HIGH COURT OF UTTARANCHAL AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32(2) (b) Description of the Case. Writ Petition No. 2167 (S/S) 2001 (Old No. 3105 of 1999) Subodh Kumar Tyagi ... Petitioner Vs. The Commandant and 2ors. ... Respondents Approved for reporting Not approved reporting. Date of Decision 28th March 2007. Initial of Judge. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Writ Petition No. 2167 (S/S) 2001 (Old No. 3105/1999) Subodh Kumar Tyagi S/o Kanti Prasad, Resident of village Chaubli, Police Station Chaprauli, District Bagpat, U.P. ......Petitioner. Versus 1. The Commandant (Senani), 17th Bn. Indian Tibbet Boarder Police(ITBP), Jajar, Devel, District Pithoragarh, U.P., 2. Senior Administrative Officer, (Estha-2) Maha Nirdeshalaya, Indian Tibbat Boarder Police, New Delhi-110003. 3. Director General, Indian Tibbat Boarder Police, New Delhi. .......Respondents. Sri M.C. Pandey, learned counsel for the petitioner, Sri Vikas Pandey, learned Standing Counsel for Union of India/respondents. Hon’ble M.M. Ghildiyal, J. Heard Sri M.C. Pandey, learned counsel for the petitioner and Sri Vikas Pandey, learned Standing Counsel for Union of India/respondents. By means of this writ petition, the petitioner has prayed for the following reliefs:- (a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16, July 1998 annexure-6 to the writ petition passed by the respondent no. 1 and order dated 30.11.1998 (annexure-9 to the writ petition), (b) Issue any other writ, order or direction which this Hon’ble Court deems fit and proper under the circumstances of the case, (c) Award cost of the petition to the petitioner. Vide order dated 16th July 1998, the Commandant 17th Battalion, Indo Tibetan Boarder Police passed an order terminating the services of the petitioner from the post of Constable Indo Tibetan Boarder Police against which the petitioner preferred appeal before the Director General Indo Tibetan Boarder Police, New Delhi, who also Rejected the appeal of the petitioner. Aggrieved with these two order dated 16th July 1998 passed by the Commandant and the order dated 30.11.1998 passed by the Director General Indo Tibetan Boarder Police, the petitioner has preferred this writ petition. Brief facts of the case, are that the petitioner applied for recruitment in Indo Tibetan Boarder Police in the month of July 1997 and after fulfilling all the requisite eligibilities he was selected and appointed. Thereafter, the petitioner was sent for training of Constable. The petitioner after almost completing the training while awaiting the passing out parade, received a notice dated 21.03.1998 issued by the Commandant Indo Tibetan Boarder Police/respondent no.1 that since the character verification report received from District Magistrate, Bagpat makes out that a F.I.R. was lodged against the petitioner in the year 1989 u/s 147,148,323,324, 307 I.P.C. Police Station Chaprauli district Meerut and while filing up the recruitment form, he has not disclosed this significant fact in column-12 and concealed the same by furnishing wrong information, as such, he has committed offence under rule 25 of the Indo Tibetan Boarder Police Act 1994, consequently the petitioner was required to show cause as to why his services should not be terminated from the post of Constable. The petitioner replied the show cause notice on 10.04.1998 and thereafter, vide order dated 16th July 1998, the services of the petitioner were terminated. Appeals against the said termination order was also rejected. Counsel for the respondents has submitted that they have filed counter affidavit before the Allahabad High Court, however the same is not on record. In para-5 of the counter affidavit, the respondents have quite justified the order on the ground that the petitioner has furnished wrong information in column no. 12 of the recruitment form. Copy of the counter affidavit is available with the learned counsel for the respondent. Para-5 of the counter affidavit is quoted hereunder:- “.....after enrolment, his verification roll was sent to D.M., Bagpat (U.P.) vide office letter no. 356 dated 16.10.1997 for verifying the facts mentioned in attestation from which is a mandatory condition of service in ITBP. The petitioner had filed the column of attestation form after going through the warning on its top which clearly indicate that “furnishing of false information or suppression of any factual information in verification roll would be disqualification and is likely to render candidate unfit for employment under the Government. The petitioner had given negatives replies to questions in Col. No. 12 of verification roll. Later on it was disclosed that case no. 130 A/89 was registered under section 147,148,323,324,307 IPC at Chaproli Thana against the said individual and final report filed on 31.12.1989. The said information was received from D.M. Office Bagpat (U.P.) alongwith the verification roll of petitioner. At the time of receiving information or adverse report, petitioner was undergoing basic condensed training at BTC and BTC was informed order sig. no. 8119 dated 24.02.1998, 8115 dated 24.02.1998 and no. 8117 dated 28.02.1998 to return him for taking necessary disciplinary action under the Rules.” I have also perused the form of enrolment, which is provided in the appendix of the Indo Tibetan Boarder Police Force Rules 1994. Clause-12 is as under:- 12:- (a) Have you ever been arrested? (b) Have you ever been prosecuted? (c) have you ever been kept under detention or imprisoned? (d) Have you ever been convicted by Court of law for any offence? (e) have you ever been bound down? (f) have you every been fined by a court of law? (g) Have you ever been interned, externed or otherwise dealt with under any law in force in India or outside? It so, state particulars. (h) Are you facing any prosecution in any Court in India or abroad? (i) Have you ever been debarred from any examination or resticated by any University or any other educational authority/Institution? (j) Have you ever been debarred/disqualified by any public service commission from appearing at its examination/selection? (k) Is any case pending against you in any University or other educational authority/Institution as the time of filling up this enrolment from? (l) Whether discharged/expelled/withdrawn from any training institution under the Government or otherwise? Submission of the learned counsel for the petitioner is that though an F.I.R. no. 130A/1989 was lodged against the petitioner u/s 147,148,323,324,307 I.P.C. but the F.I.R. was in respect of family dispute. The matter was compromised and even nobody was arrested. The matter was never investigated. Consequently, the Investigating Officer had submitted final report before the Chief Judicial Magistrate who has accepted the same on 14.02.1995. The District Magistrate, Bagpat has also submitted his report that there is no criminal case made out against the petitioner. No summon was issued to the petitioner by the Criminal Court, as the final report was accepted by the Chief Judicial Magistrate concerned. Thus, the petitioner has neither concealed any fact, nor he furnished wrong information in reply to clause-12 of the enrolment form. The respondents have not declined this factual aspect that final report in regard to the aforesaid F.I.R. was submitted by the police and the same was accepted by the C.J.M. concerned. The petitioner was never arrested /prosecuted/ kept under detention or imprisoned/ convicted/ bound down/ fined / interned/ externed or otherwise dealt with under any law/ facing any prosecution in any Court/ debarred from any examination or rusticated by any University / debarred / disqualified by any public service commission from appearing at its examination, selection/any case pending against the petitioner in any University or other educational authority/Institution at the time of filling up the enrolment form/ discharged/ expelled/ withdrawn from any training institution under the Government or otherwise. Learned counsel for the petitioner has further submitted that the petitioner was never called by the police, even in the investigation and there arises no question in furnishing wrong facts, as stated in the impugned order. Significant aspect is that the petitioner was enrolled on 15.09.1997. Final report in regard to the F.I.R. was accepted by the C.J.M. concerned long back on 14.02.1995. The petitioner in the enrolment form has rightly furnished the information required under clause-12. Significant to mention here that the final report was submitted by the police in respect of aforesaid F.I.R. lodged against the petitioner, which was accepted by the C.J.M. and this fact has been admitted by the respondents in the counter affidavit. There is no such case of respondents in the counter affidavit that the petitioner was ever required by the police, or ever he was called for investigation. Learned counsel for the petitioner has further submitted that in case, the petitioner is reinstated in the service, he will not claim for the past salary. This Court do not find it justified to pass order for payment of salary for the period for which the petitioner did not work for the reason that the petitioner had not worked with the force, as such, there arises no question for payment of salary for the period for which the petitioner did not work. In the forgoing circumstances, the order dated 16th July 1998 passed by the Commandant and the order dated 30.11.1998 passed by the Director General Indo Tibetan Boarder Police are not sustainable in the eyes of law. Accordingly, the writ petition is allowed. The order dated 16th July 1998 passed by the Commandant and the order dated 30.11.1998 passed by the Director General Indo Tibetan Boarder Police are hereby quashed. No order as to costs. (M.M. Ghildiyal, J.) March 28, 2007: NCM: