High Court of TripuraWA/42/2014allowed

Paritosh Patari v. The State Of Tripura And 4 ORS

2015-10-01Hon'Ble The Chief Justice Deepak Gupta,The Hon'Ble Mr Justice U. B. Saha20 pages

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"1.. And also the legality, validity and propriety of the Order dated 21.05.2011 passed by Chairman, Special Secretary, SC & OBC Welfare whereby the SC Certificate bearing No. 364/SDO/BLN/CTZN/81 dated 23.12.1981 issued bytheSub1DivisionalOfficer,Belonia,SouthTripura,wascancelled." ;

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( * ! , - . / - '011+02 $&&&5 53 1 "11. Section 4 deals with reference to the tribunal.Ss.(1)requiresthecentralgovernment toreferthenotificationissuedundersub1section (1)ofSection3tothetribunal"forthepurposeof adjudicating whether or not there is sufficient cause for declaring the association unlawful". The purpose of making the reference to the tribunal is an adjudication by the tribunal of the existence of sufficient cause for making the declaration. The words 'adjudicating' and

"sufficient cause" in the context are of significance. Ss. (2) requires the tribunal, on receipt of the reference, to call upon the associationaffected"bynoticeinwritingtoshow cause" why the association should not be declared unlawful. This requirement would be meaningless unless there is effective notice of thebasisonwhichthedeclarationismadeanda reasonable opportunity to show cause against the same. Ss. (3) prescribes an inquiry by the tribunal, in the manner specified, after consideringthecauseshowntothesaidnotice.

The tribunal may also call for such other information as it may consider necessary from the central government or the association to decidewhetherornotthereissufficientcausefor declaring the association to be unlawful. The tribunalisrequiredtomakeanorderwhichitmay deemfit"eitherconfirmingthedeclarationmade in the notification or cancelling the same". The nature of inquiry contemplated by the tribunal requires it to weigh the material on which the notification under Ss.

(1) of Section 3 is issued bythecentralgovernment,thecauseshownby theAssociationinreplytothenoticeissuedtoit and take into consideration such further information which it may call for, to decide the existence of sufficient cause for declaring the Associationtobeunlawful.Theentireprocedure contemplates an objective determination made on the basis of material placed before the tribunalbythetwosides;andtheinquiryisinthe nature of adjudication of a lis between two parties, the outcome of which depends on the weight of the material produced by them. Credibility of the material should, ordinarily, be capableofobjectiveassessment.

Thedecisionto bemadebythetribunalis"whetherornotthere is sufficient cause for declaring the Association unlawful". Such a determination requires the tribunaltoreachtheconclusionthatthematerial tosupportthedeclarationoutweighsthematerial againstitandtheadditionalweighttosupportthe declarationissufficienttosustainit.Thetestof greater probability appears to be the pragmatic testapplicableinthecontext. 12. Section 5 relates to constitution of the tribunal and its powers. Sub1section (1) of Section5clearlyprovidesthatnopersonwould be appointed "unless he is a Judge of a High court".RequirementofasittingJudgeofaHigh courttoconstitutethetribunalalsosuggeststhat thefunctionisjudicialinnature.Ss.

deemed to be a "judicial proceeding" and the tribunalshallbedeemedtobea"Civilcourt"for thepurposesspecified.Section6dealswiththe period of operation and cancellation of notification. Section 8 has some significance in this context. Ss. (8) of Section 8 provides the remedytoanypersonaggrievedbyanotification issuedinrespectofaplaceunderSs.(1orbyan ordermadeunderSs.(3)orsub1section4,byan application made to the District Judge who is required to decide the same after giving the partiesanopportunityofbeingheard.Thisalso indicatesthejudicialcharacteroftheproceeding even under Section 8. Section 9 prescribes the procedure to be followed in the disposal of applicationsundertheAct.

ProvisionsofSection 9 of the Act lay down that the procedure to be followed by the tribunal in holding an inquiry underSs.(3)ofSection4orbytheDistrictJudge underSection8shall,sofarasmaybe,bethe procedure prescribed by the Code of Civil Procedurefortheinvestigationofclaims.S.10to 14 in Ch. III relate to "offences and penalties" which indicate the drastic consequences of the actiontakenundertheActincludingadeclaration madethatanassociationisunlawful.Thepenal consequences provided are another reason to supporttheviewthattheinquirycontemplatedby thetribunalunderSection4oftheActisjudicial incharactersincetheadjudicationmadebythe tribunal is visited with such drastic consequences. . 20.

As earlier mentioned, the requirement of specifying the grounds together with the disclosureofthefactsonwhichtheyarebased andanadjudicationoftheexistenceofsufficient causefordeclaringtheassociationtobeunlawful in the form of decision after considering the cause, if any, shown by the association in response to the show1cause notice issued to it, are all consistent only with an objective determination of the points in controversy in a judicial scrutiny conducted by a tribunal constitutedbyasittingHighcourtJudge,which distinguishestheschemeunderthisActwiththe requirementunderthepreventivedetentionlaws to justify the anticipatory action of preventive detention based on suspicion reached by a process of subjective satisfaction.

be satisfied, to make the adjudication meaningful.Nodoubt,therequirementofnatural justiceinacaseofthiskindmustbetailoredto safeguard public interest which must always outweigh every lesser interest. This is also evidentfromthefactthattheprovisotoSs.(2)of Section 3 of the Act itself permits the central government to withhold the disclosure of facts which it considers to be against the public interesttodisclose.Similarly,Rule3(2)andthe proviso to Rule 5 of the Unlawful Activities (Prevention) Rules, 1968 also permit non1 disclosure of confidential documents and information which the government considers against the public interest to disclose.

Thus, subject to the non1disclosure of information which the central government considers to be against the public interest to disclose, all informationandevidencereliedonbythecentral governmenttosupportthedeclarationmadebyit of an association to be unlawful, has to be disclosedtotheassociationtoenableittoshow cause against the same. Rule 3 also indicates that as far as practicable the rules of evidence laiddownintheIndianEvidenceAct,1872must be followed. A departure has to be made only when the public interest so requires.

Thus, subject to the requirement of public interest whichmustundoubtedlyoutweightheinterestof the association and its members, the ordinary rules of evidence and requirement of natural justicemustbefollowedbythetribunalinmaking theadjudicationundertheAct."

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8 1 "(11) (a) Notwithstanding anything contained in any other law or service rules, whoever, not being a person belonging to the Scheduled CastesortheScheduledTribes,securesorhas securedanyappointmenttoanyserviceorpost on the basis of false certificate in any establishment under the State shall, on cancellation of the community certificate, be forthwithterminatedfromtheserviceorpost; (b)Whoevernotbeingapersonbelongingtothe Scheduled Castes or the Scheduled Tribes secures or has secured any admission or selection for admission to any educational institutionforanystudyortrainingagainstaseat reserved for the Scheduled Castes or the

Scheduled Tribes or enjoys any benefit or concession of the Scheduled Castes or the Scheduled Tribes shall, on cancellation of his communitycertificate,beforthwithdebarredfrom theeducational institution andanyother benefit orconcessionbeingenjoyedbyhimasaforesaid shallforthwithbewithdrawn.Anyamountpaidto such person by way of stipend, scholarship, grant, allowance, educational loan etc. on the basisofthefalsecommunitycertificateshallalso be recovered from him as arrears of land revenue; (c) Any degree or diploma or any other educationalqualificationacquiredbysuchperson on the basis of a false community certificate, shall, on cancellation of the false community certificateobtainedbyhim,alsostandcancelled;" /

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&& ( "WheninanyproceedingunderthisActorthe rulesmadethereunderthequestioniswhetherapersonbelongstothe Scheduled Caste or Scheduled Tribe, the onus of proof shall be on the

personwhoclaimshimselftobememberoftheScheduledCastesorthe ScheduledTribes,asthecasemaybe." 4

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1 "ThisCourtisnotoblivioustothefactthatin criminalorquasicriminalproceedingsevenifthe onus shifts, it is the prosecution which must prove its case. The findings of the State Level Scrutiny Committee have very wide ranging effect and can be used in criminal proceedings and in fact a finding given by it could entail a personlosinghisjob.Therefore,theproceedings must be conducted according to the rules of natural justice. Reference in this behalf may be made to Rule 7A of the Tripura Scheduled CastesandScheduledTribesReservationRules, 1992asamendeduptoMay,2007.UnderRule 7A, the State government has constituted two 'ScrutinyCommittees'.

TheDirectorofVigilance hasbeendirectedtoconstituteavigilancecellin this regard. The Investigating Officer who is dealing with an investigation in relation to the correctnessorotherwiseofacertificateissuedin favour of a person claiming to belong to the ScheduledCasteorScheduledTribeatthestage of inspection is expected to go to the place where such person normally resides or in case such person has migrated to the town, to the ruralareastowhichheoriginallybelongs."

from which he originally hailed. He should personally verify and collect all the facts of the socialstatusclaimedbythecertificateholderor theparentorguardian,asthecasemaybe.He should also examine the school records, birth registration, ifany. He shouldalso examine the parent, guardian or the certificate holder in relationtotheircasteetc.

orsuchotherpersons whohaveknowledgeofthecommunitystatusof the certificate holderand submit a report to the Director of Vigilance who will verify the correctness of the report and transmit it to the Member1Secretary of the Scrutiny Committee concerned together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies,methodofburialofdeadbodiesetc. by the castes or tribes or tribal communities concernedetc."

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9C:% 4( % !%C5"53&6 1 "10.*****Abarereadingofthisprovisionmakes it absolutely clear that after report is submitted by the Director of Vigilance and in such report if it is reported that the community status as claimed by thepersonisnotgenuineordoubtfulorspuriousor falseorwronglyclaimed,theMemberSecretaryof the State Level Scrutiny Committee shall issue show cause notice to the said person. Along with thesaidshowcausenotice,theMemberSecretary must send a copy of the report of the Vigilance Officer. The notice should indicate that the representation or reply, if any, should be made within two weeks from the date of receipt of the notice.

If the person whose certificate is under disputeseeksanopportunityofhearingandseeks inquiry in the matter, then the matter has to be placed before the State Level Scrutiny Committee and the Chairperson of the Committee must give the certificate holder a reasonable opportunity of putting forth his case. He should also be given a righttoleadandproducesuchevidenceashemay desire. The last portion of the sub1rule is very crucial. It lays down that after such opportunity in person or through counsel has been given, the Committeemayinquireasitdeemsexpedientand consider the claims vis1à1vis the objections raised by the certificate holder or opponent and pass an appropriate order with brief reasons in support thereof.

********. 11. Though I am not in agreement with the submission of the petitioner that the petitioner cannotbeaskedtoleadevidenceatthefirststage, ashasalreadybeendiscussedhereinabove,Iam clearlyoftheviewthattheopportunitygiventothe personshouldbeanopportunitywhichisjustand reasonable, an opportunity which gives him reasonable chanceto rebut the caseof the State, an opportunity which does not deprive him of his righttoleadevidenceandanopportunitywhichis consistentwiththerulesofnaturaljustice. 12.TheRuleisnotclearandonlydirectsthatthe copyofthereportoftheVigilanceOfficershouldbe made available to the person whose certificate is under challenge.

evidencecollectedbytheInvestigatingOfficermust be supplied to the said person otherwise such personwillnotknowwhatisthecasewhichhehas to answer. The person whose certificate is under challenge must know what is the exact material whichtheVigilanceOfficerreliedupon.Therefore, notonlythereportoftheVigilanceOfficerbutthe entire record including the statements of the witnesses if any recorded, the documentary evidence,ifanycollected,mustbehandedoverto such person. If that is done then I see noharm if such person is asked to lead his evidence first becausesuchpersonisinknowledgeoftheentire materialonwhichthedepartmentrelies. 13.

ThisCourtwouldalsoliketomakeitclearthatif thisprocedureisfollowedandthepersonleadshis evidence,eveniftheevidenceoftheStateisledat alaterstagetheevidencemustbeconfinedonlyto the material which has been relied upon by the Vigilance Officer and which has been supplied to thepersonwhosecertificateisunderchallenge.In caseanyfreshmaterialissoughttobebroughtin by the Vigilance Officer or the department concerned against the person, then that material cannot be used against him unless he is supplied that material in advance and is given a fresh opportunity to rebut the said material.

The inquiry should normally be confined to the material which hasbeenplacedonrecordbytheVigilanceOfficer because that iswhatcontemplated under sub1rule (4) of Rule 7A. However, in certain cases if some veryrelevantevidencecomestotheknowledgeof the Scrutiny Committee even during the course of theinquiry,itcanusethesamebutthesamecan only be used after giving notice to the person whosecertificateisunderchallengethatthisisthe freshmaterialwhichhasbeencollected.Thefresh method should be supplied to the person and he shouldbegivenreasonableopportunityofrebutting the same by adducing evidence.

Rebutting this additional material means that he will be given a chance not only to reply to the application for leadingsuchevidencebutalsobegivenachance to rebut such evidence if such evidence is produced. 14. The Scrutiny Committee must realize that it is dealing with the future of the person. It is dealing withissueswhichnotonlyentailcivilconsequences inasmuch as such person may lose his job but it also entails criminal consequences where such personcangobehindbars.

spirit and the rules of natural justice are not violated.Itisalsomadeclearthatthoughtheonus of proving the caste may shift on to the person claiminghiscaste,theburdeninsuchcasesnever shifts. The State will have to prove that the certificateisfalse.InallcasestheSLSCmustpass adetailedreasonedorderinsupportofit'sfindings." -0

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