General Clauses Act | J&K&L High Court Upholds Dismissal of BSF Constable for Overstaying Leave, Notice Deemed Served Once Properly Addressed and Dispatched Under Section 27
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem upheld the dismissal of a Border Security Force constable who had overstayed leave, overturning a single-judge order that had quashed his termination. The Court reaffirmed that once a notice is correctly addressed and sent through registered post, it is presumed to be duly served under Section 27 of the General Clauses Act, 1897, and the responsibility rests on the addressee to prove otherwise. It held that the disciplinary authority had acted within its powers under the Border Security Force Act and Rules, finding no breach of natural justice in the dismissal.
The dispute originated from the dismissal of Mohammad Shafi Khan, a constable of the 193 Battalion of the BSF, who was removed from service on July 28, 2004. The constable had proceeded on one day’s casual leave on February 3, 2004, to attend to his ailing sister but failed to rejoin duty thereafter. Despite repeated letters and notices sent by the Commandant, the constable did not report back. A Court of Inquiry was convened under Section 62 of the BSF Act to ascertain the circumstances of his prolonged absence.
According to the BSF, communications were issued to Khan directing him to rejoin duty, followed by an “Apprehension Roll” and arrest warrants sent to the Senior Superintendent of Police (SSP), Anantnag. The respondent, however, remained absent and later claimed that he could not resume duty due to threats from militants. Show cause notices dated May 4, 2004, and June 28, 2004, were issued under Section 11(2) of the BSF Act and Rule 177 of the BSF Rules, but no response was received. Consequently, Khan was dismissed from service.
In his writ petition before the Single Judge, Khan contended that the dismissal violated principles of natural justice and that no inquiry or charge sheet was served upon him. He claimed he was unaware of the dismissal until a year later. The BSF refuted these claims, asserting that all statutory procedures were followed. The Writ Court, however, found procedural lapses and stated that the dismissal was in breach of Rule 22(2) of the BSF Rules and Article 311 of the Constitution, quashing the dismissal and permitting the BSF to initiate fresh proceedings.
The Union of India and the Commandant, 193 BN BSF, challenged this judgment before the Division Bench, arguing that the Single Judge had misinterpreted the provisions of the BSF Act and Rules. The appellants maintained that the constable was habitual in acts of indiscipline, had received prior punishments for misconduct, and had deliberately absented himself without sufficient cause.
The Division Bench recorded that “the Appellants, on finding the Respondent overstaying the leave, vide letter dated February 09, 2004, directed the Respondent to report on duty, failing which disciplinary action will be initiated and this letter was sent to the home address of the Respondent through registered post.”
The judgment recorded: “The Commandant had issued the show cause notices dated May 04, 2004, and June 28, 2004, in compliance to Rule 22(2) of BSF Rules, thereby calling upon the Respondent to urge in his defence against the proposed dismissal from service within 30 days of receipt of the notice.”
The Court stated: “When the specific admission made by the Respondent in his Petition addressed to the Director General, BSF is read in juxtaposition with the show cause notices, one would find that it was this show cause notice whereby the Respondent was provided an opportunity of 30 days to show cause against the proposed punishment.”
In addressing the respondent’s argument that he was denied participation in the Court of Inquiry, the Bench held that such an interpretation would “result in non-completion of any Court of Inquiry under Section 62 of the BSF Act.” The Court clarified that the procedure under Rule 173(8) was not applicable in this instance, as the proceedings were not punitive in nature but fact-finding to determine absence.
The judgment recorded that “the Respondent was a member of a disciplinary force, therefore, it was expected of him to approach the Court with clean hands and to state true facts, but the Respondent appears to have misstated the facts before the Writ Court.”
The Court further observed that the BSF’s actions were within the ambit of Section 11(2) of the BSF Act and Rule 177 of the BSF Rules, noting: “The element of natural justice is very much engrained in the provisions of BSF Act and Rules before resorting to such major punishment.”
The Bench drew support from the Supreme Court’s ruling in Sri Gouranga Chakraborty v. State of Tripura and Another (AIR 1989 SC 1321), observing that a Commandant is competent to dismiss a person under his command when such opportunity to respond to a show cause notice has been provided. The Division Bench quoted: “The Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment... The appellant did not avail of this opportunity... Thus, the principle of natural justice was not violated.”
The Court also referred to Section 27 of the General Clauses Act, 1897, which presumes valid service of notice sent by registered post to the correct address. It held that “when notice is sent on a proper address, but neither unserved notice nor the acknowledgement cards are received, in that event, notice must be taken to have been served.”
The Court concluded that “there is no violation of principles of natural justice or that the provisions of the BSF Act and Rules have been observed in breach while passing the impugned Order of dismissal.”
It stated: “In the above backdrop, the impugned Judgment dated April 26, 2023 does not sustain. Accordingly, the instant appeal is allowed and the impugned judgment of the Writ Court is set aside.”
“LPA No. 03/2024 shall stand disposed of on the above terms, along with connected CM(s). Record be returned with due dispatch.”
Advocates Representing the Parties:
For the Appellants: Mr. Hakim Aman Ali, Central Government Counsel
For the Respondent: Mr. S. A. Qadri, Advocate
Case Title: Union of India & Anr. v. Mohammad Shafi Khan
Case Number: LPA No. 03/2024
Bench: Justice Sindhu Sharma, Justice Shahzad Azeem
