IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : BORDER SECURITY FORCE ACT, 1968 Date of Decision: W.P.(C) No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : BORDER SECURITY FORCE ACT, 1968 Date of Decision: 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, 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

2 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, 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, 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, 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, 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, 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

3 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 to (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 (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 to (15 days E/Leave) failed without sufficient cause to re-join duty on expiry of said leave and reported voluntarily at HQ 47 BN Kalyani on (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 to (05 days C/Leave) failed without sufficient cause to re-join duty on expiry of

4 said leave and reported voluntarily at HQ 47 BN Kalyani on (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 to (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 (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 absented himself from Unit line till 1000 hrs on 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, 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

5 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, 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

6 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 2nd to 6th 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 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

7 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, 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, 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

8 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, 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, 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

9 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 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

10 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, 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, 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, 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

11 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.

12 Sd/- ANIL KUMAR, J. Sd/- SUDERSHAN KUMAR MISRA, J. MARCH 21, 2012