*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY +Writ Petition No.10609 of 2010 %07.10.2010 #M.Koteswara Rao ..Petitioner. Vs. $ The Executive Director, Food Corporation of India and others. ..Respondents. !Counsel for the petitioner : Sri G.Ravi Mohan ^Counsel for the Respondents : Sri B.Anjaneyulu <Gist : >Head Note: ?Cases Referred: 1. (2008) 13 SCC 170 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.10609 of 2010 ORDER: The petitioner was initially appointed as a Watchmen in the Food Corporation of India (for short ‘the Corporation’), on 05.07.1976, against a vacancy reserved in favour of Scheduled Tribes. Over the period, he earned many promotions and on 17.12.2008, he was promoted to the post of Manager. The petitioner states that he belongs to Boya community. On a complaint received by the Corporation, as to the genuinity of the social status of the petitioner, a letter was addressed to the District Collector and Magistrate, Guntur, 4th respondent herein. A reply was received to the effect that no caste certificate, as alleged by the petitioner, was issued to him, at the time of his appointment. Taking the same into account, the Executive Director- competent authority, 1st respondent herein, passed an order dated 09.02.2010, dismissing the petitioner from service. The same is challenged in this writ petition. One of the grounds urged by the petitioner is that he has not been issued any show cause notice, before the impugned order was passed. He also pleads that the 4th respondent did not issue any notice before sending any reply that the caste certificate issued to him was not genuine. Other grounds are also raised. The 1st respondent issued a memorandum dated 16.03.2010, informing the petitioner that he proposes to hold enquiry against the petitioner under Regulation 58 of Food Corporation of India (Staff) Regulations, 1971. Reference was made to statement of Articles of charges and statement of imputations, which were enclosed as annexures - I and II. List of documents, which would be relied upon in the enquiry, were also enclosed. The petitioner challenges the said memorandum, together with the annexures. He contends that the order of dismissal passed against him on 09.02.2010, was based upon a communication received from the 4th respondent, to the effect that the caste certificate issued to the petitioner is not genuine, and that communication itself was untenable and contrary to the A.P. (Scheduled Castes, Scheduled Tribes & Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short ‘the Act’). According to him, a letter dated 17.01.2010 issued by the 4th respondent in contravention of the Act, is untenable, and unless the caste certificate is cancelled in accordance with law, the proposed disciplinary proceedings cannot go on. The respondents filed counter-affidavit, opposing the writ petition. According to them, the petitioner secured new appointment in the Corporation by playing fraud. It is stated that the certificate was found to be not genuine, and even if his claiming that he is Boya, is accepted; he does not belong to Scheduled Tribe. They further submit that the procedure prescribed under the Act, does not apply to the cases where the certificate was not issued at all, but was fabricated by a person to knock away the benefit earmarked for a particular section. Sri G.Ravi Mohan, learned counsel for the petitioner, submits that the proposed enquiry would not be meaningful, unless the caste certificate, on the basis of which he was employed, is set aside, or cancelled, in accordance with the procedure prescribed under the Act and the Rules made thereunder. He contends that the letter addressed by the 4th respondent without hearing the petitioner, cannot constitute the basis. Sri B.Anjaneyulu, learned counsel for the respondents, on the other hand, submits that the purport of the disciplinary proceedings initiated against the petitioner is totally different and they are not solely depending upon the letter addressed by the 4th respondent. He contends that even if the certificate, which was found to be fabricated, is taken on its face value, the petitioner is only a Boya, which is one of the backward classes and he cannot be treated as a Scheduled Tribe. He further submits that when a certificate is found to be fabricated, no further enquiry is needed and stringent action can straight away ensue. He places reliance upon a judgment of the Supreme Court in Regional Manager Central Bank of India v. Madhulika Guruprasad Dahir[1]. The petitioner was dismissed from service through order, dated 09.02.2010. Aggrieved thereby, the petitioner filed W.P.No.3608 of 2010. While suspending the order of dismissal, this Court left it open to the 1st respondent to pass fresh orders in accordance with law. It is in this context, that the memorandum, dated 16.03.2010 is issued. W.P.No.3608 of 2010 was allowed through a separate order passed today, in view of this development. The memorandum does not by itself decide an issue. It is only a notice, in the form of a charge sheet requiring the petitioner to submit his explanation. The petitioner does not contend that the 1st respondent has no jurisdiction to initiate the disciplinary action against him. It is a different matter, whether the charges framed against the petitioner can be sustained in law. That would depend upon the nature of evidence, which the parties would adduce. The gist of the charge against the petitioner is that he grabbed appointment and promotional opportunities in the Corporation meant for Scheduled Tribe community candidates by filing a bogus and ingenuine caste certificate. The enquiries made by the respondents reveal that the caste certificate relied upon by the petitioner at the time of his appointment was not issued by any review authority. The necessity for the 4th respondent, to follow the procedure prescribed under the Act, or the Rules made thereunder, would arise, if only a certificate, which was issued through a competent review authority, is sought to be cancelled. For example, if a caste certificate was issued, on the basis of misrepresentation, by a candidate, and it is proposed to cancel the certificate on finding that the claim of the applicant is not correct; it becomes necessary to issue notice and conduct enquiry. Where, however, no certificate at all was issued and a person has brought such a certificate into existence, the necessity to conduct enquiry, of any type whatever, does not arise. There is another facet of the issue. The certificate produced by the petitioner at the time of his appointment is to the effect that he belongs to Boya community. According to the respondents, Boya caste or any sub-sect thereof, was never treated as Scheduled Tribe. The list of Scheduled Tribes issued under the relevant provisions of the Constitution of India is filed. Nowhere in it, the Boya caste is referred to. Even this aspect needs to be examined by the respondents, in the proposed enquiry. It is only in rare cases that this Court would interfere with the show cause notices or charge sheets, such as, where they are issued by authority not vested with the power. The case on hand is not one such. The petitioner can urge all the contentions in the enquiry. Hence, the Writ Petition is dismissed. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.07.10.2010. Note:L.R. copy to be marked. GJ [1] (2008) 13 SCC 170