TMI Blog2000 (8) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily' 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 seek ..... X X X X Extracts X X X X X X X X Extracts X X X X
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