Delhi High Court

Satish Chand vs Union Of India & Ors. on 23 July, 2012

Author: Gita Mittal

       *IN THE HIGH COURT OF DELHI AT NEW DELHI

       +                 WP (C) No.6922/2009


                             Date of decision:     23rd July, 2012

       SATISH CHAND                                ..... Petitioner
                               Through Mr.Vishwendra Verma, Adv.

                               Versus

       UNION OF INDIA & ORS.                 .... Respondents

Through Mr. Anil Gautam, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J (Oral)

1. The petitioner before this court assails the speaking order dated

16th October, 2004 passed by the respondents holding that the

petitioner had given wrong information at the time of his recruitment

into the Indo-Tibetan Border Police (hereafter referred to as `ITBP') and

thereby terminating his services in exercise of the powers conferred

by Rule 22 read with Rule 17(iv) of the Into-Tibetan Border Security

Force Rules, 1994. The petitioner also assails the order dated 23rd

June, 2005 passed by the Director General, ITBP rejecting the appeal of

the petitioner against the earlier order.

2. The facts giving rise to the instant petition are in a narrow

compass. The petitioner was recruited in the ITBP in the year 1990.

On 6th February, 2003, he was sent on deputation to the Special

Protection Group (SPG) which caused verification of his credentials and

WP (C) No.6922/2009 antecedents to be done through the Intelligence Bureau. On

conducting such verification, the SPG addressed a letter dated 3rd July,

2003 to the DIG (Administration) of the ITBP which was in the following

terms:-

"This is in continuation of this office order No.27/SPG-Admn/2003(42) dated 3.7.2003. During the course of verification enquiries of character and antecedents in respect of Constable/WC Satish Chandra, No.900080059, ITBP, it has been transpired that the photograph affixed on the first page of the verification form is that of Harish Chandra and not Satish Chandra, though the verification form was in respect of Satish Chandra. It appears that there are 5 brothers, namely, Satish Chandra, Harish Chandra, Girish Chandra, Suresh Chandra and Umesh Chandra. Satish Chandra is the eldest brother who is serving as a Constable in `C' Coy of 56 Btn. BSF (Regimental No.91254116), Distt. Kutch, Gujarat. It further transpires that Harish Chandra, the second brother of Satish Chandra might have used the educational certificates of his elder brother Satish Chandra and also his name in order to get a job in ITBP.

In column No.7(f) of the verification form, the name of only 3 brothers namely Girish Chandra, Suresh Chandra & Umesh Chandra has been mentioned while the name of Harish Chandra has been suppressed. Therefore, it appears to be a case of wrongful use of educational qualification certificate i.e. impersonation.

It is requested that the matter may be verified and suitable legal/departmental action may be initiated accordingly."

The SPG repatriated the petitioner to the ITBP.

3. On receipt of this information, the respondents caused a court of

inquiry to be conducted which was constituted under the order

no.2105-05 dated 31st July, 2003. In this exercise, the petitioner, his

father and brothers were joined and made statements. On the basis of

the inquiry conducted, the respondents were of the view that the real

name of the petitioner was Harish Chandra and that he had used the

WP (C) No.6922/2009 educational documents of his brother Satish Chandra while seeking

recruitment into the ITBP. Consequently, a show cause notice dated

23rd June, 2004 was issued to the petitioner in accordance with the

requirements of Rule 17(iv) read with Rule 22 of the ITBP Force Rules,

1994. The petitioner stood informed at the time of his appointment

that his service could be terminated on the basis of his giving false

information. The petitioner was also given an opportunity by the same

notice to produce his documents in his defence which was required to

be produced within a month. The petitioner replied to the show cause

under cover of a letter dated 21st July, 2004 contending that no false

information was given; that he was born on 4th September, 1969 at

Mal Road, Pauri, District Garhwal and enclosed a copy of the birth

certificate issued by the Municipal Corporation, Pauri. The petitioner

also enclosed a certificate issued by the Thornburn Primary School at

Chopra, Pauri, district Garhwal to support the same. He claims that he

passed the Junior High School at Surkhet, Pauri, Garhwal and enclosed

a mark sheet and certificate issued by the school.

4. The petitioner denied that there was any Harish Chand in his

village and that his name was correctly informed to be Satish Chand.

He further stated that Satish Chand (himself) and Satish Chand Lal are

two brothers and that Satish Chand Lal, his brother was in Border

Security Force. He insisted that there was nothing false and incorrect

in the verification of his client.

5. We may note that the petitioner challenged the inquiry being

conducted by the respondents before this court by way of WP (C)

No.15454/2004. This court was not inclined to examine the matter in

WP (C) No.6922/2009 view of the fact that the inquiry was being conducted pursuant to the

notice to show cause issued to the petitioner. In this background, in

the order dated 24th September, 2004, it was observed that the matter

was not being interfered with. The writ petition was disposed of with

the direction to the respondents to consider the reply filed by the

petitioner to the show cause notice and to consider the pleas raised

therein and thereafter to pass a reasoned order in the matter. Liberty

was given to the petitioner to file any other document that he deemed

appropriate in support of his pleas before the respondents.

6. The respondents considered the reply of the petitioner as well as

all documents filed by him and thereafter passed the reasoned and

detailed order dated 16th October, 2004. The observations and the

findings show complete application of mind to the material placed

before the respondents. The respondents have dealt with all

documents which were produced by the petitioner. The observations

can be summarized up thus:-

(i) At the time of his recruitment with the ITBP in 1990, Satish

Chand submitted a class VIII certificate which pertained to `Satish

Chander Lal'. As per the legal notice/reply of the petitioner dated 21st

of July, 2004, Satish Chander Lal was his brother.

(ii) In the legal notice/reply dated 21st of July, 2004, the petitioner

had suggested to the respondents that he did not like `Lal' with his

name and, therefore, he had stopped using `Lal' and was using only

Satish Chander at the time of his recruitment. This was a new plea

taken for the first time falsified by the other documents including a

WP (C) No.6922/2009 birth certificate dated 3rd July, 2004 containing his name as Satish

Chand only.

(iii) The respondents have noted that the petitioner had not taken

any legal action or effected publication in the newspaper etc. for

change of his name.

(iv) A certificate of the Junior High School in the name of `Satish

Chander Lal' was placed before the inquiry officer, whereas the

certificate of the Junior High School which was enclosed with the legal

notice dated 21st July, 2004 was in the name of `Satish Chand'. Both

these educational certificates referred the same roll no.2311.

The year, roll number and marks in these two educational

certificates were identical. The respondents, therefore, disbelieved the

correctness and authenticity of the certificate for the reason that

educational certificate of two different persons cannot be similar.

7. As noted above, the educational certificate given to the battalion

related to Satish Chander Lal whereas Shri R.D. Rathore, Advocate

enclosed the same certificate in the name of Satish Chander only. The

above clearly suggested tampering and fortified the respondents'

contention that the petitioner had used the 8th class certificate of his

brother Satish Chander Lal for recruitment.

8. Another new plea was raised to defend the allegations. Shri

Mohan Lal, father of the petitioner had given a statement that Satish

Chand and Satish Chand Lal are twins. However, no disclosure of the

date of birth of these two persons was made whereas the date of birth

of Satish Chand, son of Mohan Lal shown as 4th September, 1969 as

per the provisional certificate issued on 28th August, 1989 by the

WP (C) No.6922/2009 Secretary of the Junior High School Examination Committee, Surkhet,

Pauri, Garwal. In the legal notice/reply dated 21st July, 2004, the

petitioner also did not set up any plea of existence of any twin brother.

9. Learned counsel for the petitioner has at length urged that the

birth certificate and the other documents produced by him, clearly

show that Satish Chand and Satish Chand Lal are two different

persons.

10. We may note that the petitioner has placed before this court

reliance on a birth certificate which is dated 3rd July, 2004. The same

has, therefore, been got issued after the issuance of the notice to show

cause dated 23rd June, 2004 to support the completely false plea. The

same refers to a single birth on 4th September, 1969 and incorporates

the name of Satish Chand in the certificate. Incorporating the name of

a newly born was certainly not the practice in 1969. The petitioner has

also placed reliance before this court on a certificate dated 16 th

September, 2003 got issued from the St. Joan's Convent in the name of

Satish Chand Lal to certify that Master Satish Chander Lal born on 4th

September, 1969 was the student of the school. This certificate has

also been procured after the controversy had arisen and after the

petitioner's repatriation from the SPG.

11. We may note that the petitioner has taken contradictory pleas.

At places he has urged that he was known as Satish Chand Lal and has

dropped use of `Lal' as part of his name. Elsewhere he has stated that

Satish Chand and Satish Chand Lal are two different persons. Now he

is claiming that they are twins. The petitioner's choice of plea has

rested on the contents of the document in which he was relying on.

WP (C) No.6922/2009

12. The petitioner has also attempted to establish the false case that

there are twin brothers Satish Chand and Satish Chand Lal. We may

note that the petitioner is the son of Mohan Lal and he used "Lal" as a

last name. It is impossible that any parent would name two offspring

with the same first name.

13. The respondents have urged that the petitioner has given

different addresses in the domicile certificate and his casualty sheet.

He has provided different information at different times.

14. It is on record that Shri Mohan Lal was blessed with five sons

namely Satish Chandra, Harish Chandra, Girish Chandra, Suresh

Chandra & Umesh Chandra. Shri Satish Chandra Lal was recruited as

constable with the Border Security Force (`BSF') before the petitioner

had recruited with the ITBP. At the time of his recruitment with the

BSF, Satish Chander Lal had given the names of his four remaining

brothers i.e. Harish Chand, Girish Chand, Suresh Chand & Umesh

Chand in the prescribed format. As against this, the petitioner had

filled the verification form with the Special Protection Group. In

Column 7(f) thereof, the petitioner has given names of only three

persons as his brothers as namely Girish Chand, Suresh Chand &

Umesh Chand. The petitioner thus concealed the existence of his

brother Satish Chandra Lal. He certainly did not disclose the existence

of any twin brother.

15. This plea is in contradiction with the plea set up before this court

by the petitioner that his twin brother is named Satish Chand

Lal. The petitioner renders no explanation for the documentation

and disclosure by his brother at the time of his

WP (C) No.6922/2009 recruitment into the BSF. If the pleas set up by the petitioner are

accepted, then Satish Chander Lal would appear to have made a false

disclosure at the time of his recruitment into the BSF.

16. The SPG in its communication dated 3rd July, 2003 after

conducting an inquiry, has informed that the photograph fixed on the

first page of the verification form was of Harish Chand and not Satish

Chand even though the verification form was in respect of Satish

Chand.

17. We may notice another material factor that despite the

contention of the petitioner throughout in the reply dated 21 st July,

2004 sent under legal advice to the respondents to the effect that

Satish Chand and Satish Chand Lal were one and the same person, in

realization that the truth has become known, the petitioner in the

present writ petition filed in 2009 has attempted to urge that the

petitioner was known by two aliases `Hari' and `Harish Chandra'. This

was never his case prior hitherto.

18. The speaking order dated 16th October, 2004 is a well reasoned

order which has taken into consideration all facts and documents

urged by the petitioner. Full opportunity has been given to the

petitioner in accordance with law, principles of natural justice to place

his side of the case. The appellate order dated 23rd June, 2005 is also

well reasoned.

19. The instant writ petition would deserve dismissal on the ground

that it raises disputed questions of fact and is also delayed having

been filed almost five years after 16th of October, 2004 when the

speaking order was passed. However, inasmuch as learned counsel for

WP (C) No.6922/2009 the parties have placed the afore-noticed submissions before this

court, we have dealt with the writ petition on the merits of the case

raised before us.

20. Learned counsel for the petitioner has urged that the

respondents have no power to terminate the services of the petitioner

without holding an inquiry. We may note that the respondents have

not set up a case of misconduct against the petitioner. They have

exercised jurisdiction under Rule 17(iv) read with Rule 22 of the ITBPF

Rules, 1994 which read as follows:-

"17. Termination of service-Authorities specified in the headings of Columns 3 to 6 of the Table given below shall be competent to dismiss, remove, discharge, retire or release a member of the Force specified in the columns, on the grounds stated in the corresponding entries in Column 2, in accordance with the procedure laid down in this chapter. Any power conferred by this rule or any provision of this Chapter on any of the aforesaid authorities may also be exercised by any other authority superior to it.

xxx xxx xxx

22. Termination of service on grounds of furnishing false/incorrect information at the time of appointment- The Central Government, or as the case may be, the authority as specified in rule 17, may terminate the service of a person subject to the Act on grounds of furnishing false/incorrect information at the time of appointment of that person in the service. A show cause notice giving one month's time shall be issued to the individual before termination of his service."

21. The petitioner was duly informed at the time of his induction into

the force as well as on his attestation/verification form that in case any

information provided by him are found to be false at any stage, his

services are liable to be terminated. Rule 22 of the ITBP Rules amply

vests jurisdiction on the respondents to terminate the service of a

WP (C) No.6922/2009 person subject to the Acts on the ground of his having furnished

false/incorrect information at the time of appointment into the service.

The show cause notice prescripted under the rules has been duly

served upon the petitioner.

22. It is also to be noted that the respondents have separately filed a

complaint with the police authority for the acts of forgery which have

been conducted by the petitioner. Action thereon would obviously be