The Jammu & Kashmir and Ladakh High Court has upheld the dismissal of a Border Security Force (BSF) Constable, Mohammad Shafi Khan, reinforcing the legal principle that once a notice is properly addressed and dispatched via registered post, it is deemed to have been duly served under Section 27 of the General Clauses Act, 1897. The onus then shifts to the addressee to prove non-receipt; courts cannot presume non-service merely due to the absence of an acknowledgment receipt.
The case originated when Khan, a constable with the 193 Battalion of the BSF, took one day's casual leave but failed to resume duty thereafter. Despite multiple registered notices, apprehension rolls, and show-cause communications sent to his last known address, Khan neither reported back nor responded to the official correspondence. In accordance with the BSF Act, 1968, and the BSF Rules, 1969, a Court of Inquiry was convened under Section 62 of the BSF Act. After repeated non-compliance, the Commandant, exercising powers under Section 11(2) of the BSF Act read with Rule 177 of the BSF Rules, issued an order of dismissal.
Khan challenged his dismissal before the Writ Court, alleging a violation of Article 311 of the Constitution and principles of natural justice, claiming he had never been informed of any inquiry or proceedings. The Single Judge accepted his plea and quashed the dismissal. Subsequently, the Union of India and BSF preferred an intra-court appeal, asserting that all legal requirements had been fulfilled and that the respondent had, in fact, admitted receipt of BSF communications in his own representation.
The Division Bench, comprising Justices Sindhu Sharma and Shahzad Azeem, reviewed the entire record and found that the BSF authorities had scrupulously complied with the procedural requirements under the BSF Act and Rules. Crucially, the Court relied on Khan's own petition under Rule 28-A of the BSF Rules, wherein he admitted having received communications from the BSF, including the one informing him of his dismissal. This admission nullified his claim that the order was passed behind his back. The Bench held that this admission, coupled with the presumption of service under Section 27 of the General Clauses Act, rendered his dismissal procedurally sound.
The Court underscored that the presumption of service under Section 27 applies once a notice is correctly addressed and sent by registered post. Justice Azeem observed, “When a notice is sent to the proper address by registered post, and neither the unserved notice nor the acknowledgment card is received, a presumption of due service arises. The burden then lies on the addressee to prove that the notice was not delivered to him.” This principle reinforces the legal efficacy of registered post as a reliable mode of communication in official matters.
The judgment also addressed the authority of the BSF Commandant to dismiss personnel under his command. The Court held that the Commandant possesses independent power under Section 11(2) of the BSF Act, read with Rule 177 of the BSF Rules, to dismiss personnel without trial by the Security Force Court. This power is vested to maintain discipline and efficiency within the force, ensuring that personnel adhere to the standards expected of them.
In conclusion, the Jammu & Kashmir and Ladakh High Court's decision reaffirms the legal presumption of service under Section 27 of the General Clauses Act and upholds the procedural integrity of the BSF's disciplinary actions. The Court's reliance on the respondent's own admission of receipt of communications played a pivotal role in validating the dismissal order. This case serves as a significant reference point for understanding the application of deemed service provisions in administrative and disciplinary proceedings.
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