JUDGMENT 1. - By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the legality of the order Exhibit-3, dated 19.8.87 passed by the Collector (Land Records) Ajmer, order dated 29.8.89 (Ex. 5), passed by the Divisional Commissioner, Ajmer and order dated, 1.7.91 (Ex. 7) passed by the Government in Revenue (Gr. I) Department. 2. It is necessary to set out some facts in order to decide the controversy involved in the writ petition. The petitioner was appointed as Patwari in the Revenue Department of the Government of Rajasthan and was posted in district Ajmer. He joined service on 10.8.73 and he was confirmed on 2.3.77. A Notice dated, 8.10.85 under Rule 86 of the Rajasthan Service Rules, 1951 (for short Rules of 1951) was issued by the Collector, Ajmer with an allegation that the petitioner was voluntarily absent from duty w.e.f. 9.8.85. He was called upon to submit his explanation within 15 days with the stipulation that in case otherwise, the departmental action will be taken against him for remaining absent without leave. 3. It is alleged that the petitioner did not submit any reply to the notice and therefore, a reminder dated 4.7.86 was sent to him. He was called upon to submit his reply within three days . Thereafter, the petitioner submitted a detailed reply dated, 18.7.86, wherein he stated that he was posted in Patwar Circle, Pagara, Tehsil Ajmer on 2.8.85. He had been transferred to Patwar Circle Ahera, Tehsil Sarwar and he was serving in Tehsil Sarwar since then. He requested that the period of his absence from 9.8.85 may be indicated. He stated that he was in fact on duty in Patwar Circle, Pagara and this was supported by the daily diary maintained by him. He requested that the notice issued against him may be dropped. The Collector (Land Records), Ajmer then passed order dated 19.8.87 (Ex. 3) forfeiting the service of the petitioner upto 9.8.85. In this order the Collector has stated that the petitioner had remained absent on 9.8.85. For recording this conclusion the Collector placed reliance on the letter dated 17.9.85 of the Sub-Divisional Officer, Ajmer. Against the order of the Collector the petitioner filed an appeal before the Divisional Commissioner, Ajmer. 3) forfeiting the service of the petitioner upto 9.8.85. In this order the Collector has stated that the petitioner had remained absent on 9.8.85. For recording this conclusion the Collector placed reliance on the letter dated 17.9.85 of the Sub-Divisional Officer, Ajmer. Against the order of the Collector the petitioner filed an appeal before the Divisional Commissioner, Ajmer. This appeal was returned by the Divisional Commissioner vide his order dated 29.8.89 on the ground that the impugned order does not come within the scope of Rule 14 of the Rajasthan Civil Service (Classification, Control and Appeal ) Rules, 1958. Such an appeal can be filed only before the Government. The petitioner then filed appeal before the Government on 7.6.91 (Ex. 6). This appeal has been dismissed by the Government on the ground that it is not maintainable. In its order dated 1.7.91, the Government has stated that the order of the Collector does not amount to penalty under Rule 14 of 1958 Rules. 4. The petitioner has assailed the order (Ex. 3) passed by the Collector by asserting that the forfeiture of past service amounts to termination of service by way of penalty and such action could be taken only after holding an enquiry under rule 16 of 1958 Rules. No such enquiry was held by the Collector, Ajmer before passing the impugned order. The petitioner has stated that under Rule 86 of 1951 rules action for forfeiture of past service can only be taken after compliance of the mandatory provisions of 1958 rules. His service of 12 years has been forfeited without giving any notice to him and without any proof of his alleged misconduct. The petitioner has been stated that the Collector has relied on the letter of the Sub-Divisional Officer for recording a bald conclusion that the petitioner was absent on 9.8.85. However, copy of such letter was not made available to the petitioner and the petitioner was not given any opportunity of defending himself. The petitioner also stated that no finding of wilful absence from duty has been recorded and in fact, no material was available with the Collector on the basis of which he could come to the conclusion that the petitioner had absented from duty on 9.8.85. The petitioner has claimed that the order passed by the Collector is wholly arbitrary, unreasonable and contrary to natural justice. 5. The petitioner has claimed that the order passed by the Collector is wholly arbitrary, unreasonable and contrary to natural justice. 5. In reply to the writ petition the respondents have stated that the petitioner was served with a notice under Rule-86 on 24.10.85 but, he did not reply. A reminder dated 4.7.86 was sent to him. He filed reply only on 18.7.86 and denied the allegations. Before passing order dated 19.8.87 every aspect of the matter was considered and then action was taken as per rule 86(3). The order dated, 19.8.87 is judicious and is in consonance with the provisions of law. The respondents have stated that the Divisional Commissioner and the Government have correctly dismissed the appeal filed by the petitioner. The substance of the case of the respondents is that it is not necessary to hold an enquiry in such matters because, no penalty has been imposed on the petitioner under rule 14 of 1958 rules. Moreover, letter dated 17.9.85 of the Sub Divisional Officer clearly indicated that the petitioner remained absent from duty on 9.8.85 and he generally remains absent from duty. 6. The petitioner has filed a rejoinder and he has reiterated the submissions made by him in the main petition. 7. The first point which requires determination is as to whether the order (Ex.3) can be treated as an order of punishment. The effect of the impugned order passed by the Collector is that the service of the petitioner upto 9.8.85 stands obliterated and he will be treated a new entrant in the service w.e.f. 10.8.85. The petitioner has thus lost all the service benefits which he has earned on account of 12 years previous service. Thus, the forfeiture of the past service has the direct effect of termination of the service rendered upto a particular day. This in substance is a punishment of removal from service. Moreover, the order in question clearly shows that action has been taken against the petitioner for his alleged act of misconduct, namely, his absence from duty on 9.8.85. It must, therefore, be held that the impugned order visits the petitioner with major penalty of removal from service. This is a penalty specified in Rule 14 of 1958 Rules. Moreover, the order in question clearly shows that action has been taken against the petitioner for his alleged act of misconduct, namely, his absence from duty on 9.8.85. It must, therefore, be held that the impugned order visits the petitioner with major penalty of removal from service. This is a penalty specified in Rule 14 of 1958 Rules. Therefore, even though the provision of rule 14 has not been referred to in the impugned order, a bare look at the order leads to an inescapable conclusion that the petitioner has been punished with the termination of service and for all purposes he will be treated to have been appointed afresh in the Government service w.e.f. 10.8.85. 8. The next question which warrants consideration is, as to whether such an order could have been made without compliance of the provisions of 1958 rules and the principles of natural justice. Exhibit-I read with Ex. 3 shows that the Collector has invoked rule 86 of 1951 rules. Ex.1 also shows that the notice was given to the petitioner for submitting an explanation with a specific stipulation that in case of his failure to submit explanation, departmental action will be taken against him for remaining absent from duty without permission. Absence of the petitioner was shown to be w.e.f. 9.8.85. After the petitioner had submitted his reply on 18.7.86 stating that he had not remained absent from duty and that he was present on 9.8.85 in Patwar Circle, Pagara and cited his daily diary in support of his assertion, no charge sheet was served upon the petitioner containing allegation of wilful absence from duty on 9.8.85 or of any other date. When no charge-sheet was served upon the petitioner question of taking proceedings in accordance with rule 16 of 1958 rules was never there. It is thus clear that the respondent No. 3 passed the impugned order without following the procedure prescribed in Rule-16 of 1958 rules for imposition of major penalty. Consequently, unless the action of the respondent No. 3 can be sustained with reference to any other rule, the impugned order is liable to be declared as void, arbitrary and capricious. The respondents have tried to justify the impugned order with reference to rule-86 of 1951 rules. 9. Rule-86 of 1951 rules read as under : "86. Consequently, unless the action of the respondent No. 3 can be sustained with reference to any other rule, the impugned order is liable to be declared as void, arbitrary and capricious. The respondents have tried to justify the impugned order with reference to rule-86 of 1951 rules. 9. Rule-86 of 1951 rules read as under : "86. Absence after expiry of leave-(1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained wilfully absent from duty ; and such absence shall amount to interruption in service involving forfeiture of past service, unless on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extraordinary leave by the authority competent to sanction leave. (2) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extraordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave. (3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services ( Classification, Control and Appeal) Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service." 10. A look at the rule quoted above shows that while under Rule 86(1) a Government servant who remains absent from duty without leave or before sanction of the leave applied for is to be treated as having remained wilfully absent from duty and such absence amounts to interruption in service involving forfeiture of past service unless absence is regularised by grant of leave due or is commuted into extraordinary leave by the competent authority on satisfactory reasons being furnished. Sub-rule (2) provides that a person who remains absent from duty after expiry of sanctioned leave or after communication of refusal of extension of leave is not allowed to pay and allowances for the period of absence and the period of such absence is commuted into extra-ordinary leave unless the order for regularisation is passed on furnishing satisfactory reasons. Sub-rule (3) empowers the competent authority to initiate disciplinary action under 1958 Rules who wilfully remains absent from duty for a period of one month, penalty of removal from service can be imposed if charge of wilful absence from duty is proved against the Government servant. 11. In the present case, it has not been alleged by the respondents that the petitioner remained-wilfully absent from duty for a period exceeding one month and, therefore, Rule 86(3) is of no avail to the respondents. Rule 86(1) consists of two parts. In the first part, a deeming clause has been incorporated whereby a person who absents from duty without leave or without sanction of leave applied for is to be treated as having remained wilfully absent from duty. In terms of the second part, he suffers forfeiture of past service unless the period of absence is regularised. Before this provision can be invoked by the competent authority, it has to be established that the Government servant remained absent from duty without leave or without sanction of the leave and that he has failed to give any satisfactory reason for regularisation of his absence from duty. Unless a person remains absent from duty without leave, question of invoking power under section 86(1) simply does not arise. Even in case, where the Government servant remains absent he has a right to apply for regularisation of the period of absence by sanction of leave due or commutation of the absence into extra ordinary leave. This by itself envisages giving of notice to the concerned employee before taking of an action against him. This also envisages recording of a finding that the Government servant has remained wilfully absent from duty before an order of forfeiture of past service can be passed. 12. This by itself envisages giving of notice to the concerned employee before taking of an action against him. This also envisages recording of a finding that the Government servant has remained wilfully absent from duty before an order of forfeiture of past service can be passed. 12. In Jai Shankar v. State of Rajasthan ( AIR 1966 S.C. 492 ), their Lordships of the Supreme Court had examined the provisions contained in Jodhpur State Regulations which are identical to Rule-86 and held that no action can be taken against the employee involving forfeiture of his past service without an enquiry in the matter in accordance with the principles of natural justice. In the present case, I find that no such enquiry involving an allegation of wilful absence from duty was ever held against the petitioner. The notice (Ex. 1) issued by the Collector, Ajmer, cannot be treated as a notice indicating that the petitioner has wilfully remained absent from duty. Order (Ex.3) does not show that the petitioner has been treated as wilfully absent from duty on 9.8.85. Thus, the order passed by the Collector cannot be sustained with reference to Rule-86(1) of 1951 Rules. 13. Even if, for a moment it is assumed that the Collector, Ajmer has taken action under section 86(1) of rules, the impugned order cannot be sustained because of the whole-sale violation of the rules of natural justice. In the first notice (Ex.1), the petitioner was shown to have remained absent from duty w.e.f. 9.8.85. The petitioner controverted this allegation by stating that he has not remained absent and has in fact worked in Patwar Circle, Pagara. He referred to his daily diary in support of his assertion. No enquiry was, therefore, held by the Collector to substantiate the allegations against the petitioner of his having remained absent w.e.f. 9.8.85. No effort was made to establish that the daily diary of the petitioner was not maintained in accordance with the rules or was not genuine or that the entries made therein were forged or manipulated. Instead what the Collector has done is to place reliance on the letter dated 17.9.85 of the Sub-Divisional Officer, Ajmer for holding that the petitioner was absent on 9.8.85. This letter of the Sub- Divisional Officer was never made available to the petitioner and the petitioner had no opportunity to controvert the statement of facts contained in that letter. Instead what the Collector has done is to place reliance on the letter dated 17.9.85 of the Sub-Divisional Officer, Ajmer for holding that the petitioner was absent on 9.8.85. This letter of the Sub- Divisional Officer was never made available to the petitioner and the petitioner had no opportunity to controvert the statement of facts contained in that letter. The Collector, Ajmer relied on an important material which is adverse to the petitioner without even letting the petitioner know that such adverse material existed against him. The collector never gave any notice to the petitioner to submit his explanation regarding the facts stated in the letter dated 17.9.85. It must, therefore, be held that the Collector, Ajmer, acted in gross violation of the principles of natural justice by condemning the petitioner on the ground of his absence from duty on 9.8.85 on the sole basis of the letter of the Sub-Divisional Officer without giving any notice of the letter to the petitioner. 14. Apart from the above findings, regarding breach of the principles of natural justice I find that the order of forfeiture of past service clearly smacks of arbitrariness on the part of the Collector, Ajmer. The petitioner has been made to lose his 12 years of service by one stroke of pen. The petitioner has been visited with extreme penalty for his so-called absence of one day. It is not the case of the respondents that the petitioner's past record is bad and he has been punished for any other act of delinquency. Without regard to the nature of the allegations levelled against the petitioner and without regard to his past record, the Collector has put an end to the service of the petitioner which constitutes more than ⅓rd of the total service which is usually rendered by the Government servant. The action taken by the Collector must, therefore, be held to be clearly arbitrary and capricious. The punishment of forfeiture of past service imposed on the petitioner is grossly disproportionate to his alleged act of delinquency. The dismissal of the appeal of the petitioner by the Divisional Commissioner and the Government is inconsequential, because both these authorities have declined to consider the appeal of the petitioner on merits and I do not consider it necessary to adjudicate upon the legality of the orders (Exs. The dismissal of the appeal of the petitioner by the Divisional Commissioner and the Government is inconsequential, because both these authorities have declined to consider the appeal of the petitioner on merits and I do not consider it necessary to adjudicate upon the legality of the orders (Exs. 5 & 7) in view of my fording that the order of Collector suffers from patent violation of the principles of natural justice. 15. For the reasons mentioned above, the writ petition is allowed. Order (Ex. 3), dated 19.8.87, passed by the Collector, Ajmer, is declared illegal and is hereby quashed. The petitioner shall be entitled to all consequential benefits. The petitioner shall get costs of Rs. 2,000/-. This amount shall be recovered by the Government from the Officer who has passed the order (Ex.3) in utter disregard of the Rules of Natural Justice.Petition allowed. *******