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 terminating his service without holding any enquiry. The short issue raised before us, is whether holding of a regular departmental enquiry is mandatory, when the facts have been admitted. The question also is whether useless formality theory propounded in the various 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 explanation 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 Studies. He was holding the post in permanent 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 foreign assignment. He availed the leave with effect from 06.09.1996. On his application, 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 order that leave be granted and the period of extension be treated as leave of kind due other than the study leave. It is, thus, obvious that two years extraordinary leave was sanctioned vide order 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 remained on unauthorized leave with effect from 06.09.2000. 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 remained on unauthorized leave with effect from 06.09.2000. The University-respondent issued another notice dated 17.12.2002, granting the petitioner appellant 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 further is that the petitioner appellant did not join his duty despite the said notice 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 letter (P-3) for not joining back the University was that he had incurred contractual 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 Communication dated 08.10.2000 (P-4) to the University and his response is as follows:- "The Registrar, University of Kashmir, Srinagar. Sir, I have received the letter No. F.6 (RMS-17) Adm/TW dated 26.09.2000 issued by the Deputy Registrar Administration (TW) wherein I have been asked to join my duties in the Department of Management Studies. In this connection, I would like to state that I have already signed one year's contract with my employer at UAE and it shall not be possible for me to resume my duties in the University before the expiry of the contractual period. I assure you that I shall join immediately after my contractual period is over. The University has already allowed this kind of concession in respect of Mr. Altaf Ahmad Mir of Law Department in the post". 4. Another letter on the same lines was sent by the petitioner appellant on 27.11.2000, expressing the same difficulty of contractual obligation. The University candidly rejected the aforesaid request vide letter dated 03.01.2001 (P-6). The University has already allowed this kind of concession in respect of Mr. Altaf Ahmad Mir of Law Department in the post". 4. Another letter on the same lines was sent by the petitioner appellant on 27.11.2000, expressing the same difficulty of contractual obligation. The University candidly rejected the aforesaid request vide letter dated 03.01.2001 (P-6). The response of the University is reproduced in extensor as under:- "Kindly refer to your application dated 27.11.2000 for grant of extension in Extra-ordinary Leave by one year with effect from 06.09.2000. In this connection, this is to inform you again that you should not have entered into contract in U.A.E. without seeking prior approval of this University. In view of this and the restrictions laid down in the rules your request for grant of further Extra-ordinary Leave has not been accepted". 5. The petitioner appellant, then sent a Demand of Justice Notice on 07.02.2001 under Registered AD Cover (P-7) raising the issue that the University has granted extra-ordinary leave to some other employees who have taken up foreign assignment. He cited Statute 3.39 of the University Calendar. However, the University, on 17.12.2002, served a notice giving the petitioner appellant a final opportunity to resume his duties within the period of 30 days failing which his services would stand terminated without any further notice (P-8). The petitioner appellant sent a reply to this notice on 10.01.2003, requesting the University to exonerate him from the charges formulated in the show cause notice. It is pertinent to notice that the reply was sent on 10.01.2003 from Adu Dhabi which would highlight the intention of the petitioner appellant. He, however, submitted his joining report on 03.12.2003 (P-11). 6. On the basis of the order dated 17.12.2002, the services of the petitioner appellant were terminated and the post held by him was declared as vacant. Consequently, he challenged the order of his termination by filing SWP No. 443/2004 relatable to the instant appeal. The learned Single Judge while accepting the stand of the University has held that the petitioner appellant has abandoned his post. Consequently, he challenged the order of his termination by filing SWP No. 443/2004 relatable to the instant appeal. The learned Single Judge while accepting the stand of the University has held that the petitioner appellant has abandoned his post. The view of the learned Single Judge is discernible from the last two paras of the Judgment which read thus:- "On going through the pleadings as also the order impugned, I find that there was complete abandonment of service by the petitioner himself. He went outside the country to take up an assignment at Abu Dhabi for which leave for a period of two years was sanctioned in his favour. Later for a further period of two years w.e.f. 06.09.1998, the leave was sanctioned in his favour vide order dated 03.07.2000. The petitioner applied for extension in extra ordinary leave for one year more with effect from 06.09.1998, but the University did not grant the same. He again requested for extension for leave to fulfill the commitment made by him for serving the College outside the Country, but his request was not accepted and he was informed accordingly. Thereafter, the respondents awaited for two long years and issued him another notice of 30 days on 17.12.2002, which is impugned in the present petition. Even on this notice, the petitioner did not report back and continued to remain on unauthorized absence. Remaining absent from duty without any propeit permission or extension in leave for long two years in my view amounts to complete abandonment of service which the petitioner has not explained anywhere in the petition". As such, in these circumstances, I do not find that there was any requirement on the part of the respondents to hold a regular enquiry or issue any other notice to the petitioner. By issuing notice impugned there appears sufficient compliance both of the statutory of rules as well as the rules of natural justice. 7. The petitioner appellant has filed the instant appeal against the aforesaid order. 8. We have heard learned counsel for the parties at a considerable length. 9. Mr. Z. A. Shah, learned senior counsel, has vehemently argued that the concept of abandonment is a common law concept which is ordinarily applied and opted in the cases of Work; men under the Industrial Disputes Act. 8. We have heard learned counsel for the parties at a considerable length. 9. Mr. Z. A. Shah, learned senior counsel, has vehemently argued that the concept of abandonment is a common law concept which is ordinarily applied and opted in the cases of Work; men under the Industrial Disputes Act. In that regard, learned counsel has drawn our attention to the observation made by Hon"ble the Supreme Court in para 5 of the Judgment in the case of Buckingham and Carnatic Co. Ltd. v. Venkatiah and anr., AIR 1964 SC 1272 . According to the learned counsel, an inference in favour of relinquishment or abandonment of service by an employee is not to be drawn easily unless from the length of absence and from other surrounding circumstances, it is irresistible conclusion that the employee intended to relinquish or abandon the service. Learned counsel has maintained that abandonment or relinquishment of service is always a question of intention, and such an intention cannot be easily attributed to an employee without adequate evidence to that effect. Mr. Shah has thus argued that once the petitioner appellant has been repeatedly requesting for extension of time for his extra-ordinary leave then no intention could be inferred that he wished to abandon the post particularly when he has submitted his joining report on 03.12.2003 (P-l 1). Therefore, his argument is that the common law principle of abandonment or relinquishment of service has been wrongly applied by the learned Single Judge. 10. Mr. Shah has further argued that, in any case, an enquiry should have been held because overstay of leave is admittedly a misconduct which cannot be imputed to the petitioner-appellant without affording an opportunity to defend himself and by holding a regular departmental enquiry. He has maintained that termination of services of a confirmed employee like the petitioner appellant would be arbitrary and violative of Articles 14 and 16 (1) of the Constitution. Another submission made by the learned counsel is that the University has practiced discrimination because a number of other lecturers working on foreign assignment were given extension to avail extra-ordinary leave to the extent of five years or even more whereas the petitioner appellant has been denied the aforesaid benefit. Therefore, he has to be treated at par with other employees. 11. Therefore, he has to be treated at par with other employees. 11. Mr. J. A. Kawoosa, learned Additional Advocate General appearing for the University, has vehemently argued that Statute 3.27 (13) is squarely applicable to the facts of the present case. According to Mr. Kawoosa, once the field is occupied by a statutory provision then the common law principle of abandonment may not be applicable. He has maintained that according to the University Statute, if any employee of the University overstays his leave without prior sanction from the University then he shall be deemed to have vacated his post without notice from the date of absence without leave. In support of his contention, learned counsel has placed reliance on a judgment of the Supreme Court rendered in the case of Aligarh Muslim University & Ors. Vs. Mansoor Ali Khan, AIR 2000 SC 2783 and argued that no enquiry is required to be conducted once the Rules are absolutely clear. According to the learned counsel, the Statute 3.27 (13) is pari materia with the Statute which were considered by the Hon'ble Supreme Court in Mansoor Ali Khans case (supra). Mr. Kawoosa has maintained that the show cause notice dated 17.12.2002 (P-8) would meet the requirement of principles of natural justice particularly when there is no dispute on facts. 12. Having heard the learned counsel for the parties at length and perusing the record minutely, we find that it would be necessary to first examine the provisions of Statute 3.27 (13) of the Calendar of the University of Kashmir and extract the same with the Statute considered by the Supreme Court in the case of Mansoor Ali Khan. "Altgarh Muslim University Revised Leave Rules 1969 & Kashmir University Chapter III Statutes 3.27(13) 1. Overstaya. I 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 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 unauthorized 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 to 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. 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 A. M. U and para 10 of Chapter FX of Regulations of the Executive Council. 2. Rule 10: Employee absent from duty: (a) to (b). (c) (i) No permanent employee shall be granted leave of any kind of 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. 3. 27(1). General Conditions: (I) Right to leave: a) Leave cannot be claimed as a matter of right when the exigencies of the University services so demand, leave of any description may be refused or revoked by the competent authority empowered to sanction leave. 3. 27(1). General Conditions: (I) Right to leave: a) Leave cannot be claimed as a matter of right when the exigencies of the University services so demand, leave of any description may be refused or revoked by the competent authority empowered to sanction leave. 3.27 (13) Overstayal of leave: i) If a teacher fails to return to his duty on the expiry of leave without having previously obtained further leave, the Head of the Department concerned shall, after waiting for three days, inform the Registrar and shall communicate with the person concerned asking for an explanation which shall be reported to the competent authority. Unless the competent authority considers the explanation as being satisfactory, the employee concerned shall be deemed to have vacated his post without notice from the date of absence without leave. ii) A teacher 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". 13. A perusal of Rule 5 (8) (i) of the Aligarh Muslim University Revised Leave Rules, 1969 and corresponding provisions of Statute 3.27 (13) would clearly show that in sum and sub-stance both the Statutes are pari material in both the Statutes. It is contemplated that when a teacher fails to return to his duties on the expiry of leave without previous sanction then the Head of the Department of the University is to secure the explanation of absentee after waiting for three days. In both the Statutes, it has also been contemplated that the matter would be brought to the notice of higher authorities like Registrar unless the Competent Authority is satisfied with the explanation tendered by absent employee then such an employee is deemed to have vacated his post without notice from the date of absence or without leave. Once the Statute in both the cases are similar then the question would arise as to whether the facts are also similar or not. Once the Statute in both the cases are similar then the question would arise as to whether the facts are also similar or not. In Mansoor AH Khans case, the delinquent employee was a Laboratory Assistant who was granted two years extra-ordinary leave for rendering service in a foreign University. He applied for further extension of leave for a period of three years but he was granted extension for a period of one year. The University had forewarned the delinquent that no further extension was to be granted in case he failed to resume duty and then he would be deemed to have vacated his post. He, however, accepted the service contract with the foreign University and failed to resume duty after expiry of sanctioned leave. The action of the University holding that the delinquent was deemed to have vacated his post even if it was without any show cause notice to him was found legally acceptable. 14. The aforesaid facts are wholly in close proximity with the facts of the present case. Here also the petitioner appellant had applied and was given extension of two years with a clear stipulation that no further extension was to be given. The extended period of two years came to an end on 06.09.2000. Despite the communication sent by the petitioner appellant that he would not be in a position to join the Kashmir University before September 2001, he kept on incurring contractual obligation by entering into further contract with the University at Abu Dhabi. The aforesaid facts are evident from the perusal of Annexures P3, P4, P5, P6 & P7. 15. Accordingly, we are of the view that the facts in the case in hand and the case of Mansoor Ali Khan are akin to each other. The principle of law which has been applied by the Supreme Court is that, in such like situation, the useless formality theory would be applicable which is an exception to the general rule of issuance of show cause notice. It is pertinent to notice that the Supreme Court has dealt with the cases of two employees in Mansoor Ali Khans case. One of them was Mansoor Ali Khan and the other one was Murshad Hussain Khan. It is pertinent to notice that the Supreme Court has dealt with the cases of two employees in Mansoor Ali Khans case. One of them was Mansoor Ali Khan and the other one was Murshad Hussain Khan. In the case of Mansoor Ali Khan, no notice calling for an extension had been issued under Rule 5 (8) (i) of the Rules whereas notice in the case of Murshad Hussan Khan was issued. The Supreme Court discussed various judgments rendered in the case of M. C. Mehta v. Union of India, (1999) 6 SCC 237 and Gadda Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 . In para 21 it has made a reference to another judgment rendered in the case of S. L. Kapoor v. Jagmohan, (1980) 4 SCC 379 . The judgment in S. L. Kapoors case carved out two exceptions to the general principles of natural justice namely that if on the admitted or indisputable facts only one conclusion was possible then the principle concerning breach of rules of natural jus tice in itself prejudice the delinquent was not to apply. In other words, if no other conclusion was possible, on admitted and indisputable facts then there is no legal obligation to quash the order which was passed in violation of principle of natural justice. Another exception was that in addition to breach of natural justice, prejudice must also be proved. Eventually applying the useless formality theory their Lordship has held as under:- "24. 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, 1999 AIR SCW 2754: ( AIR 1999 SC 2583 ), referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, 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. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, 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". 16. The Supreme Court further held after quoting in para 31 as under:- "31. 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 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. 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 Shri Mansoor Ali Khan". 17. In view of the clear enunciation of the law by their Lordship of the Supreme Court that useless formality theory as an exception would apply to the facts of Mansoor Ali Khans case then we are not left with any doubt that the same would apply mutatis-mutandis to the case in hand. 18. The argument of Mr. Shah that common law principle concerning abandonment is not of easy application would not require detailed consideration. Firstly, in the present case, the University Statutes are clearly applicable and secondly, the expression of abandonment implied by the learned Single Judge was the result of ignoring the Statute 3.27 (13) of the University which squarely covered the situation. Moreover, there is no challenge to the constitutional validity of the aforesaid Statute. 19. As a sequel to the above discussion, the appeal fails and the same is dismissed.