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Judgment
The appellants have assailed the order of the learned Single Judge dated 01/02/2013, passed in W.P.No. 46654/2012. In the said writ petition, the respondent had assailed the order of termination dated 02/11/2012 (Annexure "A"). The learned Single Judge, placing reliance on the earlier order dated 06/02/2012 passed in W.P.No. 24109/2011 in respect of the very same respondent and also having regard to the principles of natural justice, quashed Annexure "A", which is the order of termination of service of the respondent, by allowing the said writ petition. The same is assailed in this appeal. It is contended on behalf of the appellants that the respondent was appointed in the appellant-Insurance Company on the basis of a Caste Certificate, which stated that he belonged to the Scheduled Tribe community. However, subsequent enquiry as per Annexure "C", revealed that the said Caste Certificate is a false certificate; the respondent does not belong to "Nayaka" community, which is a Scheduled Tribe; he belongs to "Ekila" community, which is not Scheduled Tribe. Therefore, the appointment in the Insurance Company was obtained by fraud and hence, the Insurance Company on the basis of the enquiry conducted by the Directorate of Civil Rights Enforcement Cell, Bangalore, terminated his employment by cancelling his appointment as being void ab initio. Placing reliance on a judgment of the Hon''ble Supreme Court in the case of R. Vishwanatha Pillai Vs. State of Kerala and Others, it was contended that where a person procures appointment to a post meant for reserved category candidate on the basis of the false Caste Certificate, such an appointment is not a valid appointment in the eye of law and therefore such a person was not entitled to be appointed on that post and as such the appointment was void and non est.
The appellants'' counsel therefore, submitted that the impugned order be set aside and the order of termination at Annexure "A" be upheld and given effect to.
Having heard the counsel for the appellants and on perusal of the material on record, we note that the respondent was initially appointed in the year 1987 as an Assistant in the appellant-Insurance Company and was discharging duties as an Administrative Officer, when he was removed from services as per Annexure "A". In fact, earlier Article of Charges was issued to the respondent on the premise that he had sought appointment on the basis of a false Caste Certificate. That was questioned by the respondent in writ petition No. 24109/2011 before this Court which was partly allowed by order dated 06/02/2012, in the following terms:-
(1) The writ petition is partly allowed.
(2) The impugned enquiry proceedings at Annexure-D dated 22.06.2010 is hereby quashed.
(3) The respondents are at liberty to initiate the proceedings against the petitioner with regard to his caste. If it is found that the caste certificate produced by the petitioner with the respondent-Company is false, then they are at liberty to initiate domestic enquiry proceedings against him in accordance with law.
Thereafter, on the basis of the letter of the Tahsildar dated 05/03/2010 and the memorandum of charges dated 22/06/2010, impugned order of termination at Annexure "A" was passed. A perusal of Annexure "A" would make it apparent that on the basis of investigation conducted by the Additional Directorate General of Police, Civil Rights Enforcement Cell, Bangalore, a copy of which is produced as Annexure "C", in which it has been stated that the respondent had obtained a false Caste Certificate in the year 1987, as belonging to "Nayaka" (ST community) whereas, he belonged to "Ekila" community, which is Category-1, the impugned termination order has been passed. Therefore, placing reliance on the decision in R. Vishwanatha Pillai, the appellants'' counsel has sought to justify the termination order. However we cannot accept the contentions of the appellants'' counsel for two reasons. Firstly, in W.P. 24109/2011 while partly allowing the writ petition filed by the respondent herein, liberty was given to the appellants herein to initiate proceedings against the petitioner with regard to his caste. If it was found that the Caste Certificate produced by the respondent herein to the appellant-Insurance Company was false, then liberty was given to initiate domestic enquiry proceedings against the respondent in accordance with law. Nodoubt, the appellants have relied upon Annexure "C", which is the Report of the enquiry made by the Superintendent of Police, Directorate of Civil Rights Enforcement, Kolar Unit, Kolar. But on the basis of the said Report, no domestic enquiry proceeding has been initiated. Therefore the previous order of this Court has not been complied with.
Secondly, learned Single Judge was right in holding that there has been violation of the principles of natural justice in the instant case. Even in R. Vishwanatha Pillai (supra), on which much reliance has been placed by the counsel for the appellants, at Para 13, it is stated that the employee must be given due opportunity to defend himself. In the said case, the order of the Scrutiny Committee was upheld by the High Court of Kerala and later by the Supreme Court. It is under those circumstances that the Supreme Court opined that the safeguard provided in Article 311 of the Constitution that the Government servant should not be dismissed, removed or reduced in rank without holding an enquiry in which, he has been given an opportunity to defend himself stood complied with. In the said case, instead of a departmental enquiry, the enquiry had been conducted by the Scrutiny Committee consisting of three Officers who according to the Hon''ble Supreme Court were better equipped to examine question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the employee to put forth his point of view to defend himself. It is under such circumstances that the Hon''ble Supreme Court observed that issuance of a fresh notice under Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of the Supreme Court, the decision of which had already been upheld by it, would be repetitive as well as futile. Therefore, the order of termination of service of the employee passed by the appointing authority was upheld.
In the instant case, however, as already stated, the order dated 06/02/2012 in W.P.No. 24109/2011 has not been complied with. That apart, the Enquiry Report at Annexure "C" nowhere states that the respondent herein was heard by the Superintendent of Police, Directorate of Civil Rights Enforcement, though statements of several other witnesses have been recorded and considered. Therefore, the Enquiry Report at: Annexure ''"C" could not have been the basis of the termination of service of the respondent. Learned Single Judge therefore, rightly held that, in the absence of any domestic enquiry, the termination of service was unsustainable as no one could be punished unheard. Liberty has been granted to the appellants herein to take such action as is available against the respondent. Thus, the order of learned Single Judge would not call for any interference. The appeal is accordingly dismissed.