutiny Committee, Adi Dravidar and Tribal Welfare Department, Namakkal Kavingar Maligai, Secretariat, Chennai – 9.
C.T.SELVAM,J, AND M.V.MURALIDARAN,J.
vs Writ Petition No.10531 of 2017 20.11.2017