N. J. Ponnamma v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937** **WP(C).No. 21719 of 2011 (L) ----------------------------** ## **PETITIONER:** **-----------** **N.J.PONNAMMA, ALUMMOOTTIL JAISNA, ANNAVATTAM, KUTTAPUZHA P.O., THIRUVALLA-689 103.** **BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN** **RESPONDENT(S):** - **---------------** **1. STATE OF KERALA AND OTHERS PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. THE SCRUTINY COMMITTEE FOR VERIFICATION** - **OF COMMUNITY CERTIFICATES, REPRESENTED BY ITS CHAIRMAN, PRINCIPAL SECRETARY TO GOVERNMENT SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** **3. THE CHAIRMAN, SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, PRINCIPAL SECRETARY TO GOVERNMENT SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** **4. THE DIRECTOR, KIRTADS, KOZHIKODE-673017.** **BY GOVERNMENT PLEADER, SRI. JAYAKUMAR C.K.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 21719 OF 2011 (L)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **----------------------** |**EXT.P1**|**:**|**TRUE COPY OF THE NOTICE DT. 5.6.1995 ISSUED BY THE**| |---|---|---| |||**4TH RESPONDENT.**| |**EXT.P2**|**:**|**TRUE COPY OF THE REPORT DT. 23.6.1995 OF THE**| |||**4TH RESPONDENT.**| |**EXT.P3**|**:**|**TRUE COPY OF THE SHOW CAUSE NOTICE DT. 30.12.1995**| |||**ISSUED BY THE 2ND RESPONDENT.**| |**EXT.P4**|**:**|**TRUE COPY OF THE ORDER DT. 17.8.1997 ISSUED BY THE**| |||**2ND RESPONDENT.**| |**EXT.P5**|**:**|**TRUE COPY OF THE ORDER, G.O. DATED 14.10.1997**| |||**ISSUED BY THE GOVERNMENT.**| |**EXT.P6**|**:**|**TRUE COPY OF THE JUDGMENT DATED 27.9.2005 IN O.P.**| |||**NO. 19250/1997 OF THIS HON'BLE COURT.**| |**EXT.P7**|**:**|**TRUE COPY OF THE CERTIFICATE DATED 4.3.1972 ISSUED**| |||**BY THE GENERAL SECRETARY, KERALA HINDU MISSION.**| |**EXT.P8**|**:**|**TRUE COPY OF THE NOTIFICATION DATED 24.5.1974**| |||**PUBLISHED IN GAZETTE DATED 10.9.1974.**| |**EXT.P9**|**:**|**TRUE COPY OF THE CERTIFICATE DATED 29.5.1976**| |||**ISSUED BY THE TAHSILDAR, THIRUVALLA.**| |**EXT.P10**|**:**|**TRUE COPY OF THE CERTIFICATE DATED 18.3.1983 ISSUED**| |||**BY THE SECRETARY, AKHILA KERALA CHERAMAR HINDU**| |||**MAHASABHA.**| |**EXT.P11**|**:**|**TRUE COPY OF THE CERTIFICATE DT. 7.6.1984 ISSUED**| |||**BY THE TAHSILDAR, THIRUVALLA.**| |**EXT.P12**|**:**|**TRUE COPY OF THE CERTIFICATE DT. 3.1.1993 ISSUED**| |||**BY THE AKHILA KERALA CHERAMAR HINDU MAHASABHA.**| |**EXT.P13**|**:**|**TRUE COPY OF THE SHOW CAUSE NOTICE DT. 10.3.2006**| |||**ISSUED BY THE 2ND RESPONDENT.**| |**EXT.P14**|**:**|**TRUE COPY OF THE REPLY DATED 5.4.2006 SUBMITTED**| |||**BY THE PETITIONER TO EXT.P13.**| |**EXT.P15**|**:**|**TRUE COPY OF THE NOTICE DATED 11.2.2008 ISSUED**| |||**BY THE 2ND RESPONDENT.**| |**EXT.P16**|**:**|**TRUE COPY OF THE JUDGMENT DT. 9.4.2007 IN W.P.(C)**| |||**NO. 11337/2007 OF THIS HON'BLE COURT.**| |**EXT.P17**|**:**|**TRUE COPY OF THE JUDGMENT DT.12.3.2008IN W.P.(C)**| |||**NO. 8352/2008 OF THIS HON'BLE COURT.**| |**EXT.P18**|**:**|**TRUE COPY OF THE REPRESENTATION DT. 14.3.2008**| |||**SUBMITTED BY THE PETITIONER BEFORE THE 2ND**| |||**RESPONDENT.**| **:2:** **WP(C).NO. 21719 OF 2011 (L) ----------------------------** **EXT.P19 : TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE 2[ND] RESPONDENT. EXT.P20 : TRUE COPY OF THE ORDER NO. 4714/G2/01/SCSTDD DT. 19.5.2011 ISSUED BY THE 2[ND] RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL ---------------------** **//TRUE COPY//** **P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.21719 of 2011 - - - - - - - - - -- - - - - - - - - - -** Dated this the 12th day of January, 2016 ## **J U D G M E N T** The petitioner was appointed, as High School Assistant in the year 1975, under the special recruitment and thereafter, she retired from the service as District Educational Officer. During the course of her employment, dispute arose as regards the status of her Community **.** According to the petitioner, she belongs to 'Hindu Cheramar' Community having the status of Scheduled Caste. On a complaint, the 4[th] respondent embarked an enquiry under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificate ## **W.P.(C) No. 21719 of 2011** ## **-: 2 :-** Act, 1996 _(hereinafter referred to as 'the Act')_ and filed a report, stating that she belongs to 'Christian Cheramar' Community, having no status of Scheduled Caste, as claimed by the petitioner. On the basis of the report filed by the 4[th] respondent, the 2[nd] respondent passed Ext.P20 Order, accepting the report of the 4[th] respondent and held that the petitioner belongs to 'Christian Cheramar' and her conversion to Hinduism was a camoflague to obtain an employment under reservation and even after the alleged conversion, her marriage was solomnised in the church, her children got baptised and her husband and children remained as 'Christians'. The legality and propriety of the findings, whereby the 2[nd] respondent rejected the claim of the petitioner that she belongs to 'Hindu Cheramar', are under challenge in this writ petition. ## **W.P.(C) No. 21719 of 2011** ## **-: 3 :-** 2. Heard the learned Senior Counsel for the petitioner and the learned Government Pleader. 3. The learned Senior Counsel appearing for the petitioner advanced arguments, challenging the findings, whereby the 2[nd] respondent rejected the claim of the petitioner. The main point raised before me is that Ext.P20 order is passed in violation of the specific direction issued by this Court in Ext.P17 judgment. It is contended that on receipt of the notice issued by the 2[nd] respondent for personal hearing, the petitioner approached this Court, by filing W.P.(C) No.8352 of 2008, seeking an opportunity to challenge the report filed by the 4[th] respondent by availing an opportunity to crossexamine the Vigilance Officer, who conducted the enquiry and filed the report. So also, the petitioner sought for a direction to serve the copy of records on which the 4[th] respondent relied on and ## **W.P.(C) No. 21719 of 2011** ## **-: 4 :-** arrived at a conclusion against the petitioner. 4. This Court passed Ext.P17 judgment, relying on the decision laid down by this Court in _**Prakash v. State of Kerala**_ [2002(2) KLT 580]. This Court allowed the writ petition, by Ext.P17 and specifically held that there is no reason to think that the 2[nd] respondent will ignore the request made by the petitioner for getting an opportunity to cross-examine the Officer, who prepared the report, to avail the copy of the documents based on which the Vigilance Officer rejected the claim of the petitioner. Thus, it is contended that Ext.P20 is passed without considering the direction of this Court in Ext.P17 judgment and also contrary to the proposition laid down by this Court in _**Prakash's case (Supra)**_ . In short, the argument is that Ext.P20 order is passed in contravention to the principles of natural justice. ## **W.P.(C) No. 21719 of 2011** ## **-: 5 :-** 5. Learned Government Pleader also advanced arguments to justify the findings, whereby the 2[nd] respondent rejected the claim of the petitioner. In view of the rival submissions made at the Bar, the only question that arises for consideration is, whether Ext.P20 order is passed in violation of the legal position settled by this Court in _**Prakash's case (Supra)**_ and Ext.P17 judgment passed by another Bench of this Court, relying on the above decision. Going by the decision in _**Prakash's case (Supra),**_ as rightly contended by the learned Senior Counsel for the petitioner this Court considered the question, whether a person, who challenges the report of Kirtads is entitled to get a copy of the statements of those persons, who have given statements before the Vigilance Officer and relied on by the Vigilance Officer, in the enquiry conducted under Section 9 of the Act. ## **W.P.(C) No. 21719 of 2011** ## **-: 6 :-** 6. Secondly, it was also considered, whether the person, who is facing Vigilance enquiry has a right to cross-examine the witnesses, whose statements were taken by the Vigilance Officer, during the course of enquiry under Section 9 of the Act. In the above decision, this Court after considering various decisions laid down by the Apex Court, unequivocally held that the person, who is facing Vigilance enquiry is entitled to get copy of the statements collected by the Vigilance Officer under Kirtads, which forms the basis of the report to be prepared by the Kirtads. So also, it was held that even though, examination of the witnesses was not specifically contemplated under the Act, in view of the decision laid down by the Supreme Court, the person facing enquiry as regards Caste and status under the Act, has the right to cross-examine the witnesses, whose statements were relied on by the ## **W.P.(C) No. 21719 of 2011** ## **-: 7 :-** Vigilance Officer, in the enquiry conducted by him under Section 9 of the Act. 7. Going by Ext.P17 judgment, further, it is seen that after referring to _**Prakash's case (Supra)**_ , this Court expressed its confidence that there is no reason to reject the claim of the petitioner to avail copy of the statements and an opportunity to cross-examine the witnesses, whose statements were relied on by the Vigilance Officer. 8. Going by Ext.P20 order, it is seen that relying on the decision of this Court in _**Prakash's case(Supra)**_ and Ext.P17 judgment of this Court, the petitioner has claimed an opportunity to crossexamine the witnesses, whose statements were relied on by the Vigilance Officer to arrive at an adverse finding against the petitioner. So also, he claimed copy of the statements of the witnesses. In the arguments note filed by the petitioner also, he ## **W.P.(C) No. 21719 of 2011** ## **-: 8 :-** has claimed such opportunities in compliance with the direction of this Court in Ext.P17 judgment. But a close scrutiny of Ext.P20, it is seen that Ext.P20 was passed in contravention to the direction of this Court in Ext.P17 judgment and the legal principle settled by the decision of this Court in _**Prakash's case (Supra)**_ . Consequently, I am inclined to accept the arguments that Ext.P20 order is passed in violation of the principles of natural justice as well as the specific direction of this Court in Ext.P17 judgment. 9. In the result, Ext.P20 will stand set aside and the matter will stand remitted to the 2[nd] respondent for fresh consideration in compliance with the legal position declared by this Court in _**Prakash's case (Supra)**_ and the direction of this Court in Ext.P17 judgment. Further, it is made clear that the 2[nd] respondent is directed to pass **W.P.(C) No. 21719 of 2011** ## **-: 9 :-** orders afresh, after affording an opportunity to the petitioner to cross-examine the witnesses, whose statements are relied on by the Vigilance Officer of Kirtads, to arrive at a finding against the petitioner, in the enquiry conducted under Section 9 of the Act. An order shall be passed afresh, within a period of three months from the date of receipt of a copy of this judgment This writ petition is disposed of accordingly. Sd/- DST **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**