Delhi High Court
Tarit Ranjan Roy vs Union Of India & Ors. on 5 December, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.8504/2011
% Date of Decision: 05.12.2011
Tarit Ranjan Roy .... Petitioner
Through Mr.Avijit Bhattacharjee & Mr.Bikas Kar
Gupta, Advocates
Versus
Union of India & Ors. .... Respondents
Through Mr.Ravinder Aggarwal, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J.
*
1. The petitioner has challenged the final order dated 19th February,
2010 passed by the Disciplinary Authority (Commandant), Headquarter
65 Bn., BSF, Khasa, Amritsar (Punjab) dismissing the petitioner from
service and the order dated 24th June, 2011 passed by the Appellate
Authority (Director General, BSF) confirming the order of dismissal of
the petitioner from service. The petitioner has also sought direction to
respondent No.3, the Commandant, 65 Bn., BSF, Khasa, Amritsar,
Punjab to reinstate him in service and to pay all arrears of salaries and
allowances.
2. The plea of the petitioner is that he had appeared for an interview
on 30th December, 2000 for enrolling himself as a Constable in BSF.
The petitioner had declared himself as a citizen of India by birth at the
time of enlistment on the strength of the birth certificate issued by the
Shantipur Municipality, West Bengal.
3. The petitioner was served a charge sheet memo dated 17th
February, 2010 under Section 23 of the BSF Act, 1968 alleging that the
petitioner at the time of his employment/enrollment willfully made a
false statement about his citizenship. The petitioner was also intimated
that he would be tried by the Summery Security Force Court (in short
„SSFC‟). The charge sheet dated 17th February, 2010 issued against the
petitioner is as under:-
"MAKING AT THE TIME OF ENROLMENT, A WILLFULLY
FALSE ANSWER TO A QUESTION SET FORTH IN THE
PRESCRIBED FORM OF ENROLMENT WHICH WAS PUT
TO HIM BY THE ENROLLING OFFICER BEFORE WHOM
HE APPEARED FOR THE PURPOSE OF BEING ENROLLED.
in that he,
at Narayanpur, Malda (West Bengal) on 30.12.2000 when
appeared before Sh.S.K.Maity, Commandant, 11 Bn. BSF,
an enrolling officer, for the purpose of being enrolled as
Constable for service in Border Security Force to the
question put to him "Are you citizen of India? If so, whether
by birth or descent or registration or naturalisation or
otherwise? Answered "Indian, by Birth" & What is or was
the nationality of your father?, if he was an Indian Citizen
state whether by birth, descent, registration, naturalisation
or otherwise? Answered "Indian, by Birth", whereas he
knew the said answer to be false."
4. According to the petitioner, the SSFC was held at 10.00 am on
19th February, 2010 at BM Headquarter 65 Bn., BSF. The petitioner
was released from open arrest after completion of the trial by the
Summery Security Force Court in compliance with the provisions of
Rule 48 (3) of the BSF Rules, 1969. The petitioner had requested for a
month time to produce all the relevant documents to substantiate his
case that he is a citizen of India by birth. The grievance of the petitioner
is that he was not given any time or opportunity to file reply to prove his
case that he is a citizen of India by birth. The petitioner also asserted
that the statements of the persons which were relied upon by the
respondents and who were relatives of the petitioner were never
produced before the Court.
5. According to the petitioner, the birth certificate which was
produced by him was genuine, as the Deputy Inspector General of
police by his memo No.16953 dated 23rd May, 2008 intimated the
District Magistrate, Nadia, West Bengal that on inquiry, the birth
certificate issued by the Shantipur Municipality was found to be
genuine. It was also disclosed that the parents of the petitioner are still
living in Bangladesh. According to the petitioner, he is a citizen of India
and was not disqualified for recruitment in the Border Security Force.
According to him, the birth certificate produced by the petitioner was
genuine. The petitioner contended that the charges against the
petitioner were not so serious so as to require adjudication by the
SSFC.
6. This Court has heard the learned counsel for the parties. The
counsel for the respondents has appeared pursuant to advance notice
issued to him. This is not disputed that by the communication dated
17th February, 2010 typed copy of the ROE along with its exhibits;
typed copy of the Additional ROE along with its exhibits and copy of the
charge sheet were forwarded to the petitioner. By the said
communication, the petitioner was also permitted to intimate the names
of the defense witnesses (if any).
7. During the SSFC, the friend of the accused/petitioner was also
appointed. Before the SSFC, this was established that the Headmaster
of Hari Chandra Vidya Peeth, PS Krishan Ganj, Nadia had disclosed
that the petitioner was not a student of the school. It was revealed that
parents of the petitioner are still living in Bangladesh and the home
address which was mentioned in the application appeared to be false.
The petitioner did not examine any witnesses, nor produce any evidence
to substantiate his plea that he had lived or stayed at the address
which was given in his birth certificate or that his parent ever lived at
the said address. Though, the Chairman of the Shantipur Municipality
had stated about the genuineness of the birth certificate issued to the
petitioner, however, he could not produce the relevant documents like
the order of the Executive Magistrate, Rana and the Register of Birth of
Municipality containing the name of the petitioner. His statement about
the genuineness was only oral.
8. Rather the Vice Chairman, Shantipur Municipality had informed
the DI Shantipur on 31st August, 2009 in writing that the name of the
petitioner is not registered in the birth register of the Shantipur
Municipality against Registration No.5530 and the birth certificate was
not a genuine one. Later on, the Vice Chairman had again disclosed
that the certificate dated 31st August, 2009 was issued by him in
absence of Chairman, Shantipur Municipality and he had issued the
certificate despite non availability of any relevant record in the
Municipality.
9. While disposing of the petition submitted by the petitioner by the
Director General, BSF, it was categorically noticed that at the time of
trial, the petitioner had pleaded guilty to the charge and even after
appraisal of the evidence, he was found guilty of the charge. It was
noticed that the birth certificate submitted by the petitioner was not
genuine and the name of the petitioner was not found in the birth
register of the Shantipur Municipality against Registration No.5530
dated 27th March, 2001. It was held that the birth of the petitioner in
India before the cut off date of 1st July, 1997 had not been proved and
the birth certificate produced by him was not genuine one. It was,
therefore, held the charges against the petitioner have been correctly
established. The order dated 24th June, 2011 by the Director General
also incorporates that in view of the lack of relevant entries in the
concerned register, the certificate submitted by the petitioner cannot be
treated as genuine one. Any certificate issued by any official of the
Shantipur Municipality which was not based on any documents
pertaining to birth of the petitioner will not establish the date of birth
and place of birth of the petitioner.
10. Relying on Rule 143 (2)(a) of BSF Rules, 1969, it was held that
the petitioner pleaded guilty to the charge and the procedure as
prescribed under Rule 143 of BSF Rule had been duly complied with
before the plea of „Guilty‟ was recorded. Rule 143 (2)(a) of BSF Rules,
1969 is as under:-
"Rule 143 (2)(a)- After the record of the plea of „Guilty‟ on a
charge (if trial does not proceed on any other charges) the
Court shall read the record or abstract of evidence and
annex it to the proceedings, or if there is no such record or
abstract, shall take and record sufficient evidence to enable
it to determine the sentence, and the reviewing officer to
know all the circumstances connected with the offence."
11. The petitioner had pleaded `guilty‟ but learned counsel for the
petitioner has not been able to show any ground on the basis of which it
can be inferred that the plea of guilty was not recorded in compliance
with Rule 143 (2)(a) of BSF Rules, 1969.
12. Despite the plea of guilty recorded in accordance with rule, the
finding has also been arrived at on the basis of the evidence produced
by the respondents and lack of any reliable and acceptable evidence on
behalf of the petitioner. The petitioner has solely relied on a certificate
issued by the Shantipur Municipality which ought to have been based
on proper record regarding the birth of the petitioner. Rather, the Vice
Chairman of Shantipur Municipality had disclosed that he had issued
the certificate in absence of any relevant record. The respondents have
taken into consideration the evidence recorded before the Court and
have reached a probable inference. The petitioner has not produced any
documents even in the present writ petition which would establish that
the petitioner was born in India prior to cut off date. The only document
which is alleged to have been produced on behalf of the petitioner is a
birth certificate produced from Shantipur Municipality which cannot be
taken as a proof of the birth of the petitioner in India prior to cut off
date in the above noted facts and circumstances. If such certificate as
produced by the petitioner has not been relied on by the respondents,
their decision cannot be faulted so as to interfere with by this Court in
exercise of its jurisdiction under Article 226 of the Constitution of India.
13. In exercise of its jurisdiction under Article 226 of the Constitution
of India, it has always been the discretion of the High Court to interfere
or not to interfere depending upon the facts and circumstances of the
case. In Sangrila Food Production Ltd. & Anr. v. Life Insurance
Corporation of India & Anr., (1996) 5 SCC 54, it was held that the court
in exercise of its jurisdiction can take cognizance of the entire facts and
circumstances of the case and pass appropriate orders to give a party
complete and substantial justice. The jurisdiction of the High Court, in
exercise of it extraordinary jurisdiction, is normally exercisable keeping
in mind a principle of equity. Regarding the scope of judicial
interference, it was held that in (2006) 5 SCC 88, „M.V.Bijlani v. Union
of India & Ors.‟, judicial review is of the decision making process and
not with the intent of re-appreciation of the evidence. The Supreme
Court had held at page 95 as under;-
"It is true that the jurisdiction of the Court in judicial
review is limited. Disciplinary proceedings, however, being
quasi-criminal in nature, there should be some evidence to
prove the charge. Although the charges in a departmental
proceedings are not required to be proved like a criminal
trial, i.e., beyond all reasonable doubts, we cannot lose
sight of the fact that the Enquiry Officer performs a quasi-
judicial function, who upon analysing the documents must
arrive at a conclusion that there had been a preponderance
of probability to prove the charges on the basis of materials
on record. While doing so, he cannot take into
consideration any irrelevant fact. He cannot refuse to
consider the relevant facts. He cannot shift the burden of
proof. He cannot reject the relevant testimony of the
witnesses only on the basis of surmises and conjectures. He
cannot enquire into the allegations with which the
delinquent officer had not been charged with."
14. The learned counsel for the petitioner has also contended that the
punishment of dismissal awarded to the petitioner is disproportionate
as he served with respondents without any other blemish or misconduct
on his part. It has been held by the Supreme Court that the relief
granted by the Courts should be legal and tenable within the frame
work of law and should not incur and justify the criticism that the
jurisdiction of the Courts tends to degenerate into misplaced
sympathy/generosity and private benevolence. The Supreme Court in
Life Insurance Corporation of India Vs. R.Dhandapani, AIR 2006 SC
615 has held as under:-
"9. In recent times, there is an increasing evidence of
this, perhaps well-meant but wholly unsustainable,
tendency towards a denudation of the legitimacy of judicial
reasoning and process. The reliefs granted by the Courts
must be seen to be logical and tenable within the
framework of the law and should not incur and justify the
criticism that the jurisdiction of the Courts tends to
degenerate into misplaced sympathy, generosity and private
benevolence. It is essential to maintain the integrity of legal
reasoning and the legitimacy of the conclusions. They must
emanate logically from the legal findings and the judicial
results must be seen to be principled and supportable on
those findings. Expansive judicial mood of mistaken and
misplaced compassion at the expense of the legitimacy of
the process will eventually lead to mutually irreconcilable
situations and denude the judicial process of its dignity,
authority, predictability and respectability. [See: Kerala
Solvent Extractions Ltd. v. A. Unnikrishnan and Anr.
MANU/SC/0885/1993 : (1994)IILLJ888SC.]"
The petitioner is not a citizen of India and could not have been
enlisted in the BSF. Enlistment of the petitioner on the basis of
incorrect certificate and the work done by him for considerable period
does not give him a right to continue working with some other type
penalty. The plea that the petitioner ought not to have been dismissed
in the facts and circumstances, therefore, cannot be accepted.
15. In the totality of the facts and circumstances of the case, the
learned counsel for the petitioner has failed to make out any such
illegality, irregularity or perversity in the action of the respondents in
dismissing the petitioner from service which will require any
interference by this Court in exercise of its jurisdiction under Article
226 of the Constitution of India. The writ petition is without any merit,
and it is, therefore, dismissed.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
December 05, 2011.
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