Jammu & Kashmir High Court - Srinagar Bench
Union Of India vs Mohammad Shafi Khan on 9 October, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 03/2024
Reserved On: 25th of September, 2025
Pronounced On: 9th of October, 2025
1. Union of India,
Through Director General,
Border Security Force, New Delhi.
2. Commandant, 193 BN,
Border Security Force.
... Appellant(s)
Through: -
Mr Hakim Aman Ali, CGC.
V/s
Mohammad Shafi Khan
S/O Gh. Nabi Khan
R/O Chakilpora, District Anantnag,
Kashmir.
... Respondent(s)
Through: -
Mr S. A. Qadri, Advocate.
CORAM:
Hon'ble Ms Justice Sindhu Sharma, Judge
Hon'ble Mr Justice Shahzad Azeem, Judge
(JUDGMENT)
Shahzad Azeem-J:
01. This intra Court appeal is directed against the Judgment dated
April 26, 2023 passed by the learned Single Judge ["the Writ Court"] in SWP
No. 1112/2007 titled 'Mohammad Shafi Khan v. Union of India & Ors.',
whereby and whereunder the Writ Court, while allowing the Writ Petition,
quashed the impugned Order of dismissal of the Respondent (Petitioner
before the Writ Court) and also granted liberty to the Appellants
(Respondents before the Writ Court) to initiate fresh proceedings against the
Respondent strictly in accordance with the BSF Act and the Rules framed
thereunder, if they so desire.
02. To be brief, the nub of the matter is that the Respondent, while
performing his duties as Constable in the Border Security Force (BSF),
proceeded on one day casual leave on February 03, 2004, but over stayed
from leave w.e.f. February 04, 2004. Despite issuance of letter to rejoin the
duties, the Respondent failed. Thereafter, the Appellants had convened the
Court of Inquiry, followed by issuance of "Apprehension Roll" and letters to
the Sector Headquarters, BSF, Anantnag and SSP, Anantnag, respectively.
Show cause notices were also issued and finally Order of dismissal of the
Respondent from service, dated July 28, 2004, came to be issued, when the
Respondent had neither responded to the communications/ notices nor
resumed the duties.
03. This Order of dismissal of the Respondent from service, passed
by the Appellant No.2, came to be challenged by way of Writ Petition and,
vide impugned Judgment, the Writ Court has allowed the same.
04. Since, seemingly there is some variance over the facts as were
pleaded by the parties before the Writ Court, therefore, it is deemed proper
to take note of the rival versions, as were put forth before the Writ Court,
because same may be advantageous for proper understanding the matter in
controversy.
THE WRIT PETITION:
05. According to the Respondent (Petitioner before the Writ Court),
he was appointed as a Constable in the year 1997 and as such joined the
service in 193 BN BSF, however, he said to have applied for one month's
leave, as his father was not feeling well. The leave applied by him was duly
sanctioned and he proceeded on leave, but due to ailment of his father, he
applied for extension of leave, since his father was got admitted in Sher-e-
Kashmir Institute of Medical Sciences (SKIMS), Soura. The Respondent had
further put forth his case that he hails from a far-flung area, therefore, he did
not receive any communication nor could he get the information about any
such communication being issued by the Commandant-Appellant No.2,
however, when after a lapse of one year, he reported in the office of Appellant
No.2, he was not allowed to join the duties, therefore, on his direction, he
filed a representation before the Appellant No.1 (Director General, BSF), but
the same was not considered.
06. The contention of the Respondent before the Writ Court was that
when, after availing leave, he reached home, the militants said to have
extended threats to him and also to kill his family, nonetheless, he reported
back, but he was not allowed to join the duties. The Respondent's bone of
contention was that the Order of dismissal came to be passed in utter violation
of rules of natural justice, as no charge-sheet was served nor any inquiry was
conducted, so much so, he was never informed about the passing of the Order
of dismissal.
THE OBJECTIONS:
07. The Appellants have taken a specific stand before the Writ Court
that the Respondent had applied for one day's casual leave to see his ailing
sister. As noticed above, there is variation over the facts, in that, the very
foundation of the case of the Respondent that he availed leave on account of
ailment of his father for one month came to be falsified by the Appellants.
08. The Appellants have stated that, during his service career, the
Respondent has never been dedicated or worked devotionally, as he was
habitual of indiscipline and, thus, was awarded rigorous imprisonment two
times for 07 days and 28 days Force Custody, respectively. It was the stand
of the Appellants that the Respondent, many a times beforehand, was also
found unauthorizedly absent from the duty.
09. The Apellants had further contended that when the Respondent
proceeded on one day's casual leave, he failed to rejoin, accordingly, through
registered letter/ notice dated February 09, 2004, he was asked to join, but no
response was received nor he joined, as a consequence thereof, the Court of
Inquiry was convened, followed by warrant of arrest came to be issued.
Meanwhile, a communication dated May 12, 2004 was received from the
Respondent that he is facing threat from militants, therefore, the Department
has made a request to Station Headquarter, BSF/ SSP, Anantnag to verify the
threat perception and take appropriate steps for protection of the Respondent
and his family. However, no response was received from the Respondent,
whereafter, a show cause notice was issued, but the Respondent, this time
also, did not reply, therefore, after the lapse of 30 days, i.e., on July 28, 2004,
the impugned Order of dismissal came to be passed under Section 11 (2) of
the Border Security Force Act, 1964 (for short "the BSF Act") and Rule 177
of the Border Security Force Rules of 1969 ("the BSF Rules").
10. According to the Appellants, at every stage, notices/ letters/
communications have been issued to the Respondent in compliance to the
provisions of the BSF Act and the Rules, but he did not respond, therefore,
the impugned Order of dismissal came to be passed strictly in accordance
with the provisions of the BFS Act and the Rules, respectively.
FINDINGS OF THE WRIT COURT:
11. While passing the Judgment under challenge, the reasoning
prevailed with the Writ Court was that in the absence of the record of the
Court of Inquiry, it is not clear as to whether proceedings of the Court of
Inquiry have been conducted in the manner prescribed under Rule 173 (8) of
the BSF Rules, giving the Respondent the opportunity to cross-examine the
witnesses and to lead evidence in defence. Therefore, the Writ Court, in
absence of record, had come to the conclusion that the Respondent was not
associated during the proceedings of the Court of Inquiry and, at the same
time, that the BSF authorities did not pursue the matter with the SSP,
Anantnag for execution of warrant of arrest nor there is anything on record
to show that the Sector Headquarter, BSF has taken any action in pursuance
of the communication issued by the BSF authorities to inquire about the
threat perception to the Respondent, besides, there is no proof of sending of
the purported communications to the Respondent in the shape of postal
receipts, therefore, the Writ Court opined that in absence of these vital
documents, it appears that the Appellants have approached the matter in a
casual manner. Hence, on finding that the impugned Order of dismissal came
to be passed in violation of Rule 22 (2) of the BSF Rules and the mandate of
Article 311 of the Constitution as well as the principles of natural justice, the
Writ Court has quashed the impugned Order of dismissal of the Respondent.
CHALLENGE:
12. After giving the factual narration of the matter about the
overstayal of leave by the Respondent and issuance of letters/ notices, the
Appellants have thrown challenge to the impugned Judgment, on the ground
that the Court of Inquiry was held under Section 62 of the BSF Act against
the Respondent on account of his absence from duty, thus, the question of
applicability of Rule 173 (8) of the BSF Rules does not arise. Therefore, the
finding of the Writ Court that the Respondent was not associated with the
Court of Inquiry is unsustainable.
13. According to the Appellants, the Writ Court has misconstrued
and misinterpreted Rule 173 (8) of the BSF Rules and, if the interpretation of
the Writ Court is accepted, then same would result in non-completion of any
Court of Inquiry under Section 62 of the BSF Act. The Appellants have also
taken the stand that at every stage, proper communications/ letters were sent
to the Respondent to report to the Unit and, after convening of the Court of
Inquiry, the police authorities were approached to secure his presence,
however, despite the Unit had made all the efforts to secure the presence of
the Respondent, including the issuance of "Apprehension Roll", no response
was received from the Respondent nor he rejoined the duty, therefore, the
authorities were left with no option than to pass the Order of dismissal.
14. Most importantly, the Appellants have taken a specific stand
that the Respondent, in his representation addressed to the Director General,
BSF, which was received on September 03, 2004, at paragraph Nos. 6 and 7,
specifically stated that he had received the communication from the BSF,
therefore, the question of violation of rules of natural justice does not arise,
hence, the Writ Court erred in quashing the impugned Order of dismissal of
the Respondent.
15. Per Contra, the learned Counsel appearing for the Respondent
has vehemently argued that the Respondent could not join the duties on
expiry of leave because he was facing threat from the militants, inasmuch as
neither he was informed about the convening of Court of Inquiry nor ever
communicated regarding holding of disciplinary proceedings against him,
therefore, the Writ Court, after satisfying itself regarding violation of rules of
natural justice, passed a reasoned Judgment based on sound legal principles
of law. Therefore, no fault can be found with the impugned Judgment passed
by the Writ Court.
16. Heard learned Counsel for the parties and perused the record.
ANALYSIS:
17. In order to keep the record straight, be it noted that, as per
record, the Respondent proceeded for one day casual leave on February 03,
2004 and was to report back on duty on February 04, 2004 (FN). The record
reveals that the Respondent had applied the leave on the ground that his sister
is admitted in the Hospital, however, the Respondent failed to report on duty
after expiry of the leave period, therefore, vide communication dated
February 09, 2004, he was directed to report on duty immediately, failing
which disciplinary action will be initiated under the BSF Act and the Rules.
The communication dated February 09, 2004 depicts that same came to be
issued by registered post under endorsement No. Estt/2021/193/04/Tac HQ
193 Bn BSF C/o 56 APO. Thereafter, vide Order dated March, 03, 2004, a
Court of Inquiry was convened to inquire into the circumstances under which
the Respondent has been over staying from leave w.e.f. February 04, 2004
(FN).
18. Accordingly, it was found by the Court of Inquiry that the
Respondent has been overstaying from leave w.e.f. February 04, 2004 (FN)
and has also earned two bad entries, inasmuch as there is no good entry
recorded during his service period. It has been further found that total
overstaying of leave period is 42 days as on March, 04, 2004, for which he
himself is found blameworthy and it has been further categorically held by
the Court of Inquiry that the Respondent seems to be a habitual offender,
therefore, the Court of Inquiry recommended initiation of strict action against
the Respondent.
19. Thereafter, the Commandant, while agreeing with the findings
of the Court of Inquiry, vide Order dated March 24, 2004, directed for
issuance of "Apprehension Roll" and show cause notice to the Respondent
for taking disciplinary action.
20. The record further reveals that in compliance to Order dated
March 24, 2004, warrant of arrest against the Respondent came to be issued
on April 12, 2004 and June 03, 2004, respectively and same were sent for
execution to SSP, Anantnag.
21. Although, the Respondent did not give the reference of the
issuance of "Apprehension Roll", or any communication issued by the BSF
authorities, but, he addressed a communication dated May 12, 2004 to the
Commandant, delineating therein that he and his family members are facing
threat from militants. In pursuance thereof, the SSP, Anantnag and Sector
Headquarter, BSF, Anantnag, vide communications dated June 03, 2004 and
June 04, 2004, respectively, were requested to verify the threat perception to
the Respondent and his family members and to provide the protection also.
22. It is noteworthy that as borne from the record, the Appellants
have also issued show cause notices twice on May 04, 2004 and June 28,
2004, respectively, under registered post with A/D in exercise of power
vested under sub-Section (2) of Section 11 of the BSF Act read with Rule
177 of the BSF Rules and in conformity with sub-rule (2) of Rule 22 of the
BSF Rules, thereby the Respondent was called upon to show cause why he
should not be dismissed from service for the act of omission and commission.
By virtue of these show cause notices, the Respondent was also provided an
opportunity to urge in his defence against the proposed punishment.
However, when all the communications/ letters/ notices, inasmuch as
Apprehension Roll issued by the authorities from time to time did not yield
any result, the authorities left with no option than to pass the Order of
dismissal dated July 28, 2004 against the Respondent.
23. Indisputably, the Respondent came to be dismissed from service
by the Appellants in exercise of power conferred on the Commandant as
prescribed authority under Section 11 (2) of the BSF Act read with Rule 177
of the BSF Rules to dismiss any person under his command from the service,
which is an independent power, however, still, the element of natural justice
is very much engrained in the provisions of BSF Act and Rules before
resorting to such major punishment. Therefore, it has to be only seen as to
whether or not, while passing the Order of dismissal dated July 28, 2004, the
Appellants had provided the opportunity to the Respondent.
24. 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.
25. Thereupon, the Court of Inquiry was convened, wherein the
statements of the witnesses came to be recorded and it has been found by the
Court that the Respondent is overstaying the leave, who was further found to
be a habitual offender under the BSF Act and Rules. Thereafter,
"Apprehension Roll" came to be issued followed by show cause notice in
terms of Rule 22 (2) of the BSF Rules.
26. The Respondent never responded to any of the notices/
communications/ letters issued by the Appellants, therefore, finally came to
be dismissed from service vide Order dated July 28, 2004.
27. It is noteworthy that Rule 173 of the BSF Rules prescribes the
procedure to hold the Court of Inquiry and Rule 173 (8), as was existing on
the Statute at the relevant time, mandates that the Court will afford the person
an opportunity to know all that has been stated against him and to provide
opportunity to cross-examine the witnesses and also lead evidence in his
defence. At the same time, Rule 22 (2) of BSF Rules postulates that before
taking any action, including termination of service of a person, he shall be
informed of the proposed action along with adverse report and such person
shall be called upon to submit, in writing, his explanation and defence.
28. Therefore, Rule 22 (2) of BSF Rules casts duty on the prescribed
authority to inform the delinquent about the proposed action by providing an
opportunity, inter alia, to submit, in writing, his explanation and defence.
29. Now, turning to the case on hand, 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 and also, along with the show cause notice, copy of the
Court of Inquiry and the report was dispatched to the Respondent through
registered post with A/D.
30. The contention of the Respondent before the Writ Court was that
he was never informed about the convening of Court of Inquiry or proposed
action of dismissal from service, therefore, the authorities have observed in
breach the provisions of the BSF Act and Rules, inasmuch as rules of natural
justice also vitiated and same had found favour with the Writ Court, in
absence of postal receipts as also the record of proceedings of the Court of
Inquiry.
31. The Appellants have produced the record and on thrashing the
same, we also did not find any postal receipt produced by the authorities.
However, we had come across a vital document during examination of the
record that is the Petition made by the Respondent in terms of Rule 28-A of
BSF Rules against the Order of his dismissal from service, which was
addressed to the Director General, BSF, received by the authorities on
September 03, 2004, wherein, at paragraphs 6 and 7 of the Petition, the
Respondent specifically admitted that the Company Commander has issued
one communication, whereby he was directed to ------ (words are missing)
period of one month and he sent a detailed reply with a request for few weeks
leave for rehabilitation of his family. The Respondent had further admitted
in the Petition that he has received another communication, whereby he was
directed to collect his belongings from the Company as he has been dismissed
from service.
32. When the specific admission made by the Respondent in his
Petition addressed to the Director General, BSF in terms of Rule 28-A of BSF
Rules is read in juxtaposition with the show cause notices dated May 04, 2004
and June 28, 2004, respectively, 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 terms of Rule 22 (2) of BSF
Rules.
33. The conduct of the Respondent can further be gauged from the
fact that the Respondent in his Writ Petition averred that he belongs to a far
flung area, where no source of communication is available nor he had any
knowledge that any notice issued by the Commandant is received by any
person, whereas, to the contrary, in the same breath in his Petition under
Section 28-A of BSF Rules, the Respondent went onto submit that he could
not inform the higher authorities about his miseries as he resides in a village
which is surrounded by forest and there is neither any facility of telephone
nor there is any police post.
34. Admittedly, 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, rather same are twisted in a manner that,
while testing the veracity of the same in the light of the record made available
by the Appellants, it becomes clear that the Court of Inquiry was held not on
the ground of overstayal of sanctioned one month leave on account of his
father's ailment, but it was on account of overstaying of sanctioned one day's
leave in view of his sister's ailment, who, as per record, shown to be admitted
in the Hospital.
35. In terms of the admission made by the Respondent in his Petition
under Rule 28-A of BSF Rules, it becomes very much conspicuous that the
plea of the Respondent that he did not receive any communication nor the
rules of natural justice have been complied by the authorities flies in the face
of the record which speaks for itself and, thus, it appears that the Respondent
had approached the Writ Court with unclean hands.
36. Nonetheless, despite receipt of show cause notice, whereby the
Respondent was asked to submit in his defence against the proposed
punishment, the Respondent had deliberately chosen not to respond to the
show cause notice. Therefore, it appears that these vital facts and documents
have escaped the attention of the Writ Court, otherwise, the Writ Court would
not have shown the indulgence.
37. Insofar as the observation of the Writ Court that the authorities
failed to pursue the execution of warrant of arrest is concerned, in our
opinion, same cannot be stretched to imply that the warrant is not deliberately
executed, because, admittedly the Respondent had received the
communications served by the authorities, therefore, it appears that he had
deliberately evaded the process of law and only when he had come to know
about the order of dismissal, he approached with a Petition under Rule 28-A
of the BSF Rules.
38. We are strengthened in our view by the admission made by the
Respondent in his Petition under Rule 28-A of the BSF Rules, wherein he
has admitted that he has received the communications issued by the
authorities, as such, non-execution of warrant appears to be on account of
deliberately evading the responsibility or due to his absconding, therefore,
the Respondent forfeits any right to gain advantage by exploiting the
circumstances to his benefit, more particularly, when record shows that the
order was passed not by way of penalty, but in exercise of an independent
and separate power conferred by Section 11 (2) of the BSF Act read with
Rule 22 (2) of the BSF Rules, after holding that further retention of the
Respondent in the service was undesirable.
39. In a case before the Hon'ble the Supreme Court titled "Sri
Gouranga Chakraborty v. State of Tripura and Anr., AIR 1989 Supreme
Court 1321", the challenge was thrown to the power of the Commandant to
pass the order of dismissal for an offence made under Section 19 of the BSF
Act without holding trial by the Security Force Court. While dealing with the
powers of the Commandant to impose the punishment of dismissal and the
procedure thereof, it has been held that the Commandant is competent to
exercise the power under Section 11 (2) of the BSF Act and to dismiss any
person under his command as prescribed under Rule 177 of the BSF Rules.
The relevant portion of the observations of the Hon'ble Supreme Court read,
thus:
"24. --------------------------------------------------------------
The Prescribed Authority i.e. the Commandant is
competent to exercise the power under S. 11 (2) of the said Act
and to dismiss any person under his command as prescribed
under Rule 177 of the BSF Rules. It is also to be noticed in this
connection that Rule 6 of the said Rules has specifically
provided that in regard to matters not specifically provided in the
Rules it shall be lawful for the Competent Authority to do such
thing or take such action as may be just and proper in the
circumstances of the case. In this case though any procedure has
not been prescribed by the Rules still the Commandant duly gave
an opportunity to the appellant to submit his explanation against
the proposed punishment for dismissal from service for his
absence from duty without any leave and overstaying leave
without sufficient cause. The appellant did not avail of this
opportunity and he did not file any show cause to the said notice.
Thus, the principle of natural justice was not violated as has been
rightly held by the High Court. No other point has been urged
before us by the learned counsel appearing on behalf of the
appellant."
40. In the case on hand, as has been noticed, the Respondent has
been informed from time to time by virtue of letters/ notices/ communications
sent through registered post and same has been admitted by the Respondent
in his Petition filed under Rule 28-A of the BSF Rules, therefore, once the
Respondent did not avail this opportunity, he cannot be heard to complain of
the violation of provisions of BSF Act and Rules, inasmuch as principles of
41. Before parting, we wish to add that in terms of Section 27 of the
General Clauses Act, 1897, when notice is sent on a proper address, but
neither unserved notice nor the acknowledgement cards received, in that
event, notice must be taken to have been served and then addressee has to
prove that the notice was not delivered to him, however, to the contrary, in
the case on hand, the Writ Court has taken the burden on itself, when the
Respondent is on admission to say that he has received the communications,
therefore, 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, while
passing the impugned Order of dismissal of the Respondent from the service.
42. 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. Consequently, the Writ
Petition filed by the Petitioner (Respondent herein), being SWP
No.1112/2007, is dismissed.
43. LPA No. 03/2024 shall stand disposed of on the above terms,
along with connected CM(s).
44. Record be returned with due dispatch.
(Shahzad Azeem) (Sindhu Sharma)
Judge Judge
SRINAGAR
October 9th, 2025
"TAHIR"
i. Whether the Judgment is approved for reporting? YES.
