IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE BETWEEN DATED THIS THE 21 st DAY OF SEPTEMBER 2012 PRESENT THE HON BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE AND THE HON BLE MRS. JUSTICE B.V. NAGARATHNA WRIT APPEAL 4120 of 2002 (S-DIS) 1. The Director, Bangalore Complex, Indian Telephone Industries Dooravani Nagar, Bangalore The General Manager (O.B) Bangalore Complex, Indian Telephone Industries Dooravani Nagar, Bangalore B.K.Katari, Aged 62 years, General Manager (O.B.) Bangalore Complex, Indian Telephone Industries Dooravani Nagar, Bangalore Chennaiah, Aged 61 years, Vigilance Officer, Bangalore Complex, Indian Telephone Industries Dooravani Nagar, Bangalore-16.. APPELLANTS (By Sri Uday Holla, Senior Advocate with Sri Rajanna)

2 2 AND 1. G. Sathya Murthy, S/o A.Giddappa, Aged about 52 years, No.528, 16 th cross, II Stage, Indiranagar, Bangalore The Deputy Inspector General of Police, C.I.D. C.R.E. Cell, Palace Road, Bangalore The Deputy Commissioner Bangalore District Urban Bangalore 4. The Addl. Tahsildar Bangalore North Taluk Bangalore. RESPONDENTS (By Sri G.Dayananda Moorthy for C/R1, Sri C.Jagadish, Spl. GA for R-2 to 4). This writ appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.38606/1995 dated This writ appeal having been heard and reserved for pronouncement of judgment, this day, the Chief Justice delivered the following:

3 3 J U D G M E N T Vikramajit Sen, C.J. This appeal assails the Order dated passed by the learned Single Judge in Writ Petition No.38606/1995, by which the dismissal Order of the petitioner was quashed and his reinstatement with all consequential benefits was ordered. 2. The petitioner [Respondent No.1 before us] is G. Sathya Murthy and he has been represented by his brother G. Dayananda Murthy, an Advocate, all through. We mention these names for the reason that G. Dayananda Murthy, Advocate, had himself initiated several legal proceedings on the very question which is focal for our decision i.e. whether the claim made by the petitioner for Scheduled Tribe status was fraudulent or was not justified. 3. It has been contended by the learned Senior Counsel for the appellant that the decision given in favour of his Advocate brother has been relied upon by the petitioner. It is also relevant because several Representations have been made by the

4 4 brother Advocate to various Authorities praying that the Kuruba community, in contradistinction to Jenu Kuruba community, should also be accorded the Scheduled Caste/Tribe status. We must immediately record our finding that the learned Single Judge has started the discussion on an erroneous premise namely, that the caste certificate issued by the Tahsildar Bangalore North taluk in favour of the petitioner certifying that he belongs to Jenu Kuruba community is not in dispute. From a perusal of the pleadings in the writ petition it is palpably clear that the Respondents in the writ petition [Appellant before us] had laid a strong assault on the genuiness of the schedule caste/tribe certificate, which according to them had not been substantiated through evidence. It is another matter that assuming the caste certificate had in actuality been issued by the concerned Tahsildar, the appellant nevertheless asserts that its issuance itself was founded on fraud and hence, it is non est in the eye of law. 4. The petitioner had on an earlier occasion filed Writ Petition No.7910/1989, 9698/1989 and 15581/1991 against the

5 5 Appellant [Indian Telephone Industries Limited, Bangalore] all of which came to be decided by the learned Single Judge in the Judgment dated Those proceedings related to an Enquiry initiated against the petitioner for his having dishonestly furnished false information regarding his caste by stating that he belongs to Jenu Kuruba tribe and his deliberately suppressing the fact that he belongs to the Kuruba caste which is not a Scheduled Tribe, and that thereby he fraudulently secured employment in the appellant industry. The learned Single Judge, in those earlier writ petitions had recorded that neither the father of the petitioner nor any of his siblings had claimed the status of Scheduled Tribe even though certain scholarships were available to them; that Jenu Kuruba was not a sub-caste of Kuruba; and that fraud vitiates everything, and if established, no equities can come in the way. However, in view of the fact that the Enquiry report had not been furnished to the petitioner prior to his dismissal, the dismissal was held to be not legal. It was further opined therein that The question that arise for consideration is whether other members in the family of the petitioner claimed benefits belonging to Jenu Kuruba Tribe while in

6 6 fact he is not a Jenu Kuruba at all but only Kuruba. If he, by mistake and not as a result of fraud claimed to belong to Schedule Tribe, his case will have to be considered whether he would be eligible to be appointed under any other category? Non furnishing of the report denied an opportunity to the petitioner to effectively represent his case The Disciplinary Authority shall decide the question of extension of the period of suspension and on culmination of the renewed enquiry question of reinstatement or any action thereof. As such, reinstatement was ordered together with continuance of further enquiry. 5. So far as the issuance of the caste certificate is concerned, the Appellant has subsequently relied on Annexure- A16 which is the caste certificate issued by the District Social Welfare Officer to the effect that the petitioner belongs to Jenu Kuruba community which is similar to Nomadic and Semi- Nomadic Tribes/caste listed in Government Order No. PHS 262 SEW 65 dated as also declaration on oath of the Petitioner s father, asserting that he belonged to Jenu Kuruba- Schedule Tribe. After careful cogitation we are in no manner of

7 7 doubt that the petitioner had claimed that he belonged to Jenu Kuruba Scheduled Tribe knowing fully that he did not so belong, and accordingly he had made the claim fraudulently seeking and obtaining an advantage for employment for which he was not eligible. The caste certificate was exhibited on the evidence of the Shiresthedar attached to office of the Tahsildar, but the learned Single Judge has ignored the subsequent evidence of the Tahsildar who has categorically deposed that the whereabouts of the person who had issued this certificate was not known and that there was no record available in the office of the Tahsildar indicating and substantiating the issuance of that document. 6. The learned Single Judge has applied the decision in Madhuri Patil Vs Additional Commissioner, Tribal Development, AIR 1997 SC 2581 : (1994) 6 SCC 241 but, with great respect, has not kept in perspective the prospective operation of that decision. In other words, Madhuri Patil would not invalidate the actions taken prior thereto, such as in the present case where the evidence gathered and recorded clearly points, it is apparent to us, to the position that the caste certificate relied

8 8 upon by the petitioner had not been issued at all and the originals had not been produced. This finding of ours would not prejudice the conclusion that even if the Certificate had in fact and in actuality been issued by the office of the Tahsildar, the petitioner has failed altogether to prove that he belonged to Jenu Kuruba-Scheduled Tribe, despite sufficient opportunity was afforded to him. As already mentioned above, his Advocate brother has made several representations to the concerned Authorities that he belonged to Kuruba community, which having been accorded Schedule Caste status in other States should also be recognized as Schedule Caste in the State of Karnataka. This itself is sufficient indication that the petitioner and his entire family were fully aware that firstly, they did not belong to Jenu Kuruba Schedule Tribe and, secondly, that they were not entitled to reservation/preference available to the persons belonging to a Schedule Tribe at the relevant point of time. It is evident from the records that a full fledged investigation had been carried out by the Deputy Inspector General Police, CID, Civil Rights Enforcement Cell, who had opined that the petitioner has falsely claimed Schedule Tribe

9 9 status. Since the decision in Madhuri Patil clarifies that it has only prospective operation, the Schedule Caste/Schedule Tribe certificates did not require to be cancelled in the manner indicated by the Apex Court in that case, and its genuines and probative value could have been assessed even in the Disciplinary proceedings. It is also beyond cavil that the petitioner was not entitled to and would not have got any preferential consideration on his belonging merely to the Kuruba caste, which is distinct from the Schedule Tribe nomenclatured as Jenu Kuruba. 7. As could be gathered from the endorsement issued by the Tahsildar, Bangalore North Taluk dated , as at Annexure-A27, the caste certificate issued to brother/advocate of the petitioner had been referred to the Deputy Inspector General of Police, CID, CRE Cell, Bangalore for verification. It is evident from the said endorsement that the Deputy Inspector General of Police, CID, CRE Cell, Bangalore had in his letter dated reported that G. Dayananda Murthy and others referred to in his application dated do not belong to

10 10 Jenu-Kuruba community but that they belong to Kuruba community; and accordingly the request for issuance of caste certificate was rejected. It is true that so far as the Petitioner s advocate/brother is concerned, by curial directions, such a certificate eventually came to be issued to him. But we are in no manner of doubt that that event will not, in law and without more, enure to the benefit of the Petitioner. It has not been controverted that on the strength of a certificate issued to the brother/advocate of the petitioner, a similar caste certificate came to be issued in favour of the petitioner subsequently. The Principle of Estoppel or any other legal principle would not bind the Appellant from questioning or challenging the certificate issued to the petitioner through independent enquiry or investigation. 8. In Director of Tribal Welfare, Government of A.P Vs. Laveti Giri (1995) 4 SCC 32, it has been opined that the burden of proof of social status is always lies on the person who profess it to seek constitutional socio-economic advantage and in case of any fraud, action should be taken even against the

11 11 person/official issuing a false certificate. Madhuri Patil ordains that findings of the Verification Committee based on evidence does not brook jural interference unless it is vitiated by an error of law or non application of mind and that once fraud is established, no sympathy and equitable consideration come into play. In that case, even though the petitioner was then in the second year of studies, her admission was cancelled. R. Viswanatha Pillai Vs. State of Kerala (2004) 2 SCC 105 reiterates that Madhuri Patil does not operate retrospectively. The Constitution Bench decision in B. Basavalingappa Vs. D. Munichinnappa AIR 1965, SC 1269 is of no advantage to the petitioner for the reasons that in that case, the Court had gone into annals of the caste and had noted the Governmental Order dated to the effect that Voddar community would in future be known and called as Bovi. It is of no relevance in the present case since admittedly there is a clear distinction between the Schedule Tribe Jenu Kuruba and Kuruba community which at best is a backward community comprising of shepherds and is not a Schedule Tribe.

12 12 9. The learned Single Judge has been arrived at the erroneous conclusion as to the genuiness of the caste certificate, and has been observed that it had neither been withdrawn nor cancelled obviously in Madhuri Patil mould even though the relevant events transpired much before that decision. We are satisfied that consequent upon the enquiry made by the Deputy Inspector General of Police, CID, Civil Right Enforcement Cell, the caste certificate relied upon by the Petitioner had been sufficiently invalidated. It is also to be noted that only a Xerox copy of the caste certificate had been produced and that the petitioner had not even entered the witness box to support his case during Enquiry proceedings. 10. The representations of the brother/advocate of the petitioner include the following: (i) Letter dated to the Chief Minister of Tamil Nadu for declaring Kurumba and Kuruba community as Schedule Tribe throughout the State of Tamil Nadu and Karnataka at par with Kurumans synonym of Kurumba and Kuruba, (ii) letter dated to the Secretary, Social Welfare Department, Government of Karnataka

13 13 recommending inclusion of Kuruba the synonyms of Kurumans as Schedule Tribe, and (iii) letter dated by Advocate/brother of the petitioner addressed to the Secretary, Social Welfare Department, Government of Karnataka, Bangalore on the subject to treat Kuruba as synonym and at par with Kurumans throughout Karnataka State would further substantiate the case of the appellant. 11. The learned Senior Counsel for the appellant has rightly drawn our attention to the facts that (i) even the father of the petitioner, at the time of admission of petitioner in Maharaja s College, Mysore and St. Joseph s College, Bangalore had variously shown himself as Hindu or belonging to Kuruba community, (ii) the School register of Kum. Uma Devi and Maya Devi, sisters of the petitioner, in Government Kannada Middle School show that they had claimed to belong to the Kuruba community. It is for these manifold reasons that we are unable to uphold the impugned Order of the learned Single Judge. While Jenu Kuruba is a Schedule Tribe whose members are entitled to the

14 14 benefits bestowed by the Constitution of India, a similar position does not obtain to those belonging to Kuruba community which is only a backward community. We are of the firm conclusion that the Petitioner had fraudulently represented himself as belonging to Jenu Kuruba and had by false pretence and assertion applied for a Certificate to this effect. For this reason, the petitioner had made himself liable for dismissal from service. The Appeal is accordingly allowed and the impugned Order is set aside. Sd/- CHIEF JUSTICE Vr Sd/- JUDGE