Dr. P.N. Ramani v. The Pondicherry University

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 28..7..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 15918 of 1998Dr. P.N. Ramani.. Petitioner Vs.The Pondicherry Universityrep. by its RegistrarUniversity CampusR. Venkataram NagarKalapet, Pondicherry-605 014. .. Respondent Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records of the respondent in NO. PU.ESTT/ET-3/39/98-99/8a dated04.9.1998 passed by the respondent and quash the same andconsequently direct the respondent to permit the petitioner toresume duty as Reader in the English Department of the respondentUniversity ELT Centre.For Petitioner : Mr. P.R. RamanFor Respondent : Mrs. A.V. BharathiORDERThe petitioner challenges the order of the respondentUniversity dated 04.9.1998 wherein and by which he was informedthat 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 dutywas not acceptable. 2.Pending the writ petition, the petitioner sought for aninterim injunction restraining the University from filling up thepost of Reader in English pursuant to the advertisement dated07.5.1999. This Court, by an order dated 24.10.2000 directed thatany appointment made during the pendency of the writ petition willbe subject to the result of the same. Subsequently, the said ordercame to be made absolute on 26.8.2003. https://hcservices.ecourts.gov.in/hcservices/

3.The petitioner joined the services of the University as aReader 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. Whileserving as a Reader of the Department, he applied for a facultyposition in Sanaa University in the Republic of Yemen. Hisapplication was forwarded though proper channel. The Universityreceived information that the petitioner had been selected to thepost 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 from16.11.1995 to 15.11.1997. In accordance with the Appendix-VI Clause8(iii) of the Ordinances framed by the University governing theAcademic matters, the petitioner's leave was granted from16.11.1995 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 ofEOL for a further period of two years effective from 16.11.1997 andthe request was considered by the University. It was decided thatsuch a leave cannot be granted in the interest of the Department aswell as the University. Therefore, the petitioner was requestedby a letter dated 04.9.1997 to join duty on 16.11.1997. Thepetitioner brought pressure even from the Ambassador of India toRepublic of Yemen and made several representations. However, theUniversity informed by the very same letter that if the petitionerdoes not report for duty on 16.11.1997, it will be construed thathe had resigned from the post held by him. The petitioner receivedthe said letter but did not join duty. The petitioner was informedby a letter dated 04.9.1998 that since he had failed to resume hisduty in the University on 16.11.1997, ie., the day after the expiryof leave granted by the University, it was deemed that he hadresigned the post of Reader. He was also told that he will not beconsidered to be in the service of the University even from theearlier date, i.e., 16.11.995, the date on which he had gone onEOL.5.The issue was also placed before the Executive Council ofthe University on 26.11.1998. The decision of the Vice-Chancellorwas ratified by the Executive Council of the University. After alapse of ten months, the petitioner sent a communication on10.8.1998 expressing his willingness to report for duty.However, the petitioner was further informed by a letter dated04.9.1998 that his request cannot be considered as he hadadmittedly ceased to be in the service of the University. Hefurther made a representation dated 18.9.1998, which was alsorejected by the University by a written communication. It wasthis order that is under challenge in this writ petition.6.Mr. P.R. Raman, leaned counsel appearing for thepetitioner submitted that the respondent University was unfair in https://hcservices.ecourts.gov.in/hcservices/ refusing to permit the petitioner to rejoin duty and after theexpiry of leave, he had only four days to rejoin duty. He alsosubmitted that instead of encouraging people to work in foreignUniversities, the respondent University is taking a very narrowview. He also submitted that one Dr. Thiagarajan of the sameDepartment was granted liberal extension of EOL. 7.With reference to these allegations, the respondentUniversity in their counter affidavit stated that when the said Dr.Thiagarajan applied for leave, the faculty of English Departmenthad the full strength of teaches on its rolls and the Universitywas of the view that at no point of time, more than 20% teaches onthe rolls will be allowed to be absent on EOL / Study Leave /Sabbatical Leave. Since the faculty strength of the Department wasonly 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 goon Sabbatical Leave. Therefore, the University considered thatthe absence of two teachers in a Department at the same time wouldbe detrimental to the interest of the University.8.With reference to violation of principles of naturaljustice, the respondent University contended that the grant of EOLwas based upon the Ordinance framed by the University. In thepresent case, the petitioner was told that he will be given onlytwo years EOL and before its expiry, when he sought for extension,it was refused. When the facts are not in dispute, the questionof conducting any enquiry may not arise and it was not the case ofthe petitioner that he had reported for duty on 16.11.1997. 9.In view of the above contention based on the leave ruleposition, it is necessary to refer to the Ordinance relating toEOL, which reads as follows:-Extra-ordinary Leave:(i)A permanent teacher may be grantedextraordinary leave when:(a)No other leave is admissible; or(b)No other leave is admissible and theteacher applies in writing for the grantof extraordinary leave. Provided, however, that save under theprovisions of sub-clauses (ii) to (iv) below,no extraordinary leave shall be granted to ateacher for holding an appointment or afellowship outside the University.(ii)The Executive Council may grant on the requestfrom the institution concerned and onapplication of the teacher, extraordinary leaveto hold an appointment or a fellowship under a https://hcservices.ecourts.gov.in/hcservices/ Government, a University, a Research Instituteor other similar important institution, if inthe opinion of Executive Council, such leavedoes not prejudice the interest of theUniversity. This leave can be allowed onlyto a teacher who has been confirmed in the postheld by him and has served the University for aperiod of at least two years. Theapplication for such leave shall be sentthrough the Dean of School concerned and thelatter shall give his recommendations takinginto account the strength of teaching staff ofthe particular subject. Except in veryspecial cases at no time more than 20% of thestrength of teachers on rolls of a Centre shallbe allowed to be absent from the Centre onextraordinary leave, study leave and / orsabbatical leave. However the relaxation maybe given at the discretion of the Vice-Chancellor on the merits of the case. In caseof his failure to return to duty immediatelyat the end of the period of leave sanctioned tohim the services of a teacher shall be liableto be terminated from the date of commencementof the period of leave granted to him. He shallalso refund to the University pay andallowances, if any received by him during theleave (including other kinds of leave taken incontinuation) sanctioned to him for thepurpose.(iii)The Executive Council may also grant, at itsdiscretion, extraordinary leave to a permanentteacher who has been selected for a teaching orresearch assignment in a University, a Researchinstitute or other similar importantinstitution provided he has served theUniversity for a period of at least two yearsand the application had been sent through andforwarded by the University. The leave in suchcases shall not exceed a maximum period of twoyears...."10.In the light of the rival contentions, it is necessary torefer to certain decisions of the Supreme Court which will have abearing on the present case.11.The Supreme Court in Gujarat Electricity Board andanother v. Atmaram Sungomal Poshani [1989 (2) SCC 602] held thatno employee of a Public Undertaking has a right to be absent fromduty without sanction of leave merely on account of pendency of his https://hcservices.ecourts.gov.in/hcservices/ representation with the employer. Though it dealt with the case ofan employee in not having obeyed an order of transfer, it will haverelevance as in the present case, the petitioner had contended thathis representation was pending with the University and he shouldhave been given further opportunity to join duty. 12.In the case relating to Aligarh Muslim University andothers v. Mansoor Ali Khan [2000 (7) SCC 529], the Supreme Courtdealt with a case of absence of University employee obtaining EOLto 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 naturaljustice, prejudice must also be proved has beendeveloped in several cases. In K.L. Tripathi v.State Bank of India, Sabyasachi Mukharji, J. (as hethen was) also laid down the principle that not mereviolation of natural justice but de facto prejudice(other than non-issue of notice) had to be proved.It was observed, quoting Wade’s Administrative Law(5th Edn., pp. 472-75), as follows: (SCC p. 58,para 31)“[I]t is not possible to lay down rigid rulesas to when the principles of natural justiceare to apply, nor as to their scope and extent.... There must also have been some realprejudice to the complainant; there is no suchthing as a merely technical infringement ofnatural justice. The requirements of naturaljustice must depend on the facts andcircumstances of the case, the nature of theinquiry, the rules under which the tribunal isacting, the subject-matter to be dealt with,and so forth.”Since then, this Court has consistentlyapplied the principle of prejudice in several cases.The above ruling and various other rulings takingthe same view have been exhaustively referred to inState Bank of Patiala v. S.K. Sharma. In that case,the principle of “prejudice” has been furtherelaborated. The same principle has been reiteratedagain in Rajendra Singh v. State of M.P.Para 25:The “useless formality” theory, it must be noted, isan exception. Apart from the class of cases of“admitted or indisputable facts leading only to oneconclusion” referred to above, there has been https://hcservices.ecourts.gov.in/hcservices/ considerable debate on the application of thattheory in other cases. The divergent views expressedin regard to this theory have been elaboratelyconsidered by this Court in M.C. Mehta referred toabove. This Court surveyed the views expressed invarious judgments in England by Lord Reid, LordWilberforce, Lord Woolf, Lord Bingham, Megarry, J.and Straughton, L.J. etc. in various cases and alsoviews expressed by leading writers like Profs.Garner, Craig, de Smith, Wade, D.H. Clark etc. Someof them have said that orders passed in violationmust always be quashed for otherwise the court willbe prejudging the issue. Some others have said thatthere is no such absolute rule and prejudice must beshown. Yet, some others have applied via mediarules. We do not think it necessary in this case togo deeper into these issues. In the ultimateanalysis, it may depend on the facts of a particularcase.Para 26:It will be sufficient, for the purpose of the caseof Mr Mansoor Ali Khan to show that his case willfall within the exceptions stated by ChinnappaReddy, J. in S.L. Kapoor v. Jagmohan, namely, thaton the admitted or indisputable facts, only one viewis possible. In that event no prejudice can be saidto have been caused to Mr Mansoor Ali Khan thoughnotice has not been issued.Para 27:Our reasons for saying that the case of Mr MansoorAli Khan falls within the exception can be stated asfollows:Admittedly, leave was sanctioned only for 2years from 18-4-1979. When before the expiry of theperiod, Mr Mansoor Ali Khan applied on 18-4-1981 forextension of leave by 3 more years, the Universitywrote to him on 17-9-1981/23-9-1981 grantingextension only for one year from 18-4-1981 and alsostated that he was required to resume duties by 18-4-1982. It did not stop there. It further forewarnedMr Khan as follows:“Please note that no further extension in theperiod of your leave will be possible and youare advised to make preparation for resumingduty positively by 18-4-1982.” https://hcservices.ecourts.gov.in/hcservices/ In other words, he was put on advance notice that itwould not be possible to give any further extensioni.e. beyond one year on the ground of continuance inthe job at Libya and he was to resume duty by 18-4-1982. In fact, thereafter some special considerationwas still shown in his favour by way of granting himjoining time up to 1-7-1982. It was clearly saidthat otherwise he would be deemed to have vacatedthe post. If he had, in spite of this warning, goneahead by accepting a further contract in Libya, itwas, in our view, his own unilateral act in theteeth of the advance warning given. That conduct,the learned Single Judge thought and in our viewrightly to be sufficient to deny relief underArticle 226.Para 28:We may state that the University has not actedunreasonably in informing him in advance — whilegranting one year extension, in addition to theinitial absence of 2 years — that no furtherextension will be given. We have noticed that whenthe extension is sought for three years, theDepartment has given him extension only for one yearas he had already availed 2 years’ extraordinaryleave by that time. It has to be noticed that whenemployees go on foreign assignments which aresecured by them at their own instance, in case theydo not come back within the original periodstipulated or before the expiration of the extendedperiod, the employer in the parent country would beput to serious inconvenience and will find itdifficult to make temporary alternative appointmentsto fill up the post during the period of absence ofthose who have gone abroad. However, when rulespermit and provide for an employee to go abroaddiscretion must be exercised reasonably whilerefusing extension. In this case, giving of furtherextension only for one year out of the furtherperiod of three years sought for is notunreasonable. In such a situation, if the employeehas entangled himself into further commitmentsabroad, he has to blame himself.Para 29:On the above facts, the absence of a notice to showcause does not make any difference for the employeehas already been told that if his further overstayis for continuing in the job in Libya, it is boundto be refused. https://hcservices.ecourts.gov.in/hcservices/ Para 30:Should notice have been given before he is deemed tohave vacated office under Rule 5(8)(i)? Was noprejudice caused?Para 31:Now the question of deeming the vacation of the postis mentioned both in Rule 10 which deals with 5years’ absence and also by Rule 5(8)(i) whereabsence is for a period less than 5 years. In thelatter case, it is true, notice is normallycontemplated. We have said that Rule 10 has noapplication to the case before us since the absenceof Mr Mansoor Ali Khan’s absence is less than 5years. Now even under Rule 5(8)(i), there is adeeming provision of vacation of the post where theexplanation offered by the employee, consequent upona notice, is found not satisfactory.Para 32:Let us then take two situations. An employee who ispermitted to be abroad for two years on a job seeksextension for 3 years but is granted extension onlyfor 1 year and is also told in advance that nofurther extension will be given and if he does notjoin after the 1-year extended period, he will bedeemed to have vacated office. Let us assume that hedoes not join as advised and, in a given case,notice is given calling for his explanation. Hereplies stating that he had entered into a furthercommitment for 2 years and wants one more year ofextension. The University refuses extension treatingthe explanation as unsatisfactory and under Rule 5(8)(i) deems that he has vacated his job. No faultcan be found in the procedure. Let us take anothersituation where the officer does not join inidentical circumstances but is not given noticeunder Rule 5(8)(i). He has no other explanation —from what is revealed in his writ petition filedlater — other than his further commitment abroad for2 more years. In the latter case, it is, in ouropinion clear that even if no notice is given, theposition would not have been different because thatparticular explanation would not be treated assatisfactory had already been intimated to him inadvance. Therefore, the absence of a notice in thelatter situation must be treated as having made nodifference. That is precisely the position in thecase of Shri Mansoor Ali Khan. https://hcservices.ecourts.gov.in/hcservices/ Para 33:Another important aspect of the matter is that nonew reason has been projected in the writ petitionof Mr Khan for his seeking further extension earlierwhile in Libya. The only reason stated is that hehad obtained further extension in a job. It is not acase where there is a plea in the court that therewere different grounds or reasons which he couldhave put in his explanation, if called for, such asill health etc. Indeed, if the reasons could havebeen somewhat different, as may perhaps be disclosedor proved in a subsequent writ petition — such ashis own failing health, one can understand. But sofar as leave for purposes of job continuance inLibya is concerned, he has been fully put on advancenotice that no further extension will be given. Itmust be held that no prejudice has been caused eventhough 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 naturaljustice, that its decision is not described as a“preconceived view” or one in substitution of theview of the authority who would have considered theexplanation. That is why we have taken pains toexamine in depth whether the case fits into theexception.Para 35:Thus, in our view, in the above peculiarcircumstances, the only conclusion that can be drawnis that even if Mr Mansoor Ali Khan had been givennotice and he had mentioned this fact of jobcontinuance in Libya as a reason, that would nothave made any difference and would not have beentreated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts,only one view was possible. The case would fallwithin the exception noted in S.L. Kapoor case. We,therefore, hold that no prejudice has been caused tothe 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., BanarasHindu University and others v. Shrikant [2006 (11) SCC 42] dealtwith the case of a University Lecturer going for abroad andapplying for extension of leave. In paragraphs 41, 57 and 60 ofthe judgment, it was observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ Para 41:"Although, laying down a provision providing fordeemed abandonment from service may be permissiblein law, it is not disputed that an action takenthereunder must be fair and reasonable so as tosatisfy the requirements of Article 14 of theConstitution of India. If the action taken by theauthority is found to be illogical in nature and,therefore, violative of Article 14 of theConstitution, the same cannot be sustained.Statutory authority may pass an order which mayotherwise be bona fide, but the same cannot beexercised in an unfair or unreasonable manner. Therespondent has shown before us that his leave hadbeen sanctioned by the Director being the Head ofthe Department in terms of the Leave Rules. It wasthe Director/Head of the Department who couldsanction the leave. Even the matter relating togrant of permission for his going abroad had beenrecommended by the Director. The respondent states,and it had not been controverted, that some otherdoctor was given the charge of his duties. We haveindicated sufficiently that the Vice-Chancellorposed unto himself a wrong question. A wrongquestion leads to a wrong answer. When the statutoryauthority exercises its statutory powers either inignorance of the procedure prescribed in law orwhile deciding the matter takes into considerationirrelevant or extraneous matters not germanetherefor, he misdirects himself in law. In such anevent, an order of the statutory authority must heheld to be vitiated in law. It suffers from an errorof law."Para 57:"The matter may, however, be different in a casewhere despite having been given an opportunity ofhearing, explanation regarding his unauthorisedabsence is not forthcoming or despite giving him anopportunity to join his duty, he fails to do so, aswas the case in Punjab & Sind Bank v. SakattarSingh."Para 60:"A provision relating to abandonment of service cameup for consideration yet again in Viveka Nand Sethiv. Chairman, J&K Bank Ltd. before a Division Benchof this Court. This Court opined that although in acase of that nature, principles of natural justicewere required to be complied with, a full-fledgeddepartmental enquiry may not be necessary, holding:(SCC p. 345, para 20) https://hcservices.ecourts.gov.in/hcservices/ “A limited enquiry as to whether theemployee concerned had sufficient explanationfor not reporting to duties after the period ofleave had expired or failure on his part onbeing asked so to do, in our considered view,amounts to sufficient compliance with therequirements of the principles of naturaljustice.”14.Therefore, the argument based upon the principles ofnatural justice has no application in the present case as thepetitioner was sufficiently informed that his refusal to join thepost on the stipulated date will render him as having left theservices of the University. 15.In the light of the above legal principles and the ruleposition, the writ petition will stand dismissed. However, therewill be no order as to costs. gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar ToThe Registrar,The Pondicherry UniversityUniversity CampusR. Venkataram NagarKalapet, Pondicherry-605 014 1 cc to Mr.P.R.Raman, Advocate, SR. 406011 cc to Mr.A.V.Bharathi, Advocate, SR. 40243ms (co)dv/13.8. Order inW.P. No. 15918 of 1998