IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K. BASHEER TUESDAY, THE 5TH AUGUST, 2008/14TH SRAVANA, 1930 WA.No. 833 of 2008 ------------------------- (AGAINST JUDT. DT. 19.2.2008 IN WPC No.17043 OF 2005) APPELLANTS/PETITIONERS: ------------------------------------ 1. C. KRISHNA KUMAR, COUNCILLOR, CORPORATION OF THIRUVANANTHAPURAM, RESIDING AT LAKSHMI VILASAM, VELLUNNI, MEDICAL COLLEGE P.O., ULLOOR, THIRUVANANTHAPURAM. 2. C. VIJAYAN, GALLERY PRESSMAN, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM, RESIDING AT LAKSHMI VILASAM, VELLUNNI, MEDICAL COLLEGE P.O., ULLOOR, THIRUVANANTHAPURAM. BY SENIOR ADVOCATE SRI. N. NANDAKUMARA MENON, SRI. P.K. MANOJ KUMAR & SRI. SUSHYA RAJAN. RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, S.C./S.T. DEVELOPMENT (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF - COMMUNITY CERTIFICATES, REPRESENTED BY ITS CHAIRMAN/ THE PRINCIPAL SECRETARY TO GOVERNMENT, S.C./S.T. DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 2 - 3. THE DIRECTOR, KIRTADS, DIRECTORATE OF KIRTADS, KOZHIKODE - 17. 4. EDAVACODE ASOKAN, CHINNAVEEDU, T.C. 7/2129-A, SREEKARYAM, THIRUVANANTHAPURAM - 17. R1 TO R3 BY SPL. GOVT. PLEADER SRI. C.T. RAVIKUMAR. R4 BY ADV. SRI. R.T. PRADEEP. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.7.2008, THE COURT ON 05/08/2008 DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & A.K. BASHEER, J. ------------------------------------- W.A.No.833 of 2008 ------------------------------------ Dated this, the 5th day of August, 2008 JUDGMENT H.L. DATTU, C.J. This appeal is directed against the order passed by the learned Single Judge in W.P.(C) No.11710/2008 dated 19th day of February, 2008. By the impugned order, the learned Judge has rejected the writ petition and thereby has confirmed the orders passed by the Scrutiny Committee for verification of community certificate. 2. In the course of our judgment, we will be referring to the parties as arrayed in the writ petition. 3. The first petitioner is the Councillor of the Edavacode Ward of Thiruvananthapuram Corporation. The Edavacode Ward is a reserved constituency for Scheduled Caste/Scheduled Tribe candidates. The first petitioner claims that he belongs to Vannan community, which is a scheduled caste community. 4. The second petitioner is the brother of the first petitioner. He is now working as Gallery Pressman, Government Central Press, Thiruvananthapuram. The allegation against him is, he has secured employment by producing a false community certificate. W.A.No.833/08 - 2 - 5. The 4th respondent, had also contested in the election for the local bodies conducted by the State Election Commission on 24.09.2005 for Edavacode Ward, Thiruvananthapuram. He was unsuccessful in the elections held. 6. After the declaration of the results, the 4th respondent had filed a petition before the then Minister of Revenue and Law dated 3.10.2005, inter alia alleging that the caste certificate produced by the first petitioner is a false community certificate and the same is liable to be cancelled after conducting necessary enquiry. The Revenue Minister, has transmitted the complaint to the District Collector, Thiruvananthapuram to look into the grievance made by the complainant in his letter dated 3.10.2005. After receipt of the complaint, the the District Collector in turn has directed the Tahsildar having jurisdiction over such matters to conduct an enquiry into the allegations contained in the complaint submitted by the 4th respondent to the Minister for Revenue and Law, regarding the community certificate produced by the first petitioner before the Returning Officer during the elections held to Edavacode Ward Constituency of Thiruvananthapuram Corporation. 6. On the basis of the complaint filed by the 4th respondent, the third respondent - The Director, KIRTADS, Kozhikode, which is the statutory authority under the provisions of the Kerala (Scheduled Castes and W.A.No.833/08 - 3 - Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, through its Vigilance Officer has held an enquiry into the caste status of the petitioners. After such enquiry has submitted his report dated 22.4.2006 to the Scrutiny Committee for verification of Community Certificates, Thiruvananthapuram. At this stage, it may be relevant to notice that the 4th respondent, being of the opinion, that there is abnormal delay in completing the enquiry by the second respondent, had approached this court in W.P.(C) No.4397 of 2007, for a direction to the second respondent to complete the enquiry within a stipulated time, after hearing the 4th respondent at whose instance the proceedings under the Regulation is initiated against the petitioners. This court, while disposing the writ petition by its judgment dated 22.2.2007, had directed the second respondent to complete the enquiry as expeditiously as possible, after affording an opportunity of hearing to all the parties interested in the lis. 7. The petitioners claim that after the disposal of the writ petition, and in view of the directions issued by this court, the second respondent without providing sufficient opportunity to the petitioners to prove his claim that his caste status is Vannan Community, which is a scheduled caste community, has passed an order dated 24.12.2007, declaring that the petitioners do not belong to the Scheduled Caste - Vannan community, but W.A.No.833/08 - 4 - belong to Veluthedath Nair community, which community is categorised under backward community. The Scrutiny Committee has also cancelled all the community certificates obtained by the petitioners and other family members. 8. The petitioners, inter alia alleging that the orders passed by the Scrutiny Committee, is totally arbitrary and illegal; the petitioners were denied an opportunity to disprove the report of KIRTADS and also to prove their claim that they belong to Vannan community, which is a scheduled caste community; that they were denied an opportunity of being heard and on several other grounds, has filed the writ petition, before this court, with a request to set aside the order passed by the Scrutiny Committee and further to direct them to give him an opportunity to defend their case and claim. As we have already stated, the learned Single Judge has rejected the writ petition, primarily, on the ground that the petitioners appeared to be determined to adopt dilatory tactics and delay the enquiry proceedings as much as they can and also the final disposal of the proceedings taken against them. 9. We have heard learned senior counsel Sri. Nandakumara Menon for the petitioners, the learned Government Advocate for the authorities of the State, and Sri.R.T.Pradeep learned counsel for the 4th respondent. 10. The primary contention of the learned senior counsel W.A.No.833/08 - 5 - Sri.Nandakumara Menon appearing for the petitioners is that, the impugned orders passed by the Scrutiny Committee is in violation of principles of natural justice, since petitioners were not afforded sufficient opportunity to produce their evidence to disprove the claim of the 4th respondent and the findings of the Report of Vigilance Officer of KIRTADS. The learned counsel has taken us through the proceedings of the Scrutiny Committee in the enquiry held to consider the report of the Vigilance Officer. Reference to those events will be noticed by us at appropriate place in the course of our judgment. The learned Senior Counsel would also submit, that, in the view of the serious consequences that would follow from the orders passed by the Scrutiny Committee, the party against whom the allegations are made requires to be given a reasonable opportunity of hearing before any adverse order is passed. However, Sri.R.T.Pradeep, learned counsel for the 4th respondent strongly defends the order passed by the Scrutiny Committee, though the learned Government Advocate who appears for the authorities was meek in his submission while defending the impugned order. The learned counsel would contend that affording an opportunity of hearing once over again by the Scrutiny committee is mere empty formality in view of the report of the Vigilance Officer of the KIRTADS, who after detailed consideration of the evidence that was recorded by him during the course of the investigation, has W.A.No.833/08 - 6 - submitted his report by holding that the petitioners do not belong to Vannan Community which is a Scheduled Caste community and the certificates produced before the various authorities and also before the Returning Officer of the Election Commission in the elections held for local bodies is a false certificate. 11. Before we advert to the rival contentions canvassed by the contesting parties, it is necessary to refer to the counter affidavit filed by first respondent dated 23rd day of June, 2008 and in that at para 18 and 19 have stated as under: “18. As the Scrutiny Committee was in the process of considering the request of the appellants to summon the witnesses, Sri.Edavakode Asokan, the fourth respondent in the W.A., filed a Contempt of Court Case before this Hon'ble Court as CC(C) No.1478/07 alleging non compliance of the judgment dated 22-02-2007 in W.P.(C) No.4394/07. In its interim Order dated 22-11-2007 this Hon'ble Court ordered that: “post of 03-01-2008. The decision taken following the judgment shall be produced before this court on that day. The learned Spl. Government Pleader will communicate this order to the respondent”. 19. Accordingly in order to comply with the interim order of this Hon'ble Court in CC(C) No.1478/07 the Scrutiny Committee had no other way but to finalize W.A.No.833/08 - 7 - its proceedings on or before 03-01-2008 and hence the Scrutiny Committee issued its Proceedings dated 24-12-2007(Ext.P7). It is also submitted that Ext.P7 is absolutely legal and sustainable under law as it was passed under the provisions of the Act after proper consideration of the case. No abuse of power as alleged. All the formalities and procedures are complied with while issuing Ext.P7.”. 12. Judicial review is not an appeal from a decision, but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The court in its power of judicial review may interfere where the authorities held the proceedings against a person in a manner inconsistent with the rules of natural justice or in violation of statutory rules [See B.S.Chaturvedi vs. Union of India, (1995) 6 SCC 749]. 13. The Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, is an Act to provide for and regulate the issue of community certificate to members of the Scheduled Castes and Scheduled Tribes in the State of Kerala. The Preamble of the Act states, whereas it is considered necessary to devise and provided for a strict procedure for and to regulate the issue of community certificates to W.A.No.833/08 - 8 - members of the Scheduled Castes and the Scheduled Tribes in the State of Kerala. And whereas in order to curb effectively the evil practices of securing such certificates by persons other than those belonging to the Scheduled Castes and Scheduled Tribes for claiming the benefits of reservation and such other benefits meant for the Scheduled Castes and the Scheduled Tribes and to make provision for prescribing punishment therefor and to provide for matters connected therewith or incidental thereto. The Act has come into force on 1.12.1996. The Act defines the meaning of the expression 'community certificate' to mean 'the certificate issued by the competent authority in the prescribed form indicating therein the Scheduled Caste or the Scheduled Tribe, as the case may be, to which a person belongs'. 'Expert Agency' is defined in Section 2(g) to mean 'an officer, or team of officers belonging to the Anthropological Wing or the Scheduled Castes and Scheduled Tribes Development Department of the State Government, entrusted with the research, training and developmental studies of the Scheduled Castes and the Scheduled Tribes and also includes the Director of that Department, if he belongs to the Anthropology Wing of the Department or is an Anthropologist or Sociologist' and Section 2 (n) defines the meaning of the expression 'Scrutiny Committee' to mean 'the committee constituted by the Government by notification under Section 8 to perform the functions of the Scrutiny W.A.No.833/08 - 9 - Committee under this Act for such areas or for such purposes as may be specified in the notification'. 14. Section 9 of the Act provides for enquiry by expert agency. The provision is relevant for the purpose of the case and, therefore, it is extracted: “9. Enquiry by Expert Agency: - (1) The expert agency may conduct such enquiries as it may deem fit into the claim of an individual or group of individuals that he or they belong or belongs to the Scheduled Caste or the Scheduled Tribe in the following circumstances, - (i) Suo motu enquiries on the basis of field studies on castes, communities, or tribes; or as a part of or auxiliary to Anthropological or Sociological Studies or investigations. (ii) On petitions and complaints being received by it, from any course pertaining to the Scheduled Caste or the Scheduled Tribe, claims of non-Scheduled Castes or non-Scheduled Tribes, as the case may be. (iii) On references, requisitions, directions or proposals being received from the State and Central Governments, the competent authorities or the Screening Committee or the Scrutiny Committee. (2) The report of the Expert Agency shall be conclusive proof for or against the Scheduled Caste or W.A.No.833/08 - 10 - the Scheduled Tribe claim, as the case may be, of the person reported upon. (3) The person reported upon shall be entitled for a copy of the report of the Expert Agency, if he desires so, free of cost from the authority authorising the enquiry.” 15. Section 9 of the Act provides for an enquiry by expert agency. The expert agency may conduct an enquiry on its own, or on a petition/complaint received by it or on references, requisitions, directions and proposals received from the State or Central Governments into the claim of individual or group of individuals that he or they belongs to Scheduled Caste or Scheduled Tribe. Sub-section (2) says that, the report of the expert agency shall be conclusive proof for or against the scheduled caste or scheduled tribe claim , as the case may be, of the person reported upon. 16. Section 11 of the Act, provides for cancellation of false community certificate by the Scrutiny Committee. The Section is as under: “11. Cancellation of false community certificate: - (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes or the Scheduled Tribes has obtained a false community certificate to the effect that either himself or his children belong to such Caste or the Tribe, the W.A.No.833/08 - 11 - Scrutiny Committee may either suo motu or on a written complaint or report by any person or authority, call for the records and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by order, cancel the certificate after giving the person concerned an opportunity of making a representation, if any. (2) The powers of the nature referred to in sub- section (1) may also be exercised by the Government. (3) Scrutiny Committee while performing its functions for verification and cancellation of community certificates shall follow such procedure as may be prescribed.” 17. The Committee can exercise their power either on its own, or on a written complaint, or report by any person or authority about a person not belonging to any of the Scheduled Castes or Scheduled Tribes who has obtained a false community certificate to the effect that either himself or his children belong to Scheduled Caste or Tribe. The Scrutiny Committee may call for the records and enquire into the correctness of the certificate. It is also authorised to cancel the caste certificate, if in their opinion that the certificate has been obtained fraudulently, after giving the person concerned an opportunity of making representation. Sub-section (3) of Section 11 says, the W.A.No.833/08 - 12 - Scrutiny Committee, while performing its functions for verification and cancellation of community certificate shall follow the procedure prescribed. 18. The State Government has framed Rules for the purposes of the Act. The Rules are known as “The Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificate Rules, 2002 (Rules, for short). Rule 9 of the Rules prescribes the procedure to be followed by the Scrutiny Committee for verification of community certificates. The rules again speaks of providing an opportunity to the person concerned to “make representation”, if any. 19. Section 15 and 16 of the Act provide for various penalties against persons who obtain false certificates by furnishing false information etc. The punishments contemplated under these provisions are serious in nature. 20. It is the case of the petitioners, that, the Scrutiny Committee without affording a reasonable opportunity of hearing to the persons who may be affected by their order, has passed the impugned order and therefore, the same is arbitrary, illegal and violative of principles of natural justice. While reiterating these contentions, the learned Senior Counsel for the petitioners has taken us through the entire proceedings before the Scrutiny Committee before the final orders came to be passed on 24.12.2007. The respondents have filed W.A.No.833/08 - 13 - a tailor made counter affidavit to suit the case of the petitioners. When the learned counsel for the fourth respondent says, that, the authorities under the Act who have been entrusted with an important task of weeding out those individuals who have secured caste certificates fraudulently, have messed up the whole proceedings because of the political patronage that the petitioners wield, may not be exaggeration. We will give reasons for our tentative conclusions. Learned counsel for the fourth respondents submits that in the light of the report of the Vigilance Officer of KIRTADS, there is absolutely no necessity for the Scrutiny Committee to conduct a further enquiry and that whatever enquiry that is conducted by the Scrutiny Committee satisfies the requirement of principles of natural justice. The learned counsel has brought to our notice the views of the Apex Court in the case of Canara Bank and Others vs. Devasis Das and others, (2003) 4 SCC 557, Omprakash Menon vs. Director of Education and others, (2006) 7 SCC 558, Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and Others, (1994) 6 SCC 241 and the decision of this Court in the case of Shenoy vs. Central Bank of India, 1983 KLT 381. Per contra, learned Senior Counsel for the petitioners has relied on the observations made by Apex Court in the case of Gulzar Singh vs. Sub Divisional Magistrate, (1999) 2 SCC 107. W.A.No.833/08 - 14 - 21. The first or the basic principle that requires to be kept in view is, that, any order or decision in matters involving civil consequences has to be made consistently with the rules of natural justice. Every authority, quasi judicial or administrative or executive, should act fairly, reasonably and in a just manner, i.e. in accordance with the principles of natural justice, when the result of the exercise of power is likely to affect any person with civil consequences and any order passed in utter violation of principles of natural justice is null and void, without adherence to which justice would be travesty. The purpose of following principles of natural justice is prevention of miscarriage of justice. Rules of natural justice operate as checks on the freedom of administrative action. Although adherence to it may often prove to be time consuming, yet that is the price one has to pay to ensure fairness in administrative action. Since the rules of natural justice operate as an implied mandatory procedural requirement, its non-observance invalidates the exercise of the power. One of the primary requirements of principles of natural justice which is time and again the Apex Court has stated is “that the person concerned should have a reasonable opportunity of presenting his case”. It has been held by the Apex Court that violation of rules of natural justice results in arbitrariness and therefore violative of Article 14 of the Constitution of India. It is trite to remember that principles of natural justice now-a-days are W.A.No.833/08 - 15 - embedded in the Statute itself in order to ensure that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair treatment. 22. It is argued by learned counsel for the 4th respondent, that, since no prejudice that is caused to the petitioners is demonstrated, this court need not entertain the plea of the petitioners in regard to the violation of principles of natural justice in passing the impugned order by the Scrutiny Committee. It is difficult for us to accept the arguments canvassed. The Apex Court in number of cases has rejected the 'test of prejudice' starting from Mintapalli Agency Taluk Arrack Sales Co-operative Society Ltd. vs. Secretary (Food and Agriculture), Government of Andhra Pradesh, AIR 1977 SC 2313. In the said decision, the Apex Court has observed that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are passed, should have a written notice of the proceedings from the authority, disclosing the grounds of the complaint or other objection preferably by furnishing a copy of the petition on which action is contemplated in order that a proper and effective representation may be made. This minimal requirement can on no account be dispensed with by relying upon the principle of absence of prejudice. 23. The Apex Court in the case of S.L.Kapoor vs. Jagmohan, W.A.No.833/08 - 16 - AIR 1981 SC 136, has stated that, that the principles of natural justice know of no exclusionary rule dependant on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. 24. In Re., Union Carbide Corporation vs. Union of India, AIR 1992 SC 248, the Apex Court has observed that, “where there is violation of natural justice, no resultant or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with the observance of natural justice the same conclusion would have been reached”. 25. The Supreme Court in State Bank of Patiala vs. S.K.Sharma, AIR 1996 SC 1669, has observed that, the principles of natural justice cannot be reduced to any hard and fast formulae. Each and every complaint of natural justice is to be examined from the stand point of fair hearing. 26. This rule of affording an opportunity of hearing can be excluded only in few cases, such as, if there is statutory exclusion, exclusion on ground of urgency, exclusion when office is held “at pleasure”, exclusion W.A.No.833/08 - 17 - in case of compulsory retirement in Government Service, exclusion in case of termination of a probationer under certain circumstances, exclusion by implication, etc.. 27. The present case will not fall under any of the exclusionary clauses noticed by the Apex Court. 28. The essence of justice requires that a person who is to decide must give the parties a fair hearing before him enabling them to state their case and view. A fair hearing gives an opportunity to those who are parties in the controversy for correcting or contradicting any statement prejudicial to their view. Fair hearing as a facet of natural justice is now applied to administrative orders or decisions which involve civil consequences. It becomes equally applicable even to administrative enquiries, since an unjust decision in an administrative enquiry may have far reaching effect than the decision in any quasi judicial enquiry. In the context of hearing, it is said that, opportunity of hearing must be given to a person to enable him to controvert and explain the allegations made against him and that opportunity must be reasonable and adequate. If this essential of justice is ignored