Delhi High Court
Tarit Ranjan Roy vs Union Of India & Ors. on 5 December, 2011
Author: Anil Kumar
Bench: Anil Kumar, Sudershan Kumar Misra
* 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.
WP(C) No.8504/2011 Page 1 of 10
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."WP(C) No.8504/2011 Page 2 of 10
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 WP(C) No.8504/2011 Page 3 of 10 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 WP(C) No.8504/2011 Page 4 of 10 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, WP(C) No.8504/2011 Page 5 of 10 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.
WP(C) No.8504/2011 Page 6 of 10
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 WP(C) No.8504/2011 Page 7 of 10 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 WP(C) No.8504/2011 Page 8 of 10 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. WP(C) No.8504/2011 Page 9 of 10
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.
vk WP(C) No.8504/2011 Page 10 of 10