PETITIONER: ALIGARH MUSLIM UNIVERSITY AND ORS. Vs. RESPONDENT: MANSOOR ALI KHAN DATE OF JUDGMENT: 28/08/2000 BENCH: M. JAGANNADHA RAO J. & Y. K. SABHARWAL , J. JUDGMENT:
M. JAGANNADHA RAO , J.
L….I……….T…….T…….T…….T…….T…….T..J
These two appeals have been preferred by the Aligarh
Muslim University, Aligarh. In the Civil appeal arising out
of SLP(C) No. 12700/99, the respondent is Mr. Mansoor Ali
Khan, whose Special appeal 483/95 was allowed by the
Division Bench of the High Court of Allahabad on 8.4.99,
reversing the judgment of the learned Single Judge in W.P.
15674/87 dated 14.7.1995. In the Civil appeal arising out
of SLP(C) No. 12981/99, the respondent is Mr. Murshad
Hussain Khan, whose Special appeal No. 484/95 was allowed
on 8.4.99 by the Division Bench, following the judgment in
Special appeal No. 483/95 in the case of Mr. Mansoor Ali
Khan. The Service Rules relied upon in these two cases are
common but there is some distinction on facts between the
two cases and we shall refer to those facts separately. The
result of the judgment of the Division Bench was that the
impugned orders of termination of services for alleged
unauthorised absence were quashed. They were set aside and
the Vice Chancellor of the University was directed to
consider the matter afresh keeping in view the provision of
Rule 10(C)(ii) of the Aligarh University Non-Teaching
Employees ( Terms and Conditions of Service) Rules, 1972 (
hereinafter called the 1972 Rules) and Rule 5(8)(i) of the
Aligarh University Revised Leave Rules, 1969 relied upon by
the University (hereinafter called the 1969 Rules).
We shall first state the facts in Mr. Mansoor Ali
Khan’s case. He was working as a Laboratory Assistant and
he applied for two years extra-ordinary leave for joining
Al-Fatah University, Tripoli, Libya. The Vice- Chancellor
sanctioned leave for two years from 18.4.79. Before the
expiry of the period, Mr. Khan applied on 18.4.81 for
extension of leave by 3 years. On 12/23-9- 81, the
University granted extension only for one year from 18.4.81.
The leave stood thus extended upto 18.4.82. It was,
however, clearly stated by the University, in its letter as
follows:
“……..You are required to resume duties by
18.4.1982. Please note that no further extension in the
period of your leave will be possible and you are advised to
make preparation for resuming duty positively by 18.4.82”.
But, without waiting for the receipt of the above order
dated 12/23-9-81, Mr. Khan entered into a fresh contract in
Libya which, according to him, was to be for a minimum
period of 2 years. The fresh contract was upto 17.4.83.
Thereafter, he wrote a further letter to the University on
18.1.82 for grant of extension of leave for 1 more year upto
17.4.83 and stated that he would definitely join duty on
18.4.83. The University sent a telegram on 21.4.82 stating
that his request for further extension was refused and that
he should resume duties by 15th May, 1982, failing which “he
would be deemed to have vacated” the post and “ceased” to be
in University service. On 1.6.82, the University sent a
cable extending the joining time upto 30.6.82 and stated
that he must join on 1.7.82 failing which he would be deemed
to have “vacated” the post and cease to be in University
service from 18.4.82. Subsequently, by letter dated 7/9-
6-1982, the substance of the telegram was confirmed. Mr.
Khan failed to join by 1.7.82. Result was that the
University deemed that he had vacated office w.e.f.
18.4.82. The appeal to the Visitor was rejected on 5.9.85.
Then Mr. Khan filed the Writ petition on 24.8.87 for
quashing the two telegrams and the order dated 5.9.85 of the
Visitor.
The learned Single Judge dismissed the writ petition of
Mr. Mansoor Ali Khan holding that he had not expressed any
intention to join till his assignment in Libya was over and
that without waiting for extension, he had entered into a
fresh contract in Libya, that he did not avail of the
joining time as extended period and that his conduct did not
justify any relief. The writ petition was dismissed on
17.2.95.
In the Appeal filed by Mr. Mansoor Ali Khan, the
Division Bench held that on a harmonious reading of Rule
5(8)(ii) of the Leave Rules, 1969 and Rule 10(C) of the
Service Rules, 1972, Mr. Khan ought to have been given
notice because before the extension was refused, he had
entered into a fresh contract in Libya. The Bench also held
that according to Leave Regulations ( as amended by the
Executive Council on 12.2.70), the non-teaching staff were
governed by the same regulations applicable to teaching
staff and the said regulations visualised extra-ordinary
leave being granted ‘ordinarily’ for 3 years if leave was
necessary for accepting employment outside and that the
total period of extension of leave permitted was 5 years.
In the case of an officer who had availed leave for foreign
employment, he could avail leave again for 5 years after
re-joining. Mr. Khan had not resumed duty by 1.7.82 in
terms of Rule 5(8) of the Leave Rules, 1969 and therefore a
show cause under Rule 5(8)(i) should have been issued to
him. Nor was there anything on record to indicate that the
absence of the appellant from duty after expiry of leave was
taken to be ‘misconduct’ within clause (ii) of Rule 5(8) of
the Leave Rules, 1969. In any case, automatic cessation
from service would not take place before expiry of 5 years
as would be seen from Rule 10(C) of the Service Rules, 1972.
Here, the total period did not exceed 5 years including
period of sanctioned leave and hence there was no automatic
cessation of service. Mr. Mansoor Ali Khan’s service did
not, therefore, cease automatically on 18.4.82. The appeal
was allowed and the impugned orders were quashed. The
division Bench directed the Vice-Chancellor to consider the
matter afresh keeping in view Rule 10(C)(ii) of Service
Rules, 1972.
The facts in the case of Mr. Murshad Hussain Khan were
similar but for the fact that before deeming that he had
vacated office he was given notice and his reply was
considered and rejected under Rule 5(8)(i) of the 1969
Rules. In the writ appeal filed by Mr. Murshad Hussain
Khan, the judgment in the case of Mr. Mansoor Ali Khan was
followed by the Division Bench and a similar order was
passed. It was not noticed that in this case a show cause
notice was issued under Rule 5(8)(i) of the 1969 Rules
before the order of termination was passed.
In these appeals, we have heard learned Senior
counsel Sri B.D. Aggarwal for the appellant and Sri
Rajeev Dhawan for the respondents.
The following points arise for consideration:
1. What are the situations in which Rule 5(8)(i) or
Rule 5(8)(ii) of the Aligarh Muslim University Revised
Leave Rules 1969 apply?
2. What are the situations in which Rule 10(C)(i) and
Rule 10(C)(ii) of the Aligarh Muslim University Non-
Teaching Employees ( Terms and Conditions of Service)
Rules, 1972 apply?
3. Under which Rule do the cases of Mr. Mansoor Ali
Khan and Murshad Hussain Khan fall?
4. If Rule 5(8)(i) of the Leave Rules, 1969 alone
applied, is there any violation of principles of natural
justice in each of these cases?
5. Whether oin the facts of the case, Mr. Mansoor Ali
Khan can invoke the principle of natural justice and whether
it is a case where, even if notice had been given, the
result would not have been different and whether it could be
said that no prejudice was caused to him if on the admitted
or proved facts, grant of an opportunity would not have made
any difference?
Point 1:
For the purpose of this point, we shall refer to
Rule 5(8) of the 1969 Rules.It reads as follows:
Overstayal of leave:
Rule 5(8)(i)- If an employee absents himself from duty
without having previously obtained leave or fails to return
to his duties on the expiry of leave without having
previously obtained further leave, the Head of the
Department/Office concerned in cases where is the Appointing
Authority, after waiting for three days, shall communicate
with the person concerned asking for an explanation and
shall consider the same. In cases where the Head of the
Department/Office is not the Appointing Authority, he shall,
after waiting for three days from the date of unauthorised
absence without leave or extension of leave, inform the
Registrar/Finance Officer, and the Registrar ( Finance
Officer in the case of staff borne on the Accounts Cadre)
shall communicate with the person concerned asking for an
explanation which shall be submitted to the
Vice-Chancellor/Executive Council.
Unless the Appointing Authority regards the explanation
satisfactory, the employee concerned shall be deemed too
have vacated the post, without notice, from the date of
absence without leave.
Rule 5(8)(ii)- An Officer or other employee who absents
himself without leave or remains absent without leave after
the expiry of the leave granted to him, shall if he is
permitted to rejoin duty, be entitled to no leave allowance
or salary for the period of such absence and such period
will be debited against his leave account as leave without
pay unless his leave is extended by the authority empowered
to grant the leave. Wilful absence from duty after the
expiry of leave may be treated as misconduct for the purpose
of clause 12 of Chapter IV of the Executive Ordinances of
the A.M.U. and para 10 of Chapter IX of Regulations of the
Executive Council.
It will be seen that Rule 5(8)(i) applies to an
employee who absents himself from duty without having
previously obtained leave or where he has failed to return
to his duties on the expiry of leave without having
previously obtained further leave. Then Rule 5(8)(i) refers
to the manner in which the employee is to be given an
opportunity. If the Appointing Authority regards the
explanation as not satisfactory, the employee concerned
shall be deemed to have vacated his post, without notice,
from the date of absence without leave. In the context of
Rule 10 of the 1972 Rules, which deems vacation of Post if
the absence was 5 years, it must follow that the above Rule
5(8)(i) applies to absence for a period less than 5 years.
Rule 5(8)(ii) deals with a different situation. It
relates to a case where such an officer is permitted to
rejoin duty. It says that if he is so permitted, he will be
entitled to no leave allowance or salary for the period of
such absence and such period shall be debited against his
leave account as leave without pay. The rule says that
these consequences will not, however, follow if his leave is
extended by the authority empowered to grant leave. Then in
its latter part, Rule 5(8)(ii) refers to another situation
enabling disciplinary action to be taken treating
unauthorised absence as misconduct.
If a person has been absent without leave being
sanctioned, he could be proceeded against for
misconduct.
These are the different situations in which Rule
5(8)(i) and (ii) apply. Point 1 is decided accordingly.
Point 2:
Rule 10(c)(i)(ii) of the 1972 Rules reads as
follows:
“Rule 10: Employee absent from duty:
(a) ………………….
(b) ………………….
(c)(i) No permanent employee shall be granted leave of
any kind for a continuous period exceeding five years;
(ii) When an employee does not resume duty after
remaining on leave for a continuous period of five years, or
whether an employee after the expiry of his leave remains
absent from duty, otherwise than on foreign service or on
account of suspension for any period which together with the
period of the leave granted to him exceeds five years, he
shall, unless the Executive Council in view of the
exceptional circumstances of the case otherwise determine,
be deemed to have resigned and shall accordingly cease to be
in the University service.”
It will be seen that Rule 10 deals with a different
aspect. Now Rule 10(c)(i) states that no permanent employee
shall be granted leave of any kind for a continuous period
of more than 5 years. However, Rule 10(c)(ii) states that
when an employee does not resume duty after remaining on
leave for a continuous period of 5 years, or where an
employee – after the expiry of his leave – remains absent
from duty ( otherwise than on foreign service or on account
of suspension) for any period which together with the period
of the leave granted to him exceeds 5 years, – he shall, (
unless the Executive Council in view of the exceptional
circumstances of the case otherwise determine), be deemed to
have resigned and shall accordingly cease to be in the
University service. This is the purport of Rule 10(c).
Point 2 is decided accordingly.
Point 3:
In the case of both these employees i.e. Mr. Mansoor
Ali Khan as well as Mr. Murshad Hussain Khan, the total
period of absence before the date of the order of
termination did not exceed 5 years. Hence, obviously Rule
10(c)(ii) of the 1972 Rules cannot apply for that deals with
cases where the absence is beyond 5 years.
In the facts of these appeals, in our view, only Rule
5(8)(i) of the 1969 Rules can apply because that deals with
a situation where the absence is less than 5 years. So far
as Rule 5(8)(ii) is concerned, it does not apply because we
are not concerned here with the case of a person who has
been ultimately allowed to join – inspite of absence without
leave – and of his joining. In the present cases, both
officers never rejoined. So far as the latter part of Rule
5(8)(ii) is concerned, that too does not apply as no
disciplinary action has been taken.
Thus, in the case of both these officers Rule 5(8)(i)
of the 1969 Rules alone can apply the absence being less
than 5 years. In that event, a show cause notice and reply
are necessary as explained below. Point 3 is decided
accordingly.
Point 4:
Now, in the second case of Sri Murshad Hussain Khan,
admittedly, notice had been issued and reply furnished and
the impugned order of deeming vacation of office was passed.
As Rule 5(8)(i) had been complied with in his case, there
was no infirmity in deeming his vacation from the post.
Unfortunately, the Division Bench of the High Court
mechanically allowed the appeal following the judgment in
Mansoor Ali Khan’s case which was decided earlier and in
which no show cause was issued under Rule 5(8)(i) of the
1969 Rules. The judgment in his case is liable to be set
aside on this ground alone.
Coming back to the first case of Mr. Mansoor Ali Khan,
admittedly, no notice under Rule 5(8)(i) of the 1969 Rules
has been given. There is, therefore, violation of
principles of natural justice as notice contemplated in Rule
5(8)(i) has not been given. Question as to whether the
order deeming that he vacated office is correct or not, will
have to be then decided. We shall decide that point under
point 5. We decide accordingly against Mr. Murshad Hussain
Khan and partly in favour of Mr. Mansoor Ali Khan under
point 4.
Point 5:
This is the crucial point in this case. As already
stated under point 4, in the case of Mr. Mansoor Ali Khan,
notice calling for an explanation had not been issued under
Rule 5(8)(i) of the 1969 Rules. Question is whether
interference is not called for in the special circumstances
of the case?
As pointed recently in M.C. Mehta Vs. Union of India
(1999 (6) SCC 237), there can be certain situations in which
an order passed in violation of natural justice need not be
set aside under Article 226 of the Constitution of India.
For example where no prejudice is caused to the person
concerned, interference under Article 226 is not necessary.
Similarly, if the quashing of the order which is in
breach of natural justice is likely to result in revival of
another order which is in itself illegal as in Gadde
Venkateswara Rao vs. Government of Andhra Pradesh [1966 (2)
SCR 172 = AIR 1966 SC 828], it is not necessary to quash the
order merely because of violation of principles of natural
justice.
In M.C.Mehta it was pointed out that at one time, it
was held in Ridge vs. Baldwin ( 1964 AC 40) that breach of
principles of natural justice was in itself treated as
prejudice and that no other ‘defacto’ prejudice needed to be
proved. But, since then the rigour of the rule has been
relaxed not only in England but also in our country. In
S.L. Kapoor Vs. Jagmohan ( 1980 (4) SCC 379), Chinnappa
Reddy, J. followed Ridge vs. Baldwin and set aside the
order of supercession of the New Delhi Metropolitan
Committee rejecting the argument that there was no prejudice
though notice was not given. The proceedings were quashed
on the ground of violation of principles of natural justice.
But even in that case certain exceptions were laid down to
which we shall presently refer.
Chinnappa Reddy, J. in S.L.Kapoor’s case, laid two
exceptions (at p.395) namely, ” if upon admitted or
indisputable facts only one conclusion was possible”, then
in such a case, the principle that breach of natural justice
was in itself prejudice, would not apply. In other words if
no other conclusion was possible on admitted or indisputable
facts, it is not necessary to quash the order which was
passed in violation of natural justice. Of course, this
being an exception, great care must be taken in applying
this exception.
The principle that in addition to breach of natural
justice, prejudice must also be proved has been developed in
several cases. In K.L. Tripathi Vs. State Bank of India (
1984(1) SCC 43), Sabyasachi Mukherji, J. ( as he then was)
also laid down the principle that not mere violation of
natural justice but de facto prejudice (other than non-issue
of notice) had to be proved. It was observed: quoting Wade
Administrative Law, (5th Ed.PP.472-475) as follows: ( para
31)
“….it is not possible to lay down rigid rules as to
when principles of natural justice are to apply, nor as
their scope and extent ….There must have been some real
prejudice to the complainant; there is no such thing as a
merely technical infringement of natural justice. The
requirements of natural justice must depend on the facts and
circumstances of the case, the nature of the inquiry, the
rules under which the tribunal is acting, the subject matter
to be dealt with and so forth”.
Since then, this Court has consistently applied the
principle of prejudice in several cases. The above ruling
and various other rulings taking the same view have been
exhaustively referred to in State Bank of Patiala Vs. S.K.
Sharma ( 1996(3) SCC 364). In that case, the principle of
‘prejudice’ has been further elaborated. The same principle
has been reiterated again in Rajendra Singh Vs. State of
M.P. ( 1996(5) SCC 460).
The ‘useless formality’ theory, it must be noted, is an
exception. Apart from the class of cases of “admitted or
indisputable facts leading only to one conclusion” referred
to above,- there has been considerable debate of the
application of that theory in other cases. The divergent
views expressed in regard to this theory have been
elaborately considered by this Court in M.C. Mehta referred
to above. This Court surveyed the views expressed in
various judgments in England by Lord Reid, Lord Wilberforce,
Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J.
etc. in various cases and also views expressed by leading
writers like Profs. Garner, Craig, De. Smith, Wade, D.H.
Clark etc.
Some of them have said that orders passed in violation
must always be quashed for otherwise the Court will be
prejudging the issue. Some others have said, that there is
no such absolute rule and prejudice must be shown. Yet,
some others have applied via-media rules. We do not think
it necessary, in this case to go deeper into these issues.
In the ultimate analysis, it may depend on the facts of a
particular case.
It will be sufficient, for the purpose of the case of
Mr. Mansoor Ali Khan to show that his case will fall within
the exceptions stated by Chinnappa Reddy, J. in S.C.
Kapoor Vs. Jagmohan, namely, that on the admitted or
indisputable facts – only one view is possible. In that
event no prejudice can be said to have been caused to Mr.
Mansoor Ali Khan though notice has not been issued.
Our reasons for saying that the case of Mr. Mansoor
Ali Khan fall within the exception can be stated as follows:
Admittedly, leave was sanctioned only for 2 years from
18.4.79. When before the expiry of the period, Mr. Mansoor
Ali Khan applied on 18.4.81 for extension of leave by 3 more
years, the University wrote to him on 17/23-9-91 granting
extension only for one year from 18.4.81 and also stated
that he was required to resume duties by 18.4.82. It did
not stop there. It further forewarned Mr. Khan as follows:
“Please note that no further extension in the period of
your leave will be possible and you are advised to make
preparation for resuming duty positively by 18.4.82.”
In other words, he was put on advance notice that it
would not be possible to give any further extension i.e.
beyond one year on the ground of continuance in the job at
Libya and he was to resume duty by 18.4.82. In fact,
thereafter some special consideration was still shown in his
favour by way of granting him joining time upto 1.7.82. It
was clearly said that otherwise he would be deemed to have
vacated the post. If he had, in spite of this warning, gone
ahead by accepting a further contract in Libya, it was, in
our view, his own unilateral act in the teeth of the advance
warning given. That conduct, the learned Single Judge
thought and in our view rightly to be sufficient to deny
relief under Article 226.
We may state that the University has not acted
unreasonably in informing him in advance – while granting
one year extension, in addition to the initial absence of 2
years – that no further extension will be given. We have
noticed that when the extension is sought for three years,
the department has given him extension only for one year as
he had already availed 2 years extraordinary leave by that
time. It has to be noticed that when employees go on
foreign assignments which are secured by them at their own
instance, in case they do not come back within the original
period stipulated or before the expiration of the extended
period, the employer in the parent country would be put to
serious inconvenience and will find it difficult to make
temporary alternative appointments to fill up the post
during the period of absence of those who have gone abroad.
However, when rules permit and provide for an employee to go
abroad discretion must be exercised reasonably while
refusing extension. In this case, giving of further
extension only for one year out of the further period of
three years sought for is not unreasonable. In such a
situation, if the employee has entangled himself into
further commitments abroad, he has to blame himself.
On the above facts, the absence of a notice to show
cause does not make any difference for the employee has
already been told that if his further overstay is for
continuing in the job in Libya, it is bound to be refused.
Should notice have been given before he is deemed to
have vacated office under Rule 5(8) (i)? Was no prejudice
caused?
Now the question of deeming the vacation of the post is
mentioned both in Rule 10 which deals with 5 years absence
and also by rule 5(8)(ii) where absence is for a period less
than 5 years. In the latter case, it is true, notice is
normally contemplated. We have said that that rule 10 has
no application to the case before us since the absence of
Mr. Mansoor Ali Khan’s absence is less than 5 years. Now
even under rule 5(8)(i), there is a deeming provision of
vacation of the post where the explanation offered by the
employee, consequent upon a notice, is found not
satisfactory.
Let us then take two situations. An employee who is
permitted to be abroad for two years on a job seeks
extension for 3 years but is granted extension only for 1
year and is also told in advance that no further extension
will be given and if does not join after the 1 year extended
period, he will be deemed to have vacated office. Let us
assume that he does not join as advised and, in a given
case, notice is given calling for his explanation. He
replies stating that he had entered into a further
commitment for 2 years and wants one more year of extension.
The University refuses extension treating the explanation
unsatisfactory and under Rule 5 (8)(i) deems that he has
vacated his job. No fault can be found in the procedure.
Let us take another situation where the officer does not
join in identical circumstances but is not given notice
under Rule 5 (8)(i). He has no other explanation – from
what is revealed in his writ petition filed later – other
than his further commitment abroad for 2 more years. In the
latter case, it is, in our opinion clear that even if no
notice is given, the position would not have been different
because what particular explanation would not be treated as
satisfactory had already been intimated to him in advance.
Therefore, the absence of a notice in the latter situation
must be treated as having made no difference. That is
precisely the position in the case of Sri Mansoor Ali Khan.
Another important aspect of the matter is that no new
reason has been projected in the Writ petition of Mr. Khan
for his seeking further extension earlier while in Libya.
The only reason stated is that he had obtained further
extension in job. It is not a case where there is a plea in
the Court that there were different grounds or reasons which
he could have put in his explanation, if called for, such as
ill health etc. Indeed, if the reasons could have been
somewhat different, – as may perhaps be disclosed or proved
in subsequent writ petition – such as his own failing
health, one can understand. But so far as leave for
purposes of job continuance in Libya, is concerned, he has
been fully put on advance notice that no further extension
will be given. It must be held that no prejudice has been
caused even though no notice is given under Rule 5(8)(i).
We may add a word of caution. Care must be taken,
wherever the Court is justifying a denial of natural
justice, that its decision is not described as a ‘pre-
conceived view’ or one in substitution of the view of the
authority who would have considered the explanation.
That is why we have taken pains to examine in depth
whether the case fits into the exception.
Thus, in our view, in the above peculiar circumstances,
the only conclusion that can be drawn is that even if Mr.
Mansoor Ali Khan had been given notice and he had mentioned
this fact of job continuance in Libya as a reason, that
would not have made any difference and would not have been
treated as a satisfactory explanation under Rule 5(8)(i).
Thus, on the admitted or undisputed facts, only one view was
possible. The case would fall within the exception noted in
S.L.Kapoor’s case. We, therefore, hold that no prejudice
has been caused to the officer for want of notice under Rule
5(8)(i). We hold against Mr. Mansoor Ali Khan under Point
5.
For the aforesaid reasons, we allow the appeals, set
aside the judgments of the Division Bench of the High Court
in the case of both employees and dismiss the writ
petitions. There will be no order as to costs.
