JUDGMENT A.N. Dikshita, J. - This second appeal arises against the judgment and order dated April 5, 1974 dismissing the appeal (Civil Appeal) No.43 of 1971, Putto Lal Mishra v. Union of India & Ors. and affirming the judgment and decree passed by V Additional Munsif, Kanpur in suit No.1704 of 1969, Putto Lal Mishra v. Union of India & Ors. dismissing the suit-vide judgment and order dated November 9, 1970. 2. In brief the facts are that the appellant filed a suit for the declaration that the order for the removal of the appellant passed on January 17, 1968 by General Manager, Ordnance Parachute Factory, Kanpur is illegal, void and ultra vires and the plaintiff is still in the service of Government of India in the Ministry of Defence. It was alleged that the plaintiff was an employee of Ordnance Parachute Factory, Kanpur and was working on the post of Ticket-sorter having been employed in the year 1962. Sometime in October 1967 the appellant in view of his illness proceeded to his village Kundar, district Fatehpur and sent a leave application through his friend and kinsman Sri Vijay Shanker Shukla. Another application was also sent by post. No reply to the two applications so sent by the plaintiff was received. However, on January 17, 1968 the appellant received a notice dated January 11, 1.968 from the defendant that he has ceased to be in Government service due to his absence for three months and on account of such absence it would be deemed that the appellant has resigned. 3. The appellant contested the said notice alleging that it is by way of punishment and hence not warranted by law. Further no show-cause notice was served on the appellant before the termination of his service nor the plaintiff was given an opportunity to be heard. It was thus submitted that the provisions of Article 311(2) of the Constitution has not been complied with and as such the termination order is bad, illegal and ultra vires. 4. The defendant contested the suit and filed a written statement. It was admitted that the appellant was appointed as a Labour 'B' w.e.f. December 5, 1962 at the Clothing Factory, Shahjahanpur wherefrom he was transferred from Parachute Factory, Kanpur in the same grade and was working as ticket sorter w.e.f. April 1, 1965 in a temporary capacity. 4. The defendant contested the suit and filed a written statement. It was admitted that the appellant was appointed as a Labour 'B' w.e.f. December 5, 1962 at the Clothing Factory, Shahjahanpur wherefrom he was transferred from Parachute Factory, Kanpur in the same grade and was working as ticket sorter w.e.f. April 1, 1965 in a temporary capacity. The appellant absented from his duty unauthorisedly and without any intimation w.e.f. October 9, 1967 and no leave application or medical certificate was sent by the appellant on the expiry of three months extraordinary leave. The plaintiff was deemed to have resigned w.e.f. January 8, 1968 and his name was accordingly stuck-off from the list of the said factory in accordance with the provisions of Rule 16 read with Rule 18 of the Civilian in Defence Service (Industrial Employee) Leave Rules, 1954. It was thus contended by the respondents that Article 311(2) of the Constitution are neither attracted nor do they hit the impugned order of removal. 5. On the pleadings of the parties following issues were framed: 1. Whether the order of the General Manager dated January 11, 1968 are illegal, ultra vires and void on the grounds mentioned in para 8 of the plaint? 2. Whether the notice under Section 80 C.P.C. is illegal and invalid as alleged? 3. Whether the plaintiff continued to be an employee of the defendants? 4. To what relief, if any, is the plaintiff entitled? The trial court while deciding issue No.1 regarding the order of the removal dated January 11, 1968 decided the suit against the plaintiff. However, as regards the validity of the notice under Section 80 C.P.C. (issue No.2) the trial court held it to be valid and legal. In view of the findings on issue No.1, issue No.3 was also decided against the appellant and it was held that he does not continue in the service after the issue date of removal. The plaintiff was, thus, not entitled to any relief (issue No.4). The suit was accordingly dismissed. 6. Aggrieved the appellant preferred Civil Appeal No.43 of 1971. The appellate court affirmed the findings recorded by the trial court regarding validity of the notice, but affirmed the findings recorded by the court below as regards the legality of the order dated January 1, 1968. The appeal was accordingly dismissed thus giving rise to this second appeal. 7. 6. Aggrieved the appellant preferred Civil Appeal No.43 of 1971. The appellate court affirmed the findings recorded by the trial court regarding validity of the notice, but affirmed the findings recorded by the court below as regards the legality of the order dated January 1, 1968. The appeal was accordingly dismissed thus giving rise to this second appeal. 7. Heard counsel for the parties. Learned Counsel for the appellant has assailed the orders passed by the courts below on various grounds. It has been shown that the appellant sometime in the month of October, 1967 left for his village Kundar, district Fatehpur on account of his illness. An application by post. It is borne out that the two applications remained unreplied though it is alleged on behalf of the appellant that no such applications were received. On account of the absence the appellant received a notice dated January 11, 1968 on January 17, 1968 wherein it was indicated that he was ceased to be in Government service due to his absence for three months. Section 14 of the Industrial Employment (Standing Orders) Central Rules, 1946 contained in Encyclopaedia of Statutory Rules, Vol. II, page 424 (430). Section 14 provides as under: Section 14 - Disciplinary action for misconduct : (1) A workman may be fined upto 2 per cent of his wages in a month for any of the following acts and omissions, namely: (2) A workman may be suspended for a period not exceeding four days at a time or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct. (3) The following acts and omissions shall be treated as misconduct: (a) ----------- (b) ---------- (c) habitual absence without leave or absence without leave for more than 10 days. In this context it is necessary to show that the Civilians in Defence Services (Industrial Employees) Leave Rules, 1954 provides for the grant of leave. (3) The following acts and omissions shall be treated as misconduct: (a) ----------- (b) ---------- (c) habitual absence without leave or absence without leave for more than 10 days. In this context it is necessary to show that the Civilians in Defence Services (Industrial Employees) Leave Rules, 1954 provides for the grant of leave. Rule 18 of the said rules provided as under : "Where an individual fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such an individual who is granted a lesser amount of extraordinary leave than the maximum admissible, remains absent from duty for any period together with the extraordinary leave granted exceeds the maximum permissible limit of such leave, he shall unless the president in view of the exceptional circumstances of the cases otherwise determined, be deemed to have resigned his appointment and shall accordingly cease to be in Government service". For a better appreciation Section 16(2) of the said rules reads as under : "Except in the case of an employee in a permanent employment the duration of extraordinary leave on any one occasion shall not exceed to the following limits: (a) three months. (b) six months where Government servant has completed three years continuous service on the expiry of the leave would again continue and admissible under the rules and his request for such a leave is supported by a medical certificate as required under the rules". 8. It is revealing that after recovering from illness and with a medical certificate of fitness, the appellant approached the authorities. How ever, he was not permitted to join duty nor the employment was given. The main thrust of the submission of the learned Counsel for the appellant is that no opportunity whatsoever was given to the appellant before the cessation of his employment and as such the provisions of Article 311(2) are attracted. It is not in debate that no opportunity prior to the passing of the order dated January 11, 1968 was given. The absence from duty as shown above would be deemed a misconduct and once the rule provided that such absence would be deemed a misconduct then proceedings have to be initiated and in any ease an opportunity much less a reasonable one has to be accorded. 9. The absence from duty as shown above would be deemed a misconduct and once the rule provided that such absence would be deemed a misconduct then proceedings have to be initiated and in any ease an opportunity much less a reasonable one has to be accorded. 9. If the appellant was guilty of misconduct even then an opportunity was liable to be afforded to him and in the absence of such an opportunity having not been afforded the constitutional protection as enjoined under Article 311(2) of the Constitution have been clearly violated. This view finds adequate support in the case of P.L. Dhingra v. Union of India, A.I.R. 1958 S.C. 36. 10. In the case of Jagdish Mister v. Union of India, A.I.R. 1964 S.C. 449 and State of Punjab v. P.S. Chemma, A.I.R. 1975 S.C. 1096. The view taken in the case of P.L. Dhingra v. Union of India (supra) was considered and approved. 11. Learned counsel for the appellant has laid stress to the view taken by the Supreme Court in Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr., 1986 (3) S.C.C. 156 . It was held in this case that the actions of an instrumentality or agency of the state must, therefore, be in conformity with Article 14 of the Constitution. It was further held in this case as under: "The progressions of the judicial concept of Article 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary state action has been traced in Tulsiram Patel's case (at pages 473- 474). The principles of natural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14". 12. Action of the respondents is both arbitrary and unreasonable and it also wholly ignores and sets aside the audi alteram partem rule and is thus violative of Article 14 of the Constitution. New and dynamic interpretations have been given by the courts to the concept of equality which is the subject matter of that Article. The violation of a rule of natural justice would result in arbitrariness which is the same as discrimination. Article 14, however, is not the sole repository of the principles of natural Justice. It only guarantees that an action of the state which violates them would be struck down. The violation of a rule of natural justice would result in arbitrariness which is the same as discrimination. Article 14, however, is not the sole repository of the principles of natural Justice. It only guarantees that an action of the state which violates them would be struck down. This view was taken in case of Union of India v. Tulsiram Patel, 1985 (51) F.L.R. 362 . The Rules or Regulations which provide for termination of services of the employees by merely giving simple notice of termination cannot co-exist with Articles 14 and 16(1) of the constitution. While examining a similar eventuality in regard to the termination of service of an employee, a confirmed employee, by giving him 90 days notice or pay in lieu thereof the Supreme Court held in O.P. Bhandari v. Indian Tourism Development Corporation Ltd. & Ors., 1986 (53) F.L.R. 752 that such rule or regulation must die so that the fundamental rights guaranteed by the constitutional provisions as enshrined in Articles 14 and 16 remain alive. 13. Arbitrariness and abuse of power in terminating the services of the appellant has been viciously exercised and much against the established principles of natural justice. This Court and the Supreme Court have time and again laid emphasis on the observance of the principle of natural justice in various decisions but still the functioning of state or the public undertakings is ignorant about it, thus depriving a person to seek protection of such sacrosanct principle. The rule or regulation which banishes employer-employee relationship has to be held of no avail to the respondents. The Supreme Court on more than one occasion has frowned upon such regulations and has struck them down. In the case of West Bengal State Electricity Board v. Desh Bandhu Ghosh, 1985 (50) F.L.R. 456 , the Supreme Court has held that such regulations suffer from the vice of enabling discrimination and being arbitrary in nature deserve to be struck down. In this case Desh Bandhu Ghosh who was appointed as a permanent employee was terminated with immediate effect in view of Regulation 34 of the West Bengal State Electricity Board Regulations. 14. In Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguli & Anr. (supra) the Supreme Court observed that the principles of natural justice were well recognised as being part of the constitutional guarantee contained in Article 14 of the constitution. 14. In Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguli & Anr. (supra) the Supreme Court observed that the principles of natural justice were well recognised as being part of the constitutional guarantee contained in Article 14 of the constitution. Any violation of the principles of natural justice would result in arbitrariness. Judged from this angle the action of the respondents in terminating the services of the appellant without any opportunity it has to be held that it is arbitrary and most unreasonable and thus liable to be struck down being violative of the constitutional guarantee conferred under Articles 14 and 16 of the Constitution of India. 15. It would, thus, necessarily support the contention of the appellant that the termination order was the outcome of the bad faith and smacks of mala fides of respondent No.3. This view finds support in the case of Harmandil Pathak & Ors. v. Sankatha Singh & Anr., 1966 A.L.J. 904. 16. The order of termination passed in the instant case, therefore cannot be sustained and is, as mentioned above, violative of Articles 14, 16 and 311(2) of the Constitution of India. 17. It has been submitted that even removal from service for over-staying leave as provided in the service regulations that there is automatic termination of service on over-stay still the removal from service without giving an opportunity to show cause is illegal within the postulates of Articles 311(2) of the Constitution of India. While making this submission the learned counsel for the appellant has rightly placed reliance on the case of Jai Shankar v. State of Rajasthan, 1966 (13) F.L.R. 133 (S.C.). 18. The Supreme Court in the case of Jai Shankar v. State of Rajasthan (supra) has held as under: "The regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without atleast telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for over-staying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here". 19. Instantly for an overstaying the appellant had been removed from service and no opportunity was afforded to him to show cause as to why he should not be removed from service for overstaying. This is illegal and the order is vitiated. 20. In view of the above discussions it is clear that the order terminating the services of the appellant is wholly unconstitutional and bad in law. Both the courts below wrongly held that the impugned order of termination is legal, operative and effective. 21. In the result, the appeal succeeds and is allowed with costs throughout. The judgment and decree of the courts below are set aside. The order dated January 11, 1968 terminating the services of the appellant is illegal and unconstitutional. 22. Both the courts below wrongly held that the impugned order of termination is legal, operative and effective. 21. In the result, the appeal succeeds and is allowed with costs throughout. The judgment and decree of the courts below are set aside. The order dated January 11, 1968 terminating the services of the appellant is illegal and unconstitutional. 22. The respondents are further directed to treat the petitioner in service with full benefit till date deeming that the appellant was in continuous service. The respondents are further directed to pay the entire amount which has become due to the petitioner within two months from today and shall also accord all the benefits that have accrued to him.