1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3560 of 1997 Date of decision:18/8/2010 For approval and signature HON'BLE MR. JUSTICE B.R.GAVAI HON'BLE MR.JUSTICE S.V.GANGAPURWALA 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/3560-97wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3560 OF 1997 Abdul Latif Abdul Kadir Shaikh, Age 50 years, occup: Service, (now dismissed), r/o Bhangiwada Machi Bazar, Lane No.7, Dhule, SINCE DECEASED THROUGH HIS LEGAL HEIRS: 1. Safiyabi Latif Shaikh, Age 54 years, Occu: Housewife, 2. Altaf Latif Shaikh, Age 32 years, Occu: Labour, 3. Aarif Latif Shaikh, Age 20 years, Occu:Labourer, 4. Salma Sagir Shaikh, Age 26 years, Occu: Housewife, 5. Najma Latif Shaikh, Age 26 years, Occu. Nil., ALL r/o.Lane No.7, Macchi Bazar, Bhangiwada, Dhule, Tq.& District Dhule. ...PETITIONERS VERSUS 1. Union of India. 2. The State of Maharashtra. 3 3. Assistant General Manager (HRD), Appellate Authority, Dena Bank, 7th floor, Maker Towers "E" Post Box No.6058, Cuffe Parade, Bombay 400 005 4. The Disciplinary Authority ( R.A.), Dena Bank, Nashik Regional Office, Nashik. 5. The Executive Magistrate, Dhule, Tq.Dhule, Dist. Dhule. ...RESPONDENTS ... Mr. P.R.Katneshwarkar, Adv., h/f Mr. A.D.Sugdare, Adv., for the petitioner. Mr.K.G.Patil, AGP, for respondent State. Mr.S.V.Adwant, Adv., for respondent no.4. Mr. Alok Sharma, Assistant Solicitor General, for respondent no.1. ... CORAM: B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE : 18.8.2010 *** ORAL JUDGMENT: (Per S.V.Gangapurwala, J.) 1. The petitioner was appointed as a Clerk in respondent no.4 Bank vide appointment order dt.11th August, 1972. He worked with the said Bank for continuous period of 23 years. 4 Thereafter, on 21st Feb.,1995, for the first time the respondent Bank issued a chargesheet to the petitioner on the ground that the petitioner had declared his caste in the form of employment dt. 13th Feb.,1972, as belonging to Muslim Bhangi, Scheduled Caste and had submitted caste certificate dt.12th of July, 1971, issued by the Taluka Magistrate, Dhule and, so also, on the count that his date of birth was wrongly mentioned. The inquiry proceedings proceeded, the petitioner did not participate in the inquiry proceeding and, thereafter, the disciplinary authority passed an order of dismissal of the petitioner from the service of the Bank with immediate effect. 2. The petitioner has assailed the said order before this Court. 3. Shri Katneshwarkar, learned Counsel submitted that: (a) The petitioner has rendered continuous service of 23 years. (b) He had not suppressed any fact. He had produced the certificate which was issued by the Executive Magistrate at the time of employment itself and the same was within the knowledge of the 5 respondent authorities. In such circumstances, the services rendered for such a long duration ought to have been considered. For the said purpose, he relied on the judgment of the Apex Court in the case of H.C.Puttaswamy Vs. Chief Justice of Karnataka High Court ( Banglore) reported in 1991 (Supp.2) SCC 421 and the judgment of the Apex Court in the case of Roshan Deen V. Preeti Lal reported in AIR 2002 SC 33. (c) The punishment imposed is too disproportionate to the charges leveled against the petitioner. 4. Per contra, Shri S.V.Adwant, learned Counsel for the respondent no.4 submitted: (a) The petitioner, being a Muslim, cannot take benefit of Scheduled Caste. He had been appointed from the category of Scheduled Caste candidates. Once it is held that the said benefit cannot be given to the persons professing Muslim religion, then, in such circumstances, the petitioner has no right to continue on the said post. To buttress his submission, he relied on the judgments of the Apex Court in the cases of - 6 (1) Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and others (2008) 13 SCC 170), (2) Bank of India and another Vs. Avinash D.Mandivikar and others, reported in (2005) 7 SCC 690 and, (3) The case of R.Vishwanath Pillai Vs. State of Kerala and others reported in (2004) 2 SCC 105. (b) He also contended that, as per Wednesbury's principle, punishment imposed by the disciplinary authority, unless shocking to the conscience of the Court, could not be subjected to judicial review. 5. It is undisputed that the petitioner was appointed by the competent authorities on 11.8.1972 and he had rendered continuous service till the year 1995 i.e. till the order of dismissal was served upon the petitioner. It is also not disputed that the petitioner, at the time of his entering into the employment, had submitted the caste certificate issued by the Executive Magistrate, Dhule. It is also not disputed that the said authority was competent to issue the caste certificate. 6. It is not the case of any party that the petitioner had played a fraud or had misled the Executive Magistrate, while obtaining the caste certificate. The petitioner's name itself shows 7 that he belongs to Muslim community. The petitioner claims to belong to Mehtar community whose job is to do the work of cleaning. Said persons are from Muslim and Hindu community also. The petitioner, bona fide believing that he was entitled to the said certificate, had applied to the competent authority i.e. Executive Magistrate, Dhule, for issuance of a caste certificate. The Executive Magistrate, Dhule also issued the caste certificate in favour of the petitioner as belonging to Bhangi Scheduled Caste. 7. We have also come across many instances wherein the competent authorities have issued caste certificates at the relevant time of belonging to Khatik caste even to persons professing Muslim religion as the persons doing the business of butchery were found in Hindus as well as in Muslim community and the competent authorities have issued such certificates in favour of Muslims on the ground that they belong to the family which professes butchery. As such, at the relevant time, under a bona fide belief and in good faith said certificates were applied for and the competent authorities have issued the caste certificates. 8. When no fraud or misrepresentation can be attributed to the petitioner in obtaining 8 caste certificate at the relevant time and since the Caste Scrutiny Committee was not constituted to determine the validity of the said certificate then, in such circumstances, availing employment on the basis of the said certificate issued by the competent authority in good faith and bona fide, could not be said to be fraudulent. 9. The judgments relied upon by Shri S.V.Adwant, learned Counsel for respondent no.4 holding that if the appointments are based on the basis of false certificates then equity, sympathy and generosity have no place, would not be strictly applicable in the present case for the reason, in the said judgments of the Apex Court, the employees had fraudulently obtained the certificates and had used such fraudulent or forged certificates for obtaining employment. It is trite to say that fraud affects the very solemnity of the action and the proceedings. If it is found that a person has fraudulently obtained the certificate and has obtained employment on the basis of such fraudulent certificate, no sympathy can be shown to such an employee. 10. The Division Bench of this Court of which one of us ( B.R.Gavai, J.) was a party, had an occasion to consider the case of R.Vishwanath Pillai (cited supra), and has held as under: 9 "17. Insofar as the judgment of the Apex Court in the case of R. Vishwanatha Pillai (cited supra) is concerned, it can be seen that, in the reported judgment, the Apex Court was considering two appeals; one by R. Vishwanatha Pillai and the other by his son Vimal Ghosh V. In the aforesaid case, R. Vishwanatha Pillai who had obtained the Caste Certificate of belonging to "Vettuvan" community, which was recognized as a Scheduled Caste and as such, obtained appointment to the post of Deputy Superintendent of Police against a seat reserved for the Scheduled Caste candidate. However, in the school record of said R. Vishanatha Pillai, his caste was recorded as "Viduvar Pillai" which was a higher caste. His father's caste was recorded as "Nair". His mother's caste as well as his brothers and sisters castes were recorded as "Viduvar Pillai" and "Nair". The Government of Kerala, therefore, on the basis of the complaint received, ordered a full-fledged anthropological enquiry into the caste status of the appellant. The Research Committee on the basis of the enquiry found that the appellant did not belong to the Scheduled Caste Community. After the judgment of the Apex Court in the case of Madhuri Patil (cited supra), the Scrutiny Committee rejected the claim of said R. Vishwanatha Pillai of belonging to the Scheduled Caste. The order of Scrutiny Committee was upheld by the High Court as well as the Apex Court. Apprehending his termination, said Pillai had approached the Central Administrative Tribunal seeking direction that he should not be terminated from the services on the 10 basis of the proceedings of the Scrutiny Committee. The Central Administrative Tribunal directed that the services of the appellant shall not be terminated without following due procedure laid down under Article 311 and under the Rules. The High Court accepted the Writ Petition and reversed the order of the Central Administrative Tribunal. Being aggrieved thereby, the petitioner approached the Apex Court. The Apex Court in the aforesaid case found that the misconduct alleged against the appellant was that he entered the service against a reserved post meant for Scheduled Caste/Scheduled Tribe on the basis of false Caste Certificate. The Apex Court also found that Rule 6 and Rule 7 of the All India Services (Discipline and Appeal) Rules, 1969 i.e. the Rules governing the service conditions, permitted termination of services for an Act or omission on the part of the appellant pertaining to the period prior to his joining services. In the facts of the said case, it was clearly proved that the appellant R. Vishwanatha Pillai had usurped a post meant for a Scheduled Caste candidate by playing fraud and producing a false Caste Certificate. Admittedly, in the said case, the appellant was a person belonging to the higher caste and had obtained a certificate of belonging to a Scheduled Caste and had further obtained appointment on the basis of the said Caste Certificate." 11. In the present case, the respondents have not come forward with a case that the petitioner has fraudulently obtained the certificate. Moreover, the facts also depict 11 that the petitioner had bona fidely applied for obtaining the caste certificate as belonging to Bhangi Scheduled Caste as his family was professing said business and the competent authority had also issued the said certificate. The petitioner had not suppressed the fact that he belongs to Muslim religion. In such circumstances, as caste certificate was obtained bona fide and in good faith, the judgments relied by the learned Counsel for respondent no.4 could not be made applicable. 12. In the light of the above and also taking into consideration the fact that the petitioner had served for more than 23 years with the respondent no.4, in such circumstances, we feel that the order of removal from service would be too harsh. 13. The judgments relied by Shri Adwant, learned Counsel, based on Wednesbury principle may not be the Rule of Law at present. The Apex court, in the case of State of M.P. & others Vs. Hazarilal ( A.I.R. 2008 S.C. 1300) has held that it is a settled position of law that Wednesbury principle of unreasonableness has been substituted by the doctrine of proportionality and the scope of judicial review has been amplified in case of doctrine of proportionality. 12 14. In such circumstances, we set aside the order of dismissal from service imposed by the respondents on the petitioner. 15. Though we set aside the order of dismissal, we are not inclined to grant any back- wages to the petitioner. There is no pleading nor any proof before us that the petitioner, during relevant time, was not gainfully employed. Moreover, denial of back-wages from the date of dismissal would be a sufficient punishment to the petitioner. As the petitioner has already attained the age of superannuation in the year 2007, the order of reinstatement cannot be passed. 16. In such circumstances, we set aside the order impugned and direct the respondents to treat the period from the date of removal till the date of superannuation as a period on duty and pay all the retiral benefits to the petitioner. The petitioner would not be entitled for the back-wages. The respondents shall pay the pensionary and all other retiral benefits to the petitioner within a period of four months from today. 13 17. The Writ Petition is partly allowed. Rule accordingly made absolute. However, there shall be no order as to costs. (S.V.GANGAPURWALA) (B.R.GAVAI) JUDGE JUDGE ... agp/3560-97wp