Sh. Ajay Kumar vs Union of India

V.K. Sharma, Judge

The petition has been filed on the following substantive prayers vide para 16 (a) to (d):-

a) Quashing Annexures P-6 and P-10, being illegal, arbitrary and unconstitutional

b) Directing the respondents to treat the petitioner in job and to give him all the consequential benefits as admissible before the date from which his services have been ordered to be terminated.

C) That the respondents may also be directed to produce the entire record pertaining to the case of the petitioner for kind perusal of this Hon''ble Court.

d) That the respondents may further be directed to pay the salary and other benefits which accrued to the petitioner on the basis that he is in job and has earned all the benefits which are being given to his counterparts.

In reply, the respondents have taken the following stand vide paras 12 and 13:-

That in reply to this para, it is submitted that as per character verification made by SS BN, it was found that the petitioner was involved in some criminal activities and some cases were pending against him in the court at the time of his enrolment (Copies of Addl. Magistrate, Solan letter No. 6675 dated 10.09.2010, No. 6733 dated 20.10.2010, No. -1 dtd. 04-01-2011 and Superintendent of Police, Solan, HP letter No. 15354 dated 27.12.2010 and SHO, PS -Dharampur, Distt. Solan, HP letter No. 5053/5A dated 02.11.2010 and other related documents are being placed herewith as Annexure R-2. It is submitted that at the time of enrolment, petitioner furnished false statement in " Form of Enrolment" that he had never been arrested/prosecuted/kept under detention or imprisoned/convicted by Govt. for any offence/bound down/fined by Court of law and never faces any prosecution in any Court in India or abroad which is an offence u/s 25 ITB Police Act, 1992 and rule-22 of ITBP Rules-1994. Thus, the petitioner was terminated from the service due to submission of false/incorrect information at the time of his enrolment as per Rule 17 (iv) of ITBPF.

That in reply to this para, it is submitted that a show cause notice of one month was issued to the petitioner before termination of his service under rule 17 (iv) of ITBPF. But petitioner could not give any satisfactory reason for his submission of false information at the time of his enrolment, within the stipulated time. Therefore, the Commandant, SS Bn issued an order of termination of the petitioner from service vide order No. 2745- 57 dated 09.03.2011.

The learned counsel for the petitioner submits at the very outset that the case of the petitioner is covered Single Judge of this court in CWP No. 4194 of 2011, Sh. Nagender Kumar Vs. The Secretary (Defence), Govt. of India and Others, text whereof is as under, which in turn is based on the judgment of the Hon''ble Apex Court reported as Commr. of Police and Others Vs. Sandeep Kumar, which position is also not disputed on behalf of the respondents:-

The petitioner is aggrieved by the order passed by the respondents praying that order Annexure:P3 dismissing the petitioner from service of the I.T.B. be quashed and set side.

This order was passed on 18.11.2010 on the ground that at the time of recruitment the petitioner was asked to furnish information which was found to be false when sent for police verification. The Deputy Commissioner, Mandi H.P. (where the petitioner resides permanently) in his report states:

The Supdt. Of Police Mandi, intimated that the case FIR No. 186/08 dated 12.9.2008 U/S 147, 149, 323 and 427 IPC has been registered at PS Jogindernagar District Mandi Against Sh. Nagender Kumar S/o Sh. Saju Ram R/o village Katwali, PO Bhararu, Dist. Mandi (HP) and said case is under trial in the Court of Ld. ACJM, Jogindernagar, District Mandi (HP)

In these circumstances the information furnished by the petitioner as to whether he was not involved in a criminal case was false to his very knowledge, he being one of the accused.

Learned counsel appearing for the petitioner has drawn my attention to Annexure:P6 which is the First Information Report lodged on 22.9.2010. She submits that this F.I.R. which forms the basis of dismissal of the petitioner did not name him as an accused.

The name of the accused in the F.I.R. is Nagesh Kumar son of Ranjhu and Joginder Singh son of Soju. There is no accused by the name of Nagender Kumar. I have referred to this specifically for the reason that he was not named as an accused at the initial stage. The affidavit of the Deputy Commissioner states that F.I.R. No. 186 of 2008 referred to before is registered against Nagender Kumar son of Sh. Saju Ram of village Katwali. In this confused state of affairs, the petitioner could not prima facie be held responsible for furnishing false information. Coupled with the fact that in reply to the notice issued by the petitioner, he states that he had been falsely implicated and is nothing to do with the incident/episode so much so, the complainant had also filed an affidavit stating that Nagender Kumar was not one of the persons who was involved in the incident. On 7.12.2010, the prosecution was withdrawn by the State which was clear and evident from Annexure P5.

In Commr. of Police and Others Vs. Sandeep Kumar, , the Court holds:

The respondent herein-Sandeep Kumar applied for the post of Head Constable (Ministerial) in 1999. In the application form it was printed :

12(a) Have you ever been arrested, prosecuted kept under detention or bound down/fined, convicted by a court of law for any offence debarred/disqualified by any Public Service Commission from appearing at its examination/selection or debarred from any Examination, rusticated by any university or any other education authority/Institution.

Against that column the respondent wrote : ''No''.

It is alleged that this is a false statement made by the respondent because he and some of his family members were involved in a criminal case being FIR 362 u/s 325 / 34 IPC. This case was admittedly compromised on 18.01.1998 and the respondent and his family members were acquitted on 18.01.1998.

In response to the advertisement issued in January 1999 for filing up of certain posts of Head Constables Ministerial), the respondent applied on 24.02.1999 but did not mention in his application form that he was involved in the aforesaid criminal case. The respondent qualified in all the tests for selection to the post of temporary Head Constable (Ministerial). On 03.04.2001 he filled the attestation form wherein for the first time he disclosed that he had been involved in a criminal case with his tenant which, later on, had been compromised in 1998 and he had been acquitted.

We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.

In this connection, we may refer to the character ''Jean Valjean'' in Victor Hugo''s novel ''Les Miserables'', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.

The modern approach should be to reform a person instead of branding him as a criminal all his life. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book ''Due Process of Law''. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-

I come now to Mr. Watkin Powell''s third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.

But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers-more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong-very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed."[ Vide : Morris Vs. Crown Office, (1970) 2 Q.B. 114 ]

In our opinion, we should display the same wisdom as displayed by Lord Denning.....

12.It is true that in the application form the respondent did not mention that he was involved in a criminal case u/s 325 / 34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.

For the reasons above given, this Appeal has no force and it is dismissed. No costs.

(Pp.644,645,646& 647).

It was submitted by the learned counsel appearing for the respondents that the I.T.B.P is a uniformed disciplined force, the behaviour of the petitioner could not be accepted under any circumstances as he was required to maintain impeccable discipline and high standard of probity. All that I need to say is that the filing of the First Information Report in which the name of the petitioner has not been mentioned, subsequent correction etc. and withdrawal of the case itself indicates the confused state in which the complainant filed the F.I.R.

In these circumstances, the order of dismissal of the petitioner Annexure:P3 is set aside. However, this order will not be construed as reinstating the petitioner in service again. If there is any other material on which an inquiry can be initiated, it will be open to them to do so failing which the necessary consequences of quashing of Annexure:P3 shall follow. Writ petition is disposed of. No order as to costs.

In view of the above, if on facts, the case of the petitioner is covered under the judgment referred to hereinabove in CWP No. 4194 of 2011, Sh. Nagender Kumar Vs. The Secretary (Defence), Govt. of India and others and the same has attained finality and has been implemented and the petitioner is similarly situate, he shall also be treated similarly without any discrimination and benefit of the said judgment along with consequential benefits, if any, shall be extended to him within three months from the date of production of copies of this judgment and the judgment referred to here-in-above by the petitioner before the second respondent. The petition so also pending application(s), if any, stand disposed of in the above terms. Copy dasti.