Ex. Constable Mohan Kumar vs Union Of India & Ors.
2012 Latest Caselaw 1930 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 21.03.2012

+                    W.P.(C) No.1616/2012

Ex. Constable Mohan Kumar                           ...   Petitioner

                                        Versus

Union of India & Ors.                               ...   Respondents

Advocates who appeared in this case:

For the Petitioner        :     Mr.Mritunjay Kumar, Advocate.
For Respondent            :     Mr.Himanshu Bajaj, Advocate.

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

ANIL KUMAR, J.

1. The petitioner is an ex-constable of the Border Security Force and

he has challenged the order of dismissal dated 6th June, 2011 passed

against him by the Summary Security Force Court. The petitioner has

also prayed for his reinstatement with all the consequential benefits.

2. Brief relevant facts are that the petitioner was appointed on 26th

February, 2002 as a Constable in the Border Security Force. At the time

of his enrollment, the petitioner was 19 years old and had passed 10th

class examination in Hindi medium.

3. The petitioner was thereafter, tried by the Summary Security

Force Court for six offences under Section 23, and under Sections 19(b)

and 19(a) of the Border Security Force Act, 1968. The charges framed

against the petitioner were that at the time of enrollment, he willfully

gave a wrong declaration in his enrollment form that he had never been

arrested, prosecuted/convicted/imprisoned or otherwise dealt with

under any law in force of India or outside, though a case under Section

392, 323/34 of the IPC and Section 3(1)10 of SC/ST Act, was registered

against him at the Police Station-Kothwali, District Kannouj and it was

even tried by the Special Sessions Court in case No.86/2003. However,

in the said matter the petitioner was acquitted on 7th September, 2010.

Regardless, as per the respondents the petitioner ought to have

disclosed about this case to the appropriate authority at the time of

enlistment. The other charges against the petitioner were pertaining to

the offence of overstaying the leave allowed to him on many occasions.

As per the second charge, the petitioner was granted leave of absence

from 3rd August, 2009 to 10th August, 2009 and after the expiry of the

stipulated period of leave, he failed, without sufficient cause, to rejoin

the duty and reported voluntarily at Headquarter 47 Battalion BSF

Kalyani on 24th September, 2009 after overstaying for 44 days.

4. The third charge against the petitioner was that he overstayed for

52 days after the expiry of his leave from 5th October, 2009 to 19th

October, 2009 and joined voluntarily at Headquarter 47 Battalion BSF

Kalyani only on 11th December, 2009. The fourth charge against the

petitioner was that he had overstayed for 97 days after his leave from

21st January, 2010 to 10th February, 2010 and reported voluntarily at

the Headquarter 47 Battalion BSF Kalyani only on 19th May, 2010.

5. The fifth charge against the petitioner was that he had overstayed

for 22 days after the expiry of his leave from 23rd May, 2010 to 27th

May, 2010 and voluntarily reported at the Headquarter 47 Battalion

BSF Kalyani only on 18th June, 2010. As per the sixth charge, the

petitioner was again absent for 73 days, after he absented himself on

9th November, 2010 and voluntarily rejoined the BSF Headquarter 47

Battalion BSF at Kalyani only on 22nd January, 2011.

6. The petitioner was thereafter tried by the Summary Security

Force Court and he pleaded guilty to all the six charges. The plea of

guilt was recorded in compliance with the rules and thus the Summary

Security Force Court found the petitioner guilty of all the charges. The

charges as framed against the petitioner in the charge sheet dated 1st

June, 2011 are as under:-

"(FIRST CHARGE) U/S 23 OF BSF ACT 1968 MAKING AT THE TIME 0F ENROLMENT A WILLFULLY FALSE ANSWER TO A QUESTION SET FORTH IN THE PRESCRIBED FORMS 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 STC BSF Tekanpur on 26/02/2002 when appeared before Shri R K Bhargava, Comdt an enrolling officer, for the purpose of being enrolled for service in the Border

Security Force to the question put him "Have you ever being arrested, prosecuted/convicted/imprisoned, bound over interned externed or otherwise dealt with under any law in Force of India or outside. If so, state particulars?"answered, "NO" whereas he knew the said answer to be false.

       (SECOND CHARGE)
       U/S 19(b) OF BSF ACT, 1968
       WITHOUT      SUFFICIENT    CAUSE                       OVERSTAYING             LEAVE
       GRANTED TO HIM

       In that he,

having been granted leave of absence from 03-08-2009 to 10-08-2009 (08 days E/Leave) failed without sufficient cause to re-join duty on expiry of said leave and reported voluntarily at HQ 47 BN BSF, at Kalyani on 24- 09-2009 (F/N) after overstaying 44 days.

(THIRD CHARGE) U/S 19 (b) OF BSF ACT, 1968 WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM

In that he, having been granted leave of absence from 05-10-2009 to 19- 10-2009 (15 days E/Leave) failed without sufficient cause to re-join duty on expiry of said leave and reported voluntarily at HQ 47 B N Kalyani on 11-12-2009 (F/N) after overstaying 52 days.

(FOURTH CHARGE) U/S 19(b) OF BSF ACT, 1968 WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM In that he, having been granted leave of absence from 21-01-2010 to 10-02-2010 (05 days C/Leave) failed without sufficient cause to re-join duty on expiry of said leave and

reported voluntarily at HQ 47 BN Kalyani on 19-05-2010 (F/N) after overstaying 97 days.

(FIFTH CHARGE) U/S 19 f1310F BSF ACT,1968 WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED T0 HIM

In that he, having been granted leave of absence from 23-05-2010 to 27- 05-2010 (05 days EOL) failed without sufficient cause to re- join duty on expiry of said leave and reported voluntarily at HQ 47 BN BSF , Kalyani on 18-06-2010 (A/N) after overstaying 22 days.

(SIXTH CHARGE} U/S 19(a) OF BSF ACT, 1968 ABSENTING HIMSELF- WITHOUT LEAVE

In that he, at 1600 hrs on 09-11-2010 absented himself from Unit line till 1000 hrs on 22-01-2011 when he voluntarily re-joined HQ 47 BN BSF, Kalyani (WB) after absenting 73 days."

7. The Summary Security Force Court after considering the

petitioner‟s plea of guilt and other antecedent circumstances, awarded

the sentence of dismissal from service to the petitioner by order dated

6th June, 2011.

8. The petitioner challenged his order of dismissal dated 6th June,

2011 by filing a petition, under Rule 28A of the Border Security Force

Act, 1968 and the rules made therein, before the Director General,

Border Security Force. The petitioner in his petition contended that on

account of his wife‟s physical and mental condition he could not report

in time, however, delay in reporting and remaining absent without leave

was unintentional. The petitioner alleged that the mental state of his

wife was disturbed and there was no other person in the family who

could take care of her and, therefore, he was compelled by

circumstances beyond his control to overstay his leave. The petitioner

also contended that the tradition of black magic and bad women are

very much prevalent and so due to the mental depression suffered by

his wife, he was forced to follow the local remedies for the welfare and

well being of his family and his wife. He further contended that on 6th

June, 2011 he had appeared before the Summary Security Force Court,

however, the enquiry was devoid of any merits since the principles of

natural justice, equity and fair play had not been complied with as the

petitioner was denied the opportunity to defend himself and was also

not provided with the material evidence available against him, which

prejudiced him as he could not defend himself effectively. The petitioner

contended that he had answered all the queries in Hindi which the

petitioner got to know later on, were not recorded properly and he had

also prayed that the proceedings be recorded in Hindi and that he be

given a copy or information pertaining to the statements which was,

however, denied to him.

9. Regarding making a false declaration at the time of enlistment he

contended that a false complaint was made against him in the year

2001, and that he was not aware that the matter had been converted

into an FIR, and that he had been charged under Section 392/323/34

of IPC and thus in the circumstances, the petitioner never intentionally

and deliberately misled or willfully filed a false declaration at the time of

enrollment.

10. The petitioner also challenged the order of his dismissal on the

ground that he had overstayed on account of family problems and

because he was highly disturbed and on account of mental stress,

which is why he was not able to report for duties within the stipulated

time.

11. Subsequently, the petition filed by the petitioner under Rule 28A

before the Director General, Border Security Force was dismissed by

order dated 17th November, 2011 passed by the Director General, BSF.

While dismissing the petition the Director General dealt with the plea

that the charge and the enquiry proceedings against the petitioner were

devoid of merit and thus it was baseless, intangible in law and against

the principles of natural justice, equity and fair play. The concerned

authority, however, considered the statement of Dharmender Kumar,

GD/Clk PW-1 and rejected the plea of the petitioner.

12. The concerned authority held that the perusal of the record

clearly revealed that the charges against the petitioner were heard by

his Commandant under Rule 45 of the BSF Act, 1968 on 26th February,

2011. During the hearing, the petitioner was given the opportunity to

cross examine all the four witnesses and he was also given the

opportunity to give his statement in defense, however, the petitioner did

not avail the said opportunity. During the hearing, the petitioner

pleaded guilty to all the six charges after the evidence in ROE was made

known to him. While dismissing the petition by order dated 17th

November, 2011, the concerned authority held as under:-

"(a) That, the charges and the inquiry against him is devoid of merit, baseless, intangible in law and against the principles of natural justice, equity and fair play. He was denied opportunity to defend himself properly and was not provided with the material evidence available to enable him to properly present his defence statement, to cross examine the witnesses and present his own defense witnesses.

During ROE, Const Dharmender Kumar GD/Clk (PW-1) has deposed and produced the documents regarding overstayal as well as absence periods of the petitioner pertaining to 2 nd to 6 th charges. SI(M) Somanath Behra (PW-2) has corroborated in material particulars the statement of PW-1 regarding charges No. 2 to 6 and produced additional documents. He has also produced the documents regarding the 1st charge i.e. Enrolment Form filled by petitioner, copy of FIR, copy of charge sheet and record of Court proceedings pertaining to criminal case against the petitioner. Further at the trial the petitioner has pleaded 'Guilty' to all the six charges on being arraigned by the Court.

The perusal of record reveals that charges against petitioner were heard by his Comdt under BSF Rule 45 on 26-02-2011 on an offence report. During hearing the petitioner was given opportunity to cross examine all the 04 prosecution witnesses so examined therein and to make statement in defence. He did not avail those opportunities. Further during the hearing he pleaded 'Guilty' to all the six charges and consequently ROE was ordered. Before conducting ROE, the petitioner was given order of ROE alongwith charge sheet. During ROE statements of all the prosecution witnesses were recorded in his presence and he was given opportunity to cross examine them and he cross examined PW-2 at length. Thereafter he was given opportunity to make statement in defence and produce witnesses in defence which he declined to avail. Further, at SSFC trial on being arraigned by Court, he pleaded 'Guilty' to all the six charges. Before recording findings of 'Guilty' he was explained by the Court the meaning of the charges and the general effect of his plea and difference in procedure which was to be followed consequent to said plea. The Court also afforded him opportunity to make statement in mitigation of punishment and to call witnesses to character. Before awarding him sentence, the Court recorded his previous convictions, character and rewards etc. Hence from the above it is evident that there is sufficient evidence on record to substantiate the charges against the petitioner and he was given full opportunity at every stage of disciplinary proceedings to defend him and further there is no violation of principles of natural justice."

13. The said order also dealt with the plea of the petitioner that he

had prayed for recording the proceedings in Hindi and had also

requested to be given the copy of the statements of the witnesses which

was denied to him. The Director General in his order dated 17th

November, 2011 noted that the ROE proceedings were recorded in

English, however, after completion of the statement of the witnesses,

the statements were read over and explained to the petitioner in Hindi

and the petitioner had also signed the statements after understanding

the same. The petitioner had even cross examined PW-2 at length and,

therefore, there was no reason to believe that the petitioner was not

allowed to cross examine or that he did not understand the

proceedings, or the statements recorded, or that they were not

explained to the petitioner in Hindi. It was also disclosed that the entire

ROE proceedings containing the statements of witnesses and the

documents were handed over to the petitioner on 3rd June, 2011.

Regarding the allegation in the first charge that he had made a false

declaration at the time of enrollment, the Director General in its order

dated 17th November, 2011 noted that at the time of enrollment in the

enrollment form at serial No.12 he had disclosed that the petitioner had

never been arrested, prosecuted/convicted or imprisoned under any law

in force in India, whereas an FIR No.197/2001 under Sections

393/323/504/506 of IPC and Section 3(1) 10 of SC/ST Act was

registered against the petitioner at Police Station Kotwali, Kannouj on

27th June, 2001 and the charge sheet was filed on 1st February, 2002 in

the Court of CJM, Kannouj, before the enrollment of the petitioner in

the BSF. The petitioner‟s plea that the petitioner was not aware of the

registration of the FIR against him was not accepted and it was held

that the petitioner willfully concealed the relevant particulars. The

authorities also held that the subsequent acquittal of the petitioner is

irrelevant. Regarding the compliance of the procedure, the Director

General held that the petitioner was heard under Rule 45 on 26th

February, 2011. He was handed over the convening order of the SSFC

charge sheet and the ROE proceedings on 3rd June, 2011 by letter

dated 1st June, 2011, and he was also given an opportunity to intimate

the name of the person to be appointed as the friend of accused. The

petitioner had exercised his option and appointed Sh.Satyavir Singh,

AC who was appointed as the friend of the accused at his trial. The

SSFC proceedings were conducted in accordance with the rules and no

such procedural lapses could be pointed out by the petitioner which

would have entailed quashing of the SSFC proceedings.

14. The Director General while considering the petition under Rule

28A filed by the petitioner against his order of dismissal dated 6th June,

2011 noted that at the time of conviction the petitioner was about 29

years of age and he had rendered 9 years 3 months and 10 days of

service in the BSF. During the service the petitioner had been tried 4

times summarily and once by the SSFC and he had not received any

reward during his service and thus after examining all the aspects of

the case the Director General sustained the order of dismissal dated 6th

June, 2011.

15. The petitioner filed another revision petition under Section 117 of

the Border Security Force Act, 1968 against the order of his dismissal

dated 6th June, 2011 and the dismissal of his petition under Section

28A by order dated 17th November, 2011 on 3rd January, 2012

reiterating the pleas and contentions raised by him previously.

16. The revision petition under Section 117 of Border Security Force

Act, 1968 was disposed of by the concerned authorities by order dated

4th January, 2012 holding that as per Section 117 of BSF Act read with

Rule 167(2) of the BSF Rules, a person subject to the BSF Act, who is

aggrieved by the findings or sentence of the Summary Security Force

Court Act, can submit only one petition to any of the prescribed

authorities. Since the petitioner had already filed a petition under Rule

28A to the Director General, Border Security Force which was

dismissed by order dated 17th November, 2011, therefore, his petition

for review under Rule 117 was not maintainable and, therefore, it was

dismissed by order dated 4th January, 2012.

17. Aggrieved by the orders passed by the respondents, the petitioner

has filed the present writ petition contending, inter-alia, that his order

of dismissal is bad as the pleading of guilty by the petitioner was not

unequivocal and was given by him under force and coercion and in

contravention of Rule 143 of the BSF Rules as the petitioner was not

explained the consequences of pleading guilty.

18. On behalf of the petitioner it is also contended he had given his

statements in Hindi requesting for pardon and had also explained the

circumstances in respect of the charge, however, his statement was not

recorded verbatim and only one sentence was recorded that he may be

pardoned for the last time. In the circumstances, it is contended that

the proceeding was in contravention of Rule 143(6) of the BSF Rules

because the statement of the accused for mitigation of punishment was

of such nature which required evidence and the SSFC should have

permitted the petitioner to lead the evidence to prove his plea regarding

mitigation of punishment.

19. The petitioner also contended that he never overstayed the leave

granted to him without sufficient cause. As per the petitioner, he had

overstayed his leave only on account of the illness of his wife and since

he was the only adult person in his family, he was forced to stay to look

after his ailing wife.

20. The petitioner also contended that regarding the first charge of

not disclosing the correct information in his enrollment form, it was

because at the time of enrollment he was 19 years old and he had only

passed Class 10 of the Board Examination in Hindi and had thus filled

the enrollment form as directed by the officials of the BSF who were

present there. The petitioner contended that, in fact, he did not

understand the English language and this fact is also evident from his

signatures on the enrollment form which are in Hindi.

21. This Court has heard the learned counsel for the petitioner and

the counsel for the respondents who has appeared on advance notice.

Perusal of the petition filed by the petitioner under Rule 28A of the

Border Security Force against his order of dismissal dated 6th June,

2011 reveals that regarding the first charge his plea was that he was

not aware that the complaint filed against him in 2001 had been

converted into an FIR and that he had been charged under Section

392/323/34 of the IPC. The plea taken by the petitioner in the said

petition is as under:-

"11. That it is further submitted that a false complaint was lodged against the applicant in the Village in the year 2001. The applicant was not aware that the matter has been converted into a FIR and he has been charged under section 392/323/34 1PC. Your applicant was not detained or arrested in the aforesaid matter by the Local Police at any time when the applicant applied he had no knowledge about the ongoing FIR as submitted above."

22. In the said petition, the petitioner did not allege that he was not

conversant with whatsoever was written by him in the enrollment form

as he did not know English and it was written by him at the instance of

BSF officials. In the present writ petition, the petitioner has taken a

diametrically opposite stand and has tried to blame the officials of the

BSF stating that he had filled the form at their instance and as directed

by them. The plea taken by the petitioner in ground D of the writ

petition is as under:-

"D. Because the first charge against the petitioner relates to the year 2002 for which the petitioner cannot be tried by SSFC after a lapse of nine years. Moreover, at the time of joining the BSF, the Petitioner was only 19 years old and had passed the Class 10 Board in Hindi Medium, and had filled the Enrolment Form as directed by the Officials of BSF, who were present there. The fact that he do not understand English Language, can be verified from the fact that his signatures on the Enrolment Form were in Hindi."

23. Apparently the petitioner has taken contradictory stands and the

plea of the petitioner cannot be believed. In the circumstances, if the

petitioner had pleaded guilty and the respondents have acted on his

plea of guilt, no fault can be found with the decisions of the

respondents. The plea raised vehemently by the learned counsel for the

petitioner that the petitioner was forced to plead guilty also cannot be

accepted. The learned counsel is unable to show any contravention of

Rule 143 in any manner with regard to the petitioner pleading guilty of

all the six charges. The plea of guilt was recorded on 6th June, 2011. If

the petitioner had been forced to record the plea of guilt, the petitioner

should have communicated or made a representation complaining

about the same to any of the superior authorities or officers as promptly

as possible. The learned counsel contended that the first time this plea

was taken by the petitioner, that he had been forced to plead guilty,

only when the petition was filed by the petitioner under Rule 28A on

26th August, 2011. No cogent reason has been disclosed on behalf of the

petitioner explaining that if indeed he was forced to plead guilty on 6th

June, 2011 then why he had remained quiet until 26th August, 2011. In

any case, perusal of the petition filed by the petitioner under Rule 28A

of Border Security Force Act, 1968 to the Director General also reveals

that no such plea was taken by the petitioner that he was forced to

plead guilty, rather what is stated by him is that he was denied the

opportunity to defend himself and was not provided with the material

evidence available against him. It was also contended by the petitioner

that he had made the submissions in Hindi and that they were not

recorded properly which the petitioner got to know only upon

examination. The petitioner also averred in his petition that he had

prayed that the proceedings be recorded in Hindi and that he should be

given a copy of the information or statement. However, the petitioner

did not subsequently plead that he was forced to plead guilty. In the

circumstances, the plea of the petitioner that he was forced to plead

guilty cannot be accepted and it is apparent that it is an afterthought

and thus on such a plea the order of dismissal passed against him is

not liable to be set aside.

24. The learned counsel for the petitioner has also contended that

Rule 143(6) of the BSF Act was not complied with as the petitioner

wanted to lead the evidence to prove the circumstances for mitigating

his sentence, which was not allowed to him. It is pertinent to note that

in the petition filed by the petitioner under Rule 28A against the order

of dismissal dated 6th June, 2011 on 26th August, 2011 and the review

petition dated 3rd January, 2012, no such plea was taken by the

petitioner. The plea now raised in the writ petition that the petitioner

wanted to examine the witnesses under Rule 143(6) is as under:-

" B. Because further, petitioner at the time of his statement in mitigation of punishment had given his statement in Hindi requesting for the pardon and had also explained the circumstances in respect of the charges. However, his statement was not recorded verbatim and only one sentence in English was recorded - "I may be pardoned for the last time". The proceeding was in contravention of Rule 143(6) as the statement of the accused was of such nature which required evidence and the SSFC should have permitted the petitioner to lead evidence to prove his statement."

25. Thus, in the facts and circumstances this plea of the petitioner

cannot be accepted since if, in fact, his statements had not been

recorded in the proper manner then the said plea he would have taken

at the first instance rather than at such a belated stage. Therefore, the

only inference that can be drawn is that the said plea is an afterthought

and thus deserves to be rejected.

26. In the totality of the facts and circumstances and for the foregoing

reasons the petitioner has failed to make out any illegality, irregularity

or any perversity in the orders passed by the respondents dismissing

the petitioner from service. The writ petition is without any merit and it

is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MARCH 21, 2012 „k‟