Ambikesan P. v. Union of India & Others

W.P.(C).No.16193 of 2019 1 **'CR'** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** ## **WP(C).No.16193 OF 2019(Y)** ## **PETITIONER:** **AMBIKESAN P. AGED 60 YEARS S/O. ARUMUGHAN .P., PILAKKAL H MADAKKARA P.O., KANNUR DISTRICT NOW RESIDING AT AMBADI, NETTOOR ERNAKULAM DISTRICT.** **BY ADVS. SRI.K.MOHANAKANNAN SRI.T.S.NEJIMUDDIN** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT OF**| ||**INDIA, MINISTRY OF SHIPPING, 20-ASHOKA ROAD,**| ||**SANCHAR BHAVAN,**| ||**NEW DELHI 110 001**| |**2**|**THE GOVERNMENT OF KERALA**| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO**| ||**GOVERNMENT, SC/ST DEPARTMENT SECRETARIAT**| ||**THIRUVANANTHAPURAM 695 001**| |**3**|**COCHIN SHIPYARD LIMITED,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR, POST BAG**| ||**NO. 1653, PERUMANNUR P.O.,**| ||**KOCHI 682 015**| W.P.(C).No.16193 of 2019 2 **4 THE CHIEF GENERAL MANAGER HR AND TRNG, COCHIN SHIPYARD LIMITED, POST BAG NO. 1653, PERUMANNUR P.O., KOCHI 682 015** **5 THE ASSISTANT LABOUR COMMISSIONER (CENTRAL) KAKKANAD, ERNAKULAM KOCHI 682 030** **R1 BY SRI.M.C.MONY, CGC R3-4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R3-4 BY ADV. SRI.K.JOHN MATHAI R3-4 BY ADV. SRI.JOSON MANAVALAN R3-4 BY ADV. SRI.KURYAN THOMAS R3-4 BY ADV. SRI.PAULOSE C. ABRAHAM** ## **OTHER PRESENT:** ## **GP SRI. RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-07-2019, THE COURT ON 20-09-2019 DELIVERED THE FOLLOWING:** W.P.(C).No.16193 of 2019 3 **==> picture [27 x 10] intentionally omitted <==** ## **JUDGMENT** 1. Petitioner, who had retired from service on 28.02.2019 in Cochin Shipyard Limited, is before this Court challenging Exhibits P10 and P11 orders and seeking directions to the respondents to sanction and disburse the pensionary benefits due to him and to release the gratuity amount deposited with the 6[th] respondent. 2. It is stated that the petitioner had entered service as Crane Operator (Electrical) under the 3[rd] respondent on the basis of Exhibit P1 order of appointment dated 30.08.1983. The petitioner was a member of the Moger community. By Exhibit P3 it was certified by the Tahasildar that the petitioner belongs to Moger community, which is recognized as a Scheduled Caste under the Constitution (Scheduled Castes) Order, 1950. It is stated that in the year 1993, the petitioner had been required to produce a fresh SC/ST community certificate. The petitioner had, by Exhibit P5 replied that the petitioner was a member of the Moger community, which was originally included in the list of Scheduled Castes under the Constitution (Scheduled W.P.(C).No.16193 of 2019 4 Caste) Order 1950, as amended in 1976. It was stated that the Government of Kerala had issued orders to the effect that residents of Mattool, Madakkara, Irinave, Pappinissery. Azhikode and Neeleswaram village in Kannur district who belonged Moger community had been removed from the list of Scheduled Caste and included in the list of Other Eligible Community. It is, therefore, submitted that he would be unable to produce any fresh community certificate. The petitioner was again directed to furnish caste certificate from competent authority in support of his SC claim. 3. The petitioner thereafter approached this Court by filing O.P. No.13256/1995 and Exhibit P7 interim order was rendered recording the submission of the counsel for the Cochin Shipyard that no further action will be taken against the petitioner, without orders from this Court. The writ petition was disposed of by Exhibit P8 judgment dated 14.1.2003 stating that no action for termination as against the petitioner had been taken and if the petitioner makes an application before the competent authority for caste W.P.(C).No.16193 of 2019 5 certificate, the same will be considered in accordance with law. 4. It is stated that, thereafter, the petitioner was issued with Exhibit P9 notice by the Vigilance Officer of the KIRTADS requiring him to appear for hearing as a part of investigation into the caste status. Though the petitioner appeared in pursuance to Exhibit P9 notice, no further steps were taken in the matter. In the meanwhile, the petitioner retired on superannuation on 28.02.2019. His pensionary benefits were sanctioned, but Exhibit P11 order was passed stating that the disbursement of terminal benefits like gratuity, leave encashment, pension under the CSL superannuation pension scheme etc. were deferred as per Section 16A of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, since enquiry proceedings are pending in respect of Caste status. It is stated that gratuity amount of Rs.15,36,570/- is deposited with the 6[th] respondent, till a decision is taken with regard to the caste of the petitioner. W.P.(C).No.16193 of 2019 6 5. The learned counsel for the petitioner challenges the action taken by the respondents on the ground that without any finding as to any irregularity in Exhibit P3 community certificate issued to the petitioner, the respondents will be powerless to issue orders deferring the retirement benefits due to the petitioner. It is contended that pension is not bounty, but it is the valuable property in the hands of the retired employee and a consequence of long years of service which can be withheld only on valid grounds. It is stated that there is no finding of any nature as against the petitioner, much less any finding of fraud practiced by the petitioner in procuring the community certificate for employment in the reserved category, in the absence of which an action for deferring retirement benefits due on account of more than 35 years of service rendered by him would be completely unjustified. The learned counsel relies on the decisions of this Court in **Prakash Vs. State of Kerala** [2002 (2) KLT 580] and **Thankappan A.H and others v. State of Kerala and others** [ILR 2019(1) Ker 714]. W.P.(C).No.16193 of 2019 7 6. A counter affidavit has been placed on record by the 3[rd] and 4[th] respondent. It is contended that the petitioner had been granted appointment as Crane Operator in a post reserved for SC community on the strength of the caste certificate issued by a competent authority. It is stated that later, in 1995, in compliance with the directions of the Government, the petitioner was directed to furnish fresh caste certificate. It is stated that the petitioner expressed his inability to do so. In the meantime, the Government of Kerala vide letter No.18420/E2/94 SCSTDD dated 29.3.1995, informed the 3[rd] respondent that the petitioner is a native of Irinave in Kannur district and the members of Mukayan (OBC) community in Irinave are making false claim as Moger (SC). The 3[rd] respondent, thereupon, requested the Tahasildar, Kannur to confirm the petitioner's caste status, who in turn requested the Director, KIRTADS to conduct an anthropological study to confirm the caste status. It is stated that on 6.2.2008, the 3[rd] respondent addressed the Tahasildar, Kannur and later the Government of Kerala for expedition of the enquiry W.P.(C).No.16193 of 2019 8 into the caste status of the petitioner. Later the KIRTADS was also addressed. Relying on Sections 16 and 16A of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, it is contended that where there is a dispute as to the caste status of an employee, the steps for deferring the pensionary benefits is completely justified. The learned counsel relies on a Division Bench of this Court in the Managing Director, **State Bank of Travancore, Trivandrum v.Viswananthan** [ILR 2016(3) KER 528] to contend that even where there is no allegation of fraud, action can be taken to invalidate the certificate wrongly granted. 7. The learned Special Government Pleader would contend that the enquiry into the caste status of the petitioner is ongoing and that appropriate orders will be passed in the matter in accordance with law. 8. On a consideration on the issue involved, I am of the opinion that the deferment of the pensionary benefits due W.P.(C).No.16193 of 2019 9 to the petitioner relying on Section 16A of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 is completely unjustifiable. 9. Section 16A reads as follows:- “ **16A Deferment of pensionary benefits -** Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force or in any judgment, decree or order of any court, where a person secures any appointment in the Government or any Government Undertaking or local authority or any other authority against a post reserved for Scheduled Caste or Scheduled Tribe, by producing a fraudulent Community Certificate, and if on an enquiry by the Expert Agency it is found that his claim is not genuine and if the incumbent retires while the enquiry by the Government or the Scrutiny Committee is pending, the Government or the Government Undertaking or local authority or any other authority as the case may be, shall have the power to defer and withhold the pensionary benefits of the incumbent pending decision by the Government or the Scrutiny Committee.” 10. Section 16A is therefore to be pressed into service where there is a finding by the expert agency or at least a concrete allegation that the petitioner had secured employment by producing a false community certificate. The petitioner's community certificate, Exhibit P3 is intact. The KIRTADS, which is the expert agency has entered no W.P.(C).No.16193 of 2019 10 finding that there is any deficiency in the same. It is clear that the enquiry into the caste status by KIRTADS is still inconclusive. In any view of the matter, the contention is that as on the date of issuance of Exhibit P3 caste certificate, the petitioner being a member of Moger community was entitled to SC status in terms of the Scheduled Caste Order of 1950. The later orders passed by the Government denying the benefit to persons belonging to certain areas in Kannur district cannot, by any stretch of imagination, result in any finding that the petitioner had obtained his caste certificate 'fraudulently' or had produced a false certificate to procure public employment, which he was otherwise not entitled to. In the above view of the matter, I am of the opinion that the action taken by the respondents to defer the benefits due to the petitioner as a result of the long years of service is completely untenable. In the result, the impugned orders are set aside. There will be a direction to respondents 3 and 4 to release the gratuity amounts due to the petitioner with statutory W.P.(C).No.16193 of 2019 11 interest at the earliest, any rate within a period of three weeks from the date of receipt of a copy of this judgment. All terminal benefits due to the petitioner shall be calculated and disbursed by the 3[rd] respondent without delay. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.16193 of 2019 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER NO. PERL/6 (2)/80 DATED 30.8.1983** - **EXHIBIT P2 TRUE COPY OF THE SSLC BOOK OF THE PETITIONERS BROTHER.** - **EXHIBIT P3 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED BY THE THASILDAR** **EXHIBIT P4 TRUE COPY OF THE LETTER NO. PERL/89/92 DATED 26/7/1993 ISSUED BY DEPUTY GENERAL MANAGER PERL** - **EXHIBIT P5 TRUE COPY OF THE DETAILED EXPLANATION DAT ED 21/8/1993 SUBMITTED BY THE PETITIONER** **EXHIBIT P6 TRUE COPY OF THE LETTER NO. PERL/4 (89) /92 VOL II DATED 2ND SEPTEMBER 1995, THE GENERAL MANAGER PERL I/C** - **EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 19/5/1995 IN OPC 13256/1995** **EXHIBIT P8 TRUE COPY OF THE INTERIM JUDGMENT IN THE OPC NO. 13256/1995 DATED 14.1.2003 OF THE HONBLE HIGH COURT.** - **EXHIBIT P9 TRUE COPY OF THE NOTICE NO. V. 5/03 DATED 31/1/2005 FROM THE VIGILANCE CELL OF KIRTADS** **EXHIBIT P10 TRUE COPY OF THE OFFICE ORDER NO. PERL/28 (3)/04-VOL.XV DATED 28/2/2019** - **EXHIBIT P11 TRUE COPY OF THE NO. PF/2765 DATED 28/2/2019 OF THE CHIEF GENERAL MANGER HR & TRG** **EXHIBIT P12 TRUE COPY OF THE LETTER NO. PF/2765 DATED 13/1/2019** W.P.(C).No.16193 of 2019 13 ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF THE LETTER DATED 06.02.2008 BEARING NO PERL/4(89)/92 VOL II SENT BY THE 3RD RESPONDENT TO THE TEHSILDAR, KANNUR.** **EXHIBIT R3(B) TRUE COPY OF THE LETTER DATED 06.07.2009 ISSUED BY EXECUTIVE DIRECTOR (TECH AND HRD) OF THE 3RD RESPONDENT TO THE PRINCIPAL SECRETARY TO THE GOVT. OF KERALA, SC/ST (G) DEPARTMENT.** **EXHIBIT R3(C) TRUE COPY OF THE LETTER DATED 11.02.2016 ISSUED BY THE 3RD RESPONDENT TO THE VIGILANCE OFFICER, KIRTADS BEARING NO.PF/2765.** **EXHIBIT R3(D) TRUE COPY OF THE LETTER DATED 12.01.2017 ISSUED BY THE 3RD RESPONDENT TO THE PRINCIPAL SECRETARY TO THE GOVT. OF KERALA, SC/ST (G) DEPARTMENT.** True Copy PS to Judge