R SUNDARAMversusTHE TAMIL NADU STATE LEVEL SCRUTINY COMMITTEE & ORS.

                        [2023] 2 S.C.R. 1037                              1037


                          R SUNDARAM                                      A
                                  v.
         THE TAMIL NADU STATE LEVEL SCRUTINY
                  COMMITTEE & ORS.
                (Civil Appeal No. 1770-1771 of 2023)                      B
                          MARCH 17, 2023
    [ANIRUDDHA BOSE AND KRISHNA MURARI, JJ.]
       Service Law – Scheduled Tribe – Community Certificate –
Validity – Post Retirement Benefit – Effect – Appellant was appointed     C
as clerk-cum-shroff in the respondent bank on the basis of the
community certificate – The appellant served in service for 38 years
and was to set to retire but just before 2 days of his superannuation,
he received a cessation order on the ground that his caste certificate
being false and all his retirement benefits except PF were withheld
from him – Aggrieved by this, the appellant approached High Court         D
– High Court remanded the matter back to the scrutiny committee –
The scrutiny committee held that the caste certificate of the appellant
was not correct based on vigilance and experts reports – Aggrieved
by this, the appellant again approached the High Court, but the
writ petition and the contempt petition were dismissed on the ground      E
that despite fair opportunity being granted to the appellant, he did
not abided by the same – On appeal, held: Appellant before applying
for the said post had supplied all documents supporting his claim
as a ST candidate – However, re-evaluation of the authenticity of
the documents were kept pending for 19 years – In the present case
the clear pattern of harassment is visible as the cessation order was     F
received by the appellant just two days before his superannuation
after completing a service of 38 years and that on the date of passing
of cessation order, no case was pending against the appellant –
Also, it is evident that the appellant was not given an opportunity of
being heard in the fresh scrutiny which was being conducted as the        G
notice issued to the appellant was not actually served upon him as
admitted by the postal department since the same was served to
someone else – Further, the respondents’ claim that appellant’s
community certificate was fake, was not proved – Two reports
declaring the community certificate of the appellant as fake were
                                                                          H
                                1037
1038            SUPREME COURT REPORTS                      [2023] 2 S.C.R.


 A     submitted after inordinate delay and both reports have not allowed
       participation of appellant – Thus, impugned orders set aside –
       Appellant entitled to post-retirements benefits.
             Allowing the appeal, the Court

 B           HELD: 1. After serving the Respondent bank for 38 years,
       the Appellant, two days before his superannuation received his
       cessation order without there being any proper enquiry. Further,
       on communication made to the respondent no.1, it was found that
       on the date of passing the cessation order, no case was pending
       against the Appellant. It is a very clear pattern of harassment is
 C     visible, and there appears to be a sinister motive against the
       Appellant and his right to pensionary benefits. Even after 38 years
       of service, irrespective of the merits of the case, the fact that the
       Appellant has not been treated with any respect is sad to see,
       and the use of delayed procedure as a dangling sword can only be
 D     interpreted as harassment. [Para 14][1044-C-E]
             2. It has been explicitly stated by this Court that the
       exercise of verification of community certificate must be
       completed expeditiously. In the present case however, as has
       been mentioned above, there has been an inordinate and
 E     unexplained delay of 19 years, an amount of time which cannot
       be fathomed within the ambit of “reasonable time”. Further, the
       Respondent committee finally, after years of superannuation of
       the Appellant submitted its first report, however the same was
       struck down by the High Court on grounds of it being violative of
       principles of natural justice, as the appellant was not given an
 F     opportunity to lead his evidence and cross examine the witnesses.
       Subsequent to this, a fresh enquiry was conducted, and another
       report was submitted again, however even this report suffers
       from the same fallacy as the previous report because even here,
       the Appellant has not been afforded the opportunity to be heard.
 G     [Paras 16 and 17][1046-B-D]
             3. The High Court in its findings in the impugned judgment
       stated that the subsequent report was passed ex-parte because
       the Appellant, even after receiving notice of the proceedings did
       not attend the same. The Appellant however claims that he never
 H
     R SUNDARAM v. THE TAMIL NADU STATE LEVEL                          1039
              SCRUTINY COMMITTEE

received notice. A bare perusal of the material at hand would          A
show that the notice which was to served to the Appellant was in
fact served upon one Mr. Sudarshan, and the same has been
admitted by the postal department and can be seen in the postal
sheet. This fact was brought upon by the Appellant during the
review proceedings, however, the High Court failed to consider
                                                                       B
such finding and dismissed the review without adverting to the
grounds raised therein and thus the judgment suffers from an
error apparent. By not allowing the Appellant an opportunity to
be heard, the principle of “Audi Alteram Partem”, a principle of
natural justice has also been violated. The Appellant, in
proceedings where the genuineness of his belonging to a                C
community is under question, must have a right to be heard, and
must be given the right to cross-examine the witnesses, for the
nature of the proceedings are not just a question pertaining his
employment, but also something that strikes at the core of his
being, i.e., his identity. [Paras 18, 19 and 20][1046-D-H]
                                                                       D
       4. A community certificate in cases of scheduled tribe
communities, unlike any other piece of paper, is an
acknowledgment of a person belonging to a community which
has faced years of oppression. The Constitution of India
guarantees certain rights to people from Scheduled Tribe               E
communities on grounds of historical injustice, and for the
translation of such rights from paper to real life, the community
certificate in most cases becomes an essential document. This
certificate, whilst being an acknowledgment of history, is also a
document that tries to rectify such historical injustice by becoming   F
a tool that fabricates constitutional rights into reality. In such a
scenario where the validity of a community certificate is put to
question, keeping in mind the importance of the document and
the effect it has on people’s rights, the proceedings questioning
the document cannot, except in the most exceptional
                                                                       G
circumstances, be done ex-parte. Any person, whose entire
identity, and their past, present and future rights are challenged,
must at the least be given an opportunity to be fairly heard. In
the case at hand however, such a right has been denied to the

                                                                       H
1040            SUPREME COURT REPORTS                        [2023] 2 S.C.R.


 A     Appellant, and hence the burden of proof on the respondents to
       disprove the nature of the certificate, has not been discharged.
       In the absence of the discharge of such burden of proof, this Court
       must presume the community certificate of the Appellant to be
       genuine. [Paras 22 and 23][1047-C-G]
 B
             State of Jharkhand & Ors. v. Jitendra Kumar Srivastava
             & Anr. (2013) 12 SCC 210 : [2013] 8 SCR 177;
             Dr. Uma Agarwal v. State of U.P. (1999) 3 SCC 438 :
             [1999] 2 SCR 42; Madhuri Patil and Another v.
             Additional Commissioner, Tribal Development and
 C           Others (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50 –
             relied on.

                              Case Law Reference

 D     [2013] 8 SCR 177                  relied on          Para 11

       [1999] 2 SCR 42                   relied on          Para 12

       [1994] 3 Suppl. SCR 50            relied on          Para 15

 E           CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1770-
       1771 of 2023.

             From the Judgment and Order dated 13.02.2020 of the High Court
       of Judicature at Madras in RA No.157 of 2019 and dated 16.04.2019 in
       WP No. 28295 of 2018.
 F
              R. Balasubramanian, Sr. Adv., Dr. Ram Sankar, Vishwanathan
       Iyer, A. Vasantha Kumar, G. Jai Singh, Ms. Sujathad Bagadhi, Ms. R. V.
       Sharumathi, M/s. Ram Sankar & Co., Advs. for the Appellant.

 G            Sanjay R. Hegde, Sr. Adv., D. Kumanan, Sheikh F. Kalia,
       Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi, Ms. Vaidehi
       Rastogi, Shiv Ram Sharma, Vishwaditya Sharma, Ms. Vasundhara
       Sharma, Advs. for the Respondents.

 H
      R SUNDARAM v. THE TAMIL NADU STATE LEVEL                                  1041
               SCRUTINY COMMITTEE

      The Judgment of the Court was delivered by                                A
      KRISHNA MURARI, J.
      Delay condoned. Leave Granted.
       2. The present Appeal is directed against the final order and
judgment dated 13.02.2020 in Review Application No. 157 of 2019 passed          B
by the High Court of Madras, and against order dated 16.04.2019 in
W.P. No. 28295 of 2018 passed by the High Court of Madras (hereinafter
referred to as “High Court”) whereby the Appellants’ challenge to the
denial of his post-retirement benefits was dismissed.
      BACKGROUND FACTS                                                          C
       3. The Appellant was appointed as a clerk-cum-shroff in the
Respondent bank on the basis of a community certificate dated 15.11.1975
certifying that he was from the Konda Reddy Community. After a tenure
of 38 years, the Appellant retired as a Scale 3 officer, however, two
days before his superannuation, he received a cessation order on grounds        D
of his caste certificate being false, and all his retirement benefits except
PF were withheld from him.
       4. During the Appellant’s tenure in the respondent bank, The
District collector (sixth respondent herein), without conducting any enquiry,
cancelled the community certificate granted to the Appellant. Aggrieved
                                                                                E
by the same, the Appellant filed WP No. 12546 of 1998. The High Court
vide order dated 09.08.2009 remanded the matter back to the Tamil
Nadu State Level Scrutiny Committee (first respondent herein) to conduct
a fresh enquiry. However, even after the High Court order, the verification
with regard to the communal status of the Appellant was still not
concluded, and this led to the Appellant’s retirement without realization       F
of his retirement benefits.
       5. The Appellant then, to seek his post-retirement benefits filed
WP No. 19006 of 2013 in the High Court, however the same was
disposed off vide order dated 04.07.2014 , and the first respondent was
directed to complete the enquiry within a period of eight weeks. The            G
Appellant then preferred an SLP in the Supreme Court against the above
mentioned High Court order, and during the pendency of the SLP, an
interim order was passed by this Hon’ble Court directing the Appellant
to appear before the first respondent for enquiry. Subsequently, the said
SLP was withdrawn.
                                                                                H
1042            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A            6. In the meantime, the fifth respondent concluded the enquiry
       and submitted a report dated 29.11.2017 with the finding that the Appellant
       in fact did not belong to the Konda Reddy Community. Based on this
       report, a show cause notice was issued to the Appellant dated 07.12.2017.
       As against this, the Appellant filed another W.P No. 33207/2017 seeking
       to set aside the show cause notice and the enquiry report. The High
 B
       Court, vide order dated 19.12.2017 allowed the same, and remanded the
       matter back to the scrutiny committee whilst quashing the show cause
       notice and the enquiry report.
              7. Subsequent to the order of the High Court remanding the matter
       back to the scrutiny committee, the committee again proceeded and
 C     held that the caste certificate of the Appellant was not correct based on
       vigilance reports and other expert reports.
              8. The Appellant, aggrieved by the above mentioned report of the
       scrutiny committee filed another W.P No. 28295/2018 and along with a
       contempt petition seeking for a restoration of the community certificate,
 D     however both were dismissed by the High Court vide impugned
       judgement dated 16.04.2019 on grounds that despite fair opportunity being
       granted to the Appellant, he had not abided by the same; The Appellant
       then preferred a Review Application No. 157/2019 in the High Court,
       however, this was also dismissed vide second impugned judgement dated
 E     13.02.2020.
             ANALYSIS
              9. Mr. R. Balasubramanian and Mr. S. Prabakaran, Senior Counsel
       appearing on behalf of the Appellant vehemently argued that as per the
       directions of the High Court in order dated 19.12.2017, the Appellant
 F     was to be given due opportunity to cross-examine the witnesses, and
       copies of all documents relied on by the Respondents was to be furnished
       to the Appellant, however, the same was not done. It has been further
       contended that at the time when the Appellant was given the cessation
       order, no enquiry against him was pending, and that in the entire process
 G     he has been subject to harassment for almost 19 years.
              10. Per Contra, Mr. Gopal Sankaranarayanan, Senior Advovate
       and Mr. Joseph Aristotle, AOR, appearing on behalf of the respondents
       argued that notice was duly served on the Appellant, and it was the
       Appellant who did not show up in the proceedings. It was also argued
       that due to the Appellant not showing up, the proceedings were adjourned,
 H
         R SUNDARAM v. THE TAMIL NADU STATE LEVEL                             1043
          SCRUTINY COMMITTEE [KRISHNA MURARI, J.]

but even after the adjournment the Appellant did not show up, and hence       A
the committee had no option but to pass its decision ex-parte.
       11. Keeping in mind the submissions of both the parties, at the
very outset we would like to state that the right to pensionary benefit is
a constitutional right and as such cannot be taken away without proper
justification as has been held in the case of State Of Jharkhand & Ors.       B
vs Jitendra Kumar Srivastava & Anr.1. The relevant paragraph of the
judgment is being extracted herein:
         “15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC
         651 : 2006 SCC (L&S) 1719] this Court recognised that even
         when, after the repeal of Article 19(1)(f) and Article 31(1) of      C
         the Constitution vide Constitution (Forty-fourth Amendment)
         Act, 1978 w.e.f. 20-6-1979, the right to property no longer
         remained a fundamental right, it was still a constitutional right,
         as provided in Article 300-A of the Constitution. Right to
         receive pension was treated as right to property. Otherwise,
         challenge in that case was to the vires of Rule 10(1) of the         D
         West Bengal Services (Death-cum-Retirement Benefit) Rules,
         1971 which conferred the right upon the Governor to withhold
         or withdraw a pension or any part thereof under certain
         circumstances and the said challenge was repelled by this
         Court.                                                               E
         16. The fact remains that there is an imprimatur to the legal
         principle that the right to receive pension is recognised as a
         right in “property”…Once we proceed on that premise, the
         answer to the question posed by us in the beginning of this
         judgment becomes too obvious. A person cannot be deprived            F
         of this pension without the authority of law, which is the
         constitutional mandate enshrined in Article 300-A of the
         Constitution. It follows that attempt of the appellant to take
         away a part of pension or gratuity or even leave encashment
         without any statutory provision and under the umbrage of
         administrative instruction cannot be countenanced.”                  G
      12. Further, in the case of Dr. Uma Agarwal vs. State of U.P.2,
this Court held that the grant of pensionary benefits is not a bounty, but
1
    (2013) 12 SCC 210
2
    (1999) 3 SCC 438,                                                         H
1044               SUPREME COURT REPORTS                        [2023] 2 S.C.R.


 A     a right of the employee, and as such cannot be denied without proper
       justification.
              13. At the very beginning, we would like to state that this Court is
       appalled at the treatment given to the Appellant by the Respondents
       herein. The Appellant, before applying to the post reserved for ST
 B     candidates supplied all documents required in support of his claim as a
       ST candidate, and got the documents verified and approved. After being
       given employment however, the re evaluation of the authenticity of the
       documents of the Appellant have been kept pending for 19 years, dangling
       like a sword on the Appellants head.
 C            14. After serving the Respondent bank for 38 years, the Appellant,
       two days before his superannuation received his cessation order without
       there being any proper enquiry. Further, on communication made to the
       respondent no.1, it was found that on the date of passing the cessation
       order, no case was pending against the Appellant. To us, a very clear
       pattern of harassment is visible, and there appears to be a sinister motive
 D     against the Appellant and his right to pensionary benefits. Even after 38
       years of service, irrespective of the merits of the case, the fact that the
       Appellant has not been treated with any respect is sad to see, and the
       use of delayed procedure as a dangling sword can only be interpreted as
       harassment.
 E            15. In the case of Madhuri Patil and Another Vs Additional
       Commissioner, Tribal Development and Others 3, this Court gave
       fifteen guidelines as to how the exercise of verification of community
       certificate ought to be completed. The relevant extract from the said
       judgment are reproduced hereunder:
 F              “The admission wrongly gained or appointment wrongly
                obtained on the basis of false social status certificate
                necessarily has the effect of depriving the genuine Scheduled
                Castes or Scheduled Tribes or OBC candidates as enjoined
                in the Constitution of the benefits conferred on them by the ,
 G              constitution. The genuine candidates are also denied
                admission to educational institutions or appointments to office
                or posts under a State for want of social status certificate.
                The ineligible or spurious persons who falsely gained entry
                resort to dilatory tactics and create hurdles in completion of
       3
 H         (1994) 6 SCC 241
R SUNDARAM v. THE TAMIL NADU STATE LEVEL                             1045
 SCRUTINY COMMITTEE [KRISHNA MURARI, J.]

the inquiries by the Scrutiny Committee. It is true that the         A
applications for admission to educational institutions are
generally made by a parent, since on that date many a time
the student may be a minor. It is the parent or the guardian
who may play fraud claiming false status certificate. It is,
therefore, necessary that the certificates issued are scrutinised
                                                                     B
at the earliest and with utmost expedition and promptitude.
For that purpose, it is necessary to streamline the procedure
for the issuance of social status certificates, their scrutiny
and their approval, which may be the following: (emphasis
supplied)
                                                                     C
9…The inquiry should be completed as expeditiously as
possible preferably by day-to-day proceedings within such
period not exceeding two months. If after inquiry, the caste
Scrutiny Committee finds the claim to be false or spurious,
they should pass an order cancelling the certificate issued
and confiscate the same. It should communicate within one            D
month from the date of the conclusion of the proceedings the
result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in
the meanwhile the last date for admission into an educational
institution or appointment to an officer post, is getting expired,   E
the candidate be admitted by the Principal or such other
authority competent in that behalf or appointed on the basis
of the social status certificate already issued or an affidavit
duly sworn by the parent/guardian/candidate before the
competent officer or non-official and such admission or              F
appointment should be only provisional, subject to the result
of the inquiry by the Scrutiny Committee.
15…. As soon as the finding is recorded by the Scrutiny
Committee holding that the certificate obtained was false, on
its cancellation and confiscation simultaneously, it should be       G
communicated to the concerned educational institution or the
appointing authority by registered post with acknowledgement
due with a request to cancel the admission or the appointment.
The principal etc. of the educational institution responsible
for making the admission or the appointing authority, should
                                                                     H
1046            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A           cancel the admission/appointment without any further notice
             to the candidate and debar the candidate for further study or
             continue in office in a post.”
              16. It has been explicitly stated by this Court that the exercise of
       verification of community certificate must be completed expeditiously.
 B     In the present case however, as has been mentioned above, there has
       been an inordinate and unexplained delay of 19 years, an amount of time
       which cannot be fathomed within the ambit of “reasonable time”.
              17. Further, the Respondent committee finally, after years of
       superannuation of the Appellant submitted its first report, however the
 C     same was struck down by the High Court on grounds of it being violative
       of principles of natural justice, as the appellant was not given an
       opportunity to lead his evidence and cross examine the witnesses.
       Subsequent to this, a fresh enquiry was conducted, and another report
       was submitted again, however even this report suffers from the same
       fallacy as the previous report because even here, the Appellant has not
 D     been afforded the opportunity to be heard.
              18. The High Court in its findings in the impugned judgment stated
       that the subsequent report was passed ex-parte because the Appellant,
       even after receiving notice of the proceedings did not attend the same.
       The Appellant however claims that he never received notice. A bare
 E     perusal of the material at hand would show that the notice which was to
       served to the Appellant was in fact served upon one Mr. Sudarshan, and
       the same has been admitted by the postal department and can be seen in
       the postal sheet.
             19. This fact was brought upon by the Appellant during the review
 F     proceedings, however, the High Court failed to consider such finding
       and dismissed the review without adverting to the grounds raised therein
       and thus the judgment suffers from an error apparent.
              20. By not allowing the Appellant an opportunity to be heard, the
       principle of “Audi Alteram Partem”, a principle of natural justice has
 G     also been violated. The Appellant, in proceedings where the genuineness
       of his belonging to a community is under question, must have a right to
       be heard, and must be given the right to cross-examine the witnesses,
       for the nature of the proceedings are not just a question pertaining his
       employment, but also something that strikes at the core of his being, i.e.,
       his identity.
 H
      R SUNDARAM v. THE TAMIL NADU STATE LEVEL                                 1047
       SCRUTINY COMMITTEE [KRISHNA MURARI, J.]

      CONCLUSION                                                               A
      21. At this stage we would like to clarify that in cases where
employment is based on a fake community certificate the law is settled
that post-retirement benefits cannot be granted. In the present case
however, there exists a very clear difference. While the Respondents
have claimed the Appellant’s community certificate to be fake, such a          B
claim has not been proven. Even though two reports declaring the
community certificate of the Appellant as fake were submitted after
inordinate and unexplained delay, however, both the reports have not
allowed the participation of the Appellant.
       22. A community certificate in cases of scheduled tribe                 C
communities, unlike any other piece of paper, is an acknowledgment of
a person belonging to a community which has faced years of oppression.
The Constitution of India guarantees certain rights to people from
Scheduled Tribe communities on grounds of historical injustice, and for
the translation of such rights from paper to real life, the community
certificate in most cases becomes an essential document. This certificate,     D
whilst being an acknowledgment of history, is also a document that tries
to rectify such historical injustice by becoming a tool that fabricates
constitutional rights into reality. In such a scenario where the validity of
a community certificate is put to question, keeping in mind the importance
of the document and the effect it has on people’s rights, the proceedings      E
questioning the document cannot, except in the most exceptional
circumstances, be done ex-parte.
       23. Any person, whose entire identity, and their past, present and
future rights are challenged, must at the least be given an opportunity to
be fairly heard. In the case at hand however, such a right has been            F
denied to the Appellant, and hence the burden of proof on the respondents
to disprove the nature of the certificate, has not been discharged. In the
absence of the discharge of such burden of proof, this Court must
presume the community certificate of the Appellant to be genuine.
       24. On the basis of the abovementioned discussions, we are of           G
the opinion that both the impugned orders are liable to be set aside, and
the Appellant is held to be entitled to the post-retirement benefits accrued
to him by way of his 38 year long service. The Respondent bank is
directed to grant all post-retirement benefits to the Appellant which were
denied to him along with 6% Simple Interest on account of unnecessary
                                                                               H
1048              SUPREME COURT REPORTS                       [2023] 2 S.C.R.


 A     withholding of payment, from the date the payment was due to the date
       of actual payment.
                25. As a consequence, the appeal stands allowed. No order as to
       costs.

 B     Ankit Gyan                                                 Appeal allowed.
       (Assisted by : Mahendra Yadav, LCRA)




 C




 D




 E




 F




 G




 H