Headnote:(i) Aligarh University Non-Teaching Employees (Terms and Conditions of Service) Rules, 1972-Rule 10(c)(ii)-Aligarh University Revised Leave Rules, 1969-Rule 5(8)(i)-Deemed vacation of post-Laboratory Assistant-Two years extra ordinary leave granted for joining employment abroad-Request for extention of leave for another three years-University granting extention only for one year-Without waiting for extention order employee entering into contract for employment for two years abroad and requesting for extention of leave-University rejecting request and intimating him that failure to resume duty would be deemed to have vacated post-Employee not resuming duty and consequently University treating him deemed to have vacated post-Plea of employee that show cause notice note issued and hence order deeming him to have vacated post illegal-Held, absence less than five years and therefore Rule 5(8)(i) of leave Rules applicable and not Rule 10(c)(ii) of Service Rules-Show cause notice ought to have been given-Principles of natural justice violated-No prejudice had been caused even though no show cause notice given-Order need not be quashed merely because of violation of principles of natural justice.
       Held : 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. (Paras 13, 14 & 15)
       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. (Para 17)
       It is not necessary to quash the order merely because of violation of principles of natural justice. 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 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. (Paras 19, 21 & 23)
       In the instant case 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. 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. 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. (Paras 25 & 26)
       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? 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 in that he had obtained further extension in job. It is not a case where there is a plea is 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)(1). (Paras 27, 28, 30 & 31)
       (ii) Aligarh Muslim University Revised Rules, 1969-Rule 5(8)(i) and 5(8)(ii)-Deemed vacation of post -Application of Rules-Rule 5(8)(i) applies to absence for a period of less than five years-Rule 5(8)(ii) applies to situation-It relates to a case where an Officer is permitted to rejoin duty-Rule 5(8)(ii) enable disciplinary action to be taken treating unauthorised absence as misconduct.
       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 to 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. (Para 9)
       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. (Para 10)
       (iii) Aligarh Muslim University Non-Teaching Employees (Terms and Conditions of Service) Rules, 1972 - Rule 10(c)(i) and 10(c)(ii)-Deemed resignation on account of absence from duty-Purpose and application of Rules.
       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). (Para 12)

Judgement Key Points

Key Points: - The total absence in Mansoor Ali Khan and Murshad Hussain Khan did not exceed five years, so Rule 10(c)(ii) of the 1972 Rules does not apply; Rule 5(8)(i) applies for absence less than five years. (!) (!) - Rule 5(8)(i) requires a show cause/explanation; absence without such notice constitutes violation of natural justice, but the court may refrain from quashing if no prejudice or if exception applies. (!) (!) (!) - In Mansoor Ali Khan, absence was less than five years and the university forewarned no further extension would be possible; Court held that lack of notice under Rule 5(8)(i) did not prejudice the employee given the admitted facts, falling under exceptions to natural justice. (!) (!) (!) (!) - Rule 5(8)(ii) deals with cases where the officer is permitted to rejoin; it contemplates no leave/salary for the period and possible disciplinary action; not applicable where the officer never rejoined. (!) (!) - Rule 10(c)(ii) deems resignation after five years of absence, but is not applicable where total absence is under five years; distinguishes between Rules 5(8) and 10(c). (!) (!) - The appellate court allowed the appeals, set aside High Court judgments, and dismissed writ petitions, directing fresh consideration under the appropriate rules. (!) (!)

What is the applicability of Rule 5(8)(i) versus Rule 5(8)(ii) of the Aligarh Muslim University Revised Leave Rules 1969?

JUDGMENT

M. Jagannadha Rao, J.- Leave granted.

2. 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).

3. 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.

4. 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 and relief. The writ petition was dismissed on 17.2.95.

5. In the Appeal filed by Mr. Mansoor Ali Khan, the Division Bench held that on a harmonious reading of Ru

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2000 Supreme(SC) 1398

What is the applicability of Rule 5(8)(i) versus Rule 5(8)(ii) of the Aligarh Muslim University Revised Leave Rules 1969?

Cases Referred (6)