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Judgment
These are the two sets of Writ Petitions consisting of 12 petitioners working with the respondents.
In WPS No. 3955/2011, there are 2 petitioners and in WPS No.4728/2011 there are 10 petitioners.
Since, the challenge in both these Writ Petitions are the respective chargesheet which have been issued practically on the same day or if not around
the same time and the nature of charges also being identical so also the ground of challenge in both these Writ Petitions being also same and similar,
this Court proceeds to decide both these Writ Petitions by a common judgment.
The 12 petitioners in the two Writ Petitions can be put into two categories.
One, where the allegation/charge against the petitioners is that 10 petitioners before this Court in the two Writ Petitions have got the employment
with the respondents in the capacity of a land oustee i.e. they have been provided employment by the respondents on their land having been acquired
by the respondents and they have showed themselves to be the grandson, son or husband of the person whose land was actually acquired. Whereas it
was alleged that they are not in any manner relatives of the land owner much else the grandson, son or the husband, nor do they belong to the same
caste to which the original land owner belonged to. Thus they have obtained employment by playing fraud and by false representation on the basis of
fake documents.
The second category being of those employees who have obtained the employment by suppressing their actual caste status in as much as the
property which was acquired by the respondents belonged to the 'Gond' community. The 2 petitioners while purchasing the property showed them as
persons belonging to Aboriginal Tribe, however, while obtaining the employment, the petitioners have projected themselves as the persons belonging to
the ‘Ahir/Yadav’ community.
In the first category of employees mentioned above, there are 10 petitioners i.e. the petitioner No.1 in WPS No.3955/2011 and all the petitioners
except petitioner No.2 in WPS No.4728/2011. That in the second category there are 2 petitioners i.e. the petitioner No.2 in both the Writ Petitions. For
better understanding the issue involved in the case, it would be relevant to refer to the nature of charge levelled against each of the petitioners. Since,
the wordings of the chargesheet given to each of the petitioners are identical, we would refer to two of the charges levelled against one employee
each of the two categories of the petitioners in the present two Writ Petitions.
So far as the 10 petitioners who it is alleged to have obtained the employment by playing fraud by projecting themselves as the grandson, son or
husband of the original title holder of the property acquired, the charges levelled was as under:-
v k j k si
^^;g fjik sVZ i zkIr gqbZ g S fd xzke djei qj fLFkr Hkwfe [kljk d zek ad 651@10 [k jdck 0 - 405 g s- Hkwfe dk ,l - bZ - lh- ,y - }kjk vf/kx zg . k fd; s
tku s ij vki Hkwfe Lokeh ckyk s ifr ek sgu tkfr mjk ao dk ik srk cudj ¼lgefr i=] 'kiFk i= ,o a o a'ko`{k bR;kfn d s vk/kkj ij ½ ,l - bZ - lh- ,y - e sa
jktxkj i zkIr fd, gS tcfd ,d f'kdk;r i= d s vuqlkj  vkidh tkfr vfgj ^^;kno** crkbZ xbZ g SA bl i zdkj vkfnoklh  ^^ckyk s**  ifr  ek sgu] tkfr mjk ao
dk ukrh vki ¼xSj vkfnoklh½ d Sl s tk s ldr s g SA fu'p; gh uk sd jh iku s d s mn~n s' ; l s vki }kjk QthZ rjhd s l s ,d >wBk nLrko st r S;kj djr s g q,
QthZ ukrh cudj ,l - bZ - lh- ,y - d s lkFk /kk s[kk/kMh djr s gq, uk Sd jh gkfly fd, g SA vkid s }kjk fd;k x;k mi; qZDr d`R; dEiuh d s LFkk;h vkn s'k dh
/kkjk 26 - 1] 26 - 9 d s vUrxZr dnkpkj dh Js. kh e s vkrk gS tk s fd fuEukuqlkj g S%&Â Â Â Â Â
26 - 1 fu;k sDrk d s O;kikj ;k lEifRr d s lkFk pk sjh] /kk s[kk/kMh ;k c sbZekuhAÂ Â Â Â Â Â Â
26 - 9 viu s jk stxkj d s l ac a/ k e sa uke] me z] firk dk uke] ;k sx;rk vkfn d s l ac a/ k e sa xyr lwpuk n sukA**Â Â Â Â
So far as the 2 petitioners in the second category of employees who it is alleged to have obtained the employment by suppressing material facts like
while acquiring the property, they have projected themselves as the people belonging to the 'Gond' community â€" the community which falls under the
Scheduled Tribe category. However, while obtaining the employment and filling up the service record, they had projected themselves as the people
belonging to the ‘Ahir/Yadav’ community which does not belong to the Scheduled Tribe category and as such the alleged purchase of land by
the said 2 petitioners from the aboriginals is per-se illegal and therefore the employment has been obtained by playing mischief or fraud played by the
petitioners amounts to a major misconduct and they were charged under the chargesheet as under:-
v k j k si
^^;g fjik sVZ i zkIr  gqbZ g S fd xzke djei qj fLFkr Hkwfe [kljk d zek ad 655@27 [k dh 0 - 405 g s- Hkwfe ^^n qgu firk ethjk . tkfr mjk ao ** l s
vkius ^^jketh firk x . k s'k] tkfr xk saM ** d s uke l s d z; fd;k fdUr q vkiu s viuh l soki qfLrdk e sa viuh tkfr ^^vfgj ¼;kno½** n'kkZ;k g S vFkok ?
kk sâ€k . kk fd;k x;k g SA vkfnoklh dh Hkwfe xSj vkfnoklh dk s N - x - Hkw - jktLo l af grk d s i zko/kkuk sa d s rgr fod z; ugha dh tk ldrh ysfdu
vkius dEiuh e sa uk Sd jh i zkIr djus d s ,d ek= mn~n s' ; l s vki }kjk viuh tkfr xk saM crk dj QthZ c Sekuk fuâ€ikfnr djk;k ,o a QthZ rjhd s l s ,o a >wB
s nLrko st r S;kj djr s g q, mi; qZDr Hkwfe d s vtZu dh fLFkrh ,l - bZ - lh- ,y - d s lk{k /kk s[kk/kMh djr s gq, uk Sdjh gkfly fd,A vkid s }kjk fd;k x;k
mi;qZDr d`R; dEiuh d s LFkk;h vkn s'k dh /kkjk 261] 269 d s vUrxZr dnkpkj dh J s. kh e sa vkrk gS tk s fd fuEukuqlkj g S &Â Â Â Â Â
26 - 1 fu;k sDrk d s O;kikj ;k lEifRr d s lkFk pk sjh] /kk s[kk/kMh ;k c sbZekuhAÂ Â Â Â Â Â
26 - 9 viu s jk stxkj d s l ac a/ k e sa uke] me z] firk dk uke] ;k sx;rk vkfn d s l ac a/ k e sa xyr lwpuk n sukA**Â Â Â
10.From perusal of the aforesaid two set of chargesheets it is evidently clear that, the first set of petitioners are those who are allegedly not in any
manner related to the original land owners and have therefore obtained the employment by fraudulently showing them to be the legal heirs of the
original title holder.
11.So far as the second set of employees are concerned, they are the persons who are not infact the people belonging to the aboriginals
community/tribe, yet they have purchased the land from aboriginals projecting themselves as the people belonging to the 'Gond' community which
otherwise is impermissible under the provision of Land Revenue Code. At the same time while obtaining the employment and filling up of the service
records, these petitioners have shown themselves as the persons belonging to the ‘Ahir/Yadav’ community. Thus, there is a direct conflict in the
caste status of the petitioners as is reflected from the sale deed executed in favour of the petitioners when compared to the caste reflected in the
service record.
Thus, in all, the 12 petitioners together have obtained employment by playing fraud and for which they have been chargesheeted by the employer
contemplating departmental enquiry and the petitioners have been called upon to prove the fact that they are the descendant of the original title holder
in the first category of case.
13.So far as the second category is concerned, it was sought from the petitioners to prove that they infact belong to the aboriginals tribe as the land
which was purchased by them originally stood in the name of the people belonging to the aboriginals tribe and therefore their property could have been
purchased by only persons belonging to the said category which unless proved by the petitioners would amount to playing fraud for the purpose of
obtaining the employment.
14.The contention of the counsel for the petitioners is that from the chargesheet, the charges levelled against each of the petitioners is that they did not
belong to the same caste/tribe to which the original title holder of the property belonged therefore there is an apparent dispute questioning the caste of
the petitioners and which cannot be enquired into by the employer by conducting a departmental enquiry. According to the counsel for the petitioners,
the said dispute of caste of an employee could be examined, enquired and verified only by the High Level Caste Scrutiny Committee constituted by the
State Government (In short “the Committeeâ€). Therefore the chargesheet and the departmental enquiry comtemplated by them is per-se illegal
and the same deserve to be set-aside/quashed.
It was further contended that, it is not within the domain of the employer to conduct an enquiry after the landmark judgment of the Hon’ble
Supreme Court in the case of Ku. Madhuri Patil & Anr. v. Addl.
Commissioner, Tribal Development & Ors. [1994 6 SCC 241] and all subsequent judicial pronouncements made on the subject.
It was further contended by the counsel for the petitioners that, the chargesheet also is not sustainable for the reason that the same has been
issued on the basis of some frivolous and anonymous complaint. He further submits that, there was no complaint whatsoever received from any of the
original land owners which could have prima-facie established the offence in the absence of which the chargesheet could not have been issued. It was
further contended that, the petitioners had all put in about more than 12 years of service and that at the time of employment, the employer i.e. the
respondents had infact duly verified and scrutinized the testimonials and documents submitted by the petitioners on the basis of which they were
provided the employment.
17.The counsel for the petitioners further submits that under the said circumstances, a person aggrieved should had been the original owner of the
land, a member of whose family should have got the employment. But in none of these case is there a complaint from the original land owner or a
person who is alleged to have been defrauded and for this reason also, the chargesheet is not sustainable and the same deserve to be set
aside/quashed.
Lastly it was contended that, in none of the case is there a proceeding drawn under Section 165 of Land Revenue Code for reversal of the land
which stood mutated in the name of the petitioners in the revenue record. It was also contended by the counsel of the petitioners that even otherwise,
the nature of charge or the misconduct alleged being one which are disputed question of facts and law and which could be determined only by a
competent court of law and unless there is a determination from competent court of law, the respondents would be precluded from initiating any
disciplinary proceedings for such nature of charge and for this reason also the chargesheet and the disciplinary proceedings deserve to be quashed.
19.As regards the 2 petitioners in the second category of petitioners are concerned, it was contended that the nature of allegation against the said
category of petitioners is one which could exclusively be enquired into by the Committee. According to the counsel for the petitioners, prima-facie, the
charge against these two petitioners is that they belong to the 'Ahir/Yadav' community which come under the OBC category and that they are said to
have purchased the property projecting themselves as the people belonging to the 'Gond' community and the same has been done only with the object
of obtaining employment as a land oustee and while filling up the service record at the time of appointment, they had shown themselves to be the
people belonging to the 'Ahir/Yadav' community belonging to the OBC category.
This according to the counsel for the petitioners is a charge which primarily is questioning the caste status of the petitioners and which in the light
of the judgment of Madhuri Patil (Supra) and all the subsequent decisions of the Supreme Court on this subject cannot under any circumstance be
enquired into by the employer and the chargesheet thus was per-se illegal. It was the contention of the counsel for the petitioners that, unless the caste
status of the petitioner is determined by the Committee, the charge itself would not be sustainable. According to him, undisputedly, on the date when
the respondents had acquired the land, the property stood in the name of the petitioners and under the said circumstances, irrespective of the caste
status of the petitioners, they were entitled for the employment and if under the said circumstances the petitioners have been provided the
employment, the respondents now after more than a decade of their employment cannot question the status of the petitioners caste.
According to the petitioner's counsel, they are not shying away of any enquiry, but what is demanded is that an enquiry be conducted by the
authority constituted for the same under the law and which otherwise is not within the domain of the employer. Thus the counsel for the petitioners
prayed for quashment of the chargesheet and the disciplinary proceedings initiated against each of the petitioners.
Per contra, the counsel appearing for the respondents Shri H.B.Agrawal, Senior Advocate along with Shri Vinod Deshmukh, Advocate and Shri
Sudhir Bajpai, Advocate have contended before this Court that, this Court while admitting both the Writ Petitions on 07/02/2012 had granted an interim
protection in favour of the petitioners to the extent that, the enquiry may continue, but final order as such shall not be passed.
According to the counsel for the respondents, the enquiry in each of the case has been concluded and the enquiry report has also been submitted
and by virtue of the interim order of this Court, the final orders were not passed by the disciplinary authority. It was the contention of the counsel for
the respondents that the facts of the case is that, out of the 12 petitioners in the two Writ Petitions, 10 have been projected themselves as the
grandson, son or husband of the original title holder of the property acquired by the respondents and on verification of facts it is reveal that the original
title holder of the property belonged to the aboriginal tribe i.e. Scheduled Tribe category whereas as per the service record, the petitioners have been
declared themselves as the persons belonging to the 'Ahir/Yadav' community which falls under the OBC category. This according to the counsel for
the respondents prima-facie establishes that they are neither the grandson, son or the husband of the original title holder. According to the learned
counsel for the respondents, the chargesheet infact has been issued to verify the aspect as to whether they are the relatives of the title holder as has
been claimed by them to be the grandson, son or the husband of the title holder and for determination of this issue, the caste of the petitioner is
immaterial. The petitioners have to produce cogent evidence before the enquiry officer that they infact are either the grandson, son or the husband of
the original title holder.
It was further contended that for determination of this issue or a charge, the matter need not be sent to the Committee. According to the counsel
for the respondents, the basic charge against the petitioners is that of obtaining employment by playing fraud. The charge of fraudulent appointment to
be enquired into is well within the domain of the employer and such issues need not to be enquired into by the Committee. Rather it is beyond the
powers and jurisdiction of the Committee and therefore the chargesheet and the disciplinary proceedings contemplated was proper, legal and justified
and the petition as such is misconceived and without any merits deserving rejection.
25.The counsel for the respondents drew attention of this Court to the documents enclosed with the return to show that the entire conduct of the
petitioners and the documents submitted by them for the purpose of obtaining the employment would show that they have fraudulently obtained certain
documents including sale deed executed projecting themselves as the people belonging to the 'Oraon/Gond' community. According to the counsel for
the respondents, since on the basis of complaint it was detected that the documents produced by the petitioners at the time of appointment and the
facts submitted therein at that point of time prima-facie comes under a shadow of doubt. The chargesheet has been issued to enquire into such
allegation which is more in the nature of submission of false documents to secure the employment which otherwise is a misconduct under the provision
of standing orders as is reflected from the chargesheet itself.
26.The counsel for the respondents also relied upon the documents of the Additional Collector who had conducted a primary investigation and
submitted a report whereby the documents submitted by the petitioners at the time of appointment appears to be doubtful. It is this correspondence
made by the Additional Collector which compelled the respondents to issue the chargesheet and hold an enquiry.
27.The counsel for the respondents however submits that now that the enquiry also has been concluded and the petitioners in the enquiry has been
granted fair and impartial enquiry. In addition, the petitioners also was granted full and reasonable opportunity of defence. He thus prayed for
permission to pass suitable orders on the basis of enquiry report and the evidence which have come before the enquiry officer. So also he prayed for
the dismissal of the Writ Petitions with permission to the respondents to proceed further with the enquiry.
Having heard the contentions put forth on either side and on perusal of record, the crux of the matter in the instant case is whether the
respondents had the power to hold a departmental enquiry for the charges which are levelled against the petitioners or whether the charge first have
to be proved and established before the Committee and only thereafter could the respondents/employer proceed further if require for a disciplinary
action or for initiation of a criminal case.
For determining the said issue, it is necessary to understand the nature of charges which has been levelled by the employer against each of the
petitioners.
30.As has been discussed in the preceding paragraphs, all the 12 petitioners in the two Writ Petitions have been classified into two different
categories.
31.One set of case consisting of 10 petitioners against whom the charge is that of the relationship that they have with the title holder of the land
acquired by the respondents. It is alleged by the employer that there is no relationship whatsoever between the petitioners and the original title holder
of the property. It is charged against them that they have for the purpose of obtaining the employment have shown themselves to be the relatives of
the property holder and have in the process obtained employment. Thus, the very appointment itself is bad in law.
32.The second set of case consisting of 2 petitioners. One each in both the Writ Petitions are those employees against whom the charge is that in the
service record, their caste status has been shown to be that of 'Ahir/Yadav' community and property which they have purchased is one which stood in
the name of Aadivasi (ab-originals). That under the State laws, the land of an Aadivasi cannot be purchased by a non-aadivasi and thus the purchase
of the land by the petitioners showing themselves as an Aadivasi for the purpose of purchase of the property and at the same time while obtaining the
employment, they have reflected themselves as the people belonging to the 'Ahir/Yadav' community and therefore there is an apparent
misrepresentation of caste made by the two employees at the time of obtaining the employment which again is in contravention to the order of
appointment.
33.Now if we look into the judicial pronouncements of the Supreme Court referred to by the counsel for the petitioners starting from the landmark
judgment of Madhuri Patil (Supra), it would be clear that the issue discussed by the Supreme Court in these cases was as to the manner of enquiry,
the agency for enquiry and the procedure to be followed therein in determining the caste status of a person and also in respect of a dispute or a doubt
raised on the caste certificate produced by an employee or a person.
34.There can be no doubt on the said issue that in the event if there is a charge levelled by the employer doubting the caste of an employee, the same
has to be enquired in the light of the judicial pronouncements made in the recent past starting from the judgment of Madhuri Patil (Supra). It has to go
before the Committee constituted for the same.
At the same time, in case if the charge is not to determine the caste status of the employee but it is in respect of the alleged fraud played by the
petitioner the delinquent employee for the purpose of obtaining the employment and in the process it is also revealed that the caste of the petitioner is
entirely different the matter can still be enquired into by the employer by way of a disciplinary proceedings.
36.What is paramount to be considered is whether the charge levelled is one which is a mis-conduct under the service rules or whether the caste
certificate produced for the purpose of obtaining the employment being doubtful.
In the case of a former situation, the departmental enquiry is fully justified. However, in the later situation, the departmental enquiry is not justified
as the said dispute has to be referred to the Committee first and thereafter it would go to the employer for an appropriate decision/order. In other
words, in a case of dispute pertaining to the issuance of caste certificate, scrutiny verification of caste and tribe of person, the procedure for
investigating the authenticity of caste status of employee, the caste certificate issued in favour of employee being found to be false or not genuine. In
cases where the employment or an admission in an educational institution have been obtained on the basis of caste certificate which appears to be
doubtful. The legal position as it stands is that all such nature of dispute have to be placed before the Committee.
If we compare the aforesaid situation and legal position with the facts of the present case so far as the set of 10 petitioners in the first category is
concerned, the charge against them is in respect of the relationship that they have with the original land owner whose property was acquired by the
respondents against which the employment has been given to all these 10 petitioners. A complaint has been received in respect of there being no
relationship between the title holder and the person who has obtained the employment.
39.Such a dispute in the opinion of this Court without any doubt or hesitation is an issue which is exclusively within the domain of the employer i.e. the
respondents in the present case. The charge is doubting the relationship between the title holder and the respective petitioners and if the petitioners are
only able to produce the relationship of being either the grandson, son or the husband of the original title holder, the employees gets automatic
exoneration of the charges or else if they fail to produce the evidence, it would be considered as the petitioners have obtained the employment by
playing fraud.
In the given factual legal position this Court does not find any strong case made out by these 10 petitioners who fall in the first category calling for
an interference with the disciplinary proceedings initiated against them and the Writ Petition so far as these 10 petitioners are concerned stands
dismissed.
41.However, it is made clear that in the process of conducting the departmental enquiry, the respondents would not go into the veracity of the caste
status of any of these 10 petitioners. The enquiry would be confined only to the relationship between the title holder and the petitioners.
42.So far as the petitioners who fall in the second category consisting of 2 petitioners i.e. the petitioner No.2 in both the Writ Petitions are concerned,
undisputedly, they are the persons in whose favour there was a sale deed and it was their property which was acquired by the respondents and they
were for the said acquisition of land entitled for the employment.
43.Now the charge against them is that in the service book/service record, their caste status has been shown as 'Ahir/Yadav' community which falls
under the OBC category whereas the property which stood in their name originally belonged to an Aadivasi and these persons have purchased the
property projecting themselves as an Aadivasi and while seeking employment, they had declared themselves as people belonging to the OBC
category.
44.What cannot be lost sight of is that in case if it established that the 2 petitioners belong to an Aadivasi community, then the employment obtained by
them cannot be said to be bad or fraudulent. Then the only requirement would be for correction of their caste status in the service record. For
determining this issue in the light of judgment of the Supreme Court, the case of these 2 petitioners would have to be referred to the Committee first
who would enquire upon the caste status of the 2 petitioners and on the basis of the report of the Committee, an appropriate decision can be taken. If
it is found that they did not belong to the ab-original tribe then firstly the sale deed executed in their favour would require reconsideration as it would
have to be got declared as null and void. Thereafter subsequent obtaining of employment on the basis of said alleged fraudulent purchase of land can
also be looked into by the employer. But foremost it would require a determination as to whether the 2 petitioners namely Ramji Ganesh in WPS
No.3955/2011 and Kripashankar Ranjir in WPS No.4728/2011 belong to the ab-original tribe or not and for determination which the management
would require to make a reference to the Committee.
Thus, the initiation of disciplinary proceedings against these two petitioners at this moment is uncalled for and it is ordered for keeping the
disciplinary proceedings initiated against these two petitioners in abeyance, reserving the right of the employer to first refer the case of these two
petitioners to the Committee and get an enquiry done at the earliest and thereafter proceed further with the disciplinary proceedings if required.
46.The Writ Petition so far as these two petitioners are concerned deserve to be and is accordingly allowed.
Accordingly, the two Writ Petitions stands allowed in part to the extent that the petitioners in the two Writ Petitions i.e. the petitioner No.1 in WPS
No.3955/2011 and the petitioner No.1 and 3-10 in WPS No.4728/2011 stands dismissed and the Writ Petition so far as the petitioner No.2 in both the
Writ Petitions stands allowed.