Service Law – Scheduled Tribe – Community Certificate – Validity – Post Retirement Benefit – Effect – Appellant was appointed as clerk-cum-shroff in the respondent bank on the basis of the community certificate – The appellant served in service for 38 years and was to set to retire but just before 2 days of his superannuation, he received a cessation order on the ground that his caste certificate being false and all his retirement benefits except PF were withheld from 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 appellant was not correct based on vigilance and experts reports – Aggrieved by this, the appellant again approached the High Court, but the writ petition and the contempt petition were dismissed on the ground that despite fair opportunity being granted to the appellant, he did not abided by the same – On appeal, held: Appellant before applying for the said post had supplied all documents supporting his claim as a ST candidate – However, re-evaluation of the authenticity of the documents were kept pending for 19 years – In the present case the clear pattern of harassment is visible as the cessation order was received by the appellant just two days before his superannuation after completing a service of 38 years and that on the date of passing of cessation order, no case was pending against the appellant – Also, it is evident that the appellant was not given an opportunity of being heard in the fresh scrutiny which was being conducted as the notice issued to the appellant was not actually served upon him as admitted by the postal department since the same was served to someone else – Further, the respondents’ claim that appellant’s community certificate was fake, was not proved – Two 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 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. It is 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 see, and the use of delayed procedure as a dangling sword can only be interpreted as harassment. [Para 14][1044-C-E]
2. It 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”. Further, the Respondent committee finally, after years 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 was 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. [Paras 16 and 17][1046-B-D]
3. The 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. This 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. By 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 witnesses, for the nature of the proceedings are not just a question pertaining 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]
4. A community certificate in cases of scheduled tribe 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 people 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. 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 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 Court must presume the community certificate of the Appellant 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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