Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4330 OF 2008
[Arising out of S.L.P.(C) No.7306 of 2007]
—
APPELLANT (S)
STATE OF MAHARASHTRA &
ORS.
VERSUS
— RESPONDENT (S)
RESHMA RAMESH MEHER &
ANR.
J U D G M E N T
D.K. JAIN, J.:
Leave granted.
2.
The State of Maharashtra, appellant No.1 herein and
its functionaries, namely, the Secretary to the
Government of Maharashtra, Social Welfare
Department; Divisional Commissioner, Konkan
Division and Executive Magistrate, Teh. Vasai, District
Thane, appellants No.2, 3 and 4 respectively call in
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question the legality of the judgment dated 22 June,
2006, rendered by the High Court of Judicature at
Bombay in W.P. No.5867 of 2002. By the impugned
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order the High Court has set aside order dated 3
April, 1998 passed by the Maharashtra Administrative
Tribunal (for short ‘the Tribunal’) allowing the review
applications preferred by appellant No.1 herein
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against its earlier order dated 15 December, 1997 in
O.A. Nos.920 and 921 of 1993, filed by the
respondents herein.
3. Pursuant to the applications filed in the year 1980,
appellant No.4 issued caste certificates to the
respondents declaring them to be belonging to
“Mahadeo Koli”, a Scheduled Tribe. On the strength of
the caste certificates, the respondents appeared in the
competitive examination held by the Maharashtra
Public Service Commission, for recruitment to the post
of Clerk under the reserved category of Scheduled
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Tribes. Being successful in the examination, they
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were appointed to the said posts with effect from 21
May, 1982.
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4.
However, vide letter dated 26 August, 1986, the
General Administrative Department of appellant No.1
asked the respondents to get their caste certificates
verified. They were required to appear before
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appellant No.4 on 9 November, 1987 for the purpose
of reverification of their caste certificates. By order
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dated 12 July, 1992, appellant No.4 cancelled the
caste certificates issued to the respondents. In
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furtherance of the said order, on 5 January, 1993,
memorandums were issued to the respondents,
informing them that their services will stand
terminated on completion of one month from the date
of issue of the memorandums.
5. Being aggrieved by order dated 12th July, 1992, the
respondents preferred appeals before the Divisional
Commissioner, appellant No.3 herein, who vide order
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dated 13 July, 1993, quashed and set aside the order
passed by appellant No.4, cancelling the caste
certificates. Thereafter, the respondents made
representations to appellant No.1 for reinstatement
but their requests were not acceded to.
6.
Left with no other option, the respondents filed
original applications (O.A. Nos. 920 and 921 of 1993)
before the Tribunal, challenging the termination of
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their services vide memorandums dated 5 January,
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1993 with effect from 5 February, 1993. The
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Tribunal, by a common order dated 15 December,
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1997, held that in the light of order dated 13 July,
1993 passed by the Divisional Commissioner, setting
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aside order dated 12 July, 1992 passed by appellant
No.4, the memorandums terminating the services of
the respondents, did not survive. Consequently, the
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Tribunal set aside memorandums/orders dated 5
January, 1993 and directed reinstatement of the
respondents, treating their absence from the date of
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termination to the date of reinstatement as extra-
ordinary leave.
7. It appears that in the meanwhile the Caste Scrutiny
Committee, constituted in terms of the decision of this
Court in Kumari Madhuri Patil & Anr. Vs. Addl.
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Commissioner, Tribal Development & Ors. , with a
view to streamline the procedure for issuance of social
status certificates and their scrutiny, undertook the
exercise of reverification of the caste status of the
respondents. On enquiry, it opined that the claim of
the respondents as belonging to “Mahadeo Koli” was
not verifiable and, in fact, they had changed their
caste from “Mangela Koli” to “Mahadeo Koli” to benefit
from the concessions available to latter Scheduled
Tribe. Accordingly, the Caste Scrutiny Committee vide
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their orders dated 27 March, 1996 and 23 March,
1996 cancelled the caste certificates issued to
respondents No.1 and 2 respectively.
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(1994) 6 SCC 241
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8. At this juncture, it would be appropriate to note that
by virtue of a Government decision No. C.B.C.-
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1494/Ad No. 236/ B.C.C-5 dated 7 December, 1994,
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a Government Resolution was notified on 15 June,
1995 declaring “Mangela Koli” caste to be a “special
backward category”, entitled to all special concessions,
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with effect from 7 December, 1994, which were being
enjoyed by other notified castes and tribes. Para 4 of
the said Resolution, relevant for our purpose, reads as
follows:
“The reservation given to the above
mentioned ‘Special Backward Category’
will remain as a backlog for direct service
recruitment and promotion. The principle
of creamy layer will not apply to this
category. The persons in this category
who have prior to this on the basis of
scheduled tribe certificate obtained
admission in the government, semi
government services got promotion they
should not be removed from this
promotion or service.”
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9.
The parties herein are ad idem that with effect from 7
December, 1994, “Mangela Koli”, the caste the
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respondents belong to as per the opinion of the Caste
Scrutiny Committee, had been treated as “special
backward category” and they were entitled to all the
privileges and protections enjoyed by other notified
castes/tribes. But the appellants dispute the
entitlement of the respondents to their reinstatement
to the posts held by them.
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10.
As noted supra, vide order dated 15 December, 1997,
though the Tribunal had directed reinstatement of the
respondents in service forthwith but the appellants
did not comply with the said order. Consequently, on
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17 February, 1998, the respondents filed contempt
applications (No.11 and 12 of 1998) against the
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appellants. Prior to that, on 13 January, 1998,
appellant No.1 and the Principal Secretary, General
Administrative Department had filed two review
applications (No.7 and 8 of 1998) for recall of order
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dated 15 December, 1997, on the ground that the
orders passed by the Caste Scrutiny Committee dated
7
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23 and 27 March, 1996, rejecting respondents’
claim was not brought to the notice of the Tribunal
when the original applications were taken up for
hearing and the said order had been pronounced
thereon. It is, however, pertinent to note that in the
review applications there was no reference to
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Government Resolution dated 15 June, 1995,
presumably for the reason that the services of the
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respondents having been terminated prior to 7
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December, 1994, i.e. on 5 January, 1993, their cases
did not fall within the ambit of the said Government
Resolution. However, in their reply affidavits, the
respondents pleaded that they were entitled to the
benefit of the said Government Resolution. Accepting
the stand of the appellants, vide their common order
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dated 3 April, 1998, the Tribunal came to the
conclusion that in the light of the opinion of the Caste
Scrutiny Committee, no relief could be granted to the
respondents in the original applications. The Tribunal
also held that the services of the respondents having
8
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been terminated on 5 January, 1993, the said
Government Resolution was of no avail to them.
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Accordingly, the Tribunal vide order dated 3 April,
1998, allowed the review applications; set aside its
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order dated 15 December, 1997 (in O.A. Nos. 920
and 921 of 1993) and dismissed the contempt
applications preferred by the respondents.
11.
Aggrieved, the respondents challenged Tribunal’s
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order dated 3 April, 1998 in the High Court by
preferring a writ petition some time in the year 2001.
The High Court, by the impugned order, has set aside
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the order dated 3 April, 1998, passed by the Tribunal
in review applications and has confirmed Tribunal’s
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original order dated 15 December, 1997. The High
Court has observed that though services of the
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respondents were terminated on 5 January, 1993,
because of cancellation of caste certificates by
appellant No.4 but respondents’ appeal against the
said action had been accepted by the Divisional
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Commissioner. Therefore, by virtue of the appellate
order, respondents’ claim got accepted. Furthermore,
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even the Tribunal, by its order dated 15 December,
1997 had directed the government to reinstate the
respondents in service forthwith and, therefore, on the
date of filing of review applications, the respondents
were deemed to be in service. Consequently, as a
natural corollary even otherwise the Government
Resolution, which was issued in 1995, had become
applicable and the protection granted under it became
available to the respondents. Hence this appeal.
12. Learned counsel appearing on behalf of the appellants
submitted that in the light of the reports of the Caste
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Scrutiny Committee, dated 23 and 27 March, 1996,
invalidating the caste claim of the respondents, the
High Court committed a grave error in setting aside
the order passed by the Tribunal in review
applications. Learned counsel contended, though
faintly, that the services of the respondents having
10
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been terminated on 5 January, 1993, the protection
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granted under Government Resolution dated 15
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June, 1995 applicable with effect from 7 December,
1994 was not available to the respondents. Lastly, it
was urged that in any event, having obtained the caste
certificates fraudulently, the respondents were not
entitled to back-wages for the period they had not
worked as clerks.
13. Per contra, learned counsel for the respondents
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submitted that in the teeth of order dated 13 July,
1993 passed by the Divisional Commissioner,
accepting the claim of the respondents, and the said
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order being in vogue as on 7 December, 1994, the
said Government Resolution was duly applicable in
their case. It was asserted that in view of the said
resolution, the services of the respondents could not
be terminated as admittedly, according to the Caste
Scrutiny Committee they belonged to “Mangela Koli”
caste which was also notified as a “special backward
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category”. Learned counsel contended that as there
was no allegation or finding against the respondents
that they had practised any fraud in obtaining the
caste certificates, they are entitled to full back-wages,
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particularly when despite order dated 17 July, 1993
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by the Divisional Commissioner and order dated 15
December, 1997 by the Tribunal, the respondents
were not reinstated in service.
14. Thus, the moot question arising for consideration is as
to whether the protection granted under Government
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Resolution dated 15 June, 1995 would be available
to the respondents?
15. In the light of the afore-noted factual matrix, we are of
the opinion that the answer to the question posed has
to be in the affirmative and, therefore, the decision of
the High Court, insofar as the applicability of the said
Government Resolution is concerned, cannot be
faulted. As noted above, on the passing of order dated
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13 July, 1993 by the Divisional Commissioner,
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quashing order dated 12 July, 1992 by the Tehsildar,
cancelling the caste certificate, the very foundation of
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the memorandum dated 5 January, 1993
disappeared. Indubitably, the order of the Divisional
Commissioner was not questioned by the appellants
and, therefore, its natural consequence was that
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memorandums dated 5 January, 1993 ought to have
been withdrawn by the authorities concerned and the
respondents reinstated in service. Since it did not
happen, the respondents had to approach the
Tribunal for appropriate relief which was granted on
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15 December, 1997 and a direction was issued for
their reinstatement. No doubt, it is true that by the
time the Tribunal took up the original applications for
consideration, the Caste Scrutiny Committee had
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rendered their opinion on 23/26 March, 1996 but
the same was not brought to the notice of the Tribunal
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by either side when on 15 December, 1997,
respondents’ original applications were decided in
their favour and their reinstatement in service was
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ordered. But the fact remains that in the absence of
any other adverse report/opinion regarding the caste
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of the respondents prior to 23/26 March, 1996 i.e.
the date of Committee’s Report, they were deemed to
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be in service as on 7 December, 1994, by virtue of
Commissioner’s order, even if Tribunal’s order, dated
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15 December, 1997, is ignored. We feel that
appellant’s inaction on respondents’ representations
for reinstatement pursuant to appellate authority’s
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order dated 13 July, 1993 cannot be held out against
the respondents.
16. In our view, therefore, the High Court was justified in
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holding that as on 7 December, 1994, the
respondents were deemed to be in service and,
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therefore Government Resolution dated 15 June,
1995 was clearly applicable in their cases and they
were entitled to the protection thereunder.
Accordingly, we affirm the decision of the High Court
on the point.
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17. The next question for determination is whether the
respondents are entitled to the back-wages for the
period they were out of service?
18. It is true that once the order of termination of service
of an employee is set aside, ordinarily the relief of
reinstatement is available to him. However, the
entitlement of an employee to get reinstated does not
necessarily result in payment of full or partial back-
wages, which is independent of reinstatement. While
dealing with the prayer of back-wages, factual
scenario, equity and good conscious, a number of
other factors, like the manner of selection; nature of
appointment; the period for which the employee has
worked with the employer etc.; have to be kept in view.
All these factors and circumstances are illustrative
and no precise or abstract formula can be laid down
as to under what circumstances full or partial back-
wages should be awarded. It depends upon the facts
and circumstances of the each case.
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19. In General Manager, Haryana Roadways Vs.
2
Rudhan Singh a three-Judge Bench of this Court
has observed that there cannot be a strait jacket
formula for awarding relief of back-wages and an order
of back-wages should not be passed in a mechanical
manner. It has been held that a host of factors, like
the manner and method of selection and appointment;
the nature of appointment, namely, whether ad hoc,
short term, daily wage, temporary or permanent in
character; and the length of service, which the
workman had rendered with the employer are required
to be taken into consideration before passing any
order for award of back-wages. [See: also Haryana
State Electronics Development Corpn. Ltd. Vs.
3
Mamni ; U.P. State Brassware Corpn. Ltd. & Anr.
4
Vs. Uday Narain Pandey and U.P. SRTC Vs. Mitthu
5
Singh ]
2
(2005) 5 SCC 591
3
(2006) 9 SCC 434
4
(2006) 1 SCC 479
5
(2006) 7 SCC 180
16
20. Having considered the matter on the touchstone of the
afore-noted broad principles, we are of the opinion
that the facts in hand do not warrant payment of
back-wages to the respondents. In the instant case,
though there is no allegation against the respondents
that originally the caste certificates were obtained by
them fraudulently and, in fact, none of the authorities
have recorded any findings to that effect, yet we feel
that non-disclosure of the Caste Scrutiny Committee’s
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Report dated 23/27 March, 1996 by the respondents
before the Tribunal is tantamount to suppression of
material and vital information from the Court,
bordering fraud.
21. In S.P. Chengalvaraya Naidu (Dead) By LRs. Vs.
6
Jagannath (Dead) By LRs. & Ors. , this Court had
observed that a litigant, who approaches the court, is
bound to produce all the documents which are
relevant to the litigation and if he withholds a vital
document in order to gain advantage on the other side
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(1994) 1 SCC 1
17
then he would he guilty of playing fraud on the court
.
as well as on the opposite party
22. Similarly, in Ram Preeti Yadav Vs. U.P. Board of
7
High School and Intermediate Education & Ors. ,
it was observed that fraud is a conduct either by letter
or words, which induces the other person, or authority
to take a definite determinative stand as a response to
the conduct of former either by words or letter.
8
Referring to Derry Vs. Peek , it was said that although
negligence is not fraud but it can be evidence on
fraud.
23. However, having regard to the peculiar circumstances
of the case, namely, the factum of issue of
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Government Resolution dated 15 June, 1995 in the
interregnum, which was in favour of the respondents
insofar as their caste claim for reservation was
concerned, we do not propose to delve on the issue of
their conduct any further. Suffice it to observe that
7
(2003) 8 SCC 311
8
(1889) 14 AC 337
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there was no good reason for the respondents to
withhold the opinion of Caste Scrutiny Committee
from the Tribunal, when their original applications
were taken up for hearing in December, 1997. We are
convinced that this lapse on their part, coupled with
the fact that there was inordinate delay of almost three
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years in challenging the order of Tribunal dated 3
April, 1998 passed in appellants’ review applications,
disentitles them at least from their claim for back-
wages. Accordingly, we set aside the order of the High
Court to the extent it directs treatment of respondents’
absence from the date of termination to the date of
reinstatement as extra-ordinary leave.
24. Consequently, for the reasons afore-stated, the
appeal is partly allowed to the extent indicated above.
However, there will be no order as to costs.
………………………………….…J.
(C.K. THAKKER)
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…………………………………….J.
(D.K. JAIN)
NEW DELHI;
JULY 11, 2008.
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