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PETITIONER: ALIGARH MUSLIM UNIVERSITY AND ORS.

       Vs.

RESPONDENT: MANSOOR ALI KHAN

DATE OF JUDGMENT:       28/08/2000

BENCH: M. JAGANNADHA RAO  J.  & Y.  K.  SABHARWAL , J.

JUDGMENT:

M.  JAGANNADHA RAO , J.

L....I..........T.......T.......T.......T.......T.......T..J      These  two  appeals have been preferred by the  Aligarh Muslim University, 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 respondent 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  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  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 your leave will be possible and you are advised to

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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 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  stated 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 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 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 to the Visitor was rejected on 5.9.85. Then  Mr.   Khan  filed  the Writ petition  on  24.8.87  for quashing the two telegrams and the order dated 5.9.85 of the Visitor.

    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  dismissed  on 17.2.95.

    In  the  Appeal  filed by Mr.  Mansoor  Ali  Khan,  the Division  Bench  held that on a harmonious reading  of  Rule 5(8)(ii)  of  the  Leave Rules, 1969 and Rule 10(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 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 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

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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  Service Rules, 1972.

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

    The following points arise for consideration:

    1.  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 10(C)(i) and      Rule 10(C)(ii) of the Aligarh Muslim University Non-      Teaching Employees ( Terms and Conditions of Service)      Rules, 1972 apply?

    3.  Under which Rule do the cases 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?

    5.  Whether oin 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?

    Point 1:

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

    It reads as follows:

    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   the Department/Office concerned in cases where is the Appointing Authority,  after waiting for three days, shall  communicate

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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 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  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 employee  who  absents  himself  from  duty  without  having previously  obtained leave or where he has 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 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 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 without leave being      sanctioned, he could be proceeded against for      misconduct.

    These  are  the  different  situations  in  which  Rule

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5(8)(i) and (ii) apply.  Point 1 is decided accordingly.

    Point 2:

    Rule 10(c)(i)(ii) of the 1972 Rules reads as      follows:

    "Rule 10:  Employee absent from duty:

    (a) ......................

    (b) ......................

    (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 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."

    It  will  be seen that Rule 10 deals with  a  different aspect.  Now 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 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

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leave  -  and  of his joining.  In the present  cases,  both officers  never rejoined.  So far as the latter part of Rule 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 accordingly.

    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 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. Unfortunately,   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.   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 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:

    This  is  the crucial point in this case.   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 interference  is not called for in the special circumstances of the case?

    As  pointed recently in M.C.  Mehta Vs.  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, 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

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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 were laid down  to which we shall presently refer.

    Chinnappa  Reddy,  J.  in S.L.Kapoor’s case,  laid  two exceptions   (at  p.395)  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  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 Vs.  State Bank of India ( 1984(1)  SCC 43), Sabyasachi Mukherji, J.  ( as he then was) also  laid  down  the principle that not mere  violation  of natural justice but de facto 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 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".

    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 Vs.  S.K. Sharma  ( 1996(3) SCC 364).  In that case, the principle  of ’prejudice’ has been further elaborated.  The same principle has  been  reiterated again in Rajendra Singh Vs.  State  of M.P.  ( 1996(5) SCC 460).

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    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  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  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 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 extension of leave by 3 more years,  the  University wrote to him on 17/23-9-91  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  will  be possible and you are advised  to  make preparation for resuming duty positively by 18.4.82."

    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  was  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 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

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relief under Article 226.

    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 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  appointments  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.

    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  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 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  explanation unsatisfactory  and  under Rule 5 (8)(i) deems that  he  has vacated  his  job.  No fault can be found in the  procedure. Let  us  take another situation where the officer  does  not

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join  in  identical  circumstances but is not  given  notice under  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  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 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  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).

    We  may  add  a word of caution.  Care must  be  taken, wherever  the  Court  is  justifying  a  denial  of  natural justice,  that  its  decision is not described  as  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  conclusion that can be drawn is that even if  Mr. Mansoor  Ali Khan had been given 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 undisputed 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 has been caused to the officer for want of notice under Rule 5(8)(i).   We hold 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.