RAM SAHAY v. INDO TIBETAN BORDER FORCE (MHA) — 1999 DIGILAW 410 (DEL)

K. Ramamoorthy,j. ( 1 ) THE petitioner has challenged the order dated 14. 6. 1996 terminating his services by the Additional Deputy Inspector General, Indo Tibetan Border Police. He applied for being appointed as Constable. He was to fill up a form called verification Roll . In column 12 of the form, there are two clauses which are as under: " (a) Have you ever been arrested, prosecuted, kept under detention or bound down/lined, convicted by a Court of Law for any offence or debarred/disqualified by any Public Service Commission from appearing at its examination/selection, or debarred from taking any examination/rusticated by any University or any other education authority/institution? (b) Is any case pending against you in any Court of Law, University or any other Education Authority/institution at the time filling up this Verification Roll . If the answer to (a) or (b) is yes full particulars of the case, arrest, detention/ line, conviction, sentence, etc. and the nature of the case pending in the Court/ University/education Authority, etc. at the time of filling of this form should be given. " The answer given by him is no . That means, there are no proceedings pending against him on the date of the filling up of the form in 1995. ( 2 ) ON the 15th of May, 1996, a show-cause notice was given to the petitioner. The same reads as under: "the undersigned is directed to say that your C and A Verification enabling this office to judge the authenticacy of particulars furnished thereon was forwarded to the civil administrative authority. The Sr. Supdt. of Police, Aligarh (UP) has reported that an FIR 33/90 u/secs. 147/148/149/452/321/504/506, IPC has been registered/lodged against you for which the case is pending in the Court of Law. 2. On a careful consideration of the aforesaid report relating to your Character, the undersigned agrees with the report and holds that you have furnished false particulars vide Sr. Nos. 12 (a) and (b) in form ITBP-25 Verification Roll. The undersigned has, therefore, provisionally came to the conclusion that NK (CM) Ram Sahay, of Admn. Wing. BTC, ITBP is not a fit person to be retamed in service and, therefore, the undersigned proposes to impose on him the penalty of termination from service as per the provision contained in Rule 22 read with Rule 17 of ITBP Rules, 1994. The undersigned has, therefore, provisionally came to the conclusion that NK (CM) Ram Sahay, of Admn. Wing. BTC, ITBP is not a fit person to be retamed in service and, therefore, the undersigned proposes to impose on him the penalty of termination from service as per the provision contained in Rule 22 read with Rule 17 of ITBP Rules, 1994. ( 3 ) NK (CM) Ram Sahay of BTC, Admn. Wing is hereby given an opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced by the Civil Police in C and A Verification. Any representation which he may wish to make on the penalty proposed will be considered by the undersigned. Such representation, if any, should be made in writing and submitted so as to reach the undersigned not later than 30 days from the date of receipt of this Memorandum by NK (CM) Ram Sahay. " 3. On the 15th of June, 1996, the petitioner gave a statement which reads as under: "it is humbly submitted that the applicant No. 958010174 Ram Sahay was recruited in the 22nd Bn ITBP in Jalandhar, Punjab on 28. 11. 1995 and was posted to BTC Bhanu consequently. The Police Verification took a negative view of the applicant s behaviour and conduct with his close members of family on the basis of which the service of the applicant is being terminated. The Sessions Court, Aligarh U. P. in its judgment/order dated 5. 6. 1996 has favoured a compromise by the concerned parties and acquitted the applicant of charges. Sir,the services of the applicant are being terminated for not fumishing correct facts in the recruitment form. This has demoralised the applicant and make his future dark. The applicant makes earnest request that his services may not be terminated on the ground of furnishing wrong statement and any other punishment other than termination will be acceptable to him. He promises to prove himself to be a good citizen of the country in future. " This is disputed by the petitioner on the ground that it was taken by force and he was not a consented party thereto. ( 4 ) ON the 14th of June, 1996, the order of termination was passed. He promises to prove himself to be a good citizen of the country in future. " This is disputed by the petitioner on the ground that it was taken by force and he was not a consented party thereto. ( 4 ) ON the 14th of June, 1996, the order of termination was passed. The same reads as under: "the undersigned is directed to say that Character and Antecedent Verification in respect of No. 958010174 NK (CM) Ram Sahay was sent to the Civil Administrative Authority enabling this office to judge the authenticity of particulars furnished by the said No. 958010174 NK (CM) Ram Sahay. The Supdt. of Police, Aligarh (UP) has reported that an FIR 33/90 u/secs. 147/ 148/149/452/323/504/506, Indian Penal Code has been registered/lodged against No. 958010174 NK (CM) Ram Sahay. 2. Accordingly, No. 958010174 NK (CM) Ram Sahay was given an opportunity to make representation against the penalty proposed through show-cause notice vide this office memorandum No. 449 dated 15. 5. 1996, which have not been availed by the individual concerned. No. 958010174 NK (CM) Ram Sahay neither submitted in writing nor appeared in person in his defence within the stipulated time given to him through show-cause notice. 3. 1 am satisfied that No. 958010174 NK (CM) Ram Sahay is not a fit person for further retention in the service. 4. Therefore, under the provision of Rule 17 and Rule 20 of ITBPF Rule, 1994, service of No. 958010174 NK (CM) Ram Sahay is hereby terminated w. e. f. 14. 6. 1996 (AN) and struck off the strength of this Centre w. e. f. same date i. e. 14. 6. 1996 (AN ). " ( 5 ) ON the 24th of July, 1996, the petitioner sent a representation seeking reinstatement. The representation reads as under: "it is stated that the applicant No. 958010174 was recruited in the 22nd Bn. Jalandhar as NK (C) on 9. 12. 1995 and thereafter the applicant was posted in B. T. C. Bhanu. The applicant after undergoing training/course for 14 weeks in Kullu and Chandigarh, was served with a notice of one month for termination of the service as per the service rules. 2. In this connection the applicant has to state that the applicant had absolutely no knowledge of the charges in case No. 33/99 u/secs. 147/148/149/452/ 323/506 and 504 against the applicant. 2. In this connection the applicant has to state that the applicant had absolutely no knowledge of the charges in case No. 33/99 u/secs. 147/148/149/452/ 323/506 and 504 against the applicant. Therefore, I could not have stated the same in the CharacterAttestation Form at the time of recruitment. 3. The charge framed by the police have been nullified by the Trial Court (copy of Judgment enclosed ). And these charges/sections of the Indian Penal Code were based on the alleged abuses/counter abuses between the parties. 4. That the applicant is the eldest in his family and all depend on the applicant to run the family. 5. Considering the future of the applicant. Sir, you are requested to reinstate the applicant into the service. " ( 6 ) ON the 26th of September, 1996, an order was passed rejecting the representation of the petitioner. On the 30th of October, 1996, the writ petition was instituted in this Court. ( 7 ) THE petitioner had filed the proceedings in the criminal case from which it could be seen that there were two cases; one against the petitioner and another was the counter case. Accused in both the cases were acquitted by judgment dated 5. 6. 1996 by the learned Sessions Judge, Aligarh. ( 8 ) THE first respondent, while seeking to get the information about the proceedings against the petitioner, sought report from the Inspector Incharge, Police Station Iglas, Distt. Aligarh, who sent the following report: "on investigation of MVR it has been found that according to police records a Case No. 33/90 u/secs. 147/148/144/452/325/504/506, Indian Penal Code was regis- tered against the above mentioned Mr Ram Sahay Sharma in the local police station and case is sub-judice (pending before the Court ). Apart from this there is no adverse comments or charge against him. Mr. Ram Sahay Sharma has never been sentenced/punished and he is not Historysheetor and his character is normal and reputation good. " ( 9 ) THE learned Counsel for the petitioner, Mr. B. S. Charya, submitted that on the date when the petitioner filed up the desired form, there was no case pending against the petitioner before a Court of Law. Therefore, the petitioner cannot be said to have committed any eror in not furnishing the required information. It was further submitted by the learned Counsel for the petitioner, Mr. B. S. Charya, submitted that on the date when the petitioner filed up the desired form, there was no case pending against the petitioner before a Court of Law. Therefore, the petitioner cannot be said to have committed any eror in not furnishing the required information. It was further submitted by the learned Counsel for the petitioner, Mr. B. S. Charya, that in the show-cause notice 30 days time from the date of receipt of the show-cause notice was granted and before the expiry of that period, on the 14th of June, 1996, the order of termination had been passed. Therefore, on that score, the order is vitiated. ( 10 ) THE learned Counsel for the petitioner, Mr. B. S. Charya, while dealing with the report given by the Inspector Incharge, Police Station Iglas, Distt. Aligarh, submitted that the Inspector Incharge, Police Station Iglas had not given complete particulars while referring to the fact that a case was registered against the petitioner. He further submitted that the Inspector Incharge, Police Station Iglas, Distt. Aligarh, had also not given any specific particulars about the Court where the case was pending and as Inspector Incharge, it was his duty to give complete particulars when an important information had sought from him for the purpose of consideration of continuance of the petitioner in service. The Inspector Incharge ought to have given all the particulars. According to the learned Counsel for the petitioner. Mr. B. S. Charya, after the issuance of the show-cause notice, the petitioner took efforts to have the case disposed of before the Sessions Court and the Sessions Court acquitted all the accused as, according to the learned Counsel for the petitioner, parties have come to a terms of compromise before that day, and it was only to complete proceedings and the matter was dealt with by the Sessions Court in formal manner. It was submitted by the learned Counsel for the petitioner, Mr. B. S. Charya, that though the incident took place on 11. 2. 1990 and the parties had amicably settled the disputes among themselves, the Police did not feel necessary to take further action and everybody concerned had completely ignored the case and it was only after the show-cause notice, owing to the efforts taken by the petitioner, the matter culminated in the disposal by the Sessions Court. 2. 1990 and the parties had amicably settled the disputes among themselves, the Police did not feel necessary to take further action and everybody concerned had completely ignored the case and it was only after the show-cause notice, owing to the efforts taken by the petitioner, the matter culminated in the disposal by the Sessions Court. Under these circumstances, according to the learned Counsel for the petitioner, Mr. B. S. Charya, no person properly, instructed in law, would come to the conclusion that there was any criminal case pending against the petitioner before a Court of Law. The learned Counsel for the petitioner, Mr. B. S. Charya, also submitted that the petitioner was never arrested by the police at any time though he was on bail. ( 11 ) THE question whether no criminal proceeding was pending against the petitioner on the date of the furnishing of information on the required form is clear from the report of the Inspector Incharge, Police Station Iglas, Distt. Aligarh. The petitioner has tried to give some explanation to get out of the situation. The petitioner must have been aware of the fact that he was seeking appointment in a Police Force as Constable and a policeman ought to have been truthful and if really the parties who were involving themselves in some altercation had ironed out their differences, he could have reported the same as and when he was appointed or he could have mentioned the same in this application. After the information had been gathered by the first respondent in February, 1996, the petitioner had swung into action and had tried to get the case disposed of. On these facts, I am not able to accept the submissions of Mr. B. S. Charya, the learned Counsel for the petitioner, that there was no case pending against the petitioner on the date of the filling up of the required form. On these facts, I am not able to accept the submissions of Mr. B. S. Charya, the learned Counsel for the petitioner, that there was no case pending against the petitioner on the date of the filling up of the required form. ( 12 ) WITH reference to the statement given by the petitioner on the 14th of June, 1996,1 am not able to accept the submission of the learned Counsel for the petitioner that it was taken from the petitioner by using force and threatening with dire consequences, because if the statement had been given by him in coercion, he could have reported the matter immediately to the authorities concerned or he could have approached the Court of Law for relief and that was not done. Even in his representation dated 14. 6. 1996, he did not refer to this fact. Therefore, the argument that the statement dated 14. 6. 1996 was taken from the petitioner without his consent has no force. The submission that before the expiration of the time granted for filing the explanation the impugned order has been passed has also no force. It is only, the last day the order was passed. In view of the statement given by the petitioner on the 14th of June, 1996, the petitioner cannot complain of any prejudice on this score. ( 13 ) THE learned Counsel for the petitioner, Mr. B. S. Charya, referred to the judgments of the Supreme Court in "maqbool Hussain v. State of Bombay", AIR 1953 SC 325 and in "sa. Venkataraman v. Union of India and Another", AIR 1954 SC 375 . 1 am quite unable to see how the ratio laid down in these cases would be of any assistance to the petitioner. ( 14 ) TO show that mere filing of a complaint cannot be considered as a person being prosecuted, the learned Counsel for the petitioner, Mr. B. S. Charya referred to the judgment of the Privy Council in "raja C Braja Sunder Deb and Others v. Bamdeb Das Pattanaik and Others", AIR (31) 1944 Privy Council 1. ( 14 ) TO show that mere filing of a complaint cannot be considered as a person being prosecuted, the learned Counsel for the petitioner, Mr. B. S. Charya referred to the judgment of the Privy Council in "raja C Braja Sunder Deb and Others v. Bamdeb Das Pattanaik and Others", AIR (31) 1944 Privy Council 1. ( 15 ) THE first head note of the judgment would clear the position that a person who was noted in charge sheet in a criminal prosecution as an accused person not sent up for trial and was in fact never so sent up cannot be said to have been prosecuted and therefore has no cause of action to maintain an action for damages for malicious prosecution. Therefore, this is also not of any use to the petitioner. ( 16 ) THE learned Counsel for the petitioner, Mr. B. S. Charya, referred to the judgment in "thomas Dana v. State of Punjab", AIR 1959 SC 375 . The facts in that case are entirely different and it is quite unnecessary to deal with the same. ( 17 ) THE learned Counsel for the petitioner, Mr. B. S. Charya, referred to the judgment of this Court in "pramod Kumar Rastogi v. Union of India and Others", 1999 (49) DRJ 506 =81 (1999) DLT 25. That was a case of person who applied for the post of General Manager in the Public Sector undertaking and the circumstance under which he was obliged to give an information are entirely different and he was not seeking employment in Police Force. What is held in that case cannot be projected as a precedent for the purpose of this case by the petitioner. ( 18 ) AM of the view that the petitioner was bound to give the information and he had not given the correct information in the required form. Therefore, the action taken by the respondents was fully justified. Accordingly the writ petition is dismissed. ( 19 ) THERE shall be no order As to costs.