Holding

The Court held that despite the breach of natural‑justice procedure, no prejudice was caused and the termination orders stand, so the appeals are allowed and the writ petitions dismissed.

Summary

The Supreme Court examined two civil appeals filed by Aligarh Muslim University challenging High Court judgments that had quashed termination orders against laboratory assistants who had taken extraordinary leave for foreign employment. The employees had been granted two years of leave, sought extensions, were warned that no further extension would be given, yet entered into new contracts abroad and failed to resume duties. The University terminated their services without issuing a show‑cause notice under Rule 5(8)(i) of the Aligarh University Revised Leave Rules, 1969. The Court held that although the termination orders were passed in breach of natural‑justice requirements, no real prejudice was caused because the employees had been put on advance notice and only one conclusion was possible from the undisputed facts. Consequently, the exception laid down in S.L. Kapoor v. Jagmohan applied, and the termination orders were upheld. The appeals were allowed, the High Court judgments set aside, and the writ petitions dismissed.

Issues considered

Whether Rule 5(8)(i) of the Aligarh University Revised Leave Rules, 1969 applies to the termination of service of the employees.
Whether Rule 10(c)(ii) of the Aligarh Muslim University Non‑Teaching Employees Rules, 1972 is applicable.
Whether the termination orders, passed without a show‑cause notice, violate the principles of natural justice and must be quashed.
Whether the violation of natural justice caused any prejudice to the employees.
Whether the exception in S.L. Kapoor v. Jagmohan, that no prejudice exists when only one conclusion is possible on undisputed facts, applies.
Whether relief under Article 226 of the Constitution of India is available.

Legislation cited

Constitution of Indias. Article 226

Subjects

Natural justiceAdministrative lawService lawLeave rulesArticle 226Prejudice exceptionTermination of serviceUniversity service regulations

Judgment

A ALIGARH MUSLIM UNIVERSITY AND ORS.
v.
MANSOOR ALI KHAN ETC.

AUGUST 28, 2000

B [M. JAGANNADHA RAO AND Y.K. SABHARWAL, JJ.]

Administrative Law-Natural Justice-Termination order passed with-
out notice to employee under Rule 5(8)(i) of Aligarh University Revised leave
Rules, 1969-E.ffect of-Held, on facts, since no prejudice had been caused
C to employee, termination order though made in violation of natural justice,
was not required to be quashed-Service Law.

Constitution of India, Article 226-Writ Petitioner terminated from serv-
ice for overstaying leave and accepting further contract of employment in
foreign country despite forewarning that leave would not be extended-Held,
D conduct of petitioner sufficient to deny relief under Article 226-Practice and
Procedure.

MAK, working as a laboratory assistant in the appellant University
applied for two years extra-ordinary leave for joining a University in
Libya. The leave was sanctioned for two years, before the expiry of which
E MAK applied for a three-year extension of leave. This time while extend-
ing leave by one year, the appellant stated in its letter that no further
extension would be possible and that MAK should resume duties positively
by April 18, 1982. However, without waiting for the receipt of the exten-
sion letter, MAK entered into a fresh contract in Libya for a minimum
F period of two years upto April 17, 1983. MAK wrote to the appellant on
January 18, 1982 for grant of extension of leave till April 17, 1983. The
Appellant sent MAK a telegram stating that his request was refused and
that if he failed to resume duties by May 15, 1982 he would be deemed to
have vacated the post and ceased to be in the appellant's service.

G With MAK failing to resume duties even in the extended joining
time, he was deemed to have vacated office with effect from April 18, 1982.
After his appeal to the Visitor was rejected, MAK filed a writ petition in
the High Court. A Single Judge dismissed the petition on the ground that
the conduct of MAK in entering into a fresh contract without waiting for
H the extension and in not availing of the extended joining time disentitled
684
ALIGARH MUSLIM UNIVERSITY v. M.A. KHAN 685
him to relief under Article 226. A

The Division Bench, while allowing MAK's appeal, held that on a
harmonious reading of rule 5(8)(ii) of the Aligarh University Revised
Leave Rules, 1969 ('1969 Rules') and Rule IO(C)(ii) of the Aligarh Univer-
sity Non-Teaching Employees (Terms and Conditions of Service) Rules,
1972 ('1972 Rules'), MAK ought to have been given notice. The order of B
termination of services for alleged unauthoris~d absence was quashed and
the Vice Chancellor of the appellant was directed to consider the matter
afresh.

Although the facts in the second case of MAK were similar, notice C
had been issued and reply furnished before the order of deeming vacation
of office was passed. However, the Division Bench of the High Court did
not take note of this difference and allowed MAK's appeal following the
judgment in MAK's case.

Allowing the appeals, the Court D
Held : 1.1. No prejudice had been caused to the officer for want of
notice under Rule 5(8)(i). Since on these facts, only one conclusion was
possible, MAK's case fell within the exceptions spelt out in S.L. Kapoor~·
case and it was not necessary to quash the order which was passed in
violation· of natural justice. [692-E; 697-C] E

S.L Kapoor v. Jagmohan, [1980] 4 SCC 379, relied on.

M.C. Mehta v. Union of India, [1999] 6 SCC 237; Gadde Venkateswara
Rao v. Government of Andhra Pradesh, [1966] 2 SCR 172; Ridge v. Baldwin,
(1964) AC 40; K.L. Tripathi v. State Bank of India, [1984] 1 SCC 43; State F
Bank of Patiala v. S.K. Sharma, [1996] 3 SCC 364 and Rajendra Singh v.
Stale of M.P., [1996] 5 SCC 460, referred to.

1.2. Even if MAK had been given notice and he had mentioned the
fact of job continuance in Libya as a reason, that would not have made any G
difference and would not have been treated as a satisfactory explanation
under Rule 5(8)(i). [697-B]

2.1. MAK had unilaterally accepted a further contract in Libya in
the teeth of the advance warning given. That conduct was sufficient to
deny him relief under Article 226. [695-C] H
686 SUPREME COURT REPORTS [2000) SUPP. 2 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4780 of 2000.

From the Judgment and Order dated 8.4.99 of the Allahabad High Court
in S.A. No. 483 of 1995.

WITH
B
Civil Appeal No. 4781 of 2000.

B.D. Agarwal, Ms. Uma Paneri and Aruneshwar Gupta for the Appel-
lants.

Rajeev Dhawan, Chandrasekhar, Pramod Swarup, Praveen Swarup, Ms.
c Pareena Swarup and Ms. Seema Sundd for the Respondents.

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. Leave granted.

D These two appeals have been preferred by the Aligarh Muslim Univer-
sity, 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 re-
E
spondent 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
F 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 lO(C)(ii) of
the Ali garb University Non-Teaching Employees ( Tenns and Conditions of
Service) Rules, 1972 (hereinafter called the 1972 Rules) and Rule 5(8)(i) of the
G
Aligarh University Revised Leave Rules, 1969 relied upon by the University
(hereinafter called the 1969 Rules).

We shall first state the facts in Mr. Munsoor Ali Khan'.!· case. He was
working as a Laboratory Assistant and he applied for two years extra-ordinary
H leave for joining Al-Fatah University, Tripoli, Libya. The Vice- Chancellor
ALIGARH MUSLIM UNIVERSITY v. M.A. KHAN [JAGANNADHA RAO, J.] 687
sanctioned leave for two years from 18.4.79. Before the expiry of the puiod, A
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 Uni-
versity, in its letter as follows:

" ........ You are required to resume duties by 18.4.1982. Please B
note that no further extension in the period of your leave will be
possible ar.d 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
c
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;!;tated 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 D
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 E
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 10 the Visitor was rejected on 5.9.85.
Then Mr. Khan filed the Writ petition on 24.8.87 for quashing the two tel-
egrams and the order dated 5.9.85 of the Visitor.
F
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
G
dismissed on 17.2.95.

In the Appeal filed by Mr. Mansoor Ali Khan, the Division Bench held
that on a hannonious reading of Rule 5(8)(ii) of the Leave Rules, 1969 and
Rule lO(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 H
688 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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
B
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
c 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 !O(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
D 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
!O(C)(ii) of Service Rules, 1972.

The facts in the case of Mr. Murshad Hussain Khan were similar but for
E 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
F 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.

G The following points arise for consideration:

!. 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 IO(C)(i) and Rule IO(C)(ii) of
H the Aligarh Muslim University Non-Teaching Employees (Terms and
ALIGARH MUSLIM UNIVERSITY v. M.A. KHAN [JAGANNADHA RAO, J.] 689
Conditions of Service) Rules, 1972 apply? A
3. Under which Rule do the cas.es 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? B
5. Whether on 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? C
Point I:

For the purpose of this point, we shall refer to Rule 5(8) of the 1969
Rules.

'.t reads as follows: D

" 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 E
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 F
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 com-
municate with the person concerned asking for an explanation which
shall be submitted to the Vice-Chancellor/Executive Council.
G
Unless the Appointing Authority regards the explanation satis-
factory, the employee concerned shall be deemed too have v·acated 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 H
690 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A 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
B
the Executive Ordinances of the A.M.U. and para JO 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
c 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
D
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
E 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
F
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.

G Point 2:

Rule JO(c)(i)(ii) of the 1972 Rules reads as follows:

"Rule JO: Employee absent from duty:

H (a) ..................... .
AL!GARH M.USLIM UNIVERSITY v. M.A. KHAN [JAGANNADHA RAO, J.] 691
(b) ..................... . A

(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 B
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 C
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 lO(c)(i)

) states that no permanent ~mployee shall be granted leave of any kind for a
continuous period of more than 5 years. However, Rule IO(c)(ii) states that
when an employee does not resume duty after remaining on leave for a con- D
tinuous 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 E
deemed to have resigned and shall accordingly cease to be in the University
service. This is the purport of Rule IO(c).· Point 2 is decided accordingly.

Point 3:

In the case of both these employees i.e. Mr. Mansoor Ali Khan as well F
as Mr. Murshad Hussain Khan, the total period of absence before the date of
the orderof 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 G
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 H
692 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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 accord-
B ingly.

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
c 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. Unfortu-
nately, 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.
D 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
E 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:
F
This is the crucial point in this Cl\Se. 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 inter-
ference is not called for in the special circumstances of the case?

G As pointed recently in M. C. Mehta v. 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, interfer-
ence under Article 226 is not necessary. Similarly, if the quashing of the order
H which is in breach of natural justice is likely to result in revival of another order
ALIGARH MUSLIM UNIVERSITY v. M.A. KHAN [JAGANNADHA RAO, J.J 693
which is in itself illegal as in Gadde Venkateswara Rao v. Government A
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
v. Baldwin, ( 1964) AC 40 that breach of principles of natural justice was in B
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 v. Jagmohan, [ 1980] 4 SCC
379, Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order
of supersession of the New Delhi Metropolitan Committee rejecting the argu- c
ment 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), D
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 E
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 v. State
Bank of India, [1984] l SCC 43, Sabyasachi Mukherji, J. (as he then was) also
laid down the principle that not mere violation of natural justice but de facto F
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
G
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". H
694 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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,
[1996] 3 sec 364. 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., [ 1996] 5 SCC 460.
B
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
C 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
D 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.
E
It will be s.ufficient, 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 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.
F
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
G extension of leave by 3 more years, the University wrote to him on l 7/23-9-
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
H will be possible and you are advised to make preparation for resuming
ALIGARH MUSLIM UNIVERSITY v. M.A. KHAN [JAGANNADHA RAO, J.l 695
duty positively by 18.4.82." A

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 w?.s 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 B
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. C

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 D
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 appoint- E
ments 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. F

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.
G
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 S years absence and also by rule 5(8)(ii) where
absence is for a period less than S years. In the latter case, it is true, notice is H
696 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A normally contemplated. We have said that 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.

B 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
C 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 expla-
nation unsatisfactory and under Rule 5 (8)(i) deems that he has vacated his job.

c
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
D 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
E 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
F 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
G 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).

H We may add a word of caution. Care must be taken, wherever the Court
ALIGARH MUSLIM UNIVERSITY v. M.A. KHAN [JAGANNADHA RAO, J.) 697
1 is justifying a denial of natural justice, that its decision is not described as a 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 conclu-
sion that can be drawn is that even if Mr. Mansoor Ali Khan had been given B
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 undis-
puted 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 C
has been caused to the officer for want of notice under Rule 5(8)(i). We h0Jd
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. D
S.M. Appeals allowed.
]