The State Of Odisha vs Bibhisan Kanhar

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No…9124 of 2017 (Arising out of SLP (C) No.7712 of 2016)

STATE OF ORISSA AND ANR. .... Appellant(s) Versus BIBHISAN KANHAR ….Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

The order for removal of the Respondent who was working

as Farash in the office of the Revenue Divisional Commissioner,

Central Division, Cuttack (Second Respondent) was set aside by

the Orissa Administrative Tribunal, Cuttack. The judgment of

the Tribunal was confirmed by the Division Bench of the High

Court of Orissa at Cuttack. Aggrieved, the State of Orissa has

filed this Appeal.

2. The Revenue Divisional Commissioner requested the

Employment Officer of the Employment Exchange, Cuttack

to sponsor five candidates belonging to the Schedule Tribe Signature Not Verified Digitally signed by CHARANJEET KAUR Date: 2017.07.18 14:16:22 IST Reason: community and five from unreserved category for selection

and appointment to the posts of Farash and Peon. On the

1 basis of a caste certificate filed by the Respondent in the

Employment Exchange, he was sponsored as a candidate

belonging to a Schedule Tribe community (Kandha). The

Respondent was appointed as a Farash in the office of the

Second Respondent. As there was a doubt raised about the

Respondent belonging to a Schedule Tribe, proceedings were

initiated before the State Level Scrutiny Committee for

verification of his caste certificate. He was also placed under

suspension. After a detailed enquiry, the State Level

Scrutiny Committee found that the Respondent did not

belong to the “Kandha” tribe. His caste was “Pano”, which is

a Schedule Caste in the State of Orissa. The State Level

Scrutiny Committee directed cancellation of the caste

certificate issued in favour of the Respondent and also

recommended initiation of criminal prosecution against him.

The Committee further requested the disciplinary authority

to take appropriate action against the Respondent for

removal from service. After issuance of a show cause

notice, the Respondent was removed from service by the

Second Appellant.

3. Initially, the Respondent approached the High Court assailing

the legality of the order of the State Level Scrutiny

Committee as well as the order of removal. As the

2 Respondent was a civil servant, the High Court relegated the

Respondent to the Central Administrative Tribunal and also

gave him liberty to question the order passed by the State

Level Scrutiny Committee cancelling his caste certificate.

The Central Administrative Tribunal set aside the order of

removal and directed reinstatement of the Respondent. The

reasons given by the Tribunal for allowing the O.A. filed by

the Respondent are that the Respondent was not appointed

in a post reserved for Schedule Tribes and that there was no

material to show that the Respondent forged the caste

certificate for the purpose of procuring employment. The

Writ Petition filed by the Appellants was disposed of by the

High Court confirming the order of the Tribunal. The High

Court reiterated the direction issued by the Tribunal to

reinstate the Respondent. The High Court further directed

that the Respondent was entitled for back wages at 50 per

cent from 01.09.2014 till the date of his reinstatement. The

only point that was found in favour of the Respondent by the

High Court is that he was not appointed in a post reserved

for Schedule Tribes. The Tribunal and the High Court

directed the Respondent not to use his Schedule Tribe

certificate in future.

4. We have examined the material on record and the

3 submissions made by the learned counsel appearing for the

parties. We are not in agreement with the judgment of the

Tribunal as confirmed by the High Court that the Respondent

is entitled for reinstatement for the following reasons:

a) It is clear from the record that the Respondent was

sponsored by the Employment Exchange as a

candidate belonging to a Schedule Tribe community.

His name would not have been sponsored but for the

certificate which showed that he belongs to Schedule

Tribes community.

b) The State Level Scrutiny Committee recorded a

finding that the Respondent indulged in fraud in

obtaining a certificate showing that he belongs to a

Schedule Tribe. The Committee recommended action

to be taken against the officer who had issued the

certificate. The order passed by the State Level

Scrutiny Committee has become final as it has not

been set aside by any Court.

c) Though he was appointed in a post not reserved for

Schedule Tribes, he would not have been in the zone

of consideration if he did not produce the certificate

showing that he belongs to Schedule Tribes.

d) The Tribunal has committed a serious error in

recording a finding that there is no evidence to show

4 that the Respondent has obtained the certificate only

to procure employment.

e) It is clear from the facts that the Respondent

fraudulently obtained a certificate showing that he

belongs to Schedule Tribes community which stands

cancelled by the order passed by the State level

scrutiny committee.

It was held by Denning, L. J. in Lazarus Estates,

Ltd. v. Beasley (1956) 1 All E.R. 341, 345 that

“No Court will allow a person to keep an advantage

which he has obtained by fraud. [...] Fraud unravels

everything. The Court is careful not to find fraud

unless it is distinctly pleaded and proved; but once it

is proved it vitiates judgments, contracts and all

transactions whatsoever”.

5. For the foregoing reasons, the Appeal is allowed and the

judgments of the Tribunal and the High Court are set aside.

No costs.

........................................J [S. A. BOBDE]

..……................................J [L. NAGESWARA RAO]

New Delhi, July 17, 2017

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