Jammu and Kashmir High Court Upholds Dismissal of BSF Personnel for Overstaying Leave
Court Affirms Compliance with Natural Justice Principles and BSF Regulations
In a significant ruling, the Jammu and Kashmir High Court has upheld the dismissal of Border Security Force (BSF) personnel, Mohammad Shafi Khan, for overstaying leave. The court found that the dismissal followed due process and adhered to principles of natural justice, as well as the rules and regulations governing the BSF.
The case, Union of India v. Mohammad Shafi Khan, revolved around Khan's failure to return to duty after a sanctioned one-day casual leave on February 3, 2004. Despite repeated communications and show cause notices sent by registered post, Khan did not resume his duties, leading to his dismissal on July 28, 2004, under Section 11(2) of the Border Security Force Act, 1964, and Rule 177 of the BSF Rules, 1969.
Khan challenged the dismissal, claiming violations of natural justice and lack of proper communication regarding disciplinary proceedings. The writ court initially quashed the dismissal order, citing the absence of a proper record of the Court of Inquiry and failure to verify threats claimed by Khan from militants.
However, upon appeal, the Division Bench comprising Justices Sindhu Sharma and Shahzad Azeem found that the BSF had indeed followed due process. The court pointed out that Khan had admitted receipt of communications in a petition under Rule 28-A of the BSF Rules, contradicting his earlier claims. The court emphasized that the Commandant had exercised independent authority under Section 11(2) of the BSF Act, after giving Khan ample opportunity to respond to show cause notices, thus satisfying the requirements of natural justice.
The judgment also referenced the General Clauses Act, 1897, which presumes service of notice if sent to the correct address unless proven otherwise. The court noted that Khan's admission of receiving communications negated his claims of non-service.
Ultimately, the High Court set aside the writ court's judgment, reinstating the original dismissal order. The ruling underscores the judiciary's support for maintaining discipline within the armed forces while ensuring compliance with procedural fairness.
Bottom Line:
Border Security Force (BSF) personnel dismissed for overstaying leave - Compliance with principles of natural justice and BSF Rules upheld.
Statutory provision(s): Border Security Force Act, 1964 Section 11(2), Border Security Force Rules, 1969 Rule 22(2), Rule 177, General Clauses Act, 1897 Section 27
