Ex. Const. Amit Kumar vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2060 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled as a Member of the Border Security Force on 1.6.2002. He was required to fill up a form at the time of his enrolment, in which there was a column No. 12 which read as under:

Have you ever been arrested, prosecuted, convicted, imprisoned, bound over, intermed externed or otherwise dealt with under any law in Force in India or outside. If so state particulars.

2. The petitioner had answered the above question in negative by recording No. Respondent No. 3 vide his letter dated 18.8.2002 wrote to the District Magistrate, Rewari, for verification of character and antecedents of the petitioner. This letter was responded to by the said authority vide their letter dated 27.12.2002 stating therein that a case being Case No. 109 dated 6.3.1997 was pending against the petitioner and they also gave details of the said case. On the basis of this information the respondents vide their notice to show cause dated 12.3.2002 called upon the petitioner to explain his conduct as to why he had not given the correct information in his form. The petitioner submitted his reply dated 10.4.2003 where he stated that the case arose from a family dispute in the village on 6.3.1997 and an FIR No. 109/1997 dated 6.3.97 was registered in the Police Station Jatusana, District Rewari and the proceedings were pending before the Court of competent jurisdiction. According to the petitioner he was charge-sheeted under Section 23 of the BSF Act on 23.11.2003 where after he was tried by a Summary Security Force Court on 17.11.2003. On the findings recorded thereof, he was dismissed from the military service. The petitioner then claims that he filed an appeal against the order of dismissal dated 17.11.2003. However, the appellate authority without applying its mind and without considering the facts stated therein dismissed the appeal vide its order dated 25.4.2004 The review filed by the petitioner was also rejected by the Reviewing Authority vide its order dated 14.8.2005 giving rise to filing of the present writ petition.

3. It has been specifically averred by the petitioner in his writ petition that it was primarily a family dispute and the file was misplaced in the Court and even summons were not issued for quite sometime and finally after receiving the show cause notice from the respondents the petitioner made efforts and got the said case fixed before the concerned Court, hearing of which took place on 8.12.2003 and the petitioner along with others were acquitted from the said charge. It is also averred by the petitioner that he had filed a copy of the judgment of the Court along with his appeal for proper perusal and information of the authorities but the order of rejecting the appeal has been passed in a most arbitrary manner.

4. The respondents in their counter affidavit have stated that as per the instructions the Character Verification Form of the petitioner was sent to the District Magistrate, Rewari who submitted his report on 27.12.2002 which reads as under:

From,

Distt. Magistrate

Rewari

To,

Commandant

STC BSF Tekanpur

Gwalior.

Ref: 924-A/MA dated 27.12.02

Sub.:- Verification of Character and Antecedents

On the subject quoted above refer to your Letter No. Estt- II/STC/CV/2002/19431 dated 18.8.02. Character verification in r/o Recruit Amit Kumar S/O Sh. Naresh Kumar, Caste-Ahir, R/O Nainsukhpura, Distt-Rewari has been carried out though (sic) Supdt of Police Rewari. Supdt of police, Rewari sent a report of local police in this regard and stated that a case No. 109 dated 6.3.97 under Section 323/324/34 IPC lodged against Amit Kumar which is under consideration in the court. Police report along with Character verification report in original is submitted for your necessary action.

Sd/xxx

For Distt Magistrate, Rewari.

5. Thereafter, it was evident from the report that a case under Section 323/324/34 IPC was pending against the petitioner. The petitioner had made a request to the concerned authorities that the facts be re-verified and on his request a further reference was made to the District Magistrate, Rewari once again for re-verification, who vide his letter dated 30.4.2003 informed and confirmed even on re-verification that a case was pending against the petitioner in the competent court. The petitioner was then charge-sheeted under Section 23 of the BSF Act and was heard in accordance with the requirements of Rule 45 of the BSF Rules on 13.11.2003. Record of evidence was ordered to be prepared by the competent authority to collect evidence before arriving at a conclusion. In record of evidence, a prima facie case was established against the petitioner and as such the Commandant ordered a Summary Security Force Court of the petitioner where he pleaded guilty to the charge. Taking all the facts and evidence into consideration, the Court sentenced the petitioner to be dismissed from service on 17.11.2003. The sentence was promulgated under Rule 159 of the BSF Act and the petitioner was dismissed from service on 17.11.2003.

6. As is clear from the above narrated averments, there is hardly any dispute in regard to the facts of the case. All that this Court needs to consider is whether on such admitted facts, the respondents were justified in passing the order of dismissal from service. On the own showing of the petitioner, Column No. 12 of the form required the petitioner to state whether he was arrested, prosecuted, convicted or imprisoned or otherwise dealt with in any law in force in India and, if so complete particulars thereof were to be given. Against this column the petitioner had clearly stated NO, thus making an incorrect averment, which to his knowledge was false. The form which the petitioner had filled in, at the time of applying also contained a warning which reads as under:

You are warned that if after enrolment, it is found that you have given a willfully, false answer to any of the first twelve of the following question you will be liable to be punished as provided in the Border Security Force Act 1968.

7. Besides this, the said form was duly affirmed by the petitioner. The petitioner was chargesheeted for this incorrect declaration under Section 23 of the BSF Act and was tried by a Summary Security Court before whom the petitioner pleaded guilty. Once the petitioner pleaded guilty, the onus shifted to him to bring his case into any of the exceptions to the Disciplinary Rule. The mere fact that the petitioner was subsequently acquitted of the charge for which he was challaned, would not by itself be a sufficient ground for saying that the offence committed by the petitioner stands diluted or extinguished. The plea of guilt of the petitioner was duly recorded by the Court in compliance to the Rule 142(2) of the Border Security Force Rules and the disciplinary authority in its wisdom decided to dismiss the petitioner from service. The learned Counsel appearing for the respondent relied upon a recent judgment of this Court in the case of Arunesh Chand Mankotia v. Union of India and Ors. W.P.(C) No. 19120/2004 decided on 19th October, 2006, where the Court held as under:

4. The respondents have also relied upon the judgments of the Supreme Court in the case of Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav and Ram Saran v. IG of Police, CRPF and Ors. to contend that the scope of judicial review is limited to the deficiency in decision making process and not the decision. The Courts should not interfere with the administrative decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court. It is also argued on the strength of these judgments that the persons who committed forgery or suppressed material information relating to character and antecedents, have to be dealt with severely otherwise it would amount to giving premium to a person for committing such forgery or furnishing incorrect or false information at the time of entry. While applying the above enunciated principles to the facts of the present case, we are of the view that the conduct of the petitioner in withholding the material information or suppressing the correct facts or giving false information in the form submitted by him, is a serious misconduct and does not call for any lenient view by the Court. The view taken by the respondents in withdrawing the petitioner from the Academy cannot be said to be arbitrary or unfair in the facts of the present case.

5. As is clear from the above narrated facts, the controversy in the present case falls in a narrow compass. There is no dispute to the fact that petitioner was earlier selected for SSC-75 course and was withdrawn from the Academy after taking a disciplinary action for fraudulently withdrawing a sum of Rs. 12,000/- on an ATM card of another officer. It is also not in dispute that he was again selected and was sent to SSC-79 course under the Special Entry Scheme of NCC and was sent to training at Chennai. The only question that requires adjudication is whether or not the petitioner was obliged to make declaration of his previous withdrawal from the Course SSC-75 and give its complete details.

8. It is also not in dispute that the FIR was registered on 6.3.1997, while the petitioner had filled in the form on 1.6.2002. In other words, the petitioner was fully in knowledge of the proceedings by that time as after recording of evidence, the Court had heard the matter and even passed a judgment of acquittal in December2003. The petitioner could have stated the correct facts and informed the concerned authorities about the same, even at a subsequent stage. However, the petitioner chose to make incorrect statement of facts in his Form, as a result of which he faced the order of dismissal from service.

9. The undisputed facts and the clear dictum of law as spelled out in the above cases leave this Court with no option but to dismiss the writ petition of the petitioner, as the action of the respondents does not, in any way, infringes the Rules and Regulations and the same cannot be said to be arbitrary or discriminatory. This writ petition, is therefore, dismissed while leaving the parties to bear their own costs.