Gautam Roy vs Indian Overseas Bank

By this petition, the petitioner who is working as clerk with the respondent Bank has challenged the order dated February 2, 1994 of the Asst, General Manager of the respondent-Bank terminating the petitioner''s services with immediate effect. From the pleadings and the material produced before me, following facts emerged :

The petitioner was appointed as clerk/shroff/godown keeper by the respondent-Bank on September 28, 1981 at its Morvi Branch against the quota reserved for Scheduled Caste. Alongwith the application, the petitioner had submitted certificate dated September 30, 1957 issued by the Sub-Divisional Officer, Barrackpore (West Bengal) in favour of the petitioner''s father Prithvish Kumar Saha Roy. The Certificate reads as under :-

"This is to certify that Shri Prithvish Kumar Saha Roy son of late Bagish Chandra Saha Roy of village Saktipur. District Murshidabad in the West Bengal State, India belongs to the Sundri community which is recognised as a Scheduled Caste under the Constitution (Scheduled Castes] Order, 1950."

The petitioner''s father was serving with the Civil Aviation Department of the Central Government and was appointed against the Scheduled Caste quota. In the said Department, he continued to serve until his death. About this fact that the petitioner''s father Prithvish Kumar Saha Roy was working as Senior Fire Foreman in Civil Aviation Department as SC employee, the petitioner has also submitted Annexure "B" which is a certificate issued by the Aerodrome Officer, Rajkot on the basis of his service record dated June 30, 1978, on the basis of which, the Bank had accepted the petitioner which alone was the material before the appointing authority at the time of appointment, to be a member of the Scheduled Caste. The petitioner was duly confirmed on the post on March 28, 1982 according to the guidelines of the Government of India, Department of Economic Affairs Banking Division which are applicable to all Public Sector Banks, financial institutions. It is required that on every occasion in the career of the SC/ST employee, such as at the time of appointment, confirmation and promotion etc. verification of the SC/ST status is to be made by the Appointing Authority. By letter dated December 17, 1988, the petitioner desired to compete as general candidate for the promotion test by offering the voluntary relinquishment of his continuing rights as a member of reserved class. Rejecting the petitioner''s request. the respondents directed the petitioner to produce community certificate in petitioner''s name, in response to which, the petitioner produced certificate dated May 3, 1990 obtained from the Metropolitan Magistrate, Court No. 5, Ahmedabad, which certificate, he was certified to be a member of the Scheduled Caste. The respondent-Bank wrote a letter dated May 20, 1990 to the Metropolitan Magistrate. Court No. 5, Ahmedabad pointing out that according to the guidelines from the Banking Division. certificate issued by the Judicial Magistrates are not acceptable and it also pointed out that the sub-caste mentioned in the certificate is Sunri whereas referring to the Schedule Caste list of the West Bengal State, sub-caste in Serial No. 15 is Sunri excluding Saha. The Bank questioned the Metropolitan Magistrate why ''suflix'' excluding Saha has been omitted and as a Judicial authority whether he still vouched for the candidate''s community despite ministry guidelines to the contrary. Again, the Bank repeated its protest to the Court (sic.) by its letter dated August 8, 1990 which was replied by the Metropolitan Magistrate vide his letter dated September 14, 1990 in which he has admitted to have issued certificate dated May 3, 1990 in petitioner''s favour. However, he further stated that in view of the guidelines issued by the Banking Division, he was not aware about the same. He, therefore, asked the Bank to close the chapter by suggesting the bank to obtain revised certificate in terms of the guidelines issued by the Banking Division from the Appropriate Authority. Again, on the Bank''s request, the petitioner submitted certificate certifying him to be the member of the Scheduled Caste issued by the, executive and Metropolitan magistrate, Ahmedabad. Again, the Bank lodged its protest against the issuance of the certificate to the Magistrate, Metropolitan Area, Ahmedabad vide its letter dated December 7, 1991, as under :

"On scrutiny, we found that the certificate issued by your office has not been issued after thorough verification and issued on the strength of the following certificate as inscribed in the certificate itself''.

It also sent certain documents, namely the TC of Shri P. D. Malavia Public School, Rajkot; certificate issued by Metropolitan Magistrate, Court No. 5, Ahmedabad dated May 3, 1990 and Certificate issued by the Sub-Divisional Officer, Barrackpore dated September 30, 1957 issued by the West Bengal authorities. It was also pointed out in that letter that the sub-caste Sunri does not find place in the list of West Bengal but at Serial No. 57, it reads as Sunri [excluding "Saha"]. The Bank required from the Executive Magistrate as to vouch for the verification the community certificate dated November 20, 1990. In response to the aforesaid question by the bank, City Mamlatdar communicated to the Bank vide its letter dated September 16, 1993 to treat the said certificate cancelled, if necessary. Cancellation of the certificate dated May 3, 1990 issued by the Metropolitan magistrate, Ahmedabad and the certificate dated November 22, 1990 issued by the Executive Magistrate, Ahmedabad both appears to have been obtained by the respondent Bank at the petitioner''s back without even informing him about the objection which it has about the certificate produced by the petitioner and while the Metropolitan Magistrate withdrew his certificate for want of Authority, City Mamlatdar issued letter dated October 16, 1993 treating the certificate issued to the petitioner as cancelled on the ipse dixit of the Bank without even calling the petitioner to explain about the same. Be that as it may, after collecting the aforesaid material, the respondent-Bank issued notice dated November 4, 1993 stating to the petitioner that on taking up the matter with the appropriate Authority for verification of the genuineness of the certificate, on the caste status whether it is advised by the competent authority that he did not belong to the Scheduled Caste and cancelled the community certificate issued by the Metropolitan Magistrate, Court No. 5, Ahmedabad as also community certificate dated October 22, 1990 issued by the Executive Magistrate, Ahmedabad. The Petitioner was further told that you have with some ulterior motive, misrepresented the vital information relating to your correct caste status and sought gainful employment under reserved category quota for which you are otherwise not entitled. The petitioner was required to submit his explanation to these accusations within fifteen days to show cause as to why, his services should not be terminated.

In response to the aforesaid notice the petitioner on December 22, 1993, demanded that he may be furnished with the letters referred to by the authorities devalidating the relevant community certificate issued by them alongwith copy of all the relevant letters/correspondence entertained by the Bank in this regard with the referred appropriate authorities and all the relevant materials on the basis of which they have issued the same. The respondents, vide their letter dated December 13, 1993 forwarded copy of the proceedings of the Magistrate and demanded reply within a week. Copy annexed with the letter was the same. English version of which has been supplied by the respondent to the Courts has been quoted hereinabove. On December 24, 1993 acknowledging copy of the letter dated December 23, 1993 alongwith the Mamlatdar''s communication dated October 16, 1993. demanded that the copy of the proceedings dated October 16, 1993 which is handwritten in Gujarat is illegible and does not purport to depict the entire material portion/contents of the original parent document on account of deletion/imprint of its vital portions on both the sides of the page perhaps due to inadvertent proceeding/mechanical fault or at the default of the xerox machine. By his letter, he requested for a certified true copy of the said proceedings depicting the exhaustive/entire portion of the said document alongwith a neatly typed translated copy of its contents interpreted into English so as to afford him an opportunity to understand the contents effectively and reasonably to prepare his reply to the show-cause notice.

It was also made clear by him that he has not been supplied with any documents relating to the cancellation of certificate dated May 3, 1990 issued by the Metropolitan Magistrate, Ahmedabad in spite of his earlier demand and he, once again, demanded copy of the proceedings/findings/extracts/report of the Metropolitan Magistrate. Court No. 5 Ahmedabad informing the Bank that he did nor belong to the Scheduled caste community at the relevant time. He also demanded copy of the letter dated December 7, 1991 delivered to the City Mamlatdar, on September 28, 1993 which was referred to in the Mamlatdar''s letter dated October 16, 1993. He also demanded for reasonable opportunity, he may be provided with true copy of all the relevant office memos, representations alongwith the annexures, if any, which might have been presented before the learned Metropolitan Magistrate, Court No. 5, Ahmedabad which gave rise to the Magistrate to conduct certain enquiries against him and reporting that he did not belong to the scheduled caste community. He also demanded certain other Documents and made prayers in the following terms :

"... That Your Honour be pleased to provide me copy of any other and/or all such documents/reports/proceedings/investigation/findings/letters/any material term on the basis of which the charges and allegations against me, prima facie, have been levelled in your office memo bearing No. IRD/184/1 dated November 4, 1993. I crave leave to reserve my right that on going through these documents, if I find that they are incriminating, I would request the Bank on all fours pieties, sincerity to provide the further materials for preparing my explanation effectively in the interest of justice and fair adjudication of the case.

That the foregoing specifically requisitioned materials which are vitally and indispensably required which the elective and expeditious preparation of the detailed explanation in respect of the refereed show-cause notice, have not yet been made available, in spite of my exercising due diligence and as such, bonafidely it did not become possible to prepare the reply. It is, therefore, humbly prayed on all fours, pieties, sincerity, integrity and religious steadfastness that Your Honour may be graciously pleased to supply me the aforesaid vital requisites in the interest of justice and fair adjudication with an opportunity to enable me to prepare and submit my detailed reply effectively and expeditiously. And for this act of kindness, your undersigned petitioner as in duty bound shall ever pray.".

After receipt of this letter from the petitioner instead of making any further enquiry or furnishing any copy of the required documents to the petitioner the impugned order dated February 2, 1994 was passed by the respondent Bank.

The question that arise for the determination of this Court is whether, in the facts and circumstances of the present case, the respondent which is a nationalised bank and a State within the meaning of Article 12 of the Constitution of India has acted arbitrarily and unreasonably in terminating the services of the petitioner ?

From the facts narrated above, it is more than apparent that at no stage the petitioner had made any misrepresentation about the community to which he belongs and has not filed any document which is not genuine. Caste of a person depends on the caste of family of his birth. To be precise a son''s caste takes of the caste of his father ordinarily. The petitioner had applied against quota reserved for Scheduled Caste. Petitioner''s father was then serving with the Union of India when he was employed against the quota reserved for Scheduled Caste. The certificate issued in his father''s favour clearly mentioned the caste to which Prithishkumar, father of the employer, belonged as "Saha Roy". It was only on the basis of the certificate issued in favour of the petitioner''s father which was acted upon by the Union of India that the petitioner made an application for being treated as a member of the scheduled caste as his father has been. He has nowhere concealed that he does not bear the surname "Saha Roy". The certificate furnished by the petitioner at the very first instance which was in favour of the petitioner''s father disclosed that his surname was as "Saha Roy". The respondents who are equally if not more supposed to know as to the names included or excluded in the list of scheduled caste and it is their averment that at every stage of an employee''s career including at the time of induction verification of the certificate about the caste is done. Then it is to be assumed that when the petitioner applied and presented the certificate of his being member to the scheduled caste community ''Sunri'' bearing surname "Saha Roy" the respondents must have verified this fact and must have satisfied that "Saha Roy" the respondent was not an excluded caste from "Sunri". At any rate at the time of entry the petitioner has not withheld anything about his caste from the respondents. Therefore, it cannot be said that the petitioner has obtained the entry into service by making any deliberate misrepresentation. At best was the case of labouring under a mistake by both the parties that "Saha Roy" was from the community "Sunri" for the purpose of it being considered as scheduled caste. This is not to say that "Saha Roy" was not a surname/caste about which there is a dispute between the parties while the petitioner still claims that "Saha Roy" is not equivalent to ''Saha'', while now the respondents treat otherwise. But in my opinion the said issue is not relevant for the present.

Therefore, when the petitioner was required to submit a certificate about his caste he has submitted such certificate in the first instance, issued by the Metropolitan Magistrate, Ahmedabad who was a Judicial Magistrate and later by an Executive Magistrate, Ahmedabad. The fact that both the Officers had issued such certificates is also not disputed. Therefore the certificate produced by the petitioner an indisputed fact cannot be assumed to be genuine by any reasonable prudent man. The fact that later on the Judicial Magistrate informed the respondents not to act upon the certificate issued by him which he had no authority to issue or writing of the Deputy Mamlatdar dt. October 16, 1993 to cancel the certificate issued by him and conclusions show that two certificates originated from their respective offices and when produced had not been withdrawn or cancelled. Here is nothing spurious about the same. The document cannot be said to be not genuine as alleged in the showcause notice issued by the respondents even on their own showing. Genuine means that which is authentic. Non-genuine means something which is spurious or faked. It is one thing to say that the document is not genuine. It is another thing to say what has been stated by the authority in certificate filled by the petitioner is not correct. While ingenuineness of the document spells a deliberate attempt to place reliance on the documents which in its original is spurious and does not emanate from the person executing the same. On the other hand if anything is wrongly stated in the document by the person making the document it does not make the document ingenuine. The question whether statement given in the document is correct or not is always a matter of inquiry and is related to a person making the statement in the document. The petitioner has not made any statement even as per the fact placed by the respondents which was misleaing or incorrect to his knowledge. When he applied for issuance of the certificate in his favour either before the Judicial Magistrate or the Executive Magistrate it was for the issuing authorities to have satisfied itself about correctness of the statements made before it. Moreover, in this case there was no question of going into the question of correctness of the statement made by the petitioner. The petitioner had disclosed the caste to which he belongs. The list of the castes which were to be treated as scheduled castes is published in the Gazette/Notification. It is for the person issuing the Certificate to be verified whether the caste which has been disclosed by the applicant to which he belongs falls in such list of scheduled castes or not. If in discharging his duty the issuing authority has committed any mistake it cannot be said that the person making an application has misled the issuing authority or trade any misrepresentation to the employer about his caste. It is to be noticed that prospective employer does not act on the certificate issued by the appropriate authority on due verification. Therefore, in a my opinion in the facts and circumstances of the present case it is apparent that at no point of time the petitioner misrepresented about the caste to which he belongs and has not produced any document which was not obtained from the authority which had purported to issue such certificate.

It is also to be noticed that at no stage before issuance of the show-cause notice the petitioner was appraised by the respondents that he being a member of ''Saha'' community has been excluded from the description of ''sunari" in the list of the scheduled caste. On the contrary whenever the petitioner produced the certificate as required by the respondents, the respondents have tried to obtain its cancellation from the issuing authority by pointing out that the petitioner does not belong to the scheduled caste and they have wrongly issued the certificate and on that representation having been made at the back of the petitioner favorable response was obtained by the respondent-Bank from the respective authorities at the back of the petitioner and now wants to act on that premises that the petitioner has obtained employment by producing not genuine certificate by the Executive Magistrate in favour of the petitioner certifying belonging to the scheduled caste has never been disputed. The certificate issued by the Metropolitan Magistrate, Court No. 5, on May 3, 1990 was also a document admitted and issued by the Magistrate.

The Metropolitan Magistrate who has issued that certificate has never, stated in his letter that the certificate was issued incorrectly. What has been stated in his letter is that the guidelines issued by the Ranking Division, have not been issued to the Judicial Department and the required clarification has been issued advising the Bank to obtain revised certificates from the competent authority in such cases. So, the Metropolitan Magistrate asked the concerned authority simply to procure the revised certificate in terms of the guidelines of the Banking Division and on that basis he has refused to issue any such certificate after guidelines have been brought to his notice. Obviously, this was in response to the Bank''s letter asking the Metropolitan Magistrate to issue revised certificate in terms of the Banking Guidelines to which he was competent. But from that letter Annexure''9''it is further clear that the Metropolitan Magistrate unequivocally admits to have issued the certificate by way of endorsement in his own handwriting. Therefore, the said certificate being not genuine cannot be assumed. ''The Executive Magistrate on being required by he Bank simply writes to the Bank without holding any inquiry even without informing the petitioner to treat the certificate issued by themselves as cancelled by alleging that it has been obtained by misleading the facts. It is to be noticed that as per the letter the certificate dated October 22, 1990 issued by the Office of the City Mamlatdar was founded on the basis of the school certificate, the certificate issued by the Metropolitan Magistrate and the certificates which are issued by the Sub-Divisional Magistrate in favour of the petitioner''s father. It is not the case of either petitioner''s father. It is not the case of either of the parties that this certificate was not issued by the concerned authorities or non-existing document. If the petitioner had produced these three documents for the purpose of obtaining the certificate existence and genuineness of which was neither questioned nor doubted. Under these circumstances, it is incomprehensible to understand as to on what basis the City Mamlatdar writes without even holding any inquiry that the applicant has tried to misguide our office. If the City Mamlatdar failed to discharge his obligation to see the list, has acted with gross or fairness in levelling the charge of misrepresenting against the petitioner without holding any inquiry as to whether the petitioner has furnished any false information deliberately to obtain the certificate to which he was not - entitled to. If the petitioner is supposed to know the list of the scheduled castes the issuing Authority is equally supposed to know whether the caste to which the applicant belongs himself has been enumerated in the list of the scheduled caste or not. If someone comes before the competent authority stating that he belongs to X caste and requests to issue certificate then it may he certified that he belongs to the scheduled caste and if the Issuing Authority without even looking at the list of the scheduled caste or holding any inquiry that whether X caste falls in the list enumerated as scheduled caste issues the certificate it cannot be said that the certificate has been issued because of any misleading statement given by the applicant. From the above facts, it is also apparent that the respondent-Bank has tried to obtain cancellation of the certificate issued in favour of the applicant by the competent authority at his back without even informing the petitioner about the real problems and insisted upon him or produce a fresh certificate in his own name in place of one produced by the petitioner which was in his father''s name and when he did not produce a fresh certificate, terminated the service on the allegation of securing employment on the basis of non genuine certificate without even informing him that such cancellation has been sought.

If anybody in the present circumstances has acted unreasonably and unfairly it is the respondents. All events go to show that the respondents are trying get rid of the petitioner for some ulterior motive. At the time of entry they were satisfied that the petitioner was a member of scheduled caste being belonging to the community known as "Saha Roy" as per existing certificate in the name of his father, it was only when the petitioner wanted to compete in promotion exercise a general candidate for giving his right to be considered against the reserved quota that they tried to obtain the certificate in his own name. Yet the respondents did not disclose that as per their opinion petitioner being a member of "Saha" cannot be considered a scheduled caste. Sudden insistence for producing a certificate in his own name and on its production writing at the back of the petitioner to the issuing authority that the certificate is incorrect for the reasons stated above goes to show that the respondents were trying to place the petitioner in the wrong box on some rounds to give cause for charging the applicant seeking entry into service by misrepresentation. It is also apparent that otherwise there was no cause of dissatisfaction for the work of the Petitioner. It is also to be noticed that the certificate issued in the name of the petitioner''s rather the caste to the petitioner belongs mentioned "Saba Roy". Exclusion from the caste ''Sunri'' was only of Saha''. The question whether ''saha'' and "Saha Roy" are of the same category or different has never been inquired into nor any thought was given to it even after the petitioner has pointed out in his reply to the show cause notice that he belongs to "Saha Roy" community which is not excluded. I am not expressing any opinion whether "Saha" or "Saha Roy" are of the same community but only to demonstrate manner in which the respondents have treated the Petitioner for terminating his service which he was otherwise satisfactorily discharging for over a decade.

Assuming that seeking employment by concealing or misrepresenting about the material facts amounts to misconduct which may warrant disciplinary proceeding and termination of the Service after employment has been given, such misconduct-involves an element of "mens rea before a person can be punished for the same. If there was no deliberate attempt to mislead or misguide any person but a Person bonafidely places all the facts correctly before the prospective employer and thereafter any mistake is committed by the employer or by the authority issuing certificate it cannot be a case of misconduct of seeking entry in service by misrepresentation or by concealing the material facts about applicant. As discussed above, there has been no deliberate attempt on the pad of the petitioner to misrepresent or misguide the respondents about his belonging to a scheduled caste. He has placed all the material facts which was in his knowledge before the employer at the time of his employment. He being a son of a person who was serving as a member of the scheduled caste in the Central Government was a position to hold bonafide belief that he is a member of the scheduled caste and relying on the certificate of his father which was issued by the competent authority way back in the year 1957 the petitioner had applied against scheduled caste quota. He has produced the certificate issued in favour of his father disclosing that he belongs to the "Saha Roy" caste. The Bank-respondent at the time of employment accepted that certificate as proof of his belonging to the scheduled caste. The certificate issued in favour of the petitioner''s father has never been cancelled and its genuineness is never doubted by the employer of the petitioner''s father or by the respondents. It is also not the case of the respondents that after issuance of the certificate in favour of the petitioner''s father "Saha Roy" has been taken out from the list of the scheduled caste at the time of seeking job and therefore that certificate was no more relevant. The certificate issued in favour of the petitioner''s father was undoubtedly a strong piece of evidence to support the case of the petitioner that "Saha Roy" caste was considered to be a scheduled caste even in the year 1957. Entry in the year 1957 remains, when the petitioner entered in the service. Thereafter also on the basis of the school leaving certificate and the certificate issued in favour of the petitioner''s father, the petitioner was also issued the same certificate by two authorities. It is only when the Bank wrote that the petitioner did not belong to the scheduled caste because he belongs to ''Saha'' community relying on the ipse dixit of the respondent-Bank the competent authority without holding any inquiry cancelled the certificate by accusing the applicant of misrepresentation. From this it is obvious that the Bank from the very beginning when it asked the petitioner to furnish fresh certificate was act that he did not belong to scheduled caste, yet instead of disclosing this opinion to petitioner (sic.) never asked for a certificate in his name and when produced by the surety petitioner twice it acted at the back of petitioner to secure the cancellation of such certificate and then charged the petitioner for producing non-genuine certificate. This very foundation throughout of levelling charge against the petitioner has been created in arbitrary and unreasonable manner to secure cancellation of the certificate issued in favour of the applicant at his back without holding any inquiry and in complete breach of the principles of natural justice and that, was also made a foundation for terminating the services of the petitioner without affording him any opportunity inasmuch as the respondents refused to supply him the copies of the documents demanded by him to file proper reply to the charges levelled against him.

That apart, it is otherwise unfair and unjust to terminate, the petitioner''s services at this distance of time when he is discharging his service with the respondents satisfactorily merely on the ground at all may be that on detailed inquiry it may be found that "Saha Roy" and "Saha" are of the same caste and that the Petitioner did not belong to the scheduled caste it would be a case of the certificates having been issued to him on account of some bonafide mistake on the part of Issuing Authority. Yet the respondents cannot escape from the responsibility in those circumstances of committing the same mistake notwithstanding the clear facts placed before them when the employment was sought. It is to be noticed that the fact that the petitioner belongs to "Saha Roy" was disclosed to the respondents before his employer and it is not that it has come to the notice of the respondent after the Petitioner secured the employment by not disclosing the fact. A fact can be disclosed or concealed which is in the knowledge of person concerned. A statement be treated as false if the maker of it knows it to be a false. In the absence of such knowledge a person cannot be held guilty of misconduct of non-disclosure, concealment or falsehood even if later on such ground is factually incorrect. In that event, no punishment is called for. At the best if it is found that the petitioner being "Saha" did not fall in the category of the scheduled caste, he may be denied status of the particular benefits of employment against the reserved quota and in future stage of his career be treated as a general candidate. To terminate the services of the petitioner would be wholly arbitrary, unjust and unreasonable and would result in depriving him of his livelihood. The action in the facts and circumstances of present case is violative of both Articles 14 and 16 of the Constitution of India.

As a result of the foregoing discussion, this petition succeeds. The order of terminating the services of the petitioner under challenge is quashed. The respondents are directed to reinstate the petitioner forthwith with all consequential benefits. The respondents shall also pay the costs of this petition. Rule is made absolute.