IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 15918 of 1998 Dr. P.N. Ramani .. Petitioner Vs. The Pondicherry University rep. by its Registrar University Campus R. Venkataram Nagar Kalapet, Pondicherry .. Respondent Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records of the respondent in NO. PU.ESTT/ET-3/39/98-99/8a dated 04.9.1998 passed by the respondent and quash the same and consequently direct the respondent to permit the petitioner to resume duty as Reader in the English Department of the respondent University ELT Centre. For Petitioner : Mr. P.R. Raman For Respondent : Mrs. A.V. Bharathi ORDER
The petitioner challenges the order of the respondent University dated 04.9.1998 wherein and by which he was informed that as he ceased to be in the service of the University w.e.f. 16.11.1995 and, therefore, the question of his reporting to duty was not acceptable.
2. Pending the writ petition, the petitioner sought for an interim injunction restraining the University from filling up the post of Reader in English pursuant to the advertisement dated 07.5.1999. This Court, by an order dated 24.10.2000 directed that any appointment made during the pendency of the writ petition will be subject to the result of the same. Subsequently, the said order came to be made absolute on 26.8.2003.
3. The petitioner joined the services of the University as a Reader in the ELT Centre of the Department of English on 05.8.1988. He was confirmed in his post with effect from 05.8.1990. While serving as a Reader of the Department, he applied for a faculty position in Sanaa University in the Republic of Yemen. His application was forwarded though proper channel. The University received information that the petitioner had been selected to the post of Associate Professor for English by the Sanaa University. Pursuant to the selection, the petitioner had applied for Extra-Ordinary Leave [EOL] on loss of pay for a period of two years from 16.11.1995 to 15.11.1997. In accordance with the Appendix-VI Clause 8(iii) of the Ordinances framed by the University governing the Academic matters, the petitioner’s leave was granted from 16.11.1995 to 15.11.1997.
4. Before the expiry of the EOL availed by the petitioner, by a letter dated 26.7.1997, he requested for grant of extension of EOL for a further period of two years effective from 16.11.1997 and the request was considered by the University. It was decided that such a leave cannot be granted in the interest of the Department as well as the University. Therefore, the petitioner was requested by a letter dated 04.9.1997 to join duty on 16.11.1997. The petitioner brought pressure even from the Ambassador of India to Republic of Yemen and made several representations. However, the University informed by the very same letter that if the petitioner does not report for duty on 16.11.1997, it will be construed that he had resigned from the post held by him. The petitioner received the said letter but did not join duty. The petitioner was informed by a letter dated 04.9.1998 that since he had failed to resume his duty in the University on 16.11.1997, ie., the day after the expiry of leave granted by the University, it was deemed that he had resigned the post of Reader. He was also told that he will not be considered to be in the service of the University even from the earlier date, i.e., 16.11.995, the date on which he had gone on EOL.
5. The issue was also placed before the Executive Council of the University on 26.11.1998. The decision of the Vice-Chancellor was ratified by the Executive Council of the University. After a lapse of ten months, the petitioner sent a communication on 10.8.1998 expressing his willingness to report for duty. However, the petitioner was further informed by a letter dated 04.9.1998 that his request cannot be considered as he had admittedly ceased to be in the service of the University. He further made a representation dated 18.9.1998, which was also rejected by the University by a written communication. It was this order that is under challenge in this writ petition.
6. Mr. P.R. Raman, leaned counsel appearing for the petitioner submitted that the respondent University was unfair in refusing to permit the petitioner to rejoin duty and after the expiry of leave, he had only four days to rejoin duty. He also submitted that instead of encouraging people to work in foreign Universities, the respondent University is taking a very narrow view. He also submitted that one Dr. Thiagarajan of the same Department was granted liberal extension of EOL.
7. With reference to these allegations, the respondent University in their counter affidavit stated that when the said Dr. Thiagarajan applied for leave, the faculty of English Department had the full strength of teaches on its rolls and the University was of the view that at no point of time, more than 20% teaches on the rolls will be allowed to be absent on EOL / Study Leave / Sabbatical Leave. Since the faculty strength of the Department was only 7, only one can be allowed to be absent at a time. Since Mr. Thiagarajan was already on EOL and one teacher on rotation can go on Sabbatical Leave. Therefore, the University considered that the absence of two teachers in a Department at the same time would be detrimental to the interest of the University.
8. With reference to violation of principles of natural justice, the respondent University contended that the grant of EOL was based upon the Ordinance framed by the University. In the present case, the petitioner was told that he will be given only two years EOL and before its expiry, when he sought for extension, it was refused. When the facts are not in dispute, the question of conducting any enquiry may not arise and it was not the case of the petitioner that he had reported for duty on 16.11.1997.
9. In view of the above contention based on the leave rule position, it is necessary to refer to the Ordinance relating to EOL, which reads as follows:-
Extra-ordinary Leave:
(i) A permanent teacher may be granted extraordinary leave when:
(a) No other leave is admissible; or
(b) No other leave is admissible and the teacher applies in writing for the grant of extraordinary leave.
Provided, however, that save under the provisions of sub-clauses (ii) to (iv) below, no extraordinary leave shall be granted to a teacher for holding an appointment or a fellowship outside the University.
(ii) The Executive Council may grant on the request from the institution concerned and on application of the teacher, extraordinary leave to hold an appointment or a fellowship under a Government, a University, a Research Institute or other similar important institution, if in the opinion of Executive Council, such leave does not prejudice the interest of the University. This leave can be allowed only to a teacher who has been confirmed in the post held by him and has served the University for a period of at least two years. The application for such leave shall be sent through the Dean of School concerned and the latter shall give his recommendations taking into account the strength of teaching staff of the particular subject. Except in very special cases at no time more than 20% of the strength of teachers on rolls of a Centre shall be allowed to be absent from the Centre on extraordinary leave, study leave and / or sabbatical leave. However the relaxation may be given at the discretion of the Vice-Chancellor on the merits of the case. In case of his failure to return to duty immediately at the end of the period of leave sanctioned to him the services of a teacher shall be liable to be terminated from the date of commencement of the period of leave granted to him. He shall also refund to the University pay and allowances, if any received by him during the leave (including other kinds of leave taken in continuation) sanctioned to him for the purpose.
(iii) The Executive Council may also grant, at its discretion, extraordinary leave to a permanent teacher who has been selected for a teaching or research assignment in a University, a Research institute or other similar important institution provided he has served the University for a period of at least two years and the application had been sent through and forwarded by the University. The leave in such cases shall not exceed a maximum period of two years….”
10. In the light of the rival contentions, it is necessary to refer to certain decisions of the Supreme Court which will have a bearing on the present case.
11. The Supreme Court in Gujarat Electricity Board and another v. Atmaram Sungomal Poshani [1989 (2) SCC 602] held that no employee of a Public Undertaking has a right to be absent from duty without sanction of leave merely on account of pendency of his representation with the employer. Though it dealt with the case of an employee in not having obeyed an order of transfer, it will have relevance as in the present case, the petitioner had contended that his representation was pending with the University and he should have been given further opportunity to join duty.
12. In the case relating to Aligarh Muslim University and others v. Mansoor Ali Khan [2000 (7) SCC 529], the Supreme Court dealt with a case of absence of University employee obtaining EOL to join in another University in a foreign country. In that case, the Supreme Court in paragraphs 24 to 35 observed as follows:-
Para 24: “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 v. State Bank of India, Sabyasachi Mukharji, 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 Wades Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31)
[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. … There must also 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 v. S.K. Sharma. In that case, the principle of prejudice has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P.
Para 25: 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 on 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.
Para 26: 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.L. Kapoor v. 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.
Para 27: Our reasons for saying that the case of Mr Mansoor Ali Khan falls within the exception can be stated as follows:
Admittedly, leave was sanctioned only for 2 years from 18-4-1979. When before the expiry of the period, Mr Mansoor Ali Khan applied on 18-4-1981 for extension of leave by 3 more years, the University wrote to him on 17-9-1981/23-9-1981 granting extension only for one year from 18-4-1981 and also stated that he was required to resume duties by 18-4-1982. 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 18-4-1982.
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 18-4-1982. In fact, thereafter some special consideration was still shown in his favour by way of granting him joining time up to 1-7-1982. 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.
Para 28: 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.
Para 29: 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.
Para 30: Should notice have been given before he is deemed to have vacated office under Rule 5(8)(i)? Was no prejudice caused?
Para 31: 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)(i) 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 Rule 10 has no application to the case before us since the absence of Mr Mansoor Ali Khans 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.
Para 32: 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 he 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 as 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 that 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 Shri Mansoor Ali Khan.
Para 33: 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 a 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 a 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).
Para 34: 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 preconceived 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.
Para 35: 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 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.”
13. The Supreme Court, however, in the case of V.C., Banaras Hindu University and others v. Shrikant [2006 (11) SCC 42] dealt with the case of a University Lecturer going for abroad and applying for extension of leave. In paragraphs 41, 57 and 60 of the judgment, it was observed as follows:-
Para 41: “Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner. The respondent has shown before us that his leave had been sanctioned by the Director being the Head of the Department in terms of the Leave Rules. It was the Director/Head of the Department who could sanction the leave. Even the matter relating to grant of permission for his going abroad had been recommended by the Director. The respondent states, and it had not been controverted, that some other doctor was given the charge of his duties. We have indicated sufficiently that the Vice-Chancellor posed unto himself a wrong question. A wrong question leads to a wrong answer. When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law.”
Para 57: “The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorised absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank v. Sakattar Singh.”
Para 60: “A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding: (SCC p. 345, para 20)
A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.
14. Therefore, the argument based upon the principles of natural justice has no application in the present case as the petitioner was sufficiently informed that his refusal to join the post on the stipulated date will render him as having left the services of the University.
15. In the light of the above legal principles and the rule position, the writ petition will stand dismissed. However, there will be no order as to costs. gri To The Pondicherry University rep. by its Registrar University Campus R. Venkataram Nagar Kalapet, Pondicherry