The Jammu & Kashmir and Ladakh High Court at Srinagar has upheld the dismissal of a Border Security Force (BSF) constable who had overstayed his leave for months and later claimed threats from militants as justification. A Division Bench of Justice Shahzad Azeem and Justice Sindhu Sharma overturned an earlier Single Bench ruling that had quashed his dismissal and ordered fresh proceedings.
The Bench restored the BSF's decision, observing that the constable had been given sufficient opportunities to respond but had chosen not to, and that his plea of ignorance was "contradicted by his own admissions."
Background
Constable Mohammad Shafi Khan had joined the BSF’s 193 Battalion in 1997. According to the Force, he was granted a one-day casual leave on February 3, 2004, to see his ailing sister but failed to return the next day. Despite several letters, show-cause notices, and even a warrant of arrest, Khan neither responded nor reported back for duty. Eventually, he was dismissed from service on July 28, 2004, under Section 11(2) of the BSF Act and Rule 177 of the BSF Rules.
Khan, however, told the court that he had taken leave for his father's illness, which later extended because of medical treatment at SKIMS, Soura. He claimed that militants in his area had threatened him and his family, preventing him from returning. He also alleged that he was dismissed without inquiry, notice, or being given a chance to defend himself.
The Single Judge accepted his plea, ruling that the dismissal violated principles of natural justice and quashed the order, leading the BSF to file this appeal.
Court's Observations
The Division Bench closely examined the BSF’s records and found multiple registered communications had been sent to Khan. These included letters asking him to rejoin duty, a Court of Inquiry convened under Section 62 of the BSF Act, and two show-cause notices dated May 4 and June 28, 2004, giving him 30 days to respond.
The Bench pointedly noted that Khan himself, in a later representation to the Director General of BSF under Rule 28-A, admitted receiving communications from his unit - an admission that directly contradicted his claim of being uninformed.
"It becomes conspicuous," Justice Azeem observed, "that the plea of the respondent that he did not receive any communication nor the rules of natural justice were complied with flies in the face of the record."
The judges also remarked that Khan "appears to have approached the Writ Court with unclean hands" by misstating facts. His repeated absences, previous punishments for indiscipline, and deliberate evasion of departmental notices painted a consistent picture of misconduct.
Rejecting the lower court's reasoning, the Bench clarified that non-production of postal receipts could not nullify the BSF's actions when the respondent had himself acknowledged receiving the letters. Citing Section 27 of the General Clauses Act, the judges noted that when a notice is sent to the correct address, it is presumed served unless proved otherwise.
They also referred to the Supreme Court's 1989 ruling in Sri Gouranga Chakraborty v. State of Tripura, which upheld a Commandant's power under Section 11(2) of the BSF Act to dismiss personnel for absence without leave after giving them a chance to respond.
"Once the respondent did not avail the opportunity," the Bench said, “he cannot be heard to complain of violation of natural justice."
Decision
Concluding that the BSF's dismissal order had been passed strictly in line with the BSF Act and Rules, and that the constable had "deliberately evaded the process of law," the Division Bench allowed the appeal.
The Court set aside the April 26, 2023 judgment of the Single Bench and dismissed Khan’s writ petition, thereby restoring the original dismissal order issued by the BSF in 2004.
The matter was formally disposed of with directions to return the records "with due dispatch."
As the Bench put it succinctly, "We do not find any violation of principles of natural justice or that the provisions of the BSF Act and Rules have been observed in breach."
Case Title: Union of India & Anr. v. Mohammad Shafi Khan
Case Number: LPA No. 03 of 2024
Date Pronounced: 9th October 2025
Counsel for Appellants: Mr. Hakim Aman Ali, Central Government Counsel
Counsel for Respondent: Mr. S. A. Qadri, Advocate