Dismissed

V.P. Priyadarshanan v. Union of India

Kerala HC9 Jun 2016OP (CAT)/160/2016

Case brief

AI extract

What is this about?

This court dismissed a petition challenging the dismissal of a Postal Assistant for producing a fake caste certificate. Relying on precedent, the court held that the petitioner's caste is that of his father (OBC) and not his mother's SC community, rendering the reinstatement claim unsustainable.

What did the court decide?

The petition challenging the dismissal of the Original Appeal was dismissed as devoid of merit.

V.P. Priyadarshanan Vs Union of India — Caste Atrocities | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938

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OP (CAT).No. 160 of 2016 (Z)

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AGAINST THE ORDER/JUDGMENT IN OA 315/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 01-02-2016

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PETITIONER/APPELICANT:

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V.P. PRIYADARSHANAN, AGED 49, S/O.V.P.CHATHUKUTTY, FORMER POSTAL ASSISTANT (DISMISSED FROM SERVICE) THALASSERY HEAD POST OFFICE, RESIDING AT ARSHA, PINARAYI-670 741, KANNUR DISTRICT.

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BY ADVS.SRI.T.RAMESH BABU SRI.C.K.SREEJITH

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RESPONDENTS/RESPONDENTS:

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UNION OF INDIA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF POSTS OFFICES, NEW DELHI-110 001.

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SUPERINTENDENT OF POST OFFICES, THALASSERY DIVISION, THALASSERY-670 102.

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SMT.K.GEETHA, INQUIRING AUTHORITY & ASSISTANT SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION, VADAKARA-673 101.

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THE DIRECTOR OF POSTAL SERVICE, OFFICE OF THE POST MASTER GENERAL, NORTHERN REGION, KERALA CIRCLE, KOZHIKODE-673 011.

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R1,R2&4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 160 of 2016 (Z)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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P1 : THE TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION FILED BEFORE THE CAT ERNAKULAM BENCH.

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P2 : A TRUE COPY OF THE ORDER OF THE CHIEF GENERAL MANAGER TELECOM BSNL TRIVANDRUM ISSUED UNDER No.5(16/10-CE(c)/TVM BSNL/CON/14 Dt. 11/10/2012 EXONERATING VP PRACHOD BROTHER OF THE APPLICANT IN SIMILAR CASE.

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P3 : A TRUE COPY OF THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE IN CC No.1682/13 PRONOUNCED ON 09-07-2014.

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P4 : A TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH OA NO.315/2013.

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RESPONDENTS' EXHIBITS :- NIL.

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True copy

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P.A to Judge

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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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O.P.(CAT)No.160 of 2016

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Dated this the 9^th day of June, 2016

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JUDGMENT

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Ramachandra Menon, J.

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Challenge is against Ext.P4 order dated 1.2.2016 passed by the Tribunal in O.A.No.315/2013 whereby dismissal of the petitioner/applicant for producing a fake caste certificate and obtaining employment in the Postal Department was declined to be entertained and the O.A. was dismissed as devoid of any merit.

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The petitioner was working as a Postal Assistant in the Department of Posts. While so, it came to the notice of the Department that the caste certificate produced by the petitioner was a fake one and that he did not belong to Scheduled Caste Community, to have claimed appointment in a vacancy earmarked to the said category. This led to issuance of Annexure-A1 charge sheet dated 15.3.2010. The matter was enquired into and based on Annexure-A10 Inquiry Report, penalty of dismissal was imposed upon the petitioner as per Annexure-A12. Though the petitioner sought to challenge the

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O.P.(CAT)No.160 of 2016

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same by filing an appeal, the same did not yield any positive result and the appeal was dismissed as per Annexure-A14 order dated 14.2.2013. This was sought to be challenged before the Tribunal by filing the O.A. as aforesaid.

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The case projected by the petitioner was that the employment was obtained based on his caste status as belonging to 'Moger' community, which is a Scheduled Caste. As a matter of fact the mother of the petitioner belonged to the said community, though his father belonged to 'Mokaya' community, which is coming under the OBC. The case of the petitioner was that he had opted to have the community of the mother and was brought up accordingly, by virtue of which he was having all the rights to be treated as a member of Scheduled Caste. It was accordingly, that the competent authority had issued a caste certificate, based on which he was given employment as Postal Assistant. As such, there was absolutely no fault, lapse or misconduct on the part of the petitioner in producing the certificate or in obtaining the employment.

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The claim was resisted by the Department referring to the sequence of events, also raising the contention that the issue was hit by the 'principle of resjudicata'; having approached the Tribunal and also this Court earlier, leading to dismissal of the case projected by him. It was also pointed out that, as per the relevant rules and the binding precedents, the community of the petitioner was to be reckoned as that of his father, who belonged to 'Mokaya' community, which is not recognised as a Scheduled Caste as per the list published by the Government of Kerala SC/ST Development Department on 3.12.1991 (Annexure-R2). The issues have already gone into by the KIRTADS and the Scrutiny Committee and the findings have become final. After hearing both the sides, the Tribunal, placing reliance on the decisions (referred to in paragraphs 10 and 11 of Ext.P4 verdict) in Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and others (2008 (13) SCC 170) , R.Visawanatha Pillai Vs. State of Kerala and others (2004 (2) SCC 105) and in Additional General Manager Human Resources BHEL Vs. Suresh R.Burde (2007 (5) SCC 336)

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held that there was absolutely no merit in the O.A. and accordingly, the same was dismissed. This in turn is under challenge in this Original Petition.

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Heard the learned counsel for the petitioner at length.

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It is borne out by the records that the proceedings

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were initiated against the petitioner with reference to his caste status much earlier, based on some complaint and an enquiry was conducted by the Scrutiny Committee who found that the petitioner did not belong to 'Moger' Community, but 'Mokaya' community which is only one of the Other Backward Communities in Kerala. The proceedings were finalized by the Scrutiny Committee, as per the report dated 7.3.1998, which was accepted by the Government and an order was passed on 17.4.1998. Various directions were given by the Government including the direction to prosecute the petitioner for making a false claim as to the caste status, which made the petitioner to approach this Court challenging the said proceedings by filing O.P.No.8713/1998.

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In the course of further proceedings, the Department had issued a charge sheet to the petitioner way back in the year 1994 itself, which made the petitioner to have approached this Court by filing O.P.No.17763/1994. The said case was disposed of directing the concerned respondent to have the caste issue decided by the Scrutiny Committee, which led to the proceedings as referred to hereinbefore, ultimately leading to filing of O.P.No.8713/1998. The said Original Petition, i.e., O.P.No. 8713/1998 (wrongly typed as O.P.No.8713/1993) was considered by this Court with reference to the dictum laid down in Punit Rai Vs. Dinesh Chaudhary (2003 (8) SCC 204) and the ruling in Indira Vs. State of Kerala (2005(4) KLT 119) ; whereby it was held that the petitioner's caste should be treated as a caste of his father which is nothing but 'Mokaya' Community, which belongs to an OBC and not a Scheduled Caste. At the same time, while dismissing the O.P. as aforesaid, the Bench also observed in the last paragraph (paragraph 4) that, if the petitioners therein (the petitioner herein and his brother who was the other petitioner therein) were prosecuted, they will be free to defend

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the said case raising all contentions available under law. It was also observed that, the repelling of the challenge against the impugned proceedings with reference to the caste status will not in any way affect the contentions with reference to the alleged offences committed by the petitioners long before the commencement of Act 11 of 1996.

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Pursuant to the above judgment, a fresh charge sheet was issued to the petitioner on 15.3.2010. This was sought to be challenged by filing O.A.No.980/2011 before the Tribunal, which was disposed of as per order dated 15.11.2011 directing the respondents to complete the enquiry as specified therein. It was accordingly, that the enquiry was completed; ultimately leading to imposing Annexure-A12 penalty of dismissal, which in turn came to be challenged by way of filing O.A.No.315/2013. The contention raised in the present Original Petition is that the petitioner is entitled to be treated as a member of 'Moger' Community, i.e., the Community of his mother and that he is entitled to be treated as a member of Scheduled Caste. This issue has already been decided by this Court as per the judgment

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dated 17.9.2008 in O.P.No.8713/1998, whereby it was held (placing reliance on the verdict passed by the Supreme Court and the Full Bench of this Court) that caste of the petitioner was to be treated as the caste of his father, which is 'Mokaya' community coming under the OBC category. As such, the contention projected in the O.A. and reiterated in the present Original Petition is not at all liable to be entertained under any circumstance.

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The learned counsel for the petitioner however made a submission that the rights and liberties were reserved in the concluding paragraph of the judgment dated 17.9.2008 in O.P.No.8713/1998. We find it difficult to accept the said proposition. The last paragraph, i.e., paragraph 4 of the judgment (Annexure A3) reads as follows:-

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“4. But, in case the petitioners are prosecuted, they will be free to defend the said case raising all contentions available under law. The fact that we have repelled the challenge against Exts.P18 and P19 will not in any way affect the various contentions of the

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petitioners including the one that all the alleged offences have been committed by the petitioners long before the enactment of Act 11 of 1996.”

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While giving the declaration that the petitioner's caste was to be treated as that of his father and that he belonged to the OBC category and not a Scheduled Caste, the rights and liberties reserved in the said paragraph were only to the effect that the prosecution proceedings, if any, should not be affected by the observations and declarations. The question to be considered in a prosecution proceedings is as to the offence committed, if any, i.e., whether the employment was procured by him by submitting a fake caste certificate, and to what extent the culpability could be mulcted upon his shoulders and such other aspects. These are necessary to find the accused guilty and to impose the punishment in accordance with law, which are not relevant in so far as the disciplinary proceedings are concerned. The limited question to be considered in the disciplinary proceedings is whether any misconduct was there in getting appointed against a vacancy earmarked for scheduled caste, despite being a member

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belonging to OBC. The declaration made before the Department having been found as wrong and unsustainable as per the report of the scrutiny committee, the order passed by the Government and also the verdict passed by the Division Bench of this Court in O.P.No.8713/1998, the petitioner is no more liable to be treated as a member of the Scheduled Caste Community under any circumstance. As a natural consequence, the claim to get reinstated after setting aside Annexure-A12 order passed by the Department fails.

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