Hansaria, J.- The petitioner was appointed as a Lower Divi­sion Assistant in 1961. She went on leave from 25.9.67 which was extended from time to time till 23.10.68. As she did not resume her duties after the expiry of the leave, an order was issued to explain as to why disciplinary action should not be taken against her. This was on 23.4.69. Sub-sequently, however, her services were terminated with effect from 24.10.68 by an order passed on 1.10.69 on the ground of her having failed to resume duties on expiry of the period of leave. The petitioner preferred an appeal before respondent No. 4 on 11.10.69 which came to be dismissed on 13.8.75. As Emergency was in force at that time, it is the case of the petiti­oner that she was afraid of putting forward any further repre­sentation. After the Emergency was over, a review petition was filed on 21.8.79 which was rejected on 16.6.79 where­ after an appeal was preferred before the learned Assam Admi­nistrative Tribunal on 10.8.79. The learned Tribunal has dismissed the appeal as being not maintainable as the same was barred by time according to it. 2. Shri Sarma, learned counsel for the petitioner, has urged that the learned Tribunal has erred in law in holding that the appeal was time-barred inasmuch as the learned Tribunal has been approached within two months after the dismissal of the review petition filed by the petitioner. The learned Tribunal, however, held that as the dismissal of the appeal was in 1975 it ought to have been approached soon after its constitution in January, 1977. This view was taken because according to the learned Tribunal an order passed in TZYIZH is at assailable before it Shri Sanna has submitted that this view of the learned Tribunal is not sustainable and he has referred us to some decisions in this regard. For the case at hand it is not necessary to decide this aspect of the matter inasmuch as there has been an agreement between the learned counsel of the par­ties that the order of termination on merits to be set aside OB the ground that it was in violation of Article 311(2) of the constitution. This consensus owes its origin to the decision of the Supreme Court in Jay Shankar vs. State of Rajas than, AIR 1956 SC 492 . This consensus owes its origin to the decision of the Supreme Court in Jay Shankar vs. State of Rajas than, AIR 1956 SC 492 . In that case a provision similar to Rule 14(3) of the Leave Rules, 1934, as it had stood in 1969 and by relying on which the service of the petitioner was terminated, had come up for consideration. The Regulation on the strength of which the service of the appellant had stood terminated in the afore­said case was in the following language; "13. An individual who absents himself without permi­ssion or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority." Speaking about the aforesaid Regulation, it was pointed out that though the Regulation spoke of reinstatement but a person would not be reinstated if he was ordered to be dis­charged or removed from service. It was further stated that the question of reinstatement could only be considered if it was first considered whether the person should be removed or discharged. It was therefore opined that viewed from any angle the order of the Government involved termination of the service of the incumbent. It was observed that though the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but the same could not be ordered without at least telling the person concerned that he was proposed to be removed from service and without giving him any opportunity of showing cause as to why he should not be removed. It was pointed out that a removal is a removal and if it was a punishment for over-staying one's leave, an opportunity must be given to the person against whom such an order was proposed. Not to give an opportunity before invoking Regulation 13 was held to be violative of Article 311 of the Constitution. 3. Rule 14 (3) of the Leave Rules, 1934, which was pressed into service in the present case had stood as below at the rele­vant time :- "14(3). Not to give an opportunity before invoking Regulation 13 was held to be violative of Article 311 of the Constitution. 3. Rule 14 (3) of the Leave Rules, 1934, which was pressed into service in the present case had stood as below at the rele­vant time :- "14(3). Where a Government servant who is not in permanent employ fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such a Government servant, who is gran­ted a lesser amount of extraordinary leave than the maxi­mum amount admissible, remains absent from duty for any period which together with the extra-ordinary leave granted exceeds the limit up to which he could have been granted such leave under sub-rule (2) he shall, unless the Governor in view of the exceptional circumstances of the case otherwise determines be deemed to have resig­ned his appointment." 4. The language of the aforesaid Rule when compared to the Regulation which had come up for decision in Jay Shanker leaves no doubt that they are similar in their operation. As the sacrifice of appointment in Jay Shanker was regarded as removal or discharge, deeming resignation visualised by Rule 14 (3) has also to be so viewed. This is fairly conceded by Shri Phukan. As no opportunity had been given in the present case before passing the impugned order, there can be no doubt that the order was passed in violation of Article 311 (2) of the Constitution. The impugned order, therefore, cannot stand. 5. May we add that after the decision of the Supreme Court in Jay Shankar, aforesaid Rule 15 (3) was amended in 1971 to state that in case of overstaying etc. of leave, the incumbent shall be removed from service after following the procedure laid down in the Assam Services (Discipline & Appeal) Rules, 1964. 6. As the question of arrear pay would have arisen in case of reinstatement, it is submitted by Shri Phukan, learned Addi­tional Senior Government Advocate, that the appointing autho­rity would be willing to take back the petitioner without drawing fresh proceeding, in case she foregoes her claim to arrear pay. 6. As the question of arrear pay would have arisen in case of reinstatement, it is submitted by Shri Phukan, learned Addi­tional Senior Government Advocate, that the appointing autho­rity would be willing to take back the petitioner without drawing fresh proceeding, in case she foregoes her claim to arrear pay. Shri Sarma, learned counsel for the petitioner, submits that the reinstatement of the petitioner could be ordered with a rider that the petitioner would not be entitled to any arrear pay and allowances leaving it opiate the appointing authority to grant such relief to the petitioner in this regard as deemed fit and proper by it. In view of the aforesaid stand taken by the learned counsel, we allow this petition by setting aside the impugned order of termination and by ordering the reinstate­ment of the petitioner for which she would not claim as of right any arrear but would leave this matter to be decided by the appointing authority as deemed fit and proper by it on suita­ble representation being made by her. The order of reinstate­ment would, however, be passed within a month from today. 7. It may be stated that the aforesaid stands have been taken by the learned counsel of both the sides to protect the interest of their respective clients. On setting aside of the order of termination on the ground of violation of Article 311 (2) of the Constitution, it would have been normally open to the appointing authority to draw fresh proceeding after giving an opportunity of being heard. This would have caused further hardship to the petitioner and would have delayed finalisation of the matter, not to speak of the uncertainty. It has, there­fore, been agreed by Shri Sharma that his client would forego the arrear pay. Shri Phukan, on the other hand, foresees huge payment of money in case of reinstatement, if even in the fresh enquiry the petitioner would have been found not guilty. So, be gives up the right to hold a fresh enquiry on the peti­tioner's counsel agreeing to give up demand of arrear pay. We have appreciated the reasonable stand of mutual give and take adopted by the learned counsel of both the sides. This has well protected the interest of both the sides. 8. The petition stands allowed as aforesaid.