R SUNDARAM versus THE TAMIL NADU STATE LEVEL SCRUTINY COMMITTEE & ORS. on 17 March 2023

[2023] 2 S.C.R. 1037

R SUNDARAM

v.

THE TAMIL NADU STATE LEVEL SCRUTINYCOMMITTEE & ORS.

(Civil Appeal No. 1770-1771 of 2023)

MARCH 17, 2023

[ANIRUDDHA BOSE AND KRISHNA MURARI, JJ.]

Service Law – Scheduled Tribe – Community Certificate –Validity – Post Retirement Benefit – Effect – Appellant was appointedas clerk-cum-shroff in the respondent bank on the basis of thecommunity certificate – The appellant served in service for 38 yearsand was to set to retire but just before 2 days of his superannuation,he received a cessation order on the ground that his caste certificatebeing false and all his retirement benefits except PF were withheldfrom him – Aggrieved by this, the appellant approached High Court– High Court remanded the matter back to the scrutiny committee –The scrutiny committee held that the caste certificate of the appellantwas not correct based on vigilance and experts reports – Aggrievedby this, the appellant again approached the High Court, but thewrit petition and the contempt petition were dismissed on the groundthat despite fair opportunity being granted to the appellant, he didnot abided by the same – On appeal, held: Appellant before applyingfor the said post had supplied all documents supporting his claimas a ST candidate – However, re-evaluation of the authenticity ofthe documents were kept pending for 19 years – In the present casethe clear pattern of harassment is visible as the cessation order wasreceived by the appellant just two days before his superannuationafter completing a service of 38 years and that on the date of passingof cessation order, no case was pending against the appellant –Also, it is evident that the appellant was not given an opportunity ofbeing heard in the fresh scrutiny which was being conducted as thenotice issued to the appellant was not actually served upon him asadmitted by the postal department since the same was served tosomeone else – Further, the respondents’ claim that appellant’scommunity certificate was fake, was not proved – Two reportsdeclaring the community certificate of the appellant as fake were

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Asubmitted after inordinate delay and both reports have not allowedparticipation of appellant – Thus, impugned orders set aside –Appellant entitled to post-retirements benefits.

Allowing the appeal, the Court

BHELD: 1. After serving the Respondent bank for 38 years,the Appellant, two days before his superannuation received hiscessation order without there being any proper enquiry. Further,on communication made to the respondent no.1, it was found thaton the date of passing the cessation order, no case was pendingagainst the Appellant. It is a very clear pattern of harassment isCvisible, and there appears to be a sinister motive against theAppellant and his right to pensionary benefits. Even after 38 yearsof service, irrespective of the merits of the case, the fact that theAppellant has not been treated with any respect is sad to see,and the use of delayed procedure as a dangling sword can only beDinterpreted as harassment. [Para 14][1044-C-E]

2. It has been explicitly stated by this Court that theexercise of verification of community certificate must becompleted expeditiously. In the present case however, as hasbeen mentioned above, there has been an inordinate andEunexplained delay of 19 years, an amount of time which cannotbe fathomed within the ambit of “reasonable time”. Further, theRespondent committee finally, after years of superannuation ofthe Appellant submitted its first report, however the same wasstruck down by the High Court on grounds of it being violative ofprinciples of natural justice, as the appellant was not given anFopportunity to lead his evidence and cross examine the witnesses.Subsequent to this, a fresh enquiry was conducted, and anotherreport was submitted again, however even this report suffersfrom the same fallacy as the previous report because even here,the Appellant has not been afforded the opportunity to be heard.G[Paras 16 and 17][1046-B-D]

3. The High Court in its findings in the impugned judgmentstated that the subsequent report was passed ex-parte becausethe Appellant, even after receiving notice of the proceedings didnot attend the same. The Appellant however claims that he never H

received notice. A bare perusal of the material at hand wouldshow that the notice which was to served to the Appellant was infact served upon one Mr. Sudarshan, and the same has beenadmitted by the postal department and can be seen in the postalsheet. This fact was brought upon by the Appellant during thereview proceedings, however, the High Court failed to considersuch finding and dismissed the review without adverting to thegrounds raised therein and thus the judgment suffers from anerror apparent. By not allowing the Appellant an opportunity tobe heard, the principle of “Audi Alteram Partem”, a principle ofnatural justice has also been violated. The Appellant, inproceedings where the genuineness of his belonging to acommunity is under question, must have a right to be heard, andmust be given the right to cross-examine the witnesses, for thenature of the proceedings are not just a question pertaining hisemployment, but also something that strikes at the core of hisbeing, i.e., his identity. [Paras 18, 19 and 20][1046-D-H]

4. A community certificate in cases of scheduled tribecommunities, unlike any other piece of paper, is anacknowledgment of a person belonging to a community whichhas faced years of oppression. The Constitution of Indiaguarantees certain rights to people from Scheduled Tribecommunities on grounds of historical injustice, and for thetranslation of such rights from paper to real life, the communitycertificate in most cases becomes an essential document. Thiscertificate, whilst being an acknowledgment of history, is also adocument that tries to rectify such historical injustice by becominga tool that fabricates constitutional rights into reality. In such ascenario where the validity of a community certificate is put toquestion, keeping in mind the importance of the document andthe effect it has on people’s rights, the proceedings questioningthe document cannot, except in the most exceptionalcircumstances, be done ex-parte. Any person, whose entireidentity, and their past, present and future rights are challenged,must at the least be given an opportunity to be fairly heard. Inthe case at hand however, such a right has been denied to the AB

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AAppellant, and hence the burden of proof on the respondents todisprove the nature of the certificate, has not been discharged.In the absence of the discharge of such burden of proof, this Courtmust presume the community certificate of the Appellant to begenuine. [Paras 22 and 23][1047-C-G]

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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 andCOthers (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50 –relied on.

Case Law Reference

ECIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1770-1771 of 2023.

From the Judgment and Order dated 13.02.2020 of the High Courtof Judicature at Madras in RA No.157 of 2019 and dated 16.04.2019 inWP No. 28295 of 2018.F

R. Balasubramanian, Sr. Adv., Dr. Ram Sankar, VishwanathanIyer, A. Vasantha Kumar, G. Jai Singh, Ms. Sujathad Bagadhi, Ms. R. V.Sharumathi, M/s. Ram Sankar & Co., Advs. for the Appellant.

GSanjay R. Hegde, Sr. Adv., D. Kumanan, Sheikh F. Kalia,Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi, Ms. VaidehiRastogi, Shiv Ram Sharma, Vishwaditya Sharma, Ms. VasundharaSharma, Advs. for the Respondents.

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R SUNDARAM v. THE TAMIL NADU STATE LEVELSCRUTINY COMMITTEE

The Judgment of the Court was delivered by KRISHNA MURARI, J.

Delay condoned. Leave Granted.

2. The present Appeal is directed against the final order andjudgment dated 13.02.2020 in Review Application No. 157 of 2019 passedby the High Court of Madras, and against order dated 16.04.2019 inW.P. No. 28295 of 2018 passed by the High Court of Madras (hereinafterreferred to as “High Court”) whereby the Appellants’ challenge to thedenial of his post-retirement benefits was dismissed.

BACKGROUND FACTS

3. The Appellant was appointed as a clerk-cum-shroff in theRespondent bank on the basis of a community certificate dated 15.11.1975certifying that he was from the Konda Reddy Community. After a tenureof 38 years, the Appellant retired as a Scale 3 officer, however, twodays before his superannuation, he received a cessation order on groundsof his caste certificate being false, and all his retirement benefits exceptPF were withheld from him.

4. During the Appellant’s tenure in the respondent bank, TheDistrict collector (sixth respondent herein), without conducting any enquiry,cancelled the community certificate granted to the Appellant. Aggrievedby the same, the Appellant filed WP No. 12546 of 1998. The High Courtvide order dated 09.08.2009 remanded the matter back to the TamilNadu State Level Scrutiny Committee (first respondent herein) to conducta fresh enquiry. However, even after the High Court order, the verificationwith regard to the communal status of the Appellant was still notconcluded, and this led to the Appellant’s retirement without realizationof his retirement benefits.

5. The Appellant then, to seek his post-retirement benefits filedWP No. 19006 of 2013 in the High Court, however the same wasdisposed off vide order dated 04.07.2014 , and the first respondent wasdirected to complete the enquiry within a period of eight weeks. TheAppellant then preferred an SLP in the Supreme Court against the abovementioned High Court order, and during the pendency of the SLP, aninterim order was passed by this Hon’ble Court directing the Appellantto appear before the first respondent for enquiry. Subsequently, the saidSLP was withdrawn.

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A6. In the meantime, the fifth respondent concluded the enquiryand submitted a report dated 29.11.2017 with the finding that the Appellantin fact did not belong to the Konda Reddy Community. Based on thisreport, 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 seekingto set aside the show cause notice and the enquiry report. The HighBCourt, vide order dated 19.12.2017 allowed the same, and remanded thematter back to the scrutiny committee whilst quashing the show causenotice and the enquiry report.

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7. Subsequent to the order of the High Court remanding the matterback to the scrutiny committee, the committee again proceeded andCheld that the caste certificate of the Appellant was not correct based on vigilance reports and other expert reports.

8. The Appellant, aggrieved by the above mentioned report of thescrutiny committee filed another W.P No. 28295/2018 and along with acontempt petition seeking for a restoration of the community certificate,Dhowever both were dismissed by the High Court vide impugnedjudgement dated 16.04.2019 on grounds that despite fair opportunity beinggranted to the Appellant, he had not abided by the same; The Appellantthen preferred a Review Application No. 157/2019 in the High Court,however, this was also dismissed vide second impugned judgement datedE13.02.2020.

ANALYSIS

Analysis

ANALYSIS

9. Mr. R. Balasubramanian and Mr. S. Prabakaran, Senior Counselappearing on behalf of the Appellant vehemently argued that as per thedirections of the High Court in order dated 19.12.2017, the AppellantFwas to be given due opportunity to cross-examine the witnesses, andcopies of all documents relied on by the Respondents was to be furnishedto the Appellant, however, the same was not done. It has been furthercontended that at the time when the Appellant was given the cessationorder, no enquiry against him was pending, and that in the entire processGhe has been subject to harassment for almost 19 years.

10. Per Contra, Mr. Gopal Sankaranarayanan, Senior Advovateand Mr. Joseph Aristotle, AOR, appearing on behalf of the respondentsargued that notice was duly served on the Appellant, and it was theAppellant who did not show up in the proceedings. It was also arguedthat due to the Appellant not showing up, the proceedings were adjourned,H

but even after the adjournment the Appellant did not show up, and hencethe committee had no option but to pass its decision ex-parte.

11. Keeping in mind the submissions of both the parties, at thevery outset we would like to state that the right to pensionary benefit isa constitutional right and as such cannot be taken away without properjustification as has been held in the case of State Of Jharkhand & Ors.vs Jitendra Kumar Srivastava & Anr.[1]. The relevant paragraph of thejudgment is being extracted herein:

“15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC651 : 2006 SCC (L&S) 1719] this Court recognised that evenwhen, after the repeal of Article 19(1)(f) and Article 31(1) ofthe Constitution vide Constitution (Forty-fourth Amendment)Act, 1978 w.e.f. 20-6-1979, the right to property no longerremained a fundamental right, it was still a constitutional right,as provided in Article 300-A of the Constitution. Right toreceive pension was treated as right to property. Otherwise,challenge in that case was to the vires of Rule 10(1) of theWest Bengal Services (Death-cum-Retirement Benefit) Rules,1971 which conferred the right upon the Governor to withholdor withdraw a pension or any part thereof under certaincircumstances and the said challenge was repelled by thisCourt.

16. The fact remains that there is an imprimatur to the legalprinciple that the right to receive pension is recognised as aright in “property”…Once we proceed on that premise, theanswer to the question posed by us in the beginning of thisjudgment becomes too obvious. A person cannot be deprivedof this pension without the authority of law, which is theconstitutional mandate enshrined in Article 300-A of theConstitution. It follows that attempt of the appellant to takeaway a part of pension or gratuity or even leave encashmentwithout any statutory provision and under the umbrage ofadministrative instruction cannot be countenanced.”

12. Further, 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,

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Aa right of the employee, and as such cannot be denied without properjustification.

13. At the very beginning, we would like to state that this Court isappalled at the treatment given to the Appellant by the Respondentsherein. The Appellant, before applying to the post reserved for STBcandidates supplied all documents required in support of his claim as aST candidate, and got the documents verified and approved. After beinggiven employment however, the re evaluation of the authenticity of thedocuments of the Appellant have been kept pending for 19 years, danglinglike a sword on the Appellants head.

C14. After serving the Respondent bank for 38 years, the Appellant,two days before his superannuation received his cessation order withoutthere being any proper enquiry. Further, on communication made to therespondent no.1, it was found that on the date of passing the cessationorder, no case was pending against the Appellant. To us, a very clearpattern of harassment is visible, and there appears to be a sinister motiveDagainst the Appellant and his right to pensionary benefits. Even after 38years of service, irrespective of the merits of the case, the fact that theAppellant has not been treated with any respect is sad to see, and theuse of delayed procedure as a dangling sword can only be interpreted asharassment.E15. In the case of Madhuri Patil and Another Vs Additional

15. In the case of Madhuri Patil and Another Vs AdditionalCommissioner, Tribal Development and Others[3], this Court gavefifteen guidelines as to how the exercise of verification of communitycertificate ought to be completed. The relevant extract from the saidjudgment are reproduced hereunder:F

“The admission wrongly gained or appointment wronglyobtained on the basis of false social status certificatenecessarily has the effect of depriving the genuine ScheduledCastes or Scheduled Tribes or OBC candidates as enjoinedin the Constitution of the benefits conferred on them by the ,Gconstitution. The genuine candidates are also deniedadmission to educational institutions or appointments to officeor posts under a State for want of social status certificate.The ineligible or spurious persons who falsely gained entryresort to dilatory tactics and create hurdles in completion of H3 (1994) 6 SCC 241

R SUNDARAM v. THE TAMIL NADU STATE LEVELSCRUTINY COMMITTEE [KRISHNA MURARI, J.]

the inquiries by the Scrutiny Committee. It is true that theapplications for admission to educational institutions aregenerally made by a parent, since on that date many a timethe student may be a minor. It is the parent or the guardianwho may play fraud claiming false status certificate. It is,therefore, necessary that the certificates issued are scrutinisedat the earliest and with utmost expedition and promptitude.

For that purpose, it is necessary to streamline the procedurefor the issuance of social status certificates, their scrutinyand their approval, which may be the following: (emphasissupplied)

9…The inquiry should be completed as expeditiously aspossible preferably by day-to-day proceedings within suchperiod not exceeding two months. If after inquiry, the casteScrutiny Committee finds the claim to be false or spurious,they should pass an order cancelling the certificate issuedand confiscate the same. It should communicate within onemonth from the date of the conclusion of the proceedings theresult of enquiry to the parent/guardian and the applicant.

10. In case of any delay in finalising the proceedings, and inthe meanwhile the last date for admission into an educationalinstitution or appointment to an officer post, is getting expired,the candidate be admitted by the Principal or such otherauthority competent in that behalf or appointed on the basisof the social status certificate already issued or an affidavitduly sworn by the parent/guardian/candidate before thecompetent officer or non-official and such admission orappointment should be only provisional, subject to the resultof the inquiry by the Scrutiny Committee.

15…. As soon as the finding is recorded by the ScrutinyCommittee holding that the certificate obtained was false, onits cancellation and confiscation simultaneously, it should becommunicated to the concerned educational institution or theappointing authority by registered post with acknowledgementdue with a request to cancel the admission or the appointment.The principal etc. of the educational institution responsiblefor making the admission or the appointing authority, should AB

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Acancel the admission/appointment without any further noticeto the candidate and debar the candidate for further study orcontinue in office in a post.”

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

17. Further, the Respondent committee finally, after years ofsuperannuation of the Appellant submitted its first report, however theCsame was struck down by the High Court on grounds of it being violativeof principles of natural justice, as the appellant was not given anopportunity to lead his evidence and cross examine the witnesses.Subsequent to this, a fresh enquiry was conducted, and another reportwas submitted again, however even this report suffers from the samefallacy as the previous report because even here, the Appellant has notDbeen afforded the opportunity to be heard.

18. The High Court in its findings in the impugned judgment statedthat 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 bareEperusal of the material at hand would show that the notice which was toserved to the Appellant was in fact served upon one Mr. Sudarshan, andthe same has been admitted by the postal department and can be seen inthe postal sheet.

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

20. By not allowing the Appellant an opportunity to be heard, theprinciple of “Audi Alteram Partem”, a principle of natural justice hasGalso been violated. The Appellant, in proceedings where the genuinenessof his belonging to a community is under question, must have a right tobe heard, and must be given the right to cross-examine the witnesses,for the nature of the proceedings are not just a question pertaining hisemployment, but also something that strikes at the core of his being, i.e.,his identity.H

CONCLUSION

21. At this stage we would like to clarify that in cases whereemployment is based on a fake community certificate the law is settledthat post-retirement benefits cannot be granted. In the present casehowever, there exists a very clear difference. While the Respondentshave claimed the Appellant’s community certificate to be fake, such aclaim has not been proven. Even though two reports declaring thecommunity certificate of the Appellant as fake were submitted afterinordinate and unexplained delay, however, both the reports have notallowed the participation of the Appellant.

22. A community certificate in cases of scheduled tribecommunities, unlike any other piece of paper, is an acknowledgment ofa person belonging to a community which has faced years of oppression.The Constitution of India guarantees certain rights to people fromScheduled Tribe communities on grounds of historical injustice, and forthe translation of such rights from paper to real life, the communitycertificate in most cases becomes an essential document. This certificate,whilst being an acknowledgment of history, is also a document that triesto rectify such historical injustice by becoming a tool that fabricatesconstitutional rights into reality. In such a scenario where the validity ofa community certificate is put to question, keeping in mind the importanceof the document and the effect it has on people’s rights, the proceedingsquestioning the document cannot, except in the most exceptionalcircumstances, be done ex-parte.

23. Any person, whose entire identity, and their past, present andfuture rights are challenged, must at the least be given an opportunity tobe fairly heard. In the case at hand however, such a right has beendenied to the Appellant, and hence the burden of proof on the respondentsto disprove the nature of the certificate, has not been discharged. In theabsence of the discharge of such burden of proof, this Court mustpresume the community certificate of the Appellant to be genuine.

24. On the basis of the abovementioned discussions, we are ofthe opinion that both the impugned orders are liable to be set aside, andthe Appellant is held to be entitled to the post-retirement benefits accruedto him by way of his 38 year long service. The Respondent bank isdirected to grant all post-retirement benefits to the Appellant which weredenied to him along with 6% Simple Interest on account of unnecessary B

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Awithholding of payment, from the date the payment was due to the dateof actual payment.

25. As a consequence, the appeal stands allowed. No order as tocosts.

BAnkit Gyan

(Assisted by : Mahendra Yadav, LCRA)

Appeal allowed.

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