JUDGMENT 1. - The petitioner who was employed as a Driver (daily wager) in Fisheries Department of the State in the office of Chief Executive Officer, respondent No.3, has filed this writ petition challenging the impugned order of termination dated 2nd November, 1989 Annexure R.2 and has prayed for reinstatement with back wages. 2. The facts giving rise to this writ petition briefly stated are that the petitioner was appointed as a Driver by Chief Executive Officer, Fisheries Department. Jaipur ride order, dated 1st July, 1987 on daily wage basis @ Rs. 20/- per day It has been contended in the petition that ever since his appointment the petitioner had been rendering his services to the department quite satisfactory till 6th September, 1988 when his services were terminated by a verbal order by the department. Being aggrieved by the said verbal termination the petitioner challenged the illegal action of respondent No.3 by filing a writ petition in this Court bearing No.669/89 and this Court was pleased to allow the same on 19th July, 1989 with the direction to the respondents to reinstate the petitioner with all consequential benefits @ 50% of the wages. It has been further contended in the writ petition that notwithstanding the direction of this court in the above-noted writ petition directing the petitioners reinstatement with back wages, the respondent did not allow the petitioner to resume his duty till contempt notice was issued by this court and served upon the respondent in October, 1989 and it was only thereafter that the petitioner was paid the arrears @ 50% of the back wages, as referred to above. 3. It has been further contended that due to sudden illness of the petitioner w.e.f. 2nd November, 1989, intimation regarding which was given to respondent No.3, the petitioner remained under medical treatment upto 15th November, 1989 and soon-after recouping his health, the petitioner presented him-self by reporting for duty the very next day, i.e., 16th November, 1989 to resume his duties alongwith medical sickness and fitness certificate to respondent No. 3 who refused to take him on duty and also refused to take the application for leave alongwith the certificates as referred to above. The petitioner was further not allowed to mark his attendance for which no reason was assigned by the respondent and the petitioner was informed that his services already stood terminated on account of wilful absence from duty on 1.11.1989 w.e.f. 2.11.1989. The petitioner had further requested the respondent to inform him the reasons for his termination but no reason whatsoever was assigned by respondent No.3. It has been further contended that in view of the above circumstances, the petitioner was left with no option but to send his application for joining his duties w.e.f. 16th November, 1989 alongwith medical fitness & sickness certificate by registered post to respondent No.3 who was immediate Authority of the petitioner on 17th November, 1989 which was refused by the said respondent with refusal report dated 24th November, 1989 placed on the record vide Annexs. 1 to 4 respectively. It has been contended that it is clear from the above that respondent No.3 on account of his malafide intention to deprive the petitioner of hrs legitimate rights to resume his duties and in in flagrant disregard of the provisions of law and in colourable exercise of power in an arbitrary manner and in violation of fundamental rights of the petitioner under Articles 14, 16 and 21 of the Constitution of India to deprive the petitioner of his right to livelihood by not allowing him to resume his duties with the department. 4. It has been next contended in the petition that the impugned action of respondent No_3 also tent amounts to retrenchment and the same has been affected without following the provisions of Section 25F of the Industrial Disputes Act 1947 (for short 1.D.Act'), since neither any show cause notice was served on the petitioner prior to his impugned termination nor he has been paid any retrenchment compensation which should have been paid to him in accordance with the said provisions because the petitioner being a workman as defined under Section 2(s) of the I.D. Act was legally entitled to the protection under the Act as he had completed more than 240 days of his continuous service in the preceding year. It has been further contended that the impugned action of the respondent is also in contravention of Rule of the I.D. Rules because the respondents have not published any seniority list 7 days prior to affecting the retrenchment of the petitioner. 5. It has been further contended that the impugned action of the respondent is also in contravention of Rule of the I.D. Rules because the respondents have not published any seniority list 7 days prior to affecting the retrenchment of the petitioner. 5. In the reply to the show cause notice the respondents have controverted the contentions advanced by the learned counsel for the petitioner and have supported the validity of the impugned order of termination dated 2nd November, 1989 by contending inter-alia that it is vehemently denied that the petitioner was absent from duty on account of his ill health for the period 2nd November to 15th, November, 1989 and that when the reported for duty on 16th November, 1989 he was not allowed to resume his duty. It has been contended in this regard that the fact is that since one post of the driver was vacant, the petitioner was appointed as a daily wager to perform his duties as a driver with the department. Director Fisheries Department, Jaipur vide its order dated 23rd August, 1989 had directed the transfer of one Govind Singh Driver of the said department from Ajmer to Jaipur, as a result of which no vacant post of Driver was available with the said department and it was under these circumstances that the services of the petitioner were dispensed since he was only a daily wage driver and his services came to be terminated w.e.f. 2nd November, 1989. It has been further contended that the t petitioner was served with the impugned order of termination but he refused to accept the same, as a result of which publication had to be affected by way of public notice in Rajasthan Patrika vide Annex. R.3. On account of termination of service of the petitioner he was sent by respondent a cheque in the sum of Rs. 1080/- which included salary of one month in lieu of notice retrenchment compensation for 23 days plus one month salary but the petitioner refused to acknowledge the same vide Annexs. R 4 & 5 on the record. In this manner the services of the petitioner had been terminated by the respondents w.e.f. 2nd November, 1989 by following the due process of Iaw. 6. R 4 & 5 on the record. In this manner the services of the petitioner had been terminated by the respondents w.e.f. 2nd November, 1989 by following the due process of Iaw. 6. During the course of hearing it was contended by learned counsel for the petitioner that the services of the petitioner could not he terminated in a male fide manner since the petitioner had fallen ill during the peruxl 2.11.19H9 to 15.1 1.1989 and since he had rendered the requisite information to the department by reporting for duty immediately after recouping his health on 16th November, 1989, he was not allowed to resume his duties arbitrary by the respondent. It has been contended by the learned counsel for the petitioner in this regard that the petitioner had submitted all the relevant documents, i.e., medical sickness and fitness certificates along with his application for grant of leave for the aforesaid period which ordinarily should have been accepted by the respondents, since it could not he constrained as wilful absence from duty. It was further contended by the learned counsel that the question of wilful absence from duty would arise only if the petitioner had not rendered the requisite information regarding his absence from duty to the employer and had thus remained absent for the atixcsaid period without assigning any reasonable cause or excuse and it was only under such circumstances that the department would be justified in terminating the service of an employee whether he is daily wager or a regularly appointed employee of he necessary procedure which is envisaged under the law has to be strictly adhered to by the employer before taking extreme action of terminating the services of an employee which has admittedly not been done in this case. It was further contended by the learned counsel for the petitioner that merely because one (Govind Singh Driver under the employment of the Fisheries department was transferred from Apner to Jaipur was pot justilicaticut for the respondent tin terminating the services of the petitioner since in any event he could have been accommodated and transtcrred to Ajmer or to any other office of the Fisheries Department of the State of llalasthan. since the petitioner had already rendered regular service with the department for a period of more than two years w.e. f. 1st July, 1987 to 1st November, 1989 and was thus a confirmed employee. since the petitioner had already rendered regular service with the department for a period of more than two years w.e. f. 1st July, 1987 to 1st November, 1989 and was thus a confirmed employee. During the aforesaid period the services of the petitioner were earlier terminated by a verbal order on 6th September, 1988 when he had moved this court by way of a writ petition bearing No. 669/89 which was allowed by this court on 19th July, 1989 as indicated above. It has been further contended by the learned counsel for the petitioner that in gross violation of the principles of natural justice, standing orders and the procedure, the services of the petitioner were terminated unlawfully without conducting even the departmental inquiry which was envisaged under the Law. It was further contended by learned counsel for the petitioner that in pursuance of the directions of this Court, dated 19th July, 1995 directing the respondent to place on the record the abstract copies of the attendance register showing the absence of the petitioner in the office on 1st November, 1989 and also inquiry proceedings conducted regarding alleged misconduct of the petitioner on account of his absence from duty, the respondents have only partially complied with the same by only placing the abstracts from the attendance register for the period November, 1989 which shows that as on 1st November, 1989 the petitioner was present in the office because in token of his attendance he had put his signatures on the attendance register for the said date. Hence it cannot he construed that the petitioner was absent from duty on 1st November, 1989. 7. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgement of this Court in the matter of Dinesh Chandra Sharma v. State of Rajasthan and Ors., S.B.C. writ petition No. 3241 of 1988 decided on 28th November, 1990, judgement of the Apex Court in the matter of D.K. Yadav v. J.M.A. Industries Limited, (1993) 83 FJR 271 and Assaram Raibhan v. Executive Engineer and Ors., 1989 (2) L.L.N. 589. In the matter of Dinesh Chandra Sharma v. State of Rajasthan and Ors., (Supra) similar question had arisen for consideration before this Court regarding an employee of P.H.E.D. Jaipur. In the matter of Dinesh Chandra Sharma v. State of Rajasthan and Ors., (Supra) similar question had arisen for consideration before this Court regarding an employee of P.H.E.D. Jaipur. The said employee who was appointed as Assistant in the office of P.H.E.D. w.e.f. 7th April, 1977 had fallen ill on 5th August, 1987 as a result of which he could not report for ditty but he had given due intimation In this regard to the Junior Engineer and ripen he reported for duty he hail submitted medical sickness and fitness certificates along with his application for grant of leave on medical ground which teas rejected the Executive Engineer on the ground that he was wilfully absent from duty. It was held by this Court that the to termination was illegal and contrary to the procedure envisaged under the law therefore, the writ petition was consequently allotted and the impugned order of termination was quashed and set aside. In the matter D.K. Yadav v. J.M.A. Industries Limited, (Supra) similar question had arisen for consideration of the Apex Court. It was held as under:- "It is well settled law that the procedure prescribed for depriving it person of his livelihood must meet the challenge of Article 14 of the Constitution and such law would he liable to be tested on the anvil of Article 14, so it must be right, just and and not arbitrary, fanciful or oppressive" It was further held that it is well settled 1aw that the right to life enshrined under Art 21 of the Constitution on of India would include the right to livelihood therefore before taking any action of termination the service of an employee P-59 play requires that reasonable opportunity of hearing must be given to an employee and domestic inquiry should be conducted in compliance with the requirements of principles of natural justice.In the matter of Assaram v. Executive Engineer & Ors., (Supra) it was held that the services of an employee, be he permanent or temporary, cannot be terminated with retrospective effect and the termination order was consequently set aside with the direction that the petitioner shall be paid his salary as if he had continued to be in employment. 8. 8. In reply to the contentions advanced by the learned counsel for the petitioner, learned counsel for the respondents has supported the averments made by the respondents in the reply to show cause notice by contending inter-alia that the respondents were fully justified in terminating the services of the petitioner, since he was wilfully absent from duty w.e.f. 1st November, 1989 and no intimation was given to respondent No. 3 regarding his absence from duty for the disputed period, i.e., 2nd November to 15th November, 1989. It has further been contended by the learned counsel for the respondents that the petitioner was a daily wage employee of the Fisheries Department. In view of the transfer of one Govind Singh from Ajmer to Jaipur no vacancy was available for the post of driver in the office of respondent No. 3 and as such respondent No.3 had no option but to terminate the services of the petitioner. 9. With regard to the question as to whether any domestic inquiry was conduced by the department against the petitioner prior to the termination of his services, it was contended by the learned counsel for the respondents that no such domestic inquiry was conducted as the same was not considered necessary by the department. 10. I have heard learned counsel for the parties at length and have also examined their rival claims and contentions and also perused the relevant documents placed on the record. 11. I am of the considered opinion that the respondents were not at all justified in passing the impugned order of termination dated 2nd November, 1989 in view of the fact that the petitioner had given due intimation regarding his illness to respondent No. 3 since the petitioner remained under medical treatment from 2nd November, 1999 to 15th November, 1989 and submitted his application alongaith medical. sickness and fitness certificate for grant of leave for the said period on medical ground which, in my opinion, respondent No.3 was not justified to refuse I am further of the opinion that before an employee can be held to be guilty of wilful absence from duty a proper domestic inquiry should be conducted by the department by issuing show cause notice and by framing charge sheet and specific finding should be recorded by the inquiry officer after following due procedure for conducting domestic inquiry in accordance with law, which admittedly has not been done in this case. Hence the respondents are solely responsible for their own lapse and for which the petitioner cannot be blamed. It is further relevant to mention that the perusal of the extract copies of the attendance register placed on the record for the period November. 1989, further reveals that the petitioner was on duty as on Is November, 1989 and in token thereof he had put his signatures on the attendance register on the said date, hence the impugned order, dated 2nd November, 1989 terminating the services of the petitioner w.e.f 1st November, 1989 is itself illegal since no order of termination could have been 'retrospectively passed particularly when the petitioner was on duty as on 1st November, 1989. I am further of the opinion that the respondents have not only terminated the services of the petitioner in gross violation of the provisions of law but have also violated the the provisions of natural justice, equity and fair play by depriving the petitioner of his right to livelihood which is an integral part of right to life & liberty enshrined under Article 21 of the Constitution of India and other fundamental rights under Articles 14 and 16 of the Constitution and the petitioner is entitled to succeed. 12. In the result, the writ petition is allowed and the impugned order of termination dated 2nd November, 1989 (Annexure R. 1) is quashed and set aside. The petitioner shall he paid his salary and all consequential benefits as if he had continued to be in employment of the respondents. 13. The rule is made absolute accordingly. Parties are left to bear their own costs.Petition allowed. *******