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2017 Supreme(Mad) 1534
IN THE HIGH COURT OF MADRAS
M. Sundar, J.
N. Mohanam - Petitioner
Versus
Tamil Nadu State Scrutiny Committee Adi Dravidar Welfare Department, Chennai and Ors. - Respondent
Review Application No. 71 of 2007 in W.P. No. 35621 of 2005, W.P. No. 19165 of 2007
Decided On : 17-02-2017
For the Petitioner: Mr. B. Ravi, Mr. R. Subramanian
For the Respondents: Mr. Gunasekaran, Mr. M. Vijayan, M/s. King & Patridge, Mr. M. Vijayan for M/s. King & Patridge
Headnote:
Constitution of India,1950 - Article 226 – Employment and Service matter - Schedule Tribe community - Doctrine of merger - Appointed as Khalasi Grade-III in Oil and National Gas Corporation - Termination and re-instatement - Petitioners case that he belongs to Hindu/Konda Kapus community, which is a Schedule Tribe in Tamil Nadu as per Presidential notification - While in service, an issue was raised with regard to whether writ petitioner belongs to Schedule Tribe community at all - Above mentioned order of Scrutiny Committee is to effect that writ petitioner has failed to prove his community status - In other words, Scrutiny Committee rendered a finding to effect that writ petitioner has failed to establish that he belongs to the said community - Therefore, Scrutiny Committee cancelled community certificate issued by jurisdictional Revenue authorities - However, Scrutiny Committee clearly opined that appellant need not be terminated from service since his basic appointment year 1984 was not based on fact that he belonging to said community - Held, Court view, Kaleeswara Mills case does not help ONGC as it is clearly distinguishable on facts - Kaleeswara Mills case pertains to murder charge and also criminal charges touching upon moral turpitude - One more distinguishing factor is that Kaleeswara Mills case judgement but Maduri Patils judgement of Honourable Supreme Court has not been cited or referred to - This itself will be a clear pointer to legal position that proposition laid down in Madhuri Patils case would not be in any manner applicable to Kaleeswara Mills case - In Madhuri Patils case guidelines are to the effect that the employer would terminate an employee forthwith on Scrutiny Committee returning a finding that community certificate is fake or not valid for any reason - There is no reference to attendant benefits if he is re-instated on finding of Scrutiny Committee being set aside - The question, as doctrine of merger is operating and incapacity stands removed not from 09.01.2007, when this court passed an order, but with effect, as Scrutiny committees order ceased to exist - Disability/incapacity which was slapped on writ petitioner by Scrutiny Committee has been set aside and therefore, there is no disability - Review Application allowed and writ Petition dismissed.
M. Sundar, J.
Matter pertains to community certificate of Schedule Tribes.
2. Review Petitioner is writ petitioner in the order that is being sought to be reviewed and he is also the writ petitioner in the tagged writ petition. Therefore, Review Petitioner is referred to as writ petitioner for the sake of convenience and clarity. Writ petitioner was originally appointed as Khalasi Grade-III in Oil and National Gas Corporation [hereinafter referred as 'ONGC' for brevity], his probation was declared way back on 28.10.1985, he was also upgraded and promoted up to the level of Operator Grade-II.
3. It is the writ petitioner's case that he belongs to Hindu/Konda Kapus community, which is a Schedule Tribe in Tamil Nadu as per Presidential notification [hereinafter referred as 'said community' for the sake of clarity].
4. While in service, an issue was raised with regard to whether the writ petitioner belongs to Schedule Tribe community at all.
5. Pursuant to such an issue being raised, the matter travelled to the Scrutiny Committee.
6. The Scrutiny Committee passed an order dated 27.06.2005 [being proceedings No.22394/ADW-II/2000].
7. The above mentioned order of the Scrutiny Committee is to the effect that the writ petitioner has failed to prove his community status. In other words, the Scrutiny Committee rendered a finding to the effect that the writ petitioner has failed to establish that he belongs to the said community. Therefore, the Scrutiny Committee cancelled the community certificate issued by the jurisdictional Revenue authorities. However, the Scrutiny Committee clearly opined that the appellant need not be terminated from service since his basic appointment in the year 1984 was not based on the fact that he belonging to said community. It further opined that concessions if any obtained by the writ petitioner from ONGC, shall be cancelled.
8. However, employer/ONGC, terminated the writ petitioner by an order dated 02.11.2005.
9. Aggrieved, the writ petitioner filed W.P.No.35621 of 2005 assailing the above said proceeding of the Scrutiny Committee dated 27.06.2005. While the writ petition was pending, on 31.10.2006, the writ petitioner moved an amendment application by way of a miscellaneous petition. The miscellaneous petition is WMP.No.18343 of 2006. Prayer in the miscellaneous petition is to add one more limb to the main prayer. The writ petitioner besides assailing the above said order of the Scrutiny Committee dated 27.06.2005, wanted to amend/expand/widen the prayer, assailing the order of termination of ONGC dated 02.11.2005 also with a consequential direction to ONGC to reinstate him in service with all attendant benefits.
10. The writ petitioner was heard elaborately and all the parties were heard, by a learned Single Judge of this Court.
11. By a detailed order, touching upon all aspects of the matter, this Court (another learned Single Judge) allowed the writ petition, in and by an elaborate order dated 09.01.2007. While allowing the writ petition, unfortunately, the aforesaid amendment petition being WMP.No.18343 of 2006 was lost sight of. Therefore, no orders were passed with regard to amendment/expansion/widening of the main prayer.
12. It is also submitted that this order of the learned Single Judge was carried to the Supreme Court and the Supreme Court refused to interfere Hon'ble Supreme Court dismissed the SLP being SLP (Civil) No.6374 of 2007 vide order dated 16.04.2007.
13. It is to be noticed that the order of the learned Single Judge dated 09.01.2007 was directly assailed in the Supreme Court, as the then obtaining position of law was that an intra court appeal was not available in such matters, though the position of law has changed now. Intra Court appeal in such matters was made available by judgement of Hon'ble Supreme Court dated 11.10.2011 in Dayaram's case reported in [2012] 1 SCC 333 [Dayaram v. Sudhir Batham and Others]. This is mentioned only to complete facts and set out the then obtaining posit
