IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 MFA.No. 367 of 1999() --------------------- ( Against the order NO.25624/G2/96/SCSTDD dt.18.11.1998 on the file of the Scrutiny Committee for verification of Scheduled Castes and Scheduled Tribes claim.) APPELLANT: ----------------- K.P.SHOBHANA, W/O.M.RAVINDRAN, ASST.MANAGER, STATE BANK OF INDIA PAVANGAD, CALICUT RESIDING AT 'KRISHNA', KORAMPARAMBIL, MALAPARAMBA HOUSING COLONY, CALICUT 673 009. BY ADV. SRI.K.RAMAKUMAR (SR.) RESPONDENTS: --------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE COMMISSIONER & SECRETARY, GOVERNMENT OF KERALA, SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT DEPT., SECRETARIAT BULDINGS, THIRUVANANTHAPURAM. 3. THE GENERAL MANAGER (DISCIPLINARY PROCEEDINGS DEPT) DISCIPLINARY AUTHORITY, STATE BANK OF INDIA 21, RAJAJI ROAD, MADRAS - 600 001. 4. THE ASST.GENERAL MANAGER, STATE BANK OF INDIA, REGION - II, ERNAKULAM. 5. THE DIRECTOR, DIRECTORATE OF KERALA INSTITUTE FOR RESEARCH, TRAINING & DEVELOPMENT STUDIES OF SCHEDULED CASTES & SCHEDULED TRIBES, KOZHIKODE - 17. 6. THE SCRUTINY COMMITTEE FOR VERIFICATION OF SCHEDULED CASTES AND SCHEDULED TRIBES CLAIM SC/ST DEV.(G) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN. GOVERNMENT PLEADER, SRI.SANTHOSH KUMAR. SRI.GEORGE THOMAS (MEVADA) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13.1.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.NO.367/1999 I.A.NO.845/2006 IN M.F.A.NO.367/1999 DISMISSED. sd/- K.BALAKRISHNAN NAIR, JUDGE. 13.1.2009 sd/- K.SURENDRA MOHAN, JUDGE. K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ---------------------------------------- M.F.A.No.367 OF 1999 ---------------------------------------- Dated this the 13th day of January, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant has preferred this Miscellaneous First Appeal, under Section 12(3) of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, (herein after referred to as 'the Act'), challenging Order No.25624/G2/96/SCSTDD dated 18.11.1998 passed by the Scrutiny Committee for verification of Scheduled Castes and Scheduled Tribes claims, constituted under Section 8 of the Act. 2. The brief facts of the case are the following: The appellant submits, she is a member of the Scheduled Caste called 'Adi Dravida'. Her foster parents, who were settled in Bangalore, belonged to 'Thiyya' community. She obtained a certificate from the Tahsildar, Bangalore North in Karnataka State, certifying that she belonged to 'Adi Dravida' caste and M.F.A.No.367/1999 2 applied for employment in State Bank of India in 1977. She joined the services of the Bank on 31.5.1977. She was promoted as Assistant Manger in 1983. In 1987 she got married to one Mr.Ravindran, who is a native of Kozhikode. He belongs to 'Thiyya' community, which is one of the Other Backward Communities in Kerala. After her marriage, she was transferred to Kozhikode and thereafter she has been working in and around Kozhikode. Her husband is an Advocate practising at Kozhikode. She has passed M.Sc and L.L.B Examinations. 3. While so, on 29.7.1993, the Zonal Secretary of the State Bank of India, SC/ST Employees Welfare Association, submitted a complaint to the Government of Kerala, alleging that the appellant secured the job in the Bank under the quota reserved for Scheduled Castes and in fact, she is a member of the 'Thiyya' community. The complaint was referred to the KIRTADS, which is an expert agency constituted under the Act. The said agency conducted an enquiry into the caste status of the appellant and submitted Annexure-B report on 27.1.1995. In the said report, it was found that the appellant does not belong M.F.A.No.367/1999 3 to the Scheduled Caste 'Adi Dravida' community, but, she is a member of the 'Thiyya' community, classified under the list of Other Backward Classes in Kerala. Based on Annexure-B report, the Government passed Annexure-A order dated 8.5.1995, declaring that the appellant does not belong to 'Adi Dravida' community, but, is a member of 'Thiyya' (OBC) community. Based on the said declaration, other consequential directions were also issued. Relying on the above finding, which was received by the State Bank of India, the appellant was served with Annexure-C notice dated 23.11.1995 proposing to take disciplinary action against her for having obtained employment under the Bank, wrongly claiming that she belonged to the Scheduled Caste Community. The appellant submitted a reply to the Bank on 1.12.1995, apparently, claiming a copy of the report of KIRTADS. The Bank served a copy of the report of the Director of KIRTADS (Annexure-B) on the appellant along with a covering letter dated 7.12.1995. On receipt of that report, the appellant submitted Annexure-D representation before the Bank. In Annexure-D at paragraph 4, she has stated as follows: M.F.A.No.367/1999 4 “It may kindly be seen in this context that I was born in the year 1956 and I am aged only 39 years. At the time of my securing employment I must have about 21 years of age. My entire education was done in Bangalore and I am not responsible for giving my community status in the schools in which I studied, as obviously they must have been given by my foster father and mother. The certificate, as stated by me earlier, had been issued to me as normal application made with the active assistance of the local M.L.A. for SC/ST Sri.Ranganath, he himself belonging to Schedule Caste. It is too much to imagine that both myself, my parents as well as the local MLA had anything to benefit by getting me false certificates. It is respectfully submitted that on the basis of this crucial point itself the Director's report is to be rejected without giving a second thought about it.” She denied that Mr.Bhaskaran was her father, which is a finding in the report of the Director of the KIRTADS. She has further stated in paragraph 6 of Annexure-D as follows: “6. What I understand is I became motherless when I was about 8 months old. I was brought up from that period onwards by Mr.Krishnan. If I am shown as Adivasi Dravida in the school certificates it is not my fault. If, therefore, a certificate has been issued to me on the basis of my school certificate that I am Adivasi Dravida M.F.A.No.367/1999 5 neither the Director nor any other person in this world can challenge that. I respectfully submit that taking into consideration the community status given in the various institutions in which I have studied by my foster father, a certificate has been issued to me when I became about 20 years, to show that I am an Adivasi Dravida. Can this be said to be material suppression of any facts or misrepresentation of my community status? I respectfully submit that the no reasonable person would go to hold me guilty of these charges.” 4. Going by the above pleadings in Annexure-D, it would appear that in the appellant's school certificate her caste was shown as 'Adi Dravida' and she is not responsible for that. Thereafter, the appellant approached this Court by filing O.P.No.17898/96, challenging Annexure-A order of the Government dated 8.5.1998. This Court quashed the said order, on the ground of violation of the principles of natural justice. It was ordered that Annexure-A will be treated as a show cause notice. The petitioner/appellant was given a chance to file objections to the said notice. The Scrutiny Committee was directed to pass final orders in the matter. The notice dated 5.10.1996 issued to the appellant by the General Manager, M.F.A.No.367/1999 6 Disciplinary Proceedings Department, Disciplinary Authority, State Bank of India, Madras was ordered to be kept in abeyance till a fresh decision is taken by the Scrutiny Committee. Thereafter, the appellant submitted Annexure-F detailed reply to the Government on 6.2.1997. In paragraph 10 of Annexure-F, she has stated that the caste name is not given in her school certificate or in the college certificate. Therefore, she was constrained to move the Tahsildar for issuing a caste certificate. The said paragraph reads as follows: “10. I have explained the circumstances in which the certificate was issued stating that I am Adi Dravida. I have explained to you that my caste was not given by my foster parents either in the school certificate or in the college certificate. It was in these circumstances that an application was made with the active assistance of my foster parents. Would you say on these facts that I have created a false certificate or asked for a false certificate in order to better my future? It is not a conclusion which is not only erroneous but highly impossible? To conclude, therefore, that I have obtained a false certificate is an allegation which is totally incorrect. I would also like to know what the benefit of the local M.L.A. was, in getting a false certificate for me?” M.F.A.No.367/1999 7 5. This was followed by Annexure-G representation dated 10.3.1997, before the Chairman of the Scrutiny Committee. The Scrutiny Committee, considering the appellant's explanation offered as per Annexure-F and Annexure-G, passed Annexure-H order dated 18.11.1998. The Committee made the following recommendations to the Government: (i) The Government shall declare that Smt.K.P.Sobhana does not belong to Adi Dravida community but belongs to Thiyya (OBC) community. ii) That Smt.K.P.Sobhana is not eligible for any of the benefits exclusively intended for members of Scheduled Castes and that all such benefits shall be stopped and the financial benefits if any enjoyed shall be recovered. iii) The caste entry in the educational records of Smt.K.P.Sobhana shall be corrected as Thiyya (OBC). iv) Scheduled Caste certificates shall not be issued to Smt.K.P.Sobhana hereafter. All the Scheduled Caste (Adi Dravida) certificates issued to her by any authorities shall be treated as cancelled. The Tahsildar, Bangalore will make necessary corrections in his official records. M.F.A.No.367/1999 8 v) Action shall be initiated to take steps of prosecution against Smt.K.P.Sobhana and terminate her service in the Bank and a genuine member of the Scheduled Caste given appointment in her place. vi) Action shall be taken against the Tahsildar of Bangalore who has issued the bogus community certificate which infact helped Smt.K.P.Sobhana to secure the prospective Bank job depriving the opportunity of a genuine Scheduled Caste member. As seen from Sobhana's statement the certificate was issued with the intervention and pressure of an M.L.A. which is indicative of the Tahsildar's prior knowledge that she was not otherwise eligible for a scheduled caste certificate. 6. The appellant submits, the above directions issued by the Scrutiny Committee should be treated as an order under Section 11(1) of the Act and therefore, she has preferred an appeal against Annexure-H under Section 12(3) of the Act. 7. The learned senior counsel, Sri.K.Ramkumar, who appeared for the appellant, submitted that the appellant has not played any fraud in obtaining a certificate from the Tahsildar, Bangalore, to the effect that she belongs to 'Adi Dravida', a M.F.A.No.367/1999 9 Scheduled Caste community. Action is permissible under Section 7 of the Act for cancellation of a certificate, if only, it is shown to be fraudulently obtained. In support of the submission, the learned senior counsel relied on the decision of this Court in Prakash v.State of Kerala [2002(2)KLT 580]. Secondly, he submitted that the impugned order can operate only prospectively. In other words, at the worst, further benefits flowing from the caste certificate can be denied. But, it cannot operate retrospectively, to take away the benefits already accrued to her, it is pointed out. In support of that submission, the learned senior counsel relied on the judgment of this Court in M.F.A.No.1007/1999. Thirdly, it is submitted that there cannot be any prosecution of the appellant for the violation of the provisions of the Act, which came into force in 1996, for her commissions and omissions between 1975 and 1977. There cannot have any retrospective operation for a penal law, in view of Article 20(3) of the Constitution of the India. Something, which, at the time of commission was not an offence, cannot be converted into an offence with retrospective effect. M.F.A.No.367/1999 10 8. The 2nd respondent in this appeal has filed a detailed counter affidavit. Along with the counter affidavit, the said respondent has produced Ext.R1(a), which is the enquiry report of the KIRTADS on the real caste status of the appellant. He has also produced Ext.R1(c) report of the Tahsildar, Koyilandi, concerning the caste of the family of the appellant. 9. We heard Mr.Santhosh Kumar, the learned Special Government Pleader, on behalf of respondents 1, 2 , 5 and 6. The learned counsel submitted that the appellant did not produce any school or college certificate or any other certificate before the KIRTADS, except the disputed caste certificate. She did not give any answer for the relevant queries made by the KIRTADS. She did not disclose her parentage. She does not have any specific case regarding the nativity of her parents. She did not submit anything about them. The enquiry made by the KIRTADS would show that the appellant's mother Narayani died within eight months of her birth and her father Bhaskaran @ Vasu contracted a second marriage. So, Kalyani, the elder sister of Narayani, took the appellant to Bangalore and brought her M.F.A.No.367/1999 11 up there. Her parents are 'Thiyyas'. Her father belongs to 'Thiyya' community and is a native of Talap in Kannur. Her mother also belongs to a reputed Thiyya family in Koyilandi Taluk. It is also pointed out that although she disowned her parentage etc., all her near relatives stated before the Enquiry Officer about her father, mother etc. and gave all the material details. All of them are the relatives of her parents belonging to 'Thiyya' community. The petitioner has not placed any material before the Committee, except the disputed certificate, as mentioned earlier. When an enquiry is held by the expert agency, namely, the KIRTADS, the burden is on the appellant to prove that she belongs to a Scheduled Caste community as per Section 10 of the Act, which reads as follows: “10. Burden of proof:- Where an application is made to the Competent Authority under Section 4 for the issue of a community certificate in respect of a Scheduled Caste or Scheduled Tribe or in any enquiry conducted by the Competent Authority, the Expert Agency, or the Scrutiny Committee or in any trial or offence under this Act, the burden of proving that he belongs to such Caste or Tribe shall be on the claimant.” M.F.A.No.367/1999 12 10. The learned Special Government Pleader also brought to our notice Section 9(2) of the Act, which says that the report of the Expert Agency, namely, the KIRTADS, shall be conclusive proof for or against the Scheduled Caste/Scheduled Tribe claim, as the case may be, of the person reported upon. 11. In view of the above position, the appellant cannot attack the findings of the KIRTADS, it is submitted. If the Scrutiny Committee passed an order in terms of the report of the KIRTADS, practically, no grounds are available to attack the same under Section 12(3), it is submitted. In view of the above position, the learned Special Government Pleader prayed for dismissal of the appeal. 12. Though the order in Annexure-H of the Scrutiny Committee gives only certain recommendations to the Government, we feel that those recommendations have the effect of nullifying the disputed caste certificate obtained by the appellant. Therefore, it could be appealed against under Section 12(3) of the Act. M.F.A.No.367/1999 13 13. The first point to be considered is whether, as contended by the learned Senior Counsel, the appellant is innocent and she has not committed any fraud. The dictionary meaning of “fraud” is deceiving somebody illegally in order to make money or obtain goods and the meaning of “fraudulent” is deceitful or dishonest. Deceit involves deliberate misleading. In the decision in Prakash v. State of Kerala, (supra) this Court held that the petitioner therein cannot be held guilty of fraud. But, the facts of that case are entirely different. It was a case where the grandfather of the petitioner wrongly claimed that he is a member of 'Uraly' community, which is a Scheduled Tribe. While he was staying in a colony of Uralies, when his children were admitted in the school, they were shown as belonging to 'Uraly' community and the grandchild, the writ petitioner therein, was also admitted in the school, showing his caste as Uraly. So, in that case the petitioner has no role in claiming the caste status of Uraly, which was done by his parents. But, in this case, the appellant in Annexure-D submits that she is not responsible for showing 'Adi Dravida' as her caste in the school M.F.A.No.367/1999 14 certificate. The caste certificate was issued to her on the basis of the school certificate that she is belonging to 'Adi Dravida'. But, in Annexure-F, she states that there was no caste included in her school or college certificate and therefore, she was constrained to apply for a caste certificate with the active assistance of her foster parents. So, when she submitted Annexure-D before the Bank, she claimed that the caste certificate was issued in accordance with the caste shown in the school certificate. But, when Annexure-F was filed before the Government pursuant Annexure-E judgment, she claims there was no caste shown in her school certificate and therefore, she was constrained to apply for a caste certificate. If a person belongs to a Scheduled Caste, normally, the said caste status will be shown in the school records, as the same will bring in several benefits to the incumbent. Though the burden is on the appellant to establish her caste in the enquiry, she has chosen not to produce those certificates before the competent authority or before this Court. So, it can be safely assumed that the contents of those documents, if produced, would go against her case. In the above background of the inconsistent pleadings of the appellant and M.F.A.No.367/1999 15 her conduct, it can be safely assumed that she deceitfully obtained the caste certificate to corner the employment. It cannot be described as an innocent action, as in the case of Prakash v. State of Kerala. For her own benefit, that is, to get employment in the State Bank of India, a certificate was obtained and it was used. We perused the report of the KIRTADS. The wealth of materials collected by them concerning the caste status of the family of the petitioner, clearly show that she belongs to 'Thiyya' community. She has not produced even an iota of evidence to dispel the said finding of the KIRTADS. Though in paragraph 6 of Annexure D, she has stated that she lost her mother when she was 8 months old, she does not say what happened to her father. She must have been told by her foster parents who are her father and mother. Her stony silence on the above point probabalise the case of the respondents. We, therefore, hold that the finding of the KIRTADS is valid and reliable. We also hold that the claim of the caste status of 'Adi Dravida' of the appellant cannot be said to be an innocent claim, but, was done deliberately to obtain employment. So, the action taken and the declaration made that she does not belong to a M.F.A.No.367/1999 16 scheduled caste are fully justified. The contention that materials on record will not disclose any fraudulent action from the part of the appellant cannot be accepted. The facts proved and admitted lead to the irresistible inference that the appellant knowingly, for personal gain, moved and obtained the disputed caste certificate. So, it is a fraudulent action. 14. The next point to be considered is whether the appellant can be allowed to retain the benefits she has obtained. During the pendency of the appeal, the Bank has issued Annexure-A order dated 8.4.2006, produced along with I.A.No.845/2006, dismissing the appellant from service. But, there is no direction in the said order for recovery of the service benefits granted to her for the services rendered by her. The learned senior counsel for the appellant pointed out that the Division Bench of this Court in M.F.A.No.1007/1999 interdicted against the recovery of the service benefits already paid to the appellants therein. In this case, we notice that there is no such order from the part of the State Bank of India to recover the salary already paid to her. If any such action is taken, the M.F.A.No.367/1999 17 appellant can resist that action relying on the judgment of this Court in M.F.A.No.1007/1999. 15. There cannot be any doubt that for the violation of the provisions of the Act, there cannot be any prosecution against the appellant. The penal provisions of the Act cannot have any retrospective operation. Accordingly, it is declared that the appellant is not liable to be prosecuted for obtaining the disputed caste certificate, under the provisions of the Act. Subject to the above observation, the Miscellaneous First Appeal is dismissed. No costs. (K.BALAKRISHNAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps M.F.A.No.367/1999 18 K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. =========================== M.F.A.NO.367/1999 =========================== JUDGMENT DATED 13TH JANUARY, 2009 ==============================