Vir Singh vs Union Of India & Ors.
2011 Latest Caselaw 5190 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P(C) No.7633/2011

%                       Date of Decision: 21.10.2011

Vir Singh                                                  .... Petitioner

                      Through Mohd.Mobin Akhtar, Advocate

                                Versus

Union of India & Ors.                                  .... Respondents

                      Through Mr.Himanshu Bajaj, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers may            YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?           YES
3.      Whether the judgment should be                   NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 1st May, 2006

passed by respondent No.2 dismissing the petitioner from the service

after trying him by Summary Security Force Court held at HQ 121 Bn.

BSF on 1st May, 2006 on account of furnishing false information, by

stating that he belongs to a Scheduled Tribe, while knowing fully well

that he does not belong to a Scheduled Tribe, as well as the order dated

15th July, 2010 passed by the respondents rejecting the Statutory

Petitions dated 1st December, 2009 and 1st April, 2010 submitted by the

petitioner against his trial by the Summary Security Force Court.

2. The pleas of the petitioner are that he could not be dismissed

from service merely on the basis of the information given by the Sub

Divisional Magistrate, which according to the petitioner was not

conclusive and required further enquiry. The petitioner has

categorically contended that he belongs to the Scheduled Tribe, i.e.

Rathwa Tribes of Gujarat and that the Sub Divisional Magistrate, City

Ahmedabad also had not denied that the petitioner does not belong to

the Scheduled Tribes Category rather, what is stated by the Sub

Divisional Magistrate is "the caste certificate has not been issued by his

Office and it is fake." The petitioner has also challenged the Summary

Security Force Court proceedings on the ground that neither he had

been informed about what was happening before the Summary Security

Force Court, nor had he been provided the relevant documents during

the trial.

3. This Court has heard the learned counsel for the petitioner.

Respondent No.2 dismissed the petitioner from service by the order

dated 1st May, 2006 holding that the petitioner despite knowing the fact

that he does not belong to a Scheduled Tribe when questioned by AD

Commandant Ftr. HQ BSF Jodhpur before whom he had appeared for

enrolment in BSF, had stated that he is a member of a Scheduled Tribe,

however, his certificate was found to be fake and, therefore, the

petitioner was dismissed from service.

4. The petitioner filed the Statutory Petitions dated 1st December,

2009 and 1st April, 2010 against his trial by the SSFC. The respondents

by the order dated 15th July, 2010 again considered the facts and

circumstances, and the relevant documents and held that the charge

against the petitioner was that despite knowing the fact that he does

not belong to the Scheduled Tribes he had made a false statement and

declared that he belongs to the ST Category and produced a certificate

allegedly issued by the Sub Divisional Magistrate, City Ahmadabad

which was found to be fake consequent to the enquiry made from the

Sub Divisional Magistrate, City Ahmadabad who had intimated by

communication dated 9th August, 2005 that the certificate had not been

issued by his Office and that it seems to be a fake certificate.

5. The respondents also noted that the petitioner pleaded "guilty" to

the charge and in compliance of BSF Rule 142(2) also recorded its

finding of guilty of the said charge.

6. The petitioner on being questioned to make a statement in

reference to the charge or for mitigation of punishment, admitted that

he had committed mistake and requested that he might be given the

least punishment so that he could look after his wife and children.

7. That the respondent while considering the statutory petitions of

the petitioner dealt with the pleas and contentions raised by the

petitioner, inter-alia, that the proceeding before the SSFC had been

done by the department without any information regarding the matter

and no opportunity being given to the petitioner before dismissing him

from service; that he had not admitted his guilt and no such plea was

ever offered by him before the SSFC or before any authority; that the

petitioner was not given proper documents/papers of the proceedings

and that the charge against the petitioner that he does not belong to

Scheduled Tribes is false as the Sub Divisional Magistrate, City

Ahmadabad had not denied that the petitioner belongs to a Scheduled

Tribe, except that the certificate relied on by the petitioner was a fake

certificate.

8. Respondent No.3 while disposing of the statutory petitions of the

petitioner noted that on the basis of the record of the proceedings under

BSF Rule 45 reflects that the petitioner was heard by his Commandant

by a proper offence report and that he was given opportunities to cross-

examine the witness, and to make a statement in his defense, but he

declined to avail the said opportunities and instead pleaded guilty.

Relying on the ROE proceedings, it was held that the petitioner was

given opportunities under BSF Rules 48 (2), 48(3) and 48(4) to cross-

examine all the witnesses of the respondents, however, the petitioner

unequivocally pleaded guilty and he did not produce any witness and

he had also admitted his mistake and, therefore, the plea of the

petitioner that he was not given a reasonable opportunity cannot be

accepted. Regarding the plea of the petitioner that he had not pleaded

guilty, respondent no.3 relied on the documentary evidence which

unequivocally reflects that he pleaded guilty during the hearing under

the BSF Rules 45, as well as, while being tried by the SSFC and as the

petitioner had declined to make any statement in his defense under the

BSF Rule 45 despite being cautioned under BSF Rules 48 (3) in the

ROE during trial, the plea of the petitioner is false and seems to be an

afterthought.

9. The impugned order dated 15th July, 2010 also reflects that the

petitioner was handed over the copy of each of the charges and the ROE

proceedings, well before his trial and that no particulars of the

documents which were allegedly not supplied to him have been revealed

by the petitioner. The learned counsel for the petitioner has also failed

to show details of any documents which were allegedly not provided to

the petitioner or allege any specific prejudice caused to the petitioner on

account of the non-supply of the alleged documents.

10. Regarding the plea of the petitioner that he belongs to a

Scheduled Tribe and that the Sub Divisional Magistrate's letter stating

that the certificate is fake is not conclusive proof of the fact that he does

not belong to a Scheduled Tribe, respondent no.3 noted that the

appropriate authority to issue the certificate regarding the petitioner

belonging to the Scheduled Tribes is the Sub Divisional Magistrate, City

Ahmadabad and that the certificate which was produced by the

petitioner was a fake certificate. Respondent no.3 also noted that even

along with the statutory petitions filed by the petitioner no document

had been produced by the petitioner to demonstrate that he belongs to

a Scheduled Tribe.

11. The learned counsel for the petitioner is unable to show any

documents or any other fact on the basis of which it can be inferred

that the petitioner did not plead guilty before the Court in compliance of

BSF Rule 48 (2). The learned counsel for the petitioner is unable to give

any satisfactory reply as to why the petitioner did not cross-examine

any of the witnesses produced by the respondents and why the

petitioner did not produce any evidence to show that he really belongs

to a Scheduled Tribe as alleged by him. The observations in the

impugned order that the petitioner admitted his mistake and requested

that he might be given the least punishment so that he could look after

his wife and children, has not been denied categorically in the writ

petition.

12. The order of the respondents also cannot be challenged on the

ground that copies of relevant documents were not given to the

petitioner, since the petitioner has neither stipulated which documents

were not given to him, nor has he been successful in showing how he

has been prejudiced on account of the alleged non-supply of the copy of

the alleged relevant documents. The petitioner cannot succeed on this

ground, and thus, the order of the respondents' dated 15th July, 2010

cannot be faulted.

13. The plea of the petitioner that the petitioner belongs to a

Scheduled Tribe has not been established as the certificate produced by

him from the Sub Divisional Magistrate, City Ahmadabad was found to

be fake and no other certificate was produced by the petitioner along

with his statutory petitions dated 1st December, 2009 and 1st April,

2010 which had been rejected by an order dated 15th July, 2010. Even

with the present writ petition, no document has been filed which would

establish that the petitioner belongs to the Scheduled Tribes.

14. In the totality of the facts and circumstances, the petitioner has

failed to make out any ground which will entail interference by this

Court in exercise of its jurisdiction under Article 226 of the Constitution

of India against the order dated 1st May, 2006 and 15th July, 2010. The

petitioner has failed to make out any ground which would show in any

manner that the order passed by the respondents is illegal or suffers

from any irregularity or any such perversity which is liable to be

corrected. There are no grounds to interfere with the order of the

Tribunal. The writ petition is without any merit and, therefore, it is

dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

OCTOBER 21, 2011 vk