SHABIR HUSSAIN BANDAY Vs. UNIVERSITY OF KASHMIR

JUDGEMENT

(1.) Dr. Shabir Hussain Banday, has preferred the instant appeal under Clause 12 of the Letters Patent Rules challenging the Judgment dated 02.02.2006, rendered by the learned Single Judge of this Court rejecting his prayer for quashing order dated 17.12.2002, passed by the University of Kashmir- respondent automatic termi nating his service without holding any enquiry. The short issue raised before us, is whether holding of a regular de partmental enquiry is mandatory, when the facts have been admitted. The question also is whether useless for mality theory propounded in the vari ous judgments of the Supreme Court would be attracted to the facts of the present case especially. Another issue which would require consideration by this Court in the light of the Statutes as enshrined in Chapter III of the University of Kashmir (Volume I, 1991) would be applicable. The attention of the Court has been specifically drawn to Statute 3.27 (13) which deals with deemed vacation of post, if there is over stayal of leave and no bona fide expla nation acceptable to the authorities has been tendered.

(2.) The facts are not in dispute and have been candidly admitted by the petitioner appellant. He was working in the University of Kashmir as Reader in the Department of Management Stud ies. He was holding the post in per manent and substantive capacity. In order to take foreign assignment at Abu Dhabi, he applied and was granted two years leave vide order dated 23.08.1996 conceding his request to take up for eign assignment. He availed the leave with effect from 06.09.1996. On his ap plication, a further extension of leave for a further period of two years was accorded vide order dated 03.07.2000. The University Council passed the or der that leave be granted and the pe riod of extension be treated as leave of kind due other than the study leave. It is, thus, obvious that two years extra ordinary leave was sanctioned vide or der dated 03.07.2000, on the expiry of the aforesaid period of two years. The petitioner appellant was asked to join back vide letter dated 26.09.2000, but he again requested for extension of extra-ordinary leave by a year more. His request was turned down and he re mained on unauthorized leave with ef fect from 06.09.2000. The University-respondent issued another notice dated 17.12.2002, granting the petitioner ap pellant an opportunity to resume his duty within 30 days period from the date of issuance of notice. It was clarified that if he fails to join duties within the stipulated period then his services were to be terminated without further notice.

(3.) The stand of the University fur ther is that the petitioner appellant did not join his duty despite the said no tice and when it was stipulated in the notice that the petitioner would be deemed to have vacated his post and, therefore, he lost his right to hold the post in the University. It is appropriate to mention that the excuse put forward by the petitioner-appellant in his let ter (P-3) for not joining back the Uni versity was that he had incurred con tractual obligation with his employer in Abu Dhabi (U.A.E) by signing a contract with the University. He has stated that he would not be in a position to join the Kashmir University before September, 2001. Likewise, he wrote another Com munication dated 08.10.2000 (P-4) to the University and his response is as follows:-