Rajbir Singh vs B.S.F. & Anr
2013 Latest Caselaw 5229 Del

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*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.5464/2013

%                                        Date of decision: 18TH November, 2013

       RAJBIR SINGH                                       ..... Petitioner
                                Through       Mr.Sidharth Joshi, Adv.

                                Versus

       B.S.F. & ANR                                      ..... Respondents

                                Through       Ms.Barkha Babbar, Adv.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MS. JUSTICE DEEPA SHARMA

       GITA MITTAL, J (ORAL)

1. By way of the instant writ petition, the petitioner prays for setting

aside the order dated 30th June, 2011 whereby a request for voluntary

retirement from service was accepted w.e.f. 31st July, 2011. The

petitioner has also prayed for issuance of a writ of certiorari praying for

setting aside of an order dated 11th February, 2013 whereby the

petitioner's representation dated 7th November, 2012 was rejected.

2. The sole ground in support of the prayer made in the writ petition

is that the impugned orders have been passed pursuant to a forged and

fabricated application dated 2nd February, 2011 purportedly seeking to

voluntarily retire from service with the Border Security Force made in

the petitioner's name to the Commandant of 152 Battalion, BSF. The

petitioner has taken a categorical position that he received information

in this regard from the respondents on 1st August, 2012 in response to a

query made by the petitioner under the Right to Information Act. In

support of his submission, the petitioner places reliance on the opinion

of a hand writing expert which has been obtained by him to the effect

that the handwriting and signatures are not that of the petitioner.

3. So far as the opinion which the petitioner has obtained is

concerned, it is an admitted position before us that the petitioner has

sought the opinion on a photocopy of the application dated 2nd

February, 2011. It is well settled and needs no elaboration that a

photocopy cannot be considered a document is not a document in the

eyes of law. Certainly, there can be no meaningful comparison of

photocopy of a document with an original.

4. The respondents who appear on advance notice, have produced

the entire original service record of the petitioner. We have permitted

inspection thereof to learned counsel for the petitioner as well.

5. A scrutiny of the original record of the petitioner completely

belies the stand taken in the writ petition. The original record of the

petitioner contains his specimen signatures which were given by him on

22nd March, 2010 which were in vernacular. The application on which

the petitioner has been voluntarily retired, was submitted by him in

vernacular and it was signed in the same script on 2nd February, 2011.

6. The petitioner purportedly sought voluntary retirement on the

ground of sickness of his mother and wife and that for the last six years,

they could not receive medical treatment. The petitioner further stated

that there were eleven members in his family and he was the only

person who had the responsibility of looking after them; that the

petitioner's brother Karam Veer Singh had expired; that after the death

of brother Karam Veer Singh, his family started getting troubled in the

village as a result they were compelled to shift to Delhi to rented

premises and because of the large size of his family, the rent which was

being paid was excessive. As a result of all these difficulties and

problems, the petitioner was seeking voluntary retirement from service

w.e.f. 31st July, 2011. The application was made to the Company

Commander and was forwarded by him to the Commandant 152

Battalion of the BSF. The same was accepted by an order passed on 30th

June, 2011.

7. The unfolding of events, thereafter, makes interesting reading.

The respondents started proceeding in the matter for processing the

voluntary retirement of the petitioner. He was required to fill up several

forms in accordance with the CCS (Pension) Rules, 1972. Amongst

others, the service record of petitioner contains the following forms

which actually bear his signatures:

(i) An undertaking was submitted by the petitioner that there were no CGHS facilities in the locality where he was residing after his retirement and he is opting to draw medical allowance along with his pension.

(ii) The petitioner submitted a certificate in form appendix `A' certifying that he was not willing to subscribe to the CGHS. It was stated therein that the petitioner was voluntarily retiring on 31st July, 2011.

(iii) A joint passport photograph of the petitioner with his wife.

(iv) The form of application for commutation of pension without medical examination.

(v) Form 3 in terms of Rule 54(12) of the CCS (Pension) Rules, 1972 giving the details of the petitioner's family members as on 28th July, 2011.

(vi) Three specimen signatures of the petitioner as well as the left hand thumb impressions of the petitioner which was submitted on 28th July, 2011.

(vii) Form 5 in terms of Rule 59(1)(c) and 61(1) of the CCS (Pension) Rules, 1972 giving the particulars including his address after retirement and the branch of the bank through which the pension was to be drawn.

8. Apart from the above, the petitioner also made an application

dated 27th July, 2011 to the Commandant of the 152 Battalion, BSF

stating that as he was proceeding on voluntary retirement, his original

documents including marks sheet etc. should be returned to him.

This application was also favourably considered. We are

informed the original documents of the petitioner since stand returned

to the petitioner.

9. Before us, the respondents have also produced the register

maintained by them of interviews of the various personnel proceeding

on voluntary retirement by the Commandant. It appears that the

petitioner was interviewed by his Commandant on 30th June, 2011

before his request for voluntary retirement was accepted. The register

contains an entry in this behalf at serial no.15 on the said date. We find

that the commandant has noted that the petitioner was interviewed;

that the petitioner had revealed domestic problems which he had to

solve and, therefore, his request for voluntary retirement w.e.f. 31st July,

2011 was being accepted. It is apparent that an application for

voluntary retirement is not accepted in routine. The applicant is

interviewed and the Competent Authority satisfies himself about the

existence of the grounds and genuineness of the application before the

application is accepted.

10. Given the grounds of challenge raised before us, we have

compared the signatures on the above documents submitted by the

petitioner with the original signatures of the petitioner which are

available on record of the present writ petition in the affidavit as well as

the vakalatnama.

11. Interestingly, though the petitioner in 2010 as well as on 2nd

February, 2011 was writing and signing in vernacular, however,

thereafter all documents which have been signed and submitted by him

have been signed in the English script. The signatures on these

documents match the signatures of the petitioner on our record.

12. The record produced before us also shows that the respondents

have issued a Pension Payment Order dated 23rd August, 2011 in which

the commutation of the pension was assessed at Rs.2,55,029/-.

It is not disputed before us that the petitioner has received

payment of the amounts towards the acceptance of the voluntary

retirement from the respondents.

13. It is noteworthy that the petitioner's application was submitted on

2nd February, 2011 and was accepted after giving the petitioner

adequate time for rethinking over the matter and changing his mind.

The respondents in all fairness, permitted the petitioner an interview

with the Commandant as well before the acceptance of the voluntary

retirement on 30th June, 2011.

14. We, therefore, find that the application dated 2nd February, 2011

was submitted by the petitioner. We further hold that the petitioner

has accepted the correctness of the request inasmuch as he has

reiterated the same in the several forms and applications noted by us

heretofore and has actively participated in processing of the various

steps towards his voluntary retirement. The petitioner accepted the

order dated 30th June, 2011 without any objection or protest.

15. Before parting with the case, we may note that the first protest

was made by the petitioner only on the 7th of November, 2012 against

the order dated 30th June, 2011. In this representation as well, the

petitioner nowhere stated that he did not make any application though

he adverts to procedure to do so. This representation was rejected by

the respondents by an order passed on 11th February, 2013. The

respondents have dealt with every allegation made by the petitioner in

detail in this communication. It is an admitted position that the

petitioner having been retired, is without occupation. There is no

explanation at all as to why the petitioner did not approach the

authorities immediately after he was released from service which fact by

itself would persuade us to reject the present writ petition.

16. The above narration would show that the petitioner has

concealed material facts and made misrepresentation which are

contrary to official record.

17. We, therefore, find no merit in this writ petition which is

dismissed with costs which are assessed at Rs.25,000/-. The costs shall

be deposited with the respondents within eight weeks.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE

NOVEMBER 18, 2013 aa