Writ Petition No. 12486 of 2015. Case: Pratibha Niketan Education Society, Nanded and Ors. Vs Ashok and Ors.. High Court of Bombay (India)

Case NumberWrit Petition No. 12486 of 2015
CounselFor Appellant: S.M. Kulkarni, Advocate and For Respondents: S.M. Vibhute h/f U.R. Awate, Advocate
JudgesR. V. Ghuge, J.
IssueConstitution of India - Articles 142, 226, 227
Judgement DateApril 11, 2016
CourtHigh Court of Bombay (India)


R. V. Ghuge, J.

  1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

  2. The question/issue that has been raised in this petition is with regard to the distinction between a "fraud"/"nebulous" act and innocuous act. The said issue has been canvassed by the petitioners and the respondents in the light of the following judgments of the Hon'ble Supreme Court and of this Court, which substantially deal with this issue;-

    [i] Shalini v. New English High School Association and others, 2013(2) Mh.L.J. 913: 2014(1) All M R 904

    [ii] Arun Vishwanath Sonone v. The State of Maharashtra and others, Bombay High Court - Full Bench, 2015 (1) Mh.L.J. 457.

  3. The petitioners are aggrieved by the judgment and order dated 21/08/2015 delivered by the School Tribunal, Latur by which Appeal No. 42/2014 filed by respondent No. 1/employee has been partly allowed and his termination dated 12/10/2013 has been quashed and set aside in the light of the ratio laid down in the various judgments which have been considered in the Shalini case (supra) and Arun Vishwanath Sonone (supra).

  4. The submissions of Mr. Kulkarni, learned Advocate for the petitioners/Management can be summarized as follows:--

    "[a] The post of an "Assistant Teacher" was available with the petitioners and the same was reserved for the Scheduled Tribe category (ST).

    [b] The employee moved an application dated 29/07/1982 wherein he has specifically stated that he belongs to the ST category.

    [c] A caste certificate dated 06/03/1979 was produced by the employee indicating that he belongs to the 'DHANGAD' community which falls under the ST category.

    [d] The proofs by way of documents submitted by the employee to the Tahsildar and Taluka Magistrate were his own affidavits, certificate issued by the Gram Sevak and Talathi Saza.

    [e] Based on the above representation, the petitioners appointed the employee in service and his appointment was approved on 03/11/1982 by the Education Officer on the ground that he belonged to the DHANGAD Tribe which fell under ST category.

    [f] The employee did not submit any validity with regard to his Tribe Certificate.

    [g] After the introduction of The Maharashtra Scheduled Caste, Scheduled Tribe, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Mah. Act 23 of 2001), the Management called upon the employee by letter dated 25/01/2005 to submit his Tribe validity. Similar such reminders were issued to the employee.

    [h] By an ultimatum dated 02/12/2010, the employee was given 7 days time to submit 12 documents so that the Management could forward his claim for validation to the appropriate Tribe Committee.

    [i] Yet another notice was issued to the employee on 29/06/2013 by the Management.

    [j] The petitioners/Management then preferred Writ Petition No. 10684/2012 wherein the employee was impleaded as respondent No. 4. This Court issued notice before admission to the respondent/employee.

    [k] The petitioners had raised an issue as regards directions to the appropriate Tribe Claim Validation Committee for deciding the tribe claim of the employee.

    [l] After the above petition was filed on 16/09/2012, the State of Maharashtra issued a Government Resolution dated 18/05/2013, by which those employees whose caste/tribe claims were invalidated or who desired to surrender their caste certificates and who had been appointed prior to 15/06/1995, were assured that their services would be protected.

    [m] After the above GR was brought into effect, the employee acquired a caste certificate on 17/06/2013 declaring him to be belonging to the 'HATKAR-29' caste and which was covered by the Nomadic Tribe-C category (NT-C).

    [n] The employee was terminated from service on 10/12/2013 on the ground that he had played a fraud on the employer and had acquired an appointment on the claim that he belonged to the ST category.

    [o] The respondent moved Appeal No. 42/2014 before the School Tribunal, which has been partly allowed by the impugned judgment dated 21/08/2015.

    [p] The School Admission Extract of the employee indicates that he belonged to the HATKAR caste and the same was recorded in the School Admission Extract on 12/07/1968.

    [q] The birth-death register of the employee indicates that he belonged to the HATKAR caste.

    [r] At the time of leaving school on completion of S.S.C., the employee was aware that his caste was written in his School Leaving Certificate as HATKAR and not as DHANGAD.

    [s] On 11/06/2013, the employee affirmed on oath in an affidavit before the Special Executive Magistrate that he belonged to the HATKAR community.

    [t] The School Leaving Certificate dated 03/07/1991 indicates the caste of the employee as HATKAR.

    [u] The caste validity certificate of the daughter of the respondent/employee namely Ms. Neha indicates that her claim belonging to HATKAR caste is validated.

    [v] The caste certificate dated 29/11/2005 issued to the second daughter of the employee namely Ms. Mrinal also mentions her caste to be HATKAR-29 falling in the NT-C category.

    [x] The respondent/employee lodged a complaint dated 21/01/2012 to the Police Station claiming that he belongs to the DHANGAD caste and the same falls under ST category. It is also stated that he had rightly and legally acquired the caste certificate from the Tahsildar of Taluka Kinwat.

    [y] In the said complaint, the employee had averred before the Bhagyanagar Police Station claiming that the Management representatives are threatening him and are trying to extort money from him by alleging that he does not belong to the DHANGAD tribe.

    [z] The Management replied to the Bhagyanagar Police Station, Nanded on 10/02/2012 alleging that the respondent/employee had filed a false certificate and by his fraudulent act, had secured his appointment by claiming to be belonging to the DHANGAD tribe under the ST category.

    [aa] By an order dated 31/07/2013 delivered by the Deputy Director-cum-Secretary of the Nomadic Tribe Certificate Inspection Committee, Aurangabad, the tribe certificate of DHANGAD has been confiscated.

    [bb] By the conduct of the respondent/employee, it is apparent that he had the knowledge that he does not belong to the DHANGAD ST category and belongs to the HATKAR NT-C category.

    [cc] Despite knowledge of these facts, he has played a fraud on the Management and acquired employment on a post reserved for the ST category.

    [dd] The School Tribunal has merely considered the ratio laid down by the Hon'ble Supreme Court and this Court in various matters and has got carried away by the conclusion that such an employee deserves to be protected and since a regular departmental enquiry was not conducted under Rule 36 and 37 of the M.E.P.S. Rules, the termination of the employee would amount to a major punishment without a departmental enquiry.

    [ee] The Tribunal has lost sight of the fact that the burden lay on the employee to indicate as to how he has not played any fraud and was under a bonafide belief that he belonged to the DHANGAD tribe.

    [ff] Merely because an enquiry has not been conducted, would not render the termination bad in law.

    [gg] The respondent claims to be 55 years of age as on date and has about 3 years left for retirement (date of birth being 20/10/1961).

    [hh] The view taken by the Hon'ble Supreme Court and by this Court in the Shalini case supra and Arun Sonone case (supra) does not lay down the law that an employee who had committed a fraud deserves protection.

    [ii] The GR dated 18/05/2013 also does not provide for any protection to an employee who has acquired service fraudulently.

    [jj] The impugned judgment of the Tribunal may be quashed and set aside and the termination of the employee be upheld."

  5. Mr. Vibhute, learned Advocate for the respondent/employee has strenuously supported the impugned judgment and by placing reliance on the judgments in the case of Shalini and Arun Sonone (supra) he contends that the School Tribunal has rightly protected him. He further adds that the protection granted by the School Tribunal is not a blanket protection, but it directs the petitioners/employer to conduct a departmental enquiry as per the rules and then resort to any action as it may deem fit and proper. Since the termination is held to be invalid, the respondent/employee has been granted reinstatement in service and reliefs of continuity, full back wages and other benefits are made subject to the result of the departmental enquiry.

  6. Mr. Vibhute has strenuously contended that the employee has not committed any fraud and the contentions of the employer are totally misconceived. His submissions to that effect can be summarized as under:--

    [a] The caste certificate indicating that he belongs to DHANGAD community under ST category was acquired by him on 06/03/1979.

    [b] At the age of 21 years, he was appointed by the petitioners on 13/09/1982.

    [c] On instructions from the employee present in the Court, it is stated that he cannot mention the date on which he got the knowledge that he belonged to the HATKAR tribe.

    [d] He acquired the caste certificate dated 17/06/2013 on the basis of the school records.

    [e] He had the knowledge of the school records right from the day he had completed S.S.C.

    [f] Clause 5 of the GR dated 18/05/2013 protects his services and pursuant to the GR he has surrendered his DHANGAD tribe certificate and a specific order to that effect has been passed by the competent authority on 31/07/2013.

    [g] The deadline prescribed in clause 6 of the GR was upto 30/06/2013 and which was extended by another two months.

    [h] He has submitted his second caste certificate within the deadline and hence is entitled for the protection under the GR.

    [i] Heavy reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Shalini (supra) and especially on paragraph Nos. 5 and 6.

    [j] Reliance is...

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