GUJARAT URJA VIKAS NIGAM LTD. vs JAGDISHCHANDRA PUKHRAJCHANDRA
- Court
- Gujarat High Court
C/SCA/29883/2007 CAV JUDGMENT DATED: 04/11/2026
(GJHC240553382007)
Reserved On : 07/10/2026
Pronounced On : 04/11/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 29883 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
Approved for Reporting Yes No
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GUJARAT URJA VIKAS NIGAM LTD. & ANR.
Versus
JAGDISHCHANDRA PUKHRAJCHANDRA & ANR.
==========================================================
Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
MR TR MISHRA(483) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. By this writ application under Article 226 of the
Constitution of India, the writ applicant has called in question
the legality and validity of the order/award dated 18.01.2007
passed in Complaint (IT) No.08 of 2004 in Reference (IT) No.47
of 2002 by the Industrial Tribunal, whereby the complaint filed
by the respondent-workman in pending Reference (I.T.) No.47
of 2002 came to be partly allowed by directing the writ
applicant-Board to reinstate the respondent-workman with 50%
back-wages.
2. Shorn of superfluities, the background facts leading to
the filing of the present application are that the writ applicant,
at the relevant point of time, wanted to fill up the backing of
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vacancies from the reserved categories of S.C. & S.T.
candidates. The candidates were called for interview and they
were selected either as S.T. or S.C. or OBC on the reserved
posts. The respondent-workman was one of such candidates
belonging to S.T. category, and after his interview for the post
of helper/lineman, he was initially selected in the quota of S.T.
category for a period of three years vide order dated
31.03.1993 as a full term Apprentice under the Apprentice Act,
1961. On his appointment to the post of helper/lineman, the
respondent-workman was issued the appointment order on
18.05.1994 and he was ordered to be employed under the writ
applicant No.2. The respondent-workman rendered his
services till he was suspended by an order dated 09.04.2001.
The allegations against the respondent-workman were that he
had dishonestly obtained the appointment in S.T. category by
tampering with his school leaving certificate showing him to be
‘Hindu Bhangora’ instead of ‘Hindu Bhangi’. Against his
suspension, the respondent-workman approached the
conciliation officer for settlement of the dispute, which dispute
was ultimately referred to the Industrial Tribunal vide
Reference (I.T.) No.47 of 2002 on 31.01.2002. Thereafter,
ultimately, at the end of the departmental inquiry, the writ
applicant-Department, upon finding the respondent-workman
guilty, dismissed him from services. The respondent-workman,
on his dismissal from service, made a complaint being No.08 of
2002 before the Industrial Tribunal in Reference (I.T.) No.47 of
2002, which came to be allowed by the Industrial Tribunal vide
judgment and award dated 18.01.2007, whereby the
respondent-workman was directed to be reinstated in service
with 50% back-wages. Being aggrieved, the writ applicants
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are here before this Court with the present application.
3. Learned advocate Mr. Dipak Dave appearing for the writ
applicants has reiterated the facts narrated herein above and
submits that the impugned judgment and award dated
18.01.2007 is unjust, illegal, improper, arbitrary and against
the settled principle of law, and as such, deserves to be
quashed and set aside being suffered from vice of non-
application of mind. Learned advocate Mr. Dave further
submits that the respondent-workman was initially appointed
on Apprentice for the period of three years as a helper/lineman
under the writ applicant-Board and by an order dated
18.05.1994, he came to be regularized on the said post as the
Schedule Tribe candidate in view of the reservation provided
for Schedule Tribes on the basis of the documents produced by
him at the time of his appointment as an Apprentice. However,
later, the respondent-workman was put under suspension on
the ground that he has tampered with the school leaving
certificate by changing his caste from ‘Hindu Bhangi’ to ‘Hindu
Bhangora’ with a view to secure the job in the writ applicant-
Board in the reserved category of Schedule Tribe, although the
respondent-workman belongs to the Scheduled Caste because
there were more vacancies in the Scheduled Tribe category
against other reserved categories. The respondent-workman
was also served with the show-cause notice calling upon to
show-cause why he should not be dismissed from service and
why the salary and the other allowances and benefits given to
him should not be recovered. He further submits that by the
aforesaid show-cause notice, the respondent-workman was
asked to give reply within ten days. However, as the
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respondent-workman could not give reply within the given
time, he again requested the Board to give him further time to
submit his reply. Pursuant to the said request, the time to file
reply was extended for a further period of ten days. Learned
advocate Mr. Dave also submits that as the respondent-
workman could not file its reply within the prescribed time
limit, the writ applicant-Board carried out further inquiry and
ultimately terminated the services of the respondent-workman
vide order dated 17.07.2001 on the ground that the allegations
leveled against the respondent-workman were proved and that
the respondent-workman had chosen not to file reply. Leaned
advocate Mr. Dave further submits that being dissatisfied with
the aforesaid order dated 17.07.2001, terminating his services,
the respondent-workman approached this Court by filing
Special Civil Application No.6896 of 2001, wherein this Court,
vide order dated 05.12.2001, quashed and set aside the
termination order on the ground that the said order is punitive
in nature and a full-fledged departmental inquiry was ordered
to be conducted against the respondent-workman to be
concluded within a period of three months. He also submits
that the order of termination was quashed and set aside,
however, the respondent-workman was directed to remain
under suspension till the conclusion of inquiry, and thereby the
order of suspension was revived and/or continued.
4. Learned advocate Mr. Dave further submits that,
pursuant to the order passed by this Court, departmental
proceedings were initiated against the respondent-workman,
and at the end of the full-fledged departmental inquiry and
after providing sufficient opportunity of being heard to the
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respondent-workman, he was dismissed from the services by
the writ applicant-Board. Learned advocate Mr. Dave also
submits that on his dismissal from service, the respondent-
workman made a complaint being Complaint No. 08 of 2002 to
the Industrial Tribunal in Reference (I.T.) No. 47 of 2002, which
proceedings, according to the writ applicants, already became
otiose pursuant to the quashment of the order of termination
as well as the direction issued by this Court to keep the
respondent-workman under suspension, and as such, no
complaint could have been made in such proceedings, rather
the respondent-workman ought to have filed fresh reference.
Learned advocate Mr. Dave further submits that the Industrial
Tribunal, without considering the aforesaid fact and the
evidence available on record in its true sense and proper
perspective, proceeded with the said complaint, and without
considering the documents available on record in its true sense
and proper spirit, passed the impugned order, reinstating the
respondent-workman with 50% back-wages, and as such, the
impugned order can be said to be a non-speaking order, and
therefore, is required to be quashed and set aside.
5. Learned advocate Mr. Dave further submits that the
Industrial Tribunal ought not to have passed the impugned
order as it lacked jurisdiction since the main Reference (I.T.)
No.47 of 2002 had already become otiose. He submits that
such reference ought not to have taken care off while deciding
the complaint. Learned advocate Mr. Dave further submits that
the Industrial Tribunal ought to have considered the fact that
the complaint under Section 33(A) of the Industrial Disputes
Act, 1947 (for short ‘the Act, 1947’) was not maintainable as
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the main reference proceedings being Ref. (I.T.) No.47 of 2002
had already become infructuous or otiose, and as such, he had
no jurisdiction to decide the complaint and pass the order in
favour of the respondent-workman. Learned advocate Mr. Dave
further submits that the Tribunal ought to have considered that
the order of suspension dated 09.04.2001 was merely a
temporary cassation of employment pending disciplinary
inquiry which is an inherent right of the employer to pass an
order of suspension and the right to pass order of suspension is
independent and has nothing to do with the conditions of
service for which departmental proceedings can be initiated.
Learned advocate Mr. Dave also submits that the Tribunal
should have appreciated the fact that no express permission in
writing of the authority concerned under Section 33 or
approval under Section 33(2)(b) is necessary as the pending
dispute was independent and not connected with the ultimate
order. Learned advocate Mr. Dave further submits that the
Tribunal has failed to consider the documentary evidence on
record and completely ignored the same. He submits that
though there is ample evidence to show that the appointment
of the respondent-workman was made under the particular
reserved category, the Tribunal completely discarded the said
piece of evidence and passed the impugned order of
reinstatement, and as such, the same is required to be
quashed being contrary to the evidence available on record.
6. Learned advocate Mr. Dave further submits that the
Tribunal has completely discarded the documentary evidence
available on record, and based its entire findings only on the
ground of breach of provisions of Section 33 of the Act, 1947.
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He also submits that the Tribunal has committed an error of
fact as well as of law in allowing the complaint filed by the
respondent-workman ordering reinstatement. Rather, it could
have directed the respondent-workman to initiate fresh
proceedings under Section 10(c) of the Act, 1947. Learned
advocate Mr. Dave further submits that though there are ample
evidence indicating that the respondent-workman was
appointed under the S.T. category by relaxing the experience
criteria in case of appointment of S.T. candidate, yet the
Tribunal has completely ignored the said piece of evidence and
recorded the finding that the writ applicant-Board has not
produced any document to prove that the initial appointment
of the respondent-workman was based upon any particular
category. He further submits that even a detailed inquiry had
been carried out by the Social Welfare Department, from whom
the respondent-workman fraudulently obtained the S.T.
certificate, wherein it was found that the respondent-workman
has made interpolation in his school leaving certificate by
showing him to be ‘Hindu Bhangora’ in place of ‘Hindu Bhangi’.
In the said inquiry, the statement of the principle of the school
had also been recorded, who has deposed in a very categorical
manner that in the school leaving certificate issued by them,
the caste of the respondent-workman was shown to be the
‘Hindu Bhangi’ and he belongs to the S.C. Category. He further
submits that at the end of inquiry, the said authority has
cancelled the said certificate of the respondent-workman and
declared the same to be invalid. The said order passed by the
Social Welfare Department has not been challenged by the
respondent-workman before any competent authority, and as
such, the same has attained finality. He also submits that, in
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fact, similar issue came up for consideration before the Hon’ble
Supreme Court in the case of Kumari Madhuri Patil vs. Addl.
Commissioner, reported in 1995 AIR 94, wherein considering
the seriousness of the matter, the Hon’ble Supreme Court
established the mandatory legal foundation for the issuance,
verification, and scrutiny of Scheduled Caste (SC) and
Scheduled Tribe (ST) certificates in India to eliminate
fraudulent claims and protect genuine reservation, based upon
which, Gujarat Scheduled Castes, Scheduled Tribes and other
Backward Classes (Regulation of Issuance and Verification of
Caste Certificates) Act, 2018 came to be enacted, wherein as
per Section 11 of the said Act, if any benefits are being
secured on the basis of false and fabricated caste certificate,
then the said benefits are required to be withdrawn by
discharging the employee from the employment forthwith. The
Act further provides that any benefits enjoyed or derived by
virtue of such admission or appointment by such person as
aforesaid shall be withdrawn forthwith.
7. Learned advocate Mr. Dave further submits that the
Tribunal has committed a patent error of law by assuming that
once a contravention of Section 33 is established, an order of
reinstatement follows as an automatic consequence. He also
submits that, therefore, Section 33A complaint is legally
equivalent to a full-fledged reference under Section 10 of the
Act, 1947. The Tribunal cannot stop at finding a technical or
procedural breach of Section 33; it is legally bound to examine
the substantive merits of the employer’s action. Learned
advocate Mr. Dave further submits that by granting automatic
reinstatement solely due to the lack of approval or pendency of
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a dispute, the Tribunal denied the writ applicant-Board its
established right to justify the termination on merits before the
forum. He further submits that mere technical breach of
Section 33 does not wipe out or immunize the underlying
misconduct of an employee.
8. Learned advocate Mr. Dave further submits that a
complaint under Section 33A is maintainable only if the
employer has contravened the provisions of Section 33 during
the pendency of an industrial dispute. Here, in the case on
hand, the Reference proceedings being No.47 of 2002 had
already become otiose and infructuous with the termination of
the respondent-workman and with the passing of an order by
this Court dated 05.12.2001, reviving the suspension. Learned
advocate Mr. Dave further submits that in the present case, the
writ applicants have not violated the provisions of Section 33
of the Act, 1947, as there was no main industrial dispute in
existence at the time of the action. He also submits that the
Tribunal has failed to appreciate that the existence of a valid
contravention is a sine qua non for invoking the provisions of
Section 33A. Without establishing such a contravention, the
Tribunal assumed jurisdiction where none existed, rendering
the impugned order void ab initio. He further submits that it is
a settled law that once a complaint under Section 33A is filed,
the Tribunal must decide it as if it was a dispute referred to it
under Section 10 of the Act, 1947. Thus, the Tribunal has
committed a grave error by focusing solely on the alleged
technical violation of Section 33, treating it as an automatic
ground for setting aside the dismissal. In fact, the Tribunal was
duty-bound to adjudicate upon the substantive merits of the
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dismissal/discharge, which it completely failed to do.
9. Learned advocate Mr. Dave further submits that the
respondent-workman was found guilty of committing
interpolation in his caste certificate, and such a grave
misconduct on the part of the respondent-workman completely
shatters the employer-employee relationship. He further
submits that reinstatement is not a matter of right. He submits
that where an employee occupies a position of trust, or where
their presence is detrimental to the discipline and smooth
running of the establishment, loss of confidence is a valid
defense, and therefore, forcing the writ applicant-Board to
reinstate an employee who has lost the trust of the
management is highly unjust, unfair, and commercially
unviable. He further submits that the Tribunal mechanically
granted reinstatement with 50% back-wages without placing
the onus on the respondent-workman to prove that he was not
gainfully employed during the period of separation. He submits
that as per the settled law laid down by the Hon’ble Supreme
Court, back wages are not a natural consequence of setting
aside an order of termination. The respondent cannot be
rewarded with a windfall gain for a period during which he
rendered no service to the writ applicants. He further submits
that even assuming, for the sake of argument, that there was a
technical omission in complying with Section 33 of the Act,
1947, such a technicality cannot regularize a workman who is
otherwise guilty of gross misconduct, and the authority
concerned ought to have decided the said application it as if it
was a dispute referred to it under Section 10 of the Act, 1947.
Thus, the impugned order of the Tribunal is highly unfair as it
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penalizes the employer disproportionately for a procedural
lapses, while completely absolving the employee of proven
misconduct. To buttress his submissions, learned advocate Mr.
Dave relies upon the following decisions;
(i) In the case of Chairman & Managing Director FCI & Ors.
vs. Jagdish Balaram Bahira & Ors., 2017 AIR (SC) 327;
(ii) In the case of Managing Director, Nekrtc Katnatak vs.
Shivasharanappa, 2017 (16) SCC 540;
(iii) In the case of A. Vishvanatha Pillai vs. State of Kerala,
2004 AIR (SC) 1469;
(iv) In the case of Director Marketing of Agricultural & Ors. vs.
D. Khasim Saheb, SLP (Civil) No.22224 of 2023, decided on
13.02.2025;
10. In such circumstances, referred to above, learned
advocate Mr. Dave prays that there being merit in the present
application, the same be allowed, and the relief, as prayed for
be granted.
11. But, the present application has been vehemently
opposed by learned advocate Mr. U.T. Mishra appearing for the
respondent-workman. He submits that no error, not to speak of
any error of law, could be said to have been committed by the
Tribunal in passing the impugned order. Learned advocate Mr.
Mishra submits that the respondent-workman was suspended
from duty on 09.04.2001 and subsequently his services were
arbitrarily and abruptly terminated on 17.07.2001 without
initiating any departmental proceedings and without giving any
opportunity of making defense to the respondent-workman,
which order was challenged by the respondent-workman
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before this Court by filing Special Civil Application No.6896 of
2001, wherein the termination was converted into suspension.
He submits that pursuant to the aforesaid order, under the
guise of initiating a so called departmental inquiry, wherein
neither the respondent-workman was called for nor was given
an opportunity to lead evidence, rather showing one of the
designated members of the Union to be his representative,
his services were terminated vide order dated 13.05.2002, that
too, without seeking any prior approval from the competent
court despite the fact that reference proceedings were
pending, and thereby committed breach of the statutory
provisions of law which ultimately constrained the respondent-
workman to prefer complaint being No.08 of 2004 against the
writ applicant under Section 33A of the Act, 1947. Learned
advocate Mr. Mishra further submits that the order impugned
in the present writ application is dated 18.01.2007 passed in
Complaint No.08 of 2004, whereby the respondent-workman
was ordered to be reinstated in service with 50% back-wages.
He submits that the said complaint was filed on the ground
that the respondent-workman was a protected workman under
the Act, 1947 and while terminating his services, no permission
was sought for as required under Section 33 of the Act, 1947,
and as such, the termination order being in contravention of
Section 33, without seeking prior permission of the authority
concerned, becomes non-est. Learned advocate Mr. Mishra also
submits that the Tribunal has rightly held that the respondent-
workman was the protected workman and an industrial dispute
was pending and the respondent-workman was directly
concerned with the dispute, and therefore, rightly allowed the
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complaint by reinstating the respondent-workman in service.
12. Learned advocate Mr. Mishra further submits that the
copy of the application applying for the post of helper has
never been placed on record by the writ applicants before the
Tribunal claiming appointment on the strength of Scheduled
Tribe community. Learned advocate Mr. Mishra submits that a
copy of the original engagement of the respondent-workman
as Apprentice dated 31.03.1993 is appended along with the
reply, which does not indicate that he was engaged initially as
an apprentice on the strength of Schedule Tribe community. He
also submits that after the completion of the Apprenticeship,
the respondent-workman was issued appointment order dated
18.05.1994, a copy of which is also appended along with the
reply, which also indicates that the respondent-workman was
not appointed on the strength of Schedule Tribe community.
Learned advocate Mr. Mishra also submits that when any
candidate is appointed on the strength of S.C., S.T., OBC or
SEBC community, there is a specific stipulation in the
appointment order about such appointment on a particular
reserved post. Learned advocate Mr. Mishra has also produced
certain appointment letters of other candidates to show that
there appointment letters specifically contains a particular
category of reserved caste on which they were appointed,
whereas in the case of the respondent-workman no such
category has been mentioned in his appointment letter, which
clearly indicates that he was selected as an open category
candidate, and as such, the question of tampering with any
record/register does not arise.
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13. Learned advocate Mr. Mishra further submits that certain
members of the Union are having grudge against the
respondent-workman, and as such, with a sole intent to harass
the respondent-workman, false and fabricated charges have
been leveled against him. In fact, a criminal complaint has also
been lodged against the respondent-workman by the writ
applicants, wherein charge-sheet also came to be filed, and
ultimately, at the end of trial, the respondent-workman has
been acquitted from all the charges leveled against him. He
further submits that initially on the basis of report submitted
by the Social Welfare Department, the services of the
respondent-workman were terminated without holding any
departmental inquiry, which was challenged by the
respondent-workman before this Court, wherein specific
direction was given to the writ applicant-Board to initiate
departmental inquiry, and during that period, the respondent-
workman was ordered to be remained under suspension. He
submits that initially even reply was also filed by the
respondent-workman, however, without dealing with the said
reply and taking on record the same, straightway termination
order came to be passed. He submits that it was well within
the knowledge of one and all that reference proceedings had
already been initiated by the respondent-workman against his
suspension which was pending before the Tribunal, and as per
Section 33 of the Act, 1947, it was incumbent upon the
employer to obtain prior approval from the competent
authority before passing any order during the pendency of the
reference proceedings, which has not been done in the present
case, and as such, the Tribunal has rightly held the
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termination as bad and illegal. In support of his submissions,
learned advocate Mr. Mishra relies upon the following
decisions;
(i) In the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.
vs. Ram Gopal Sharma, reported in 2002 (2) SCC 244;
(ii) In the case of K.V.S. Ram vs. Banglore Metropolitan
Transport Corpn., reported in 2015 (12) SCC 39;
14. In such circumstances, referred to above, learned
advocate Mr. Mishra prays that there being no merit in the
present application, the same be rejected.
15. In rejoinder, learned advocate Mr. Dave submits that so
far as filing of reply is concerned, the same was beyond the
stipulated time period fixed by the Board. Even in the reply,
the respondent-workman has not denied the allegations of
interpolation, but had very deliberately and cleverly tried to
shift the burden on the Board by stating that it was the Board
who had to properly verify and scrutinize the document before
issuing the appointment letter. Thus, it can be said that the
allegations of interpolation had not been completely denied by
the respondent-workman. So far as the order of acquittal of the
respondent-workman in criminal trial is concerned, it is well
settled that mere acquittal in a criminal complaint alone would
not result in his reinstatement in service when he has been
dismissed from service after a departmental proceeding. He
further submits that at the time of considering the evidence
available on record, a criminal court is required to prove its
case beyond reasonable doubt, whereas in departmental
proceedings, the case is evaluated on the touchstone of
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preponderance of probabilities. He, therefore, submits that the
standard of proof and the appreciation of evidence in a
departmental proceeding are entirely different and distinct
from those of a criminal proceeding, and therefore, both
cannot be measured by the same yardstick.
16. Having heard the learned counsel appearing for the
parties and having gone through the material available on
record, the core question that falls for the consideration of this
Court is two-fold:
“Firstly, whether the Industrial Tribunal has the jurisdiction to
entertain a complaint filed under Section 33A of the Industrial
Disputes Act, 1947, alleging contravention of the provisions of
Section 33 of the Act by the employer during the pendency of
a prior industrial dispute; and
Secondly, if the first question is answered in the affirmative,
what is the proper course of adjudication and the scope of
inquiry to be adopted by the Tribunal in resolving the said
complaint?”
17. Before delving into the core merits of the issues referred
to above, this Court deems it imperative to at the outset deal
with and observes upon the validity of the caste certificate on
the strength of which the respondent-workman secured his
appointment.
18. Let me begin with a maxim ‘ Fraus et jus nunquam
cohabitant’ (Fraud and justice never dwell together). It is an
established maxim that fraud and justice cannot cohabit. A
benefit obtained by fraud cannot be sustained under any
provisions of law.
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19. It is a settled principle of law that fraud vitiates every
solemn act. When an appointment is obtained under any
reserved category on the basis of a fake, forged, or invalid
caste certificate, it strikes at the very root of the recruitment
process and constitutes a fraud on the Constitution. A person
who enters public employment through the back door by
depriving a genuine candidate of their legitimate right cannot
be allowed to reap the benefits of such an appointment.
Therefore, the threshold question of the validity of the caste
certificate must be adjudicated before any other consequential
reliefs or procedural irregularities are evaluated.
Validity of the Caste Certificate
20. In the aforesaid context, the landmark judgment of the
Hon’ble Supreme Court in Jagdish Balaram Bahira (Supra)
addressed the validity of public employment and educational
benefits obtained through false or invalidated caste
certificates. In the said judgment, the three Judges’ Bench of
the Hon’ble Supreme Court has very explicitly dealt with the
core issue involved in the present matter. The observations,
relevant to be quoted, are as follows:-
“5 A large body of precedent has evolved both in the
High Courts as well as in this Court in seeking to find
answers to pleas raised by individuals that they are
entitled to protection by a constitutional court, even after
the invalidation of their caste or tribe claims. The decided
cases reflect a profound awareness on the part of courts
of the human element involved. Assessment of human
consequences case by case has resulted in a conflicting
line of approach, in the effort of the court to balance the
letter of law with a sense of compassion. Since this Bench
of three Judges is called upon to seek a median, through
the body of judicial precedent, it is, at the outset,
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necessary to set out the fundamental values and vision
which the court must pursue. Those values as well as the
vision is charted out to the court by the Constitution and
it is the Constitution which the court expounds. The
constitutional policy of creating reservations subserves a
high constitutional value of providing social redress and a
life of dignity to castes, tribes and classes which were in
a historical sense oppressed by a systemic pattern of
social exclusion and human deprivation. The benefits
which the Constitution has conferred on beneficiary
groups cannot be dissipated by allowing others who do
not belong to the designated castes or tribes to secure
the benefit. Public employment is a significant source of
social mobility. Access to education opens the doors to
secure futures. As a matter of principle, in the exercise of
its constitutional jurisdiction, the court must weigh
against an interpretation which will protect unjust claims
over the just, fraud over legality and expediency over
principle. As the nation evolves, the role of the court
must be as an institution which abides by constitutional
principle, enforces the rule of law and reaffirms the belief
that claims based upon fraud, expediency and subterfuge
will not be recognised. Once these parameters are
established with a clear judicial formulation individual
cases should pose no problem. Usurpation of
constitutional benefits by persons who are not entitled to
them must be answered by the court in the only way
permissible for an institution which has to uphold the rule
of law. Unless the courts were to do so, it would leave
open a path of incentives for claims based on fraud to
survive legal gambits and the creativity of the
disingenuous.
B The regulatory regime : Madhuri Patil
6 On 24 February 1981, the Government of Maharashtra
issued a G.R. which prescribed the procedure for
obtaining (i)caste certificates from the Sub-divisional
Officers; and (ii) validity certificates from a Scrutiny
Committee. 7 In 1994, the systemic usurpation of
benefits by persons who did not belong to the beneficiary
groups came to the fore before this Court. There was
before this Court, an urgent need expressed to set down
a framework to regulate the grant of caste certificates
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and to scrutinise claims. The need for scrutiny and
verification of caste claims was addressed in a judgment
of this Court, speaking through a bench of two judges, in
Kumari Madhuri Patil Vs. Additional Commissioner, Tribal
Development1. The judgment was delivered on 2
September 1994. While emphasizing the need to ensure
that claims to belong to a beneficiary group must be
carefully scrutinized, this Court observed thus :
“…13. The admission wrongly gained or appointment
wrongly obtained on the basis of false social status
certificate necessarily have the effect of depriving the
genuine Scheduled Castes or Scheduled Tribes or OBC
candidates as enjoined in the Constitution of the benefits
conferred on them by the constitution. The genuine
candidates are also denied admission to educational
institutions or appointments to office or posts under a
State for want of social status certificate. The ineligible or
spurious persons who falsely gained entry resort to
dilatory tactics and create hurdles in completion of the
inquires by the Scrutiny Committee….” (Id. at p. 254)
8. Detailed guidelines were formulated in the
judgment of this Court for the constitution of committees
by the State Governments for scrutinizing claims of
candidates to belong to a Scheduled caste or tribe or, as
the case may be, to a backward community designated
for reservations. The directions issued by this Court
envisaged the constitution of Vigilance Cells which would
conduct local enquiries to determine the authenticity of a
claim to belong to a designated caste or tribe. The court,
among other things, issued the following directions :
“13……(14). In case, the certificate obtained or social
status claimed is found to be false, the
parent/guardian/the candidate should be prosecuted for
making false claim. If the prosecution ends in a
conviction and sentence of the accused, it could be
regarded as an offence involving moral turpitude,
disqualification for elective posts or offices under the
State or the Union or elections to any local body,
legislature or Parliament; ).
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15. As soon as the finding is recorded by the
Scrutiny Committee holding that the certificate obtained
was false, on its cancellation and confiscation
simultaneously, it should be communicated to the
educational institution concerned or the appointing
authority by registered post with acknowledgement due
with a request to cancel the admission or the
appointment. The Principal etc. of the educational
institution responsible for making the admission or the
appointing authority, should cancel the
admission/appointment without any further notice to the
candidate and debar the candidate from further study or
continue in office in a post.” (Id. at p. 256-257)
12 The Constitution Bench in Milind dwelt on the dangers
in allowing benefits which are reserved to designated
castes and tribes being usurped by individuals who do
not belong to them. Allowing the benefits which are
reserved by Presidential orders issued under Articles 341
and 342 to be usurped by an imposter would negate the
purpose of the reservation. This was succinctly
emphasized in the following observations of the
Constitution Bench :
“35….The Presidential Orders are issued under Articles
341 and 342 of the Constitution recognizing and
identifying the needy and deserving people belonging to
Scheduled Castes and Scheduled Tribes mentioned
therein for the constitutional purpose of availing benefits
of reservation in the matters of admissions and
employment. If these benefits are taken away by those
for whom they are not meant, the people for whom they
are really meant or intended will be deprived of the same
and their sufferings will continue. Allowing the candidates
not belonging to Scheduled tribes to have the benefits or
advantage of reservation either in admissions or
appointments leads to making mockery of the very
reservation against the mandate and the scheme of the
Constitution.” (id. at p. 30)
13. Milind Sharad Katware whose cause had
travelled from the Bombay High Court in 1985 to this
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Court had, by the time that the Constitution Bench
resolved the issue on 28 November 2000 qualified as a
doctor. He claimed the benefit of equities which had
intervened in the meantime. They were recognized in the
ultimate directions which were issued by this Court in the
following observations :
“38. Respondent 1 joined the medical course for the year
1985-86. Almost 15 years have passed by now. We are
told he has already completed the course and may be he
is practicing as a doctor. In this view and at this length of
time it is for nobody's benefit to annul his admission.
Huge amount is spent on each candidate for completion
of medical course. No doubt, one Scheduled Tribe
candidate was deprived of joining medical course by the
admission given to Respondent 1. If any action is taken
against Respondent 1, it may lead to depriving the
service of a doctor to the society on whom public money
has already been spent. In these circumstances, this
judgment shall not affect the degree obtained by him and
his practicing as a doctor. But we make it clear that he
cannot claim to belong to the Scheduled Tribe covered by
the Scheduled Tribes Order. In other words, he cannot
take advantage of the Scheduled Tribes Order any further
or for any other constitutional purpose. Having regard to
the passage of time, in the given circumstances,
including interim orders passed by this Court in SLP (C)
No. 16372 of 1985 and other related matters, we make it
clear that the admissions and appointments that have
become final, shall remain unaffected by this judgment.”
(Id. at p. 31) The latter part of the above extract covered
other cases before the court. Reading these observations
there can be no manner of doubt that this Court took
recourse to its constitutional power under Article 142 to
protect benefits which had accrued to a candidate who
had qualified as a doctor though with the caveat that he
would not be entitled to claim the status of belonging to a
Scheduled tribe in the future. The latter part protected,
having regard to the passage of time and interim orders
passed in the batch of cases, appointments and
admissions which had become final. These directions
were evidently under Article 142 of the Constitution.
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16. The state legislature was evidently not content
with a mere invalidation of a caste certificate which is
founded on a false claim made by a candidate to belong
to a designated caste, tribe or class. Section 6 (2)
provides that a candidate who desires to obtain a benefit
must apply well in time to the Scrutiny Committee for
verification and similarly the appointing authority of a
candidate who has been selected for appointment but
has not obtained a validity certificate must apply to the
Scrutiny Committee for verification. The legislature
however was cognizant of the fact that by the time a
scrutiny takes place before the Scrutiny Committee the
candidate may have obtained the benefit of a concession
reserved for a caste, tribe or class. As a matter of public
interest, the legislation stipulates that the benefits which
have been obtained on the basis of a false caste
certificate shall be withdrawn upon the invalidation of the
claim by the Scrutiny Committee. The ambit of Section 10
(1) extends, among other things, to an admission which is
secured in an educational institution against a seat
reserved for one of the designated castes, tribes or
classes; an appointment in the government, local
authority or corporation owned or controlled by the
government or any government institution or co-
operative society against a reserved post. A benefit which
is obtained on the foundation of a false caste claim which
has been invalidated is not permitted to be retained by
the candidate. There is a legislative mandate that the
benefit of an admission granted or an appointment to a
post shall be withdrawn forthwith on the cancellation of a
caste / tribe certificate. Any amount which is paid by way
of scholarship, grant, allowance or financial benefits has
to be recovered as arrears of land revenue. Sub-Section
(3) of Section 10 contains a non-obstante provision as a
result of which notwithstanding anything contained in any
Act for the time being in force a degree, diploma or
educational qualification acquired by a person after
securing admission on the basis of a caste certificate
which is proved to be false and is cancelled would also be
invalid. Similarly, by sub-Section (4) a disqualification
from holding an electoral office has been stipulated
where a person has contested an election on the basis of
a false caste certificate which is since cancelled by the
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Scrutiny Committee. To ensure that the stringent
provisions made by it impose a sufficient deterrent, the
legislature considered it fit in its wisdom to create
offences and to impose criminal penalties in Section 11.
17. The consequences which emanate from the
cancellation of a caste certificate are distinct. The first is
the withdrawal of benefits secured on the basis of a claim
to belong to a designated tribe, group or class which has
been held to be invalid. This is of a civil nature by which
the applicant is deprived of the benefits of a false caste
certificate which is cancelled by the Scrutiny Committee.
The second consequence is the liability to be subject to a
criminal prosecution. This is a criminal liability arising
from an offence created by the legislature.
19 In Madhuri Patil (supra), a Bench of two learned Judges
set down a principled rationale as to why a claim for
equity by a person who is not found to belong to the
designated caste, tribe or class cannot be countenanced.
The Court observed :
“16. Whether appellants are entitled to their further
continuance in the studies is the further question. Often
the plea of equities or promissory estoppel would be put
forth for continuance and completion of further course of
studies and usually would be found favour with the
courts. The courts have constitutional duty and
responsibility, in exercise of the power of its judicial
review, to see that constitutional goals set down in the
Preamble, the Fundamental Rights and the Directive
Principles of the Constitution, are achieved. A party that
seeks equity, must come with clean hands. He who
comes to the court with false claim, cannot plead equity
nor the court would be justified to exercise equity
jurisdiction in his favour. There is no estoppel as no
promise of the social status is made by the State when a
false plea was put forth for the social status recognised
and declared by the Presidential Order under the
Constitution as amended by the SC & ST (Amendment)
Act, 1976, which is later found to be false. Therefore, the
plea of promissory estoppel or equity have no
application. When it is found to be a case of fraud played
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by the concerned, no sympathy and equitable
considerations can come to his rescue. Nor the plea of
estoppel is germane to the beneficial constitutional
concessions and opportunities given to the genuine tribes
or castes. Courts would be circumspect and wary in
considering such cases.” (Id. at p. 257) However, on the
facts of that case the Bench of two Judges while
upholding the cancellation of the status of Mahadeo Koli
which was fraudulently obtained, directed that the
student who had completed the course of medical studies
be allowed to appear for the final year examination of the
M.B.B.S. degree course but not as a candidate belonging
to a Scheduled Tribe. The circumstance which weighed
with the Court was that the student had approached the
High Court for the grant of a caste certificate since the
Additional Commissioner was not dealing with the matter.
The student obtained admission pursuant to a direction of
the High Court. It was the parents of the student who had
put the career of the student in jeopardy and since she
had completed her course of study except to appear for
the examination; she should be permitted to do so. The
above directions were issued in the case of one of the
two appellants, Suchita Laxman Patil. However, her sister
Madhuri (who was the first appellant) was found to have
approached an officer without jurisdiction and after
showing the order of the High Court in the case of her
sister Suchita, secured a caste certificate and got
admission. This Court observed that though she was in
the midst of her B.D.S. studies in the second year, she
could not continue as a student belonging to Mahadeo
Koli Scheduled Tribe. She could only obtain admission as
a general candidate and continue her studies. These
directions are referable to the jurisdiction conferred on
this Court under Article 142.”
20. The next decision which is of relevance on the
issue, is a judgment of three Judges of this Court in R.
Vishwanatha Pillai Vs. State of Kerala, (2004) 2 SCC 105.
In that case the appellant who did not belong to a
designated reserved community obtained a caste
certificate and was selected as a Deputy Superintendent
of Police on a seat reserved for the Scheduled Castes.
However, it was found upon a complaint that the
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appellant did not belong to a Scheduled Caste and the
Scrutiny Committee rejected his claim. The order of the
Scrutiny Committee was upheld by the High Court and by
this Court. Subsequently at the behest of the appellant
the Central Administrative Tribunal directed that he
should not be terminated from service without following
the procedure under Article 311. The High Court reversed
that decision and the appellant was dismissed from
service. Before this Court the appellant inter alia sought
protection since he had rendered nearly 27 years of
service. Rejecting the submission this Court held that :
“15. This apart, the appellant obtained the appointment
in the service on the basis that he belonged to a
Scheduled Caste community. When it was found by the
Scrutiny Committee that he did not belong to the
Scheduled Caste community, then the very basis of his
appointment was taken away. His appointment was no
appointment in the eyes of law. He cannot claim a right to
the post as he had usurped the post meant for a reserved
candidate by playing a fraud and producing a false caste
certificate. Unless the appellant can lay a claim to the
post on the basis of his appointment he cannot claim the
constitutional guarantee given under the Article 311 of
the Constitution. As he had obtained the appointment on
the basis of a false caste certificate he cannot be
considered to be a person who holds a post within the
meaning of Article 311 of the Constitution of India,
Finding recorded by the Scrutiny Committee that the
appellant got the appointment on the basis of false caste
certificate has become final. The position, therefore, is
that the appellant has usurped the post which should
have gone to a member of the Scheduled Caste. In view
of the finding recorded by the Scrutiny Committee and
upheld upto this Court he has disqualified himself to hold
the post. Appointment was void from its inception. It
cannot be said that the said void appointment would
enable the appellant to claim that he was holding a civil
post within the meaning of Article 311 of the Constitution
of India, As appellant had obtained the appointment by
playing a fraud he cannot be allowed to take advantage
of his own fraud in entering the service and claim that he
was holder of the post entitled to be dealt with in terms
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of Article 311 of the Constitution of India or the Rules
framed thereunder. Where an appointment in a service
has been acquired by practising fraud or deceit such an
appointment is no appointment in law, in service and in
such a situation Article 311 of the Constitution is not
attracted at all.” (Id.at p. 115) (emphasis suppled)
The Bench of three Judges also rejected the submission
that since the appellant had rendered 27 years of service,
the order of dismissal should be substituted with an order
of compulsory retirement or removal to protect his
pensionary benefits. The Court observed :
“19..…The rights to salary, pension and other service
benefits are entirely statutory in nature in public service.
Appellant obtained the appointment against a post meant
for a reserved candidate by producing a false caste
certificate and by playing a fraud. His appointment to the
post was void and non est in the eyes of law. The right to
salary or pension after retirement flow from a valid and
legal appointment. The consequential right of pension
and monetary benefits can be given only if the
appointment was valid and legal. Such benefits cannot be
given in a case where the appointment was found to have
been obtained fraudulently and rested on false caste
certificate. A person who entered the service by
producing a false caste certificate and obtained
appointment for the post meant for Scheduled Caste thus
depriving the genuine Scheduled Caste of appointment to
that post does not deserve any sympathy or indulgence
of this Court. A person who, seeks equity must come with
clean hands. He. who comes to the Court with false
claims, cannot plead equity nor the Court would be
justified to exercise equity jurisdiction in his favour. A
person who seeks equity must act in a fair and equitable
manner. Equity jurisdiction cannot be exercised in the
case of a person who got the appointment on the basis of
false caste certificate by playing a fraud. No sympathy
and equitable consideration can come to his rescue. We
are of the view that equity or compassion cannot be
allowed to bend the arms of law in a case where an
individual acquired a status by practising fraud.” (Id. at p.
116)
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21 In Bank of India Vs. Avinash D. Mandivikar, (2005) 7
SCC 690, the first respondent obtained an appointment in
the service of the bank in October 1976 on a post
reserved for the Scheduled Tribes. The Scrutiny
Committee found that he did not belong to a Scheduled
Tribe and, therefore, invalidated the caste certificate.
Following the termination of his services the first
respondent moved the High Court which accepted his
plea that the initiation of proceedings against him by the
Scrutiny Committee for verification of the caste
certificate in 1987 was beyond a reasonable period. The
High Court, while allowing the plea, reinstated him in
service with back-wages. In an appeal by the employer,
this Court held that once a claim of the employee to
belong to a Scheduled Tribe had been rejected, the
employment was “no appointment in eye of law” and that
he had “absolutely no justification for his claim” in
respect of the post he usurped. Distinguishing the
directions issued in Milind (under Article 142), this Court
held that :
“10.The protection under the Milind's case (supra) cannot
be extended to the respondent No.1-employee as the
protection was given under the peculiar factual
background of that case. The employee concerned was a
doctor and had rendered long years of service. This Court
noted that on a doctor public money has been spent and,
therefore, it will not be desirable to deprive the society of
a doctor's service. Respondent No. 1-employee in the
present case is a bank employee and the factor which
weighed with this Court cannot be applied to him.” (Id. at
p. 698) The above observations of the court are also an
indication that para 38 of the decision in Milind was
construed as consisting of directions issued under Article
142. For it was on that basis that the court in Avinash
Mandivikar held that no case was made out for protecting
the services of a bank employee who had obtained
employment on the basis of a false claim. Besides, this
Court also held that the first respondent having
perpetrated a fraud, a claim for protection will not be
legally sustainable and a person who had obtained
employment by illegitimate means could not continue to
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enjoy the fruits of the appointment despite the clear
finding by the Scrutiny Committee that “he does not even
have a shadow of a right even to be considered for
appointment”. This Court relied upon the earlier decision
in Vishwanatha Pillai (supra) in coming to its conclusion.”
22. Another decision of two learned Judges was in
Additional General Manager/Human Resources, Bharat
Heavy Electricals Ltd. Vs. Suresh Ramakrishna Burde,
(2007) 5 SCC 336 where a Division Bench of the Bombay
High Court had ordered reinstatement subject to the
condition that the employee would not stake a claim to
belong to the Scheduled Tribe in future. The claim of the
employee to belong to the Halba Scheduled Tribe was
invalidated by the Scrutiny Committee. The employee
had been appointed in May 1982 to a clerical post and in
August 1995 the Scrutiny Committee had invalidated the
caste claim initially and again in August 2001 following
an order of remand. A Writ Petition filed against the order
of invalidation was withdrawn but thereafter, relying on
the observations in the concluding paragraph in Milind
(supra) the employee submitted a representation for the
protection of his services. After the representation was
rejected, the employee moved the High Court which
directed his reinstatement but with the condition that he
would not claim the benefit of belonging to a Schedule
Caste in future. While construing the decision in Milind
(supra) (upon which the High Court had placed reliance),
this Court observed as follows :
“7. The High Court has granted relief to the respondent
and has directed his reinstatement only on the basis of
the Constitution Bench decision of this Court in State of
Maharashtra v. Milind (2001) 1 SCC 4. In our opinion the
said judgment does not lay down any such principle of
law that where a person secures an appointment by
producing a false caste certificate, his services can be
protected and an order of reinstatement can be passed if
he gives an undertaking that in future he and his family
members shall not take any advantage of being member
of a caste which is in reserved category. The questions
which required consideration by the Constitution Bench,
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are noted in the very first paragraph of the judgment and
they are being reproduced below:
1) Whether at all, it is permissible to hold enquiry and let
in evidence to decide or declare that any tribe or tribal
community or part of or group within any tribe or tribal
community is included in the general name even though
it is not specifically mentioned in the concerned Entry in
the Constitution (Scheduled Tribes) Order, 1950?
2) Whether 'Halba Koshti' caste is a sub-tribe within the
meaning of Entry 19 (Halba/Halbi) of the said Scheduled
Tribes Order relating to State of Maharashtra, even
though it is not specifically mentioned as such?
8. After thorough discussion of the matter the conclusions
of the Bench are recorded in paragraph 36 of the report.
It was held that it is not at all permissible to hold any
enquiry or let in any evidence to decide or declare that
any tribe or tribal community or part of or group within
any tribe or tribal community is included in the general
name even though it is not specifically mentioned in the
concerned Entry in the Constitution (Scheduled Tribes)
Order, 1950. It was further held that the notification
issued under Clause (1) of Article 342, specifying
Scheduled Tribes, can be amended only by law to be
made by Parliament and it is not open to the State
Governments or courts or any other authority to modify,
amend or alter the list of Scheduled Tribes specified in
the notification issued under Clause (1) of Article 342 and
the Constitution (Scheduled Tribes) Order 1950. The law
declared by the Constitution Bench does not at all lay
down that where a person secures an appointment by
producing a false caste certificate, his services can be
protected on his giving an undertaking that in future he
will not take any advantage of being a member of the
reserved category.” (Id. at p. 340-341) (emphasis
supplied)
In this view of the matter, the High Court was held to be
in error in setting aside the order of termination and in
directing reinstatement of the employee. “
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51. The regime which obtained since 2 September
1994 under the directions in Madhuri Patil was granted a
statutory status by the enactment of Maharashtra Act
XXIII of 2001. Section 7 provides for the cancellation and
confiscation of a false caste certificate whether it was
issued before or after the commencement of the Act. The
expression “before or after the commencement of this
Act” indicates that the Scrutiny Committee constituted
under Section 6 is empowered to cancel a caste
certificate whether it was issued prior to 18 October 2001
or thereafter. Section 10 which provides for the
withdrawal of benefits secured on the basis of a false
caste certificate which is withdrawn is essentially a
consequence of the cancellation of the caste certificate.
Where a candidate has secured admission to an
educational institution on the basis that he or she
belongs to a designated reserved category and it is found
upon investigation that the claim to belong to that
category is false, admission to the institution necessarily
falls with the invalidation of the caste certificate.
Admission being founded on a claim to belong to a
specified caste, tribe or class, it is rendered void upon the
claim being found to be untrue. The same must hold in
the case of an appointment to a post. Therefore, the
absence of the words “before or after the
commencement of this Act” in Section 10 makes no
substantive difference because a withdrawal of benefit is
an event which flows naturally and as a plain
consequence of the invalidation of the claim. Moreover,
as we have seen even prior to the enactment of the state
legislation, the benefit which was secured on the basis of
a caste claim was liable to be withdrawn upon its
invalidation. The Act has hence neither affected vested
rights nor has it imposed new burdens. The Act does not
impair existing obligations in Sections 7 and 10.
However, an analysis of the provisions of Section 11
demonstrates that the provision creates offences and
provides for penalties. Under Section 11 (1) (a) the
offence consists of obtaining a false caste certificate (by
furnishing false information), filing a false statement or
document or by any fraudulent means. Under Section 11
(1)(b) the offence consists in securing a benefit
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exclusively PART A reserved for designated castes, tribes
or classes by a person who does not belong to that
category in terms of
(i) Appointment;
(ii) Admission in an educational institution against a
reserved seat; or
(iii) Election to a local authority or cooperative society
against an office which is reserved for that category.
54. One of the considerations which is placed in
store before the court particularly when an admission to
an educational institution is sought to be cancelled upon
the invalidation of a caste or tribe claim is that the
student has substantially progressed in the course of
studies and a cancellation of admission would result in
prejudice not only to the student but to the system as
well. When the student has completed the degree or
diploma, a submission against its withdrawal is urged a
fortiorari. In our view, the state legislature has made a
statutory decision amongst competing claims, based on a
public policy perspective which the court must respect.
The argument that there is a loss of productive societal
resources when an educational qualification is withdrawn
or a student is compelled to leave the course of studies
(when he or she is found not to belong to the caste or
tribe on the basis of which admission to a reserved seat
was obtained) cannot possibly outweigh or nullify the
legislative mandate contained in Section 10 of the state
legislation. When a candidate is found to have put forth a
false claim of belonging to a designated caste, tribe or
class for whom a benefit is reserved, it would be a
negation of the rule of law to exercise the jurisdiction
under Article 142 to protect that individual. Societal good
lies in ensuring probity. That is the only manner in which
the sanctity of the system can be preserved. The legal
system cannot be seen as an avenue to support those
who make untrue claims to belong to a caste or tribe or
socially and educationally backward class. These benefits
are provided only to designated castes, tribes or classes
in accordance with the constitutional scheme and cannot
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be usurped by those who do not belong to them. The
credibility not merely of the legal system but also of the
judicial process will be eroded if such claims are
protected in exercise of the constitutional power
conferred by Article 142 despite the state law.
55 This aspect has been considered in a recent judgment
rendered by one of us in Nidhi Kaim and Another V. State
of Madhya Pradesh And Others, 2017 4 SCC 1 wherein,
speaking for a Bench of three Judges, in a case of
systemic fraud in relation to medical admissions in the
State of Madhya Pradesh. It was observed as follows :
“92…We are of the considered view that conferring rights
or benefits on the appellants, who had consciously
participated in a well thought out, and meticulously
orchestrated plan, to circumvent well laid down norms,
for gaining admission to the MBBS course, would amount
to espousing the cause of “the unfair”. It would seem like
allowing a thief to retain the stolen property. It would
seem as if the Court was not supportive of the cause of
those who had adopted and followed rightful means.
Such a course would cause people to question the
credibility of the justice-delivery system itself. The
exercise of jurisdiction in the manner suggested on behalf
of the appellants would surely depict the Court's support
in favour of the sacrilegious. It would also compromise
the integrity of the academic community. We are of the
view that in the name of doing complete justice it is not
possible for this Court to support the vitiated actions of
the appellants through which they gained admission to
the MBBS course.”
Explaining the matter further, this Court held that :
“99…..Besides the consideration recorded by us in the
foregoing paragraphs, we may confess, that we felt
persuaded for taking the view that we have, for a very
important reason — national character. There is a saying
—when wealth is lost, nothing is lost; when health is lost,
something is lost; but when character is lost, everything
is lost. …..
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The issue in hand has an infinitely vast dimension. If we
were to keep in mind immediate social or societal gains,
the perspective of consideration would be different. The
submission canvassed needs to be considered in the
proper perspective. We shall venture to drive home the
point by an illustration. We may well not have won our
freedom, if freedom fighters had not languished in jails …
and if valuable lives had not been sacrificed. Depending
on the situation, even civil liberty or life itself, may be too
trivial a sacrifice, when national interest is involved. It all
depends on the desired goal. The Preamble of the Indian
Constitution rests on the foundation of governance on the
touchstone of justice. The basic fundamental right of
equality before law and equal protection of the laws is
extended to citizens and non-citizens alike through Article
14 of the Constitution on the fountainhead of fairness.
The actions of the appellants are founded on
unacceptable behaviour, and in complete breach of the
Rule of Law. Their actions constitute acts of deceit
invading into a righteous social order. National character,
in our considered view, cannot be sacrificed for benefits
— individual or societal. If we desire to build a nation on
the touchstone of ethics and character and if our
determined goal is to build a nation where only the Rule
of Law prevails, then we cannot accept the claim of the
appellants for the suggested societal gains. Viewed in the
aforesaid perspective, we have no difficulty whatsoever
in concluding in favour of the Rule of Law. Such being the
position, it is not possible for us to extend to the
appellants any benefit under Article 142 of the
Constitution.”
We are in respectful agreement with the above principle
and statement of the legal position. “
I Conclusion
57. For these reasons, we hold and declare that
(i) The directions which were issued by the
Constitution Bench of this Court in paragraph 38 of the
decision in Milind were in pursuance of the powers vested
in this Court under Article 142 of the Constitution;
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(ii) Since the decision of this Court in Madhuri Patil which
was rendered on 2 September 1994, the regime which
held the field in pursuance of those directions envisaged
a detailed procedure for (a) the issuance of caste
certificates; (b) scrutiny and verification of caste and
tribe claims by Scrutiny Committees to be constituted by
the State Government; (c) the procedure for the conduct
of investigation into the authenticity of the claim; (d)
Cancellation and confiscation of the caste certificate
where the claim is found to be false or not genuine; (e)
Withdrawal of benefits in terms of the termination of an
appointment, cancellation of an admission to an
educational institution or disqualification from an
electoral office obtained on the basis that the candidate
belongs to a reserved category; and (f) Prosecution for a
criminal offence;
(iii) The decisions of this Court in R. Vishwanatha Pillai
and in Dattatray which were rendered by benches of
three Judges laid down the principle of law that where a
benefit is secured by an individual – such as an
appointment to a post or admission to an educational
institution – on the basis that the candidate belongs to a
reserved category for which the benefit is reserved, the
invalidation of the caste or tribe claim upon verification
would result in the appointment or, as the case may be,
the admission being rendered void or non est.
(iv) The exception to the above doctrine was in those
cases where this Court exercised its power under Article
142 of the Constitution to render complete justice;
(v) By Maharashtra Act XXIII of 2001 there is a legislative
codification of the broad principles enunciated in Madhuri
Patil. The legislation provides a statutory framework for
regulating the issuance of caste certificates (Section 4);
constitution of Scrutiny Committees for verification of
claims (Section 6); submission of applications for
verification of caste certificates (Section 6(2) and 6(3);
cancellation of caste certificates (Section 7); burden of
proof (Section 8); withdrawal of benefits obtained upon
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the invalidation of the claim (Section 10); and initiation of
prosecution (Section 11), amongst other things;
(vi) The power conferred by Section 7 upon the Scrutiny
Committee to verify a claim is both in respect of caste
certificates issued prior to and subsequent to the
enforcement of the Act on 18 October 2001. Finality does
not attach to a caste certificate (or to the claim to receive
benefits) where the claim of the individual to belong to a
reserved caste, tribe or class is yet to be verified by the
Scrutiny Committee;
(vii) Withdrawal of benefits secured on the basis of a
caste claim which has been found to be false and is
invalidated is a necessary consequence which flows from
the invalidation of the caste claim and no issue of
retrospectivity would arise;
(viii) The decisions in Kavita Solunke and Shalini of two
learned Judges are overruled. Shalini in so far as it
stipulates a requirement of a dishonest intent for the
application of the provision of Section 10 is, with respect,
erroneous and does not reflect the correct position in law;
(ix) Mens rea is an ingredient of the penal provisions
contained in Section 11. Section 11 is prospective and
would apply in those situations where the act constituting
the offence has taken place after the date of its
enforcement;
(x) The judgment of the Full Bench of the Bombay High
Court in Arun Sonone is manifestly erroneous and is
overruled; and
(xi) Though the power of the Supreme Court under Article
142 of the Constitution is a constitutional power vested in
the court for rendering complete justice and is a power
which is couched in wide terms, the exercise of the
jurisdiction must have due regard to legislative mandate,
where a law such as Maharashtra Act XXIII of 2001 holds
the field.”
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21. Thus, what is discernible from the aforesaid tenets of
law is that an appointment secured on the strength of a
reserved category status stands automatically vitiated once
the competent Scrutiny Committee invalidates the underlying
caste certificate. As laid down by the Hon’ble Supreme Court in
the aforequoted decision, such an appointment is non-est and
void ab initio (void from inception). The employee cannot claim
any protection under Article 311 of the Constitution or equity
due to long service, as the withdrawal of civil benefits is an
automatic consequence of the invalidation.
22. In the case at hand, this Court notices that the
respondent-workman was appointed to a post explicitly
reserved for the Scheduled Tribe category. The bedrock of such
public employment was the respondent’s claim to that status,
supported by the caste certificate. However, the record reveals
that the Social Welfare Department, being the competent
authority, has very meticulously veritifed and scrutinized the
entire record to verify the actual status of the respondent-
workman and conclusively found the said caste certificate to
be fraudulent. Consequent to this finding of fraud, the
competent authority has officially cancelled and revoked the
respondent’s caste certificate. It is pertinent to note here that
the said order whereby the respondent-workman’s caste
certificate was cancelled, has achieved finality, having not
been assailed or challenged by the respondent-workman
before any competent forum. Even, a perusal of the reply
submitted by the respondent-workman before the writ
applicant-Board reveals that there is no unequivocal or
categorical denial of the allegations concerning the
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interpolation of the caste certificate. Instead, the respondent
has sought to shift the onus onto the writ-applicant Board by
contending that the responsibility for verifying and scrutinizing
all testimonials prior to the issuance of an appointment letter
rested solely with the employer. This evasive approach
reinforces the conclusion that the core allegation of tampering
remains largely uncontradicted by the delinquent himself.
23. It is now a deeply entrenched principle of law, as
enunciated by the Hon’ble Supreme Court in Jagdish Balaram
Bahira (Supra) that public employment obtained through a
false or invalidated caste certificate amounts to a fraud on the
Constitution. The Apex Court has categorically held that an
appointment secured on a flawed foundation is void, ab initio
non-est in the eyes of the law from its very inception. Thus,
when the very basis of an appointment is stripped away by a
competent authority on the ground of fraud, the employee is
stripped of any legal right to hold the post. He cannot seek the
protection of Article 311 of the Constitution, nor can he claim
equitable leniency or amnesty based on their length of service.
Therefore, once the competent authority found the caste
certificate to be fraudulent and cancels it, that ground alone is
sufficient to vitiate the employment, however, subject to
further inquiry by the concerned Department. Therefore, on
this sole ground, the termination of the respondent employee
can be said to be not only legally sustainable but mandatory to
uphold the integrity of constitutional reservations.
24. Apt also would be to refer to the decision of the Hon’ble
Supreme Court in the case of Kumari Madhuri Patil vs. Addl.
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Commissioner, 1995 AIR 94, which conveys a powerful
message regarding the integrity of affirmative action
(reservations) and provides a strict legal framework to
eliminate caste certificate fraud. The relevant observations are
as under:-
“9. The Preamble to the Constitution promises to secure
to every citizen social and economic justice, equality of
status and of opportunity assuring the dignity of the
individual. The Scheduled Tribes are inhabitants of
intractable terrain regions of the country kept away from
the mainstream of national life and with their traditional
moorings and customary beliefs and practices, they are
largely governed by their own customary code of conduct
regulated from time to time with their own rich cultural
heritage, mode of worship and cultural ethos. The
Constitution guarantees to them, who are also Indian
citizens, equality before law and the equal protection of
law. Though Articles 14 and 15(1) prohibit discrimination
among citizens on certain grounds, Article 15(4)
empowers the State to make special provisions for
advancement of Scheduled Castes and Scheduled Tribes.
Article 16(1) requires equality of opportunity to all
citizens in matters of appointments to an office or a post
under the Union or a State Government or public
undertakings etc. But Article 16(4) empowers the State to
make provision for reservation of appointments or posts
in favour of classes of citizens not adequately
represented in the services under the State. Article 46
enjoins the State by mandatory language employed
therein, to promote with special care the educational or
economic interest of the Scheduled Tribes and Scheduled
Castes and to protect them from "social injustice" and "all
forms of exploitation". Article 51-A(h) enjoins every
citizen to develop scientific temper, humanism and the
spirit of inquiry and reform. Again Article 51-A(h) requires
every citizen to strive towards excellence in all spheres of
individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement. It is, therefore, a fundamental duty of
every citizen to develop scientific temper and humanism
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and spirit of inquiry to reform himself in his onward thrust
or strive to achieve excellence in all spheres of individual
and collective activity. Since the Scheduled Tribes are a
nomadic class of citizens whose habitat being generally
hilly regions or forests, results in their staying away from
the mainstream of the national life. Therefore, the State
is enjoined under our Constitution to provide facilities and
opportunities for development of their scientific temper,
educational advancement and economic improvement so
that they may achieve excellence, equality of status and
live with dignity. Reservation in admission to educational
institutions and employment are major State policies to
accord to the tribes, social and economic justice apart
from other economic measures. Hence, the tribes, by
reason of State's policy of reservation, have been given
the exclusive right to admission into educational
institutions or exclusive right to employment to an office
or post under the State etc. to the earmarked quota. For
availment of such exclusive rights by citizens belonging
to tribes, the President by a notification specified the
Scheduled Tribes or tribal communities or parts of or
groups of tribes or tribal communities so as to entitle
them to avail of such exclusive rights. The Union of India
and the State Governments have prescribed the
procedure and have entrusted duty and responsibility to
Revenue Officers of gazetted cadre to issue social status
certificate, after due verification. It is common knowledge
that endeavour of States to fulfil constitutional mandate
of upliftment of Scheduled Castes and Scheduled Tribes
by providing for reservation of seats in educational
institutions and for reservation of posts and
appointments, are sought to be denied to them by
unscrupulous persons who come forward to obtain the
benefit of such reservations posing themselves as
persons entitled to such status while in fact disentitled to
such status. The case in hand is a clear instance of such
pseudo-status. Kolis have been declared to be OBC in the
State of Maharashtra being fishermen, in that their
avocation is fishing and they live mainly in the coastal
region of Maharashtra. Mahadeo Kolis are hill tribes and it
is not a sub-caste. Even prior to independence, the
Maharashtra Government declared Mahadeo Koli to be
criminal tribe as early as 29-5-1933 in Serial No. 15 in List
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II thereof. In 1942 Resolution in Serial No. 15 in Schedule
B of the Bombay resolution Mahadeo Koli tribe was
notified as a Scheduled Tribe. It was later amended as
Serial No. 13. In the Presidential Scheduled
Castes/Scheduled Tribes Order, 1950, it was reiterated. A
slight modification was made in that behalf by the
Presidential Notification dated 29-10-1956. In the 1976
Amendment Act, there is no substantial change except
removing the area restriction. Thus Mahadeo Koli, a
Scheduled Tribe continued to be a Scheduled Tribe even
after independence. The Presidential Notification, 1950
also does recognise by public notification of their status
as Scheduled Tribes. The assumption of the Division
Bench of the Bombay High Court in Subhash Ganpatrao
Kabade case', that Mahadeo Koli was recognised for the
first time in 1976 under Amendment Act, 1976, as
Scheduled Tribe is not relatable to reality and an
erroneous assumption made without any attempt to
investigate the truth in that behalf. Presidential
declaration, subject to amendment by Parliament being
conclusive, no addition to it or declaration of castes/tribes
or sub-castes/parts of or groups of tribes or tribal
communities is permissible.
10. The entries in the school register preceding the
Constitution do furnish great probative value to the
declaration of the status of a caste. Hierarchical caste
stratification of Hindu social order has its reflection in all
entries in the public records. What would, therefore,
depict the caste status of the people inclusive of the
school or college records, as the then census rules
insisted upon. Undoubtedly, Hindu social order is based
on hierarchy and caste was one of the predominant
factors during pre-Constitution period. Unfortunately
instead of dissipating its incursion it is being needlessly
accentuated, perpetrated and stratification is given
legitimacy for selfish ends instead of being discouraged
and put an end to by all measures, including
administrative and legislative. Be it as it may, people are
identified by their castes for one or the other is a reality.
Therefore, it is no wonder that caste is reflected in
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relevant entries in the public records or school or college
admission register at the relevant time and the
certificates are issued on its basis. The father of the
appellants admittedly described himself in 1943 and
thereafter as a Hindu Koli. In other words his status was
declared a Koli by caste and Hindu by religion. Kolis are
admittedly OBCs. His feigned ignorance of the ancestry is
too hard to believe. The averment in the affidavit that the
entries were mistakenly made as Hindu Koli is an obvious
afterthought. The anthropological moorings and
ethnological kinshipaffirmity (sic) gets genetically
ingrained in the blood and no one would shake off from
past, in particular, when one is conscious of the need of
preserving its relevance to seek the status of Scheduled
Tribe or Scheduled Caste recognised by the Constitution
for their upliftment in the society. The ingrained tribal
traits peculiar to each tribe and anthropological features
all the more become relevant when the social status is in
acute controversy and needs a decision. The correct
projectives furnished in pro forma and the material would
lend credence and give an assurance to properly consider
the claims of the social status and the officer or authority
concerned would get an opportunity to test the claim for
social status of particular caste or tribe or tribal
community or group or part of such caste, tribe or tribal
community. It or he would reach a satisfactory conclusion
on the claimed social status. The father of the appellant
has failed to satisfy the crucial affinity test which is
relevant and germane one. On the other hand the entries
in his school and college registers as Hindu Koli positively
belies the claim of his social status as Scheduled Tribe.“
25. Thus, the legal position that emerges from the facts of
the present case is no longer res integra in light of the decision
in Jagdish Balaram Bahira (supra). As per the settled
proposition of law, once the underlying caste certificate is
declared invalid and cancelled, the eligibility of the candidate
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ceases to exist. The appointment, having been secured under
a false pretense, is void ab initio, and the relationship of
employer and employee stands legally extinguished from its
very inception.
26. Even though the cancellation of the caste certificate
makes termination inevitable under Jagdish Balaram (Supra) ,
yet this Court can and should test the maintainability of the
Section 33A application based on certain legal parameters.
Maintainability of Section 33A Application
27. For the above, I may quote, with profit, Section 33-A of
the Act, 1947, which reads as under:-
“ 33A. Special provision for adjudication as to
whether conditions of service, etc., changed during
pendency of proceedings:-
Where an employer contravenes the provisions of section
33 during the pendency of proceedings [before a
conciliation officer, Board, an arbitrator, a Labour Court,
Tribunal or National Tribunal], any employee aggrieved
by such contravention, may make a camplaint in writing,
[in the prescribed manner,--
(a) to such conciliation officer or Board, and the
conciliation officer or Board shall take such complaint into
account in mediating in, and promoting the settlement of,
such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National
Tribunal and on receipt of such complaint, the arbitrator,
Labour Court, Tribunal or National Tribunal, as the case
may be, shall adjudicate upon the complaint as if it were
a dispute referred to or pending before it, in accordance
with the provisions of this Act and shall submit his or its
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award to the appropriate Government and the provisions
of this Act shall apply accordingly.”
[
28. Section 33-A provides a direct right of complaint to an
employee if an employer alters service conditions or
terminates employment during the pendency of a dispute
before a Tribunal, violating Section 33.
29. In the facts of the present case, initially the respondent-
workman was suspended by the writ applicant-Board on being
found indulged in committing interpolation with his caste
certificate only with a view to secure job in the writ applicant-
Board. The respondent being dissatisfied with his initial
suspension, preferred reference before the Industrial Tribunal,
and during the pendency of the said reference, on the basis of
the report submitted by the Social Welfare Department,
cancelling the Schedule Tribe certificate of the respondent-
workman, the writ applicant-Board terminated the services of
the respondent-workman. Against the said termination order,
the respondent-workman approached this Court, and this Court
quashed the order of termination, however, the respondent-
workman was ordered to be kept under suspension and a
departmental inquiry was ordered to be conducted. Thus, in
other words, it can be said that the suspension was revived by
the order of this Court. Thereafter, pursuant to the direction
issued by this Court, the departmental inquiry was conducted
and ultimately the services of the respondent-workman came
to be terminated, and it was this termination order which was
challenged by the respondent-workman under Section 33-A
application.
30. The core grievance of the respondent-workman in the
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present case is that the writ applicant-Board terminated his
services during the pendency of the reference proceedings,
and that too, without obtaining prior approval as mandated
under Section 33 of the Act, 1947. It is contended on behalf of
the respondent-workman that this failure constitutes a blatant
breach of the statutory mandate under Section 33.
Consequently, it is contended on behalf of the respondent-
workman that the impugned order passed by the learned
Tribunal, having taken cognizance of this statutory violation, is
perfectly legal, valid, and in strict accordance with the relevant
provisions of the statute.
31. To substantiate his contentions, the learned counsel for
the respondent-workman has placed reliance upon the decision
of the Hon’ble Supreme Court in Jaipur Zila Sahakari Bhoomi
(supra). It is submitted on behalf of the workman that if an
order of dismissal is passed without seeking mandatory
approval from the competent authority under Section 33(2)(b)
of the Industrial Disputes Act, 1947, the said order becomes
ineffective from its inception. Consequently, it is argued that
the workman would be deemed to continue in service and
would be entitled to full wages from the date of the dismissal
order.
32. To determine the validity of the aforesaid contention
raised by the counsel for the respondent-workman, the matter
must be tested against the touchstone of legal principles and
tenets of law firmly established by the Hon’ble Apex Court in a
long line of decisions post Jaipur Zila Sahkari Bhoomi (supra).
33. This Court is conscious about the fact that the law on this
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point is no longer res integra in view of the decision of the
Hon’ble Apex Court in Jaipur Jaipur Zila Sahakari Bhoomi
(supra), wherein it has been categorically held that the
requirements of the proviso to Section 33(2)(b) of the Act are
mandatory. The apex court clarified that where an employer
dismisses or discharges a workman during the pendency of a
dispute, the making of an application for approval of such
action is a condition precedent. Failure to comply with this
requirement or the rejection of such an application renders the
order of dismissal inoperative and void ab initio , meaning the
workman is deemed to continue in service with all
consequential benefits.
34. Consequently, in the absence of any contest or denial by
the writ applicant-Board, and squarely applying the mandatory
legal framework settled by the Supreme Court in Jaipur Zila
Sahkari Bhoomi (supra), this Court has no hesitation in holding
that the writ applicant-Board has failed to comply with the
statutory mandate of Section 33 of the Act, 1947, and thus,
the Tribunal has rightly taken cognizance of the alleged breach
of the said provisions. Ultimately, my answer to the first
question is in the affirmative.
35. Having established that the writ applicant-Board has
acted in clear breach of Section 33 of the Act, the sequential
question that commands the attention of the Tribunal is to
determine the proper course of adjudication to be adopted
thereafter. It is a settled principle of law that a mere technical
violation or a summary finding of a breach does not
automatically culminate in the blind granting of the final relief.
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The Tribunal is duty-bound to transition from the factum of the
breach to an independent, substantive examination of the
merits of the dispute.
36. Now, to determine the proper course of adjudication to be
adopted and whether the Tribunal has correctly appreciated
the evidence placed on record, I have carefully examined the
findings recorded in the impugned judgment. The findings
recorded by the Tribunal are to the effect that ’the writ
applicant -Board has failed to produce any evidence
demonstrating that the respondent-workman had applied
against a specific reserved category post. Conversely, the
documentary evidence adduced by the workman, particularly,
the appointment letters of co-employees corroborates his
stance. A bare perusal of the co-employee’s appointment
letters reveals that their respective reserved categories were
explicitly recorded therein. In stark contrast, the respondent-
workman’s initial appointment letter as an apprentice contains
no mention of any specific category (such as Scheduled Tribe).
Consequently, it stands established that the respondent-
workman had applied and was appointed as a general category
candidate, rather than against a reserved vacancy.’
37. In order to test the veracity of the aforesaid findings
recorded by the learned Tribunal, this Court has painstakingly
scrutinised the entire lower court record placed on record.
Upon a close evaluation of the core documentary evidence,
more particularly, the initial appointment letter of the
respondent-workman as an apprentice, followed by the
subsequent order regularizing his services as a helper/lineman,
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it is manifest that the respondent’s status as a Scheduled Tribe
(ST) candidate stands explicitly documented from the very
inception of his service. This conclusion is further fortified by
the internal communications dated 10.02.1994 exchanged
between the Superintending Engineer and the Deputy General
Manager of the writ applicant-Board. This communication
unequivocally establish a policy decision to fill up vacant
reserved posts (ST, SC, and OBC) from amongst apprentice
employees by relaxing the experience criteria as required for
the appointment to the reserved post of Scheduled Tribe.
Pursuant to this policy, the department, instead of issuing a
fresh advertisement, chose to conduct an internal recruitment
drive. In the said drive, the respondent-workman was duly
selected against one of the eight posts reserved for the ST
category, out of the total of eleven vacancies including the
other reserved caste categories. Consequently, the
contemporaneous record leaves no room for doubt regarding
the respondent's recognized status.
38. A further perusal of the impugned order reveals a glaring
oversight by the learned Tribunal. Despite the relevant
documents being part and parcel of the record and explicitly
made available for adjudication, the impugned order maintains
a complete silence and there is not a single whisper regarding
this vital evidence in the entire judgment and order passed by
the Tribunal. Conversely, the Tribunal has proceeded to record
a diametrically opposite finding, erroneously holding that the
writ applicant –Board has miserably failed to produce any
documentary evidence to establish that the initial appointment
of the respondent-workman was under the Scheduled Tribe
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(ST) reserved category. Such a finding, being completely
divorced from the record, can be said to be not sustainable.
39. Furthermore, a perusal of the record reveals that the
reply filed by the respondent-workman, written in his own
handwriting, was also forming an integral part and parcel of
the record before Tribunal. In the said reply, the respondent-
workman has very candidly and unequivocally accepted the
factum of submitting the certificate in question, and it is
settled law that admitted facts are not required to be proved.
Despite the presence of this clear admission on record, the
Tribunal fundamentally erred in holding that the writ applicant
has failed to establish that the said certificate was, in fact,
produced by the workman. This finding completely overlooks
the uncontroverted materials available on record. Furthermore,
the physical presence of the certificate on the record begs the
question as to who else, other than the beneficiary himself,
would have a motive to place it before the writ applicant-
Board. If, as contended, the respondent-workman was
appointed strictly under the general category, his motivation
for submitting this specific certificate remains entirely
unexplained. Consequently, by ignoring both the explicit
admission of the workman and the glaring circumstantial
reality of the case, the findings arrived at by the Tribunal on
this issue are rendered factually perverse, legally erroneous,
and wholly unsustainable .
40. I am at one with the submission canvassed by learned
counsel Mr. Dave for the writ applicant-Board that a mere
technical breach of Section 33 of the Act, 1947, does not
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automatically entitle the workman to an order of reinstatement
or back wages. It is a settled principle of law, as held by the
Supreme Court in catena of decisions post Jaipur Zila Sahkari
Bhoomi (supra) that when a complaint is preferred under
Section 33A of the Act, the Tribunal is required to adjudicate
the dispute in a twin-stage process. In the first stage, the
Tribunal must determine whether the employer has
contravened the provisions of Section 33 during the pendency
of a prior dispute. However, even if such contravention is
established, the Tribunal cannot directly pass an order of
reinstatement on that sole ground.
41. Let us assume for a moment that there has been a
technical breach of Section 33 on the part of the writ applicant-
Board, a position that was, to a limited extent, also conceded
by its learned counsel during the course of arguments,
however, the pivotal question that arises for adjudication is
whether such a contravention, by itself, is sufficient to render
the termination ab initio void, illegal, and thereby
automatically entitle the workman to the relief of
reinstatement with back wages.
42. By virtue of the statutory mandate embedded in Section
33A, the Tribunal must proceed to hear the complaint on its
merits as if it was a dispute referred to or pending before it
under Section 10 of the Act. This necessitates a full-fledged
adjudication where the Tribunal must appreciate the evidence
brought on record, provide a fair opportunity of hearing to the
employer to justify the order of dismissal or discharge, and
decide whether the termination was substantively justified. It is
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pertinent to observe that the impugned judgment and award
suffers from a patent illegality and is unsustainable as it seems
that the Tribunal has completely failed to meet the mandatory
statutory obligations under Section 33A of the Act.
43. Once Section 33A complaint is treated as a Section 10
reference, the Tribunal cannot merely go through the motions.
It must conduct a full-fledged trial, which legally mandates a
judicial application of mind to every piece of evidence on
record, requiring the Tribunal to explicitly state its reasons for
either accepting or discarding each document. It is a settled
position of law that once a complaint under Section 33A is
found to involve a breach of Section 33, it must be adjudicated
as if it were a reference referred to the Tribunal under Section
10 of the Act. This conversion is not a mere matter of form or
nomenclature; it demands a full-fledged, substantive trial,
meaning thereby adjudication under Section 10 of the Act
casts a sacred statutory duty upon the Tribunal to meticulously
examine the entire matrix of materials placed before it. A
proper trial inherently requires the Tribunal to scrutinize all the
documents that form part and parcel of the record. The
Tribunal is legally bound to weigh this evidence, apply its
judicial mind, and record clear findings either assigning cogent
reasons for discarding a document or establishing grounds for
accepting it. The Tribunal cannot simply turn a blind eye to the
record.
44. In the present case, a perusal of the impugned order
reveals a profound failure to conduct the proceedings in this
true sense and proper manner. Though the documents were
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very much available on record forming part and parcel of the
compilation, yet instead of evaluating the evidence already
safely within its custody, the Tribunal bypassed the trial
process entirely by recording a completely perverse finding
that the writ applicant-Board has failed to produce documents
to substantiate its claim. Thus, by failing to either consider or
explicitly discard the existing record through reasoned findings,
the Tribunal has fundamentally abdicated its statutory
jurisdiction under Section 10. Such a superficial approach
reduces a full-fledged statutory reference to an empty
formality, thereby vitiating the entire impugned order.
45. Further, it is a well settled principle of industrial
jurisprudence, established by the Supreme Court in Punjab
National Bank Ltd. vs. All-India Punjab National Bank
Employees Federation, AIR 1960 SC 160 and Equitable Coal Co.
Ltd. vs. Algu Singh, AIR 1958 SC 793 , that a Section 33A
complaint requires a two-stage inquiry. First, whether the
employer contravened Section 33. Second, if contravention is
proved, the Tribunal must adjudicate the dismissal on its
substantive merits exactly like a reference under Section 10.
46. In the case on hand, this Court finds substantial force in
the contention of the writ applicant-Board regarding the non-
application of mind by the Tribunal. A review of the impugned
order reveals a glaring omission to evaluate the evidentiary
material on record. Consequently, failure to consider and
appreciate the vital documents despite their availability on the
record and also by neglecting to assign any reasoning as to
why it discarded such pieces of evidence, the Tribunal has
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fundamentally failed to exercise the jurisdiction vested in it
while deciding the application under Section 33A as a
reference under Section 10 of the Act, 1947. Such an approach
vitiates the decision-making process.
47. Furthermore, a glaring perversity is manifest in the relief
granted by the Tribunal. It seems that the Tribunal misdirected
itself by directing straight reinstatement without evaluating the
charge of misconduct, despite the fact that sufficient material
was produced by the writ applicant-Board; instead, it
erroneously observed that the Board has failed to produce
evidence. It is a well-settled principle that an order of
reinstatement cannot be handed down as a punitive measure
against the employer for a procedural lapse under Section 33,
without a conclusive determination that the dismissal itself was
unjustified on facts. Even if the dismissal process was flawed,
reinstatement is not an absolute rule, especially where there is
an demonstrable loss of confidence. By adopting a rigid
approach, the Tribunal completely glossed over the facts
regarding the feasibility of reinstatement. Even in cases of
invalid termination, factors such as the lapse of time, nature of
the industry, and loss of confidence must be weighed to
consider whether distinct financial compensation in lieu of
reinstatement would better serve the ends of justice.
Consequently, the mechanical order of reinstatement reflects a
complete lack of application of mind and can be said to be
judicially unsustainable.
48. Thus, upon a meticulous review of the record, at the cost
of repetition, this Court is constrained to observe that the
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Tribunal has committed a grave error of law and patent
perversity by completely failing to examine the material
evidence placed before it. A bare perusal of the documents
forms a clear picture that the respondent-workman’s
appointment was explicitly under the Scheduled Tribe (ST)
category. Shockingly, the Tribunal did not even bother to look
into these vital documents. Instead, it misdirected itself by
ordering full reinstatement based mechanically on a technical
breach of Section 33 of the Act and by relying blindly on the
appointment letter of another employees to draw an inference
that there is a specific column of a particular category in the
said appointment letter. However, this Court finds that the
Tribunal has failed to appreciate the chronological context and
the evolving administrative policy of the Board while placing
reliance on the appointment letters of other employees. A
perusal of the record reveals that the appointment letter relied
upon by the Tribunal pertains to the year 2001, and it is the
specific and consistent stand of the Board that the practice of
explicitly mentioning the specific category of appointment in
the offer letters was only introduced subsequent to the
incident of respondent-workman. Notably, the respondent-
workman's own appointment letter explicitly specifies his
particular category of appointment. Therefore, in the
considered opinion of this Court, the Tribunal has committed a
grave error in drawing an equivalence between the
appointment letter of the respondent-workman and the
appointment letter of another employee issued in 2001, which
was governed by a modified administrative format. Thus, by
completely ignoring the specific ST category column governing
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the respondent’s employment framework which goes to the
root of the matter, the Tribunal has arrived at a finding that is
entirely divorced from the record. Such blatant non-
consideration of crucial evidence introduces a fatal perversity
into the proceedings, rendering the impugned order legally
unsustainable and liable to be set aside.
49. It is a well-settled principle of industrial jurisprudence
that while Section 33 mandates compliance, the obtaining of
express written permission or approval from the competent
authority is not a sine qua non for the ultimate legality of a
disciplinary or management action, provided the action can be
independently justified on its merits before the Tribunal. A
complaint under Section 33A must be adjudicated as if it was a
full-fledged reference under Section 10, requiring a thorough
inquiry into the merits of the dispute rather than a mechanistic
setting aside of the order on a mere technical non-compliance.
50. It is also a well-settled principle of industrial jurisprudence,
established by the Supreme Court of India in Equitable Coal Co.
Ltd. vs. Algu Ram and reinforced in Punjab National Bank Ltd.
vs. Its Workmen and Rajasthan SRTC v. Satya Prakash, that in a
Section 33A inquiry, the employee does not automatically
succeed upon proving a contravention of Section 33. After a
contravention is proved, the door remains wide open for the
employer to adduce evidence to justify the dismissal on merits.
51. If the employee was terminated for a serious offense such
as fraud, violence, or theft, allowing automatic reinstatement
purely due to a failure to secure a Section 33(2)(b) approval
would subvert industrial discipline and pragmatism. Various
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High Courts as well as the Hon’ble Supreme Court have consis-
tently ruled that if misconduct is proven on merit before the
Tribunal, the termination must be upheld regardless of initial
procedural lapses. The Tribunal’s failure to split its inquiry into
two clear stages (a) the factum of contravention, and (b) the
validation of the termination on merits renders its final relief
entirely untenable.
52. Thus, looking to the overall view of the matter in the light
of the evidence available on record, this Court answers the
second point for determination by holding that the Tribunal,
while passing the impugned judgment and award, has
completely failed to adopt a proper course of adjudication
while deciding the Section 33A application. It has fundamen-
tally erred in discarding vital documents already available on
record, while paradoxically giving undue weightage to
immaterial documents. This flawed approach ultimately led the
Tribunal to arrive at a wrong conclusion. Consequently, in the
opinion of this Court, the impugned judgment and award
suffers from a patent illegality and, as such, is rendered wholly
unsustainable.
53. Consequently, the present writ application is allowed.
The impugned order dated 18.01.2007 passed by the Industrial
Tribunal in Complaint No.08 of 2004 in Reference (I.T.) No.47 of
2002 is hereby declared null, void, and unsustainable in law,
and is accordingly quashed and set aside.
(DIVYESH A. JOSHI,J)
VAHID
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