Kerala High CourtK.G.Viswanathan vs State Of Kerala on 2 May, 1998IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE

             FRIDAY, THE 20TH DAY OF MARCH 2015/29TH PHALGUNA, 1936

                                WP(C).No.11146 of 2009 (K)
                                ----------------------------------------

PETITIONER:
-------------------

          K.G.VISWANATHAN,AGED 58 YEARS,
          S/O.LATE K.T.GOVINDAN,MANAGER (INSPECTION-MOBILE),
          STATE BANK OF TRAVANCORE,HEAD OFFICE,
          TRIVANDRUM,
          PERMANENTLY RESIDING AT "KARTHIKA",
          KUNJATHOOR POST,MANJESWARAM.

           BY SRI.M.K.DAMODARAN (SENIOR ADVOCATE.)
                ADVS.SRI.GILBERT GEORGE CORREYA
                        SRI.J.VIMAL
                        SRI.ALAN PAPALI

RESPONDENTS:
------------------------

1.        STATE OF KERALA,REP.BY THE SECRETARY,
          SCHEDULE CASTE/SCHEDULE TRIBE,
          DEVELOPMENT DEPARTMENT,TRIVANDRUM.

2.        SCRUTINY COMMITTEE FOR VERIFICATION OF
          SC/ST CLAIMS,REP.BY THE CHAIRMAN,
          PRINCIPAL SECRETARY,SC/ST DEVELOPMENT DEPARTMENT,
          GOVERNMENT SECRETARIAT,TRIVANDRUM.

3.        THE MANAGING DIRECTOR,
          STATE BANK OF TRAVANCORE,
          HEAD QUARTERS,TRIVANDRUM.

           R1 & R2 BY SMT. P.K.SANTHAMMA SPECIAL GOVT.PLEADER
           R3 BY ADV.SRI.P.RAMAKRISHNAN
                         SRI.R.S.KALKURA,SC FOR SBT


          THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
          ON 27.02.2015 THE COURT ON 20-03-2015, DELIVERED THE FOLLOWING:




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W.P(C) NO.11146/2009

                                 APPENDIX

PETITIONER'S EXHIBITS:

EXT.P1:PHOTOCOPY OF THE SHOW CAUSE NOTICE NO.7315/G3/98/SCSTDD
       DATED 2.5.1998 ALONG WITH THE REPORT OF THE VIGILANCE OFFICER
       OF THE KIRTADS.

EXT.P2:PHOTOSTAT COPY OF THE PROCEEDINGS NO.7315/G3/98/SC/ST
       DATED 3.3.2001 ISSUED BY THE II RESPONDENT.

EXT.P3:PHOTOSTAT COPY OF THE REPRESENTATION DATED SUBMITTED
       BEFORE THE 1ST RESPONDENT.

EXT.P4:PHOTOSTAT COPY OF THE JUDGMENT DATED 17.3.2006 IN
       O.P.NO.17296/2001 OF THIS HONOURABLE HIGH COURT.

EXT.P5:PHOTOSTAT COPY OF THE LETTER NO.7315/G3/1998/SCSTDD
       DATED 17.1.2008 ISSUED BY THE 2ND RESPONDENT.

EXT.P6:PHOTOSTAT COPY OF THE REPRESENTATION DATED 16.2.2008
       SUBMITTED BEFORE THE 2ND RESPONDENT.

EXT.P7:PHOTOSTAT COPY OF THE LETTER NO.7315/G3/1998/SCSTDD
       DATED 19.3.2008 ISSUED BY THE 2ND RESPONDENT.

EXT.P8:PHOTOSTAT COPY OF THE LETTER NO.PAD/5/2651 DATED 30.3.2009
       FROM THE GENERAL MANAGER(OPERATIONS) OF THE 3RD
       RESPONDENT.

EXT.P9:PHOTOSTAYCOPY OF THE ORDER NO.7315/G3/2004/SCSTDD
       DATED 31.1.2009 ISSUED BY THE 2ND RESPONDENT.

EXT.P10:PHOTOSTAT COPY OF THE G.O(MS) NO.15/2009/SCSTDD
       DATED 31.1.2009 ISSUED BY THE 1ST RESPONDENT.

EXT.P11:TRUE COPY OF THE LETTER NO.RTI/CPIO/50/260 DATED 6.9.2012
        ISSUED BY THE RESPONDENT BANK.

RESPONDENT'S EXHIBITS:                NIL


                                      //TRUE COPY//




                                      P.S. TO JUDGE


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                  A. MUHAMED MUSTAQUE, J.
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                    W.P.(C) No.11146 of 2009
                  = = = = = = = = = = = = = =
             Dated this the 20th day of March, 2015

                           JUDGMENTThe writ petitioner belongs to 'Bakuda' community, a

recognised Scheduled Caste community.            The petitioner

approached this Court challenging proceedings of scrutiny

committee for verification of community certificate and also

termination notice issued by the State Bank of Travancore,

wherein the petitioner was employed. By the interim order of

this Court, the petitioner has been permitted to continue in

service of the bank. The petitioner now retired from the bank on

attaining the age of superannuation.2. The learned senior counsel appearing for the petitioner

urged before this Court that notwithstanding any finding made

by the scrutiny committee, the petitioner is entitled for entire

terminal benefits and leaving open all issues relating to caste,

this Court may consider the decision of the bank in regard to

termination for the purpose of granting pensionary benefits.W.P.(C) No.11146 of 200923. The petitioner was appointed in the Bank as a clerk on

26.09.1975.        The scrutiny committee constituted under the

Scheduled Castes and Scheduled Tribes Regulation of Issue of

Community Certificates Act, 1966 (Kerala) (hereinafter referred

to as the Act 11 of 1996) by Ext.P9 proceedings dated

31.01.2009 rejected the claim of petitioner as he belonged to

Scheduled Tribe.         Consequent upon the finding, without

conducting any enquiry in this matter, the petitioner has been

ordered to be terminated from the service of the bank.4. The learned Senior Counsel submits, provisions of the

Act 11 of 1996 would not apply in this matter, as the Act 11 of

1996 would only apply to any other community obtaining a false

Community Certificate either as Scheduled caste or Scheduled

tribe as the case may be. According to the learned counsel,

since the petitioner belongs to Scheduled caste whether any

finding made by the Scrutiny committee petitioner belongs to

Scheduled tribe has no consequence in terms of Act 11 of 1996

as the same does not contemplate cancellation of such certificate

obtained by Scheduled Caste member as Scheduled Tribe or

Scheduled Tribe as Scheduled Caste as the case may be. TheW.P.(C) No.11146 of 20093learned counsel further submits that there was no fraud as such

committed by the petitioner in obtaining Caste Certificate as the

caste name was shown in the SSLC book and other school

records would describe the caste as Scheduled tribe "Mala

Araya". It is further submitted that all the family members were

admitted in the school as they belonged to Scheduled Tribe in

Mala Araya community. It is the case of the petitioner that they

all suffered same hardships and backwardness of a Scheduled

Tribe. It is further submitted that no fraud was committed in

obtaining job in the State Bank of Travancore.        If at all any

discrepancies occur, that      can only be treated as error or

irregular and cannot be attributed as a fraud committed by the

petitioner. Therefore, it is submitted that, leaving open the issue

relating to the caste certificate the petitioner is entitled to

pensionery benefits for the simple reason that the bank did not

conduct any enquiry in this matter fo find out fraud on the part

of the petitioner.5. The Act 11 of 1996 was enacted to regularise the issues

relating to community certificates for Scheduled caste and

Scheduled tribe in the State of Kerala.        It also provides forW.P.(C) No.11146 of 20094cancellation of false community certificates. Section 11 of the

Act provides as follows:-"11. Cancellation of false community certificate-1) Where, before or after the commencement of this Act,

      a person not belonging to any of the Scheduled Castes or the

      Scheduled Tribes has obtained a false community certificate to

      the effect that either himself or his children belongs or belong

      to such Caste or the Tribe, the Scrutiny Committee may either

      suo motu or on a written complaint or report by any person or

      authority, call for the records and enquire into the correctness

      of such certificate and if it is of the opinion that the certificate

      was obtained fraudently, it shall, by order, cancel the

      certificate after giving the person concernd an opportunity of

      making a representation, if any."Section 11 abundantly makes clear that any Community

certificate fraudulently obtained has to be cancelled. However,

it has to be noted, the reference is made obtaining such

certificate by a person who doesnot belong to Scheduled Caste

or Scheduled Tribe.6. The argument of the learned Senior counsel is that the

petitioner being a Scheduled Caste member is not contemplated

in this Act and therefore if a Scheduled Caste member obtainsW.P.(C) No.11146 of 20095certificate as Scheduled Tribe, the Act has no application. I have

find considerable force in this argument, especially in the

context of such cancellation based on fraud. The fraud vititates

every action, therefore, if any other community member obtains

a certificate as Scheduled Caste or Tribe, it can be safely

concluded that this was based on fraud.           However, when a

Scheduled Caste obtains a certificate in the name of Scheduled

Tribe, it cannot be termed as a 'fraud' as referred under Section

11 as the Act as such has no application. In such situation, a

finding has to be made by competent authority as to the nature

of fraud perpetrated by the person who obtained such certificate.

I am not entering upon the finding of the scrutiny committee in

this matter. If at all the finding is correct, that finding cannot be

considered as a finding in terms of Section 11, as above.

Processing as such would not apply to a member of Scheduled

Caste who obtains such certificate in the name of Scheduled Tribe

but that finding can be a piece of evidence for the authority who has

given employment to establish a fraud committed by the petitioner in

obtaining the employment.       Therefore, leaving open the issues

relating to the veracity of the finding by the scrutiny committee,W.P.(C) No.11146 of 20096the question is whether the petitioner had committed any fraud

in obtaining the employment with the bank.7. Ext.P8 is the proceedings of the bank terminating the

petitioner.      As evident from Ext.P8 itself, the bank did not

conduct any enquiry. Though it is stated that the petitioner has

been appointed in the reserve vacancy for                   Scheduled Tribe

based on the caste certificate produced by the petitioner as

Scheduled Tribe. Nothing has been stated about the nature of

vacancy that was available at the time of appointing the

petitioner. The bank authorities simply relied upon the scrutiny

committe report.        This scrutiny committee report cannot be

termed as a finding in terms of Section 11, as it may not have an

application if a Scheduled Caste member obtaining such

certificate as a Scheduled Tribe. It can only be relied as a piece

of evidence to establish fraud committed by the petitioner in

obtaining the employment.            The fraud is defined under the

Black's dictionery as follows:-"Fraud: An intentional perversion of truth for the purpose of inducing

     another in reliance upon it to part with some valuable thing

     belonging to him or to surrender a legal right. A false representation

     of a matter of fact, whether by words or by conduct, by false orW.P.(C) No.11146 of 20097misleading allegations, or by concealment of that which should have

     been disclosed, which deceives and is intended to deceive another

     so that he shall act upon it to his legal injury. Anything calculated to

     deceive, whether by a single act or combination, or by suppression

     of truth or suggestion of what is false, whether it be by direct

     falsehood or innuenduo, by speech or silence, word of mouth, or

     look or gesture."8. The quality of the finding as entered in the scrutiny

committee itself would go to show that the caste shown in the

petitioner's school record could be error or mistake. Nowhere it

refers that the petitioner fraudulently styled as a Scheduled

Tribe member and obtained the caste certificate. If a person's

caste is found out later to be a Scheduled Tribe instead of

Scheduled Caste, in the absence of any fraudulent act on the

part of such person, it is not safe to conclude that the caste

certificate was obtained by fraudulent method. As has already

been noted, Section 11 of Act 11 of 1996 as such would not apply

in the matter to conclude that the caste certificate obtained by

the petitioner is by fraudulent method as the same Act would not

apply to a Schedule caste member.9. In such situation, the only way of establishing case

against the petitioner for obtaining Scheduled Tribe certificateW.P.(C) No.11146 of 20098by fraud is by adducing independent evidence. The bank without

adverting into any of these materials and also without attributing

any of the fraudulent acts, has terminated the petitioner from the

service. This action is illegal. If there was error or mistake in

obtaining the certificate, that will not vitiate the petitioner's

employment in the bank. In law irregular appointments and void

appointments are having different repercussions. In the former

case the appointment itself will not be vitiated, in later of course

employment itself will be vitiated dis-entitling him all terminal

benefits. The bank did not make any endeavour to find out

fraud on the part of the petitioner. In such situation, I am of the

view that the termination of the petitioner is illegal and liable to

be set aside. Accordingly, Ext.P8 is set aside.10.      In State of Jharkhand v. Jithendra Kumar

Srivastava (2013(3) KLT 782 (SC) it is held that the State

Government cannot withhold pensionary benefits pending

departmental/criminal proceedings.     Consequently, there shall

be a direction to release the entire pensionary benefits to the

petitioner without delay, at any rate, within a period of two

months from the date of receipt of a copy of the judgment. TheW.P.(C) No.11146 of 20099Bank is at liberty to proceed against the petitioner if so

warranted in accordance with law to conduct an enquiry

regarding fraud committed by the petitioner. Any payment of

terminal benefits will be subject to outcome of such enquiry, if

any.The writ petition is disposed of. No costs.A. MUHAMED MUSTAQUE, JUDGE

sj