Samim Akhtar Khan vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 812 Del

JUDGMENT

Mukundakam Sharma, J.

1. In the present petition, the petitioner has challenged the order of discharge passed by the respondents on November 28, 2000. The petitioner has prayed in the writ petition that the aforesaid order of discharge be set aside and quashed and the petitioner be reinstated in service with all consequential benefits.

2.The petitioner was provisionally selected in the Border Security Force for the post of Constable on temporary basis. A letter dated December 23, 1998 was issued to him intimating the petitioner that he has been selected for the aforesaid post on temporary basis. It was made clear in the said letter that the aforesaid appointment was provisional and subject to verification of his caste certificate, character and antecedents. It was intimated that if the antecedents are not satisfactory, the service of the petitioner would be terminated forthwith without assigning any further reasons. The petitioner was also informed that if any declaration given or information furnished by him was found to be false, or if the petitioner had willfully suppressed any material information he would be liable to face action under the provisions of the B.S.F. Act and the Rules.

3. The petitioner was again informed by order dated February 25, 1999 that he was enrolled in the Border Security Force as Constable on temporary basis and that he would be governed by the provisions of the B.S.F. Act and the Rules framed there under.

4. At the time of his enrolment the petitioner was required to fill up an attestation form which the petitioner filled up on July 21, 1999. In the said attestation form certain information was sought for from the petitioner which the petitioner furnished in the prescribed form duly signed by him for the purpose of his verification by the civil authorities. Clause 12 of the said attestation form required the petitioner to furnished information as to whether the petitioner was ever arrested and was prosecuted. It also required him to give information as to whether the petitioner was every kept under detention and whether he was fined by any court, or convicted by any court of any offence. As against the aforesaid query and information sought for under Clause 12, the petitioner categorically gave information that he was never arrested and/or prosecuted and/or kept under detention, nor fined by any court, or convicted by any court of law and was also never kept under detention. At the top of the said attestation form, a warning was also set out to the effect that furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and likely to render the the candidate unfit for employment under the government. Paragraph 2 of the warning also stated that if detained, arrested, prosecuted, bound down, fined, convicted, debarred, acquitted, etc., subsequent to the completion and submission of the form, the details should be communicated immediately to the authorities to whom the attestation form has been set early, failing which it would be deemed to be a suppression of factual information. The aforesaid attestation form was filled up and signed by the petitioner on July 21, 1999 giving the various information sought for therein. As against Clause No. 12 he had stated categorically `No' meaning thereby that there was no arrest, prosecution, detention or conviction of any nature passed against the petitioner at any point of time at the time of filling up the attestation form.

5.The particulars given by the petitioner in the form were sent for verification by the respondents to the District Magistrate, Birbhum, West Bengal, under letter dated July 24, 1999 with a request to verify the character and antecedents of the petitioner with a further request to send back the report. By a subsequent letter issued on January 24, 2000 the civil authority was again reminded to expedite verification and send the report in respect of the petitioner immediately.

In reply thereto the District Magistrate, Birbhum, West Bengal, intimated the respondents that on the basis of the report of the DIG of Police, Intelligence Branch, West Bengal, it was found that the petitioner was involved in a criminal case of Sure Police Station, No. 83 of 1997 dated April 23, 1997 under sections 147/148/149/325/326/307 I.P.C. and IMPO Act and that a charge sheet was also submitted in the said criminal case which is now pending trial in the court of the Sub Divisional Magistrate, Sur. It was also intimated that the suitability report of the verification roll in respect of the petitioner cannot be given as the said matter is sub judice.

6. On receipt of the aforesaid information, the respondent issued a letter to the petitioner on September 13, 2000 asking the petitioner to show cause and explain as to why he suppressed the information relating to his involvement in a criminal case and pendency of the said criminal case in the court. The petitioner submitted his explanation on September 27, 2000 wherein he pleaded ignorance about the pendency of the aforesaid case. However, the Commandant gave a further opportunity to the petitioner to show cause by letter dated October 20, 2000 to submit a detailed reply pursuant to which the petitioner filed a reply on November 17, 2000 again pleading ignorance. The petitioner was thereafter discharged from service by order dated November 28, 2000 passed under the Border Security Force Act and the Rules made there under holding that the explanation furnished by the petitioner was vague, concocted and false.

7.The petitioner initially filed a writ petition in the Calcutta High Court which was registered as Writ Petition No. 22045(W) of 2002 impugning the action of the respondents wherein the respondents filed their reply. However, the said writ petition was dismissed by the Calcutta High Court by its order dated June 26, 2002 holding that the said court does not have territorial jurisdiction to entertain and try the said proceeding. The petitioner made a representation on July 31, 2002 to the Director General, BSF, for reconsideration and re-enlistment in the B.S.F. in the same post. The said representation of the petitioner was considered by the respondents and after such consideration the same was rejected holding that the said representation is devoid of any merit and the said fact was intimated to the petitioner by letter dated September 6, 2002. In the light of the aforesaid background facts, which are pleadings of the parties in the present writ petition which is filed by the petitioner seeking for the aforesaid reliefs, we heard the learned counsel for the parties.

8. Mr. Mahajan, appearing for the petitioner, vehemently submitted that the action taken against the petitioner is uncalled for and harsh. It was also submitted that the respondents failed and/or ignored to consider the cogent explanation given by the petitioner in reply to the show cause and that in any case, a major penalty of discharge from service was unwarranted in the facts and circumstances of the present case.

9.The aforesaid contentions were, however, refuted by the counsel appearing for the respondents, who has drawn our attention to the various documents which have been placed on record by the respondents. Learned counsel has particularly drawn our attention to the annexures annexed to the counter-affidavit in support of her contention that the order passed is legal and justified in the facts and circumstances of the present case.

10.The respondents in their offer letter which was issued on December 23, 1998 and the subsequent order of appointment dated February 25, 1999 clearly stipulated that the appointment of the petitioner was provisional and subject to his character and antecedents verification by the competent authority. In the offer letter dated December 23, 1998 it was also specifically stated that if the antecedent is found to be unsatisfactory the services of the petitioner could be terminated forthwith without assigning any further reason. The petitioner was also informed that if any declaration and/or information furnished by the petitioner was found to be false, or if the petitioner was found to have willfully suppressed any material information, he would be liable to face action under the BSF Act and the Rules. The petitioner was also specifically cautioned in writing in the attestation form itself, which was filled up by the petitioner, as at the top of the said form the consequences of furnishing false information and suppression of material factual information were set out in clear terms. Therefore, the petitioner was duty bound and obliged not to make any false declaration and also not to suppress any material facts. Despite the aforesaid warnings and stipulations, the petitioner in paragraph 12 of the said attestation form categorically stated under his signatures that he was never arrested/prosecuted nor any case was pending against him in any court of law as on July 21, 1999.

However, when the aforesaid attestation form was sent to the District Magistrate, Suri, West Bengal, by letter dated July 24, 1999, it came to light on receipt of the report that the petitioner was involved in a criminal case which was instituted under section 147/148/149/325/326/307 IPC and IMPO Act. It was reported that not only the aforesaid criminal case was registered against the petitioner but even the charge sheet was filed in the said case as against the petitioner and the said case was pending trial in the court of the Sub Divisional Magistrate, Suri. In his reply to the show cause notice issued, the petitioner pleaded ignorance about the pendency of the aforesaid case repeatedly. It is, however, clear from the letter of the police dated April 19, 2000, which is annexed as Annexure R-5, that the petitioner was even arrested on April 24, 1997 in connection with the said case and released on bail.

11. In this connection we may also appropriately refer to the decision of the Supreme Court in Sanjay Kumar Bajpai v. Union of India and others, . In the said case also the Supreme Court found that at the time of enrolment the concerned person did not disclose that a criminal case was pending against him and made a false statement that no case was pending against him at that time and in that context held that the order passed by the army authorities for suppression of material facts cannot be interfered with.

12. Counsel appearing for the petitioner, however, sought to submit that the aforesaid information regarding arrest and release on bail pertains to one Mukul Khan whereas the petitioner is Samim Akhtar Khan and, therefore, the said report does not relate to the petitioner. However, on scrutiny of the records we find that the aforesaid criminal case was in fact instituted and registered against the petitioner herein which is proved and established on a bare perusal of the report dated August 15, 2000, Annexure R-4, which was sent by the District Magistrate, Birbhum. In the said report under the caption `Subject' it is clearly mentioned that the same is a report of verification of character and antecedents of Shri Samim Akhtar Khan @ Mukul Khan s/o Alms Ali Khan. It is apparent that the petitioner was also using an alias. Annexure R-5 indicates that the petitioner was arrested in the case on April 24, 1997 and released on bail on August 21, 1997 as is clearly mentioned in the said communication sent by the police. The said facts are also supported from the letter of the petitioner dated November 17, 2000 wherein he admits that the police case stood registered against the petitioner but, according to him, he was falsely implicated in the said case

It is, therefore, established from the aforesaid factual matrix that the petitioner not only suppressed material and factual information in the attestation form but he also furnished false information. No information was given by the petitioner regarding the institution and pendency of the aforesaid criminal case against him in which even a charge sheet is filed against him or of his arrest. The aforesaid information that a criminal case was instituted and pending against him was required to be disclosed by the petitioner at the time of his enrolment and at the time of filling up of the aforesaid attestation form. The petitioner deliberately gave wrong information to the respondents as against the queries made under clause 12 of the attestation form and also suppressed material facts. The fact of pendency of criminal case against the petitioner came to light and to the knowledge of the respondents only on receipt of the report from the District Magistrate and the police authorities. The petitioner was also given an opportunity to explain his position by issuing a show cause notice. Even at that stage the petitioner did not clearly state regarding the pendency of the said case against him and feigned ignorance about the said case. Therefore, we are of the considered opinion that the action taken by the respondents in discharging the petitioner from service is legal and justified.

13. We find no reason to interfere with the order of discharge passed by the respondents. The writ petition has no merit and is accordingly dismissed.