JUDGMENT N.K. Mitra, C.J. and S.R. Singh, J.
1. This Special Appeal has been filed against, the judgment and order dated July 14. 1995 by which the petition filed by the appellant came to be dismissed by the learned Single Judge. The relief claimed in the writ petition was that the orders contained in Annexures-4, 5 and 11 of the writ petition be quashed. Yet another relief was for a writ of mandamus commanding the respondent not to interfere with the right of the appellant to continue as teacher/Technical Asstt. in Geology section of the Z.H. Engineering College. Aligarh Muslim University, Aligarh and not to appoint any other person in his place.
2. Skipping unnecessary details, the facts are that the appellant-a permanent Senior Technical Assistant in the Applied Science Section of the Z. H. College of Engineering and Technology of Aligarh Muslim University, Aligarh applied for and was appointed as Demonstrator in Al Fateh University. Tripoli. Libya under a contract entered into by him with the said University and as a preparatory to joining his duties as Demonstrator in Al Fateh University. Tripoli, Libya, he applied for and was granted extraordinary leave of two years by the respondent University w.e.f. 18.4.1979. It further transpires from the record that the appellant applied for extension of the leave for three years more from 18.4.1981 to 17.4.1984 on 4.1.1982. The Vice Chancellor, however, agreed to grant an extension in the leave granted to the appellant for a period of one year, i.e., upto 17.4.1982. The appellant was informed accordingly vide letter dated September 12/23. 1981 which contained a word of caution that "no further extension in the period of your leave will be possible and you are advised to make preparations for resuming duly positively by 18.4.1982." The appellant had. in the mean-time, signed a fresh contract with the Al Fateh University. Tripoli, Libya for two years and, therefore, requested for further extension of leave period but the request was nodded in refusal vide Annexure-4 to the writ petition and the appellant was called upon to report back for duty by May 15. 1982 in these words "resume duty by May 15 failing which you will be deemed to have vacated your post and cease to be in University service." The joining time was, however, further extended upto 30th June 1982 vide Annexure-5 which echoed the reiteration "resume duty by 1st July falling which you will be deemed to have vacated the post and ceased to be in University service from 18.4.1982.' The appellant initially made certain representations/appeals and thereafter, took to filing a writ petition being Civil Misc. Writ Petition No. 11931 of 82 challenging the orders contained in Annexures-4 and 5 of the writ petition. The Court.
however, declined to interfere and dismissed the writ petition on 14.10.1983 holding that the petitioner had an alternative remedy to fall back upon, of preferring an appeal against the impugned order of termination of service. After an interregnum of some time, he filed Civil Misc. Writ Petition No. 16122 of 83. The writ petition escalated into dismissal vide order dated 27.2.1984 passed by a Division Bench of this Court. The Division Bench opted for dismissal of the petition on the ground that the appellant had not filed any representation before the Visitor/President of India to avail of the alternative remedy as per the observations made by the Court in the earlier writ petition which was dismissed on 14.10.1983. The appellant thereafter filed an appeal before the Executive Council and a representation before the Visitor. The representation came to be rejected by the Visitor vide order dated 5th September 1985 (Annexure-11 to the petition) under Section 13.06 of the Aligarh Muslim University Act. In rejecting the representation, the Visitor held as under :
"According to information furnished by the University, the Leave Regulations were amended by the Executive Council in April. 1981 and the regulations so amended are being strictly enforced. In the application of these regulations there has been no violation of any provisions of the Act. the statute and the rules of the University which warrants intervention of the Visitor."
The appeal also met the fate of rejection vide resolution passed by the Executive Council in its meeting held on 18/19th June 1988 and the appellant was informed accordingly vide letter dated 21.7.1988 (Annexure-C. A. 8). The writ petition-giving rise to the Special Appeal was thereafter filed canvassing the correctness of the order passed by the Visitor besides the cable messages contained in Annexures-4 and 5. The learned single Judge dismissed the writ petition vide judgment under challenge herein.
3. We have heard Sri S. U. Khan, for the appellant and Sri B. D. Agarwal Senior Advocate assisted by Sri Dilip Gupta. appearing for the respondent University. The submissions made by the learned counsel appearing for the appellant are four-folds. Firstly, that the provisions regarding deemed vacation of post due to overstay of leave was ultra vires ; secondly, deemed vacation of post would not occur unless an opportunity is given to the person concerned for an explanation and his explanation, if any. is found unsatisfactory ; thirdly, cessation of service pursuant to Leave Rules in substance stands on the same footing as "removal" from service and, therefore, the appellant was entitled to an opportunity of showing cause : and lastly, the decision of the Court in Civil Misc. Writ Petition No. 6154 of 1092, Dr. S. K. Johri v. Aligarh Muslim University, Aligarh and another, decided vide judgment and order dated 17.2.1995 was fully applicable to the present case and the learned Single Judge erred in distinguishing the same. Shri B. D. Agarwal, learned Senior Advocate appearing for the respondents refuted the submissions made by the learned counsel for the appellant and submitted that according to relevant regulations, leave cannot be claimed as of right for where the exigencies of the University so demand, leave of description may be refused or revoked by the competent authority empowered to sanction leave ; on expiration--of the leave period the appellant was given joining time twice with a clear indication that in the event of the failure to join by the specified date he would be deemed to have vacated the post but the appellant failed to avail of the opportunity and in the circumstances further opportunity was not required to be given in the matter in view "of the specific service conditions in terms of which the appellant's services automatically came to an end. Shri B. D. Agarwal further submitted that cessation of employment due to overstay of leave in terms of the service conditions could not be termed as arbitrary nor could it amount to "removal" from service and unlike a case of "removal" by way of punishment, no opportunity was required to be given to the appellant who would be deemed to have vacated his post in accordance with the relevant service rules. It was also urged by Shri B. D. Agarwal that the learned single Judge has rightly held the decision in Johri's case inapplicable to the facts of the present case.
4. We have given our anxious consideration to the submissions made across the Bar. A faint submission as to the rule providing for automatic cessation from service due to over-stay of leave being ultra vires was made only to be rejected. The Court is conscious of the ratiocination in the decision of the Apex Court in Central Inland Water Transport Corporation v . B. N. Ganguli, AIR 1986 SC 1571, but the Rules/Regulations in question herein do not confer any unbridled and unguided unilateral power of termination of the services of an employee of the University. Indisputably, leave cannot be claimed as of right under the rules/regulations in question which provide for an opportunity to be given to the concerned employee to explain the circumstances under which he could not resume duties after expiry of the leave period. We, therefore, are hardly convinced with the merits of the first submission made by Sri S. U. Khan for the appellant.
5. The second and third submissions may be dealt with together. In support of his contention that the cessation of service pursuant to Leave Rules, 1969 and/or Rule 10 of the Service Rules, 1972 amounts to "removal" from service and therefore, the appellant was entitled to a show cause notice as a condition precedent to his termination from service, the counsel for the appellant placed reliance on a decision of Supreme Court in State of Assam and others v. Akshay Kumar Deb, AIR 1976 SC 37, The respondent therein was a permanent Government servant and his services were terminated under F.R. 18 of the Assam Fundamental and Subsidiary Rules on account of his continuous absence from duty for more than five years and no opportunity was given to him to show cause why the rule was inapplicable. Sarkaria, J. held as under :
"From a reading of F.R. 18, it is discernible that it regards continuous absence of an employee, whether with or without leave, for a period of five years or more, as conduct which must normally entail "cessation" or termination of his service. Although not in so many words, but by necessary intendment the Rule regards such conduct of the employee. as a fault or blameworthy behaviour which renders him unfit to be continued in service. In this context, the "cessation" of service pursuant to this Rule would, in substance and effect, stand on the same fooling as 'his removal' from service within the contemplation of Article 311(2) of the Constitution, particularly when it is against the will of the employee who is willing to serve, or who had never lost the animus to rejoin duty on the expiry of his leave. Another reason for equating 'cessation' of service under this Rule with 'removal' within the meaning of Article 311(2), is that it proceeds on a ground personal to the employee involving an imputation which may conceivably be explained by him in the circumstances of a particular case. Cases are not unknown where the absence of a Government servant, even for prolonged period, has been due to circumstances beyond his control. The case of the Japanese soldier who remained cut off and stranded in the jungles of a remote Pacific island for three decaders after the termination of World War II, is a recent instance of this kind."
A.C. Gupta, J., the other Hon'ble member of the two Judges Bench of the Supreme Court in the said case, although held that in the fact situation of the case the respondent therein was entitled to a show cause notice but found it difficult to express a definite opinion that the termination of the service in terms of Fundamental Rules 18 amounts to "removal". His Lordship observed as under :
"That rule embodies a condition of service and I do not see how the termination of service of a Government employee in terms of a rule regulating his conditions of service is removal within the meaning of Article 311 of the Constitution unless the termination is by way of penalty. It was not claimed that termination of service under Rule 18 entails loss of benefit already accrued or any other penal consequences i do not find it possible to assume such penal consequences to construe a notice of termination under this rule as removal."
6. Opportunity to show cause against the termination of service by the application of Rule 18 of the Assam Fundamental and Subsidiary Rules was held necessary by his Lordship A.C. Gupta, J., not on the ground that it amounts "removal" but on the ground that one of the allegation made by the respondent therein was that he had not been absent from his duty but was rather "not allowed to work in the office after September 13, 1956" and it was not suggested by the appellant therein that the respondent "should be deemed to have been absent from duty even for the period he was prevented from joining his office, assuming his allegation was true." In the case on hand. Rule 5 (8) (ii) of the Leave Rules, 1969 provides that willful 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 Aligarh Muslim University and para 10 Chapter IX of Regulations of the Executive Council and Rule 67 of Service Rules. 1972 visualizes imposition of minor penalties as well as major penalties including the penalty of "removal" from service for misconduct. On a harmonious consideration of Rule 5 (8) (ii) of the Leave Rules. 1969 and Rule 10 (c) of Service Rules. 1972 and regard being had to the law laid down by Hon'ble Supreme Court in State of Assam v. Akshaya Kumar (supra), we converge to the view that it would depend upon the fact situation of each case whether or not opportunity of showing cause is to be given before termination of service in terms of Rule 5 (8) (ii) of the Leave Rules, 1969 and Rule 10 (c) of the Service Rules. 1972, in the instant case, application for extension was given on 4.1.82. i.e.. much before expiry of the leave period but the order was passed by the Vice Chancellor in September. 1982 granting extension for a period of one year only as against demand of three years' extension of leave and in the meantime, the appellant had entered into fresh contract with Al Fateh University. Tripoli, Libya. There have been instances where leave period was extended from time to time subject to the maximum period of five years. In the circumstances, the appellant was entitled to an opportunity of showing cause.
7. The appellant according to the respondents, was a member of non-teaching staff. The leave regulations as amended by the Executive Council in its meeting held on 12.2.1970 provide that condition regarding grant of extraordinary leave in relation to a member of non-teaching staff shall be the same as are admissible to a member of teaching staff. The provision visualises that extraordinary leave may be granted 'ordinarily for three years. If this leave is required for accepting employment outside provided the teacher concerned has put in at least three years of service in this University on the date of proceeding on leave. The total period of extra-ordinary leave, a person can avail during the entire period of service, is five years but in case of those who have availed the leave for foreign employment, can avail the leave again after a period of five years service in the University after rejoining the University. The extended period of leave in the instant case expired on 17.4.1982. The appellant was first given time to resume his duties by May 15, 1982 and subsequently the joining period was extended up to 30.6.1982 vide Annexure-4 to the writ petition and the appellant was called to join the University by 1.7.1982. Concededly, the appellant did not resume duties by 1.7.1982. In terms of Rule 5 (8) of the Leave Rules, 1969 the appellant would be deemed to have vacated his post "from the date of absence without leave", i.e., to say w.e.f. 18.4.1982. Concededly the appointing authority did not communicate with appellant asking for an explanation as visualised in Rule 5 (8) (i) of Leave Rules. 1969 nor is there anything on record to indicate that the absence of appellant from duty after expiry of leave was taken to be "misconduct" within the meaning of Clause (ii) of Rule 5 (8) of the Leave Rules, 1969.
8. In any case automatic cessation from service will not take place before expiry of a period of five years as would be seen from Rule 10 (c) of the University Non-Teaching Employees (Terms and Conditions of Service) Rules, 1972 which being relevant lo the question raised across the Bar is quoted below for ready reference :
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 five 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."
9. According to Rule 10 (c) of the Terms and Conditions of Service Rules, 1972, an employee would be deemed to have resigned and accordingly ceased to be in the employment of the University service under the following circumstances--(i) Where the employee does not resume duty after remaining on leave for continuous period of five years ; or (ii) or where he 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 leave granted to him exceeds five years.' In the instant case, since the appellant was not on leave for a continuous period of five years, therefore, the first eventuality in which an employee is to cease to be in service of the University within the meaning of Rule 10 (c) would not apply. The question is whether the appellant who admittedly remained absent from duty even after expiry of his extraordinary leave would be deemed to have resigned and accordingly ceased to be in the University service. The expression "for any period which together with the period of the leave granted to him exceeds five years" clearly suggests that automatic resignation and consequential cessation from the University service would not be deemed to have taken place on 18.4.1982 inasmuch as the fatal period of absence from duty together with the period of leave granted to the appellant had not exceeded five years as on 18.4.1982 for the appellant was granted extraordinary leave for a period of two years, w.e.f. 18.4.1979 which was subsequently extended for a further period of one year. In para 10 of the counter affidavit filed in the writ petition. It was no doubt stated that the Executive Council in its meeting held on 16/17.4.1982 had resolved that normally leave for foreign assignment should not be granted for a period of more than three years at a time but the fact remains that Rule 10 (c) (ii) of the Service Rules. 1972 does not appear to have been amended in consonance with the said resolution passed by the Executive Council in its meeting held on 16/17.4.1981. The cessation of University service, as stated above, would have occurred within the meaning of Rule 10 (c) (ii) of Service Rules. 1972 only if the appellant had remained absent for a total period of five years including the period leave sanctioned to him. The appellant, it would transpire from the record, had applied for extension of the extraordinary leave till 17.4.1983. On considering the material brought on record and the provisions of Rule 10 (c) of the Service Rules, 1972 . we are of the view that the appellant did not cease to be in the University service on 18.4.1982.
10. In the above conspectus, it is not necessary to go into the question as to whether the decision in Johari's case is applicable to the facts of the present case.
11. Accordingly, the appeal succeeds and is allowed. The impugned judgment is set aside and the orders impugned in the writ petition are quashed. The question as to whether the appellant ceased to be in service of the University and if so with effect from which date, shall be considered afresh by the Vice Chancellor keeping in view the provisions contained in Rule 10 (c) (ii) of the Service Rules. 1972 and the observations made in this judgment. The decision in this regard, shall be taken by a reasoned order within a period of three months from the date of receipt of a certified copy of this judgment. The parties shall bear their respective costs.