JUDGMENT : Rakesh Tiwari, J. Heard counsel for the parties and perused the record. 2. With the consent of the parties Writ Petition No. 15535 of 1992 is being taken as the leading case and since common facts are involved in both thee petitions, the order of termination having been passed in the leading case, the judgment is being rendered in Writ Petition No. 5535 of 1992. FACTS OF WRIT PETITION NO. 5535 OF 1992 3. The Chief Engineer appointed the petitioner as Junior Engineer in the U.P. Jal Nigam on 24.11.1973. The petitioner fell ill on 8.32.1981 and was confined to bed for several months. He submitted applications for medical leave w.e.f. 8.12.1981 onwards. After recovery from illness the petitioner submitted fitness certificate and joined his work or about 7.3.1981. He worked for about 3-4 days and thereafter relapsed again. 4. It is averred in the writ petition that the second son of the petitioner in the mean time developed some disease in one of his legs. As the petitioner was confined to bed and since he was under medical treatment; he was not able to give proper treatment to his son due to financial crisis. On account of the fact that proper treatment could not be given to his son he became lame After recouping again the petitioner submitted joining vide letter dated 5.1.1983 and reported for duty but he was not permitted to join his duties by the Executive Engineer, I Project Division, 76 Chandrika Colony, State Varanasi. 5. It appears that an F.I.R. was lodged against the petitioner u/s 409 I.P.C. at P.S. Sigra, Varanasi to the effect that he had remained absent from duty w.e.f. 8.12.1981 and had not returned certain materials issued to him for executing certain 'works; It further appears that the petitioner vide letter dated 14.4.1983 addressed to respondent No. 3 informed him that all the articles/material issued to him for execution or work were deposited in the office and yet the petitioner was not being allowed to join in spite of several letters and reminders in; this regard. The criminal case No. 311/90 (State v. Jai Shankar Tewari) Was registered against the petitioner in pursuance of the F.I.R. lodged against the petitioner u/s 409 I.P.C. 6. The criminal case No. 311/90 (State v. Jai Shankar Tewari) Was registered against the petitioner in pursuance of the F.I.R. lodged against the petitioner u/s 409 I.P.C. 6. It is averred that the petitioner again met respondent No. 3 for joining duties but was told that he will be permitted to join only after the final report is submitted on the charge sheet. The charge sheet was filed in the courts on 4.1.1984 but the petitioner was again not permitted to join and was told to come again for joining duties, after the decision of the criminal case. Subsequently, the petitioner surrendered before the court on 30.1.1987 and was granted bail on 2.2.1987. He then requested respondent No. 2 to permit him to join but was not allowed to join his duties on the ground that he will be permitted to join only after the decision of the court as was informed to him by respondent No. 4. 7. The petitioner was acquitted of all the charges in the criminal case No. 311 of 1990 aforesaid vide judgment dated 28.6.1990 passed by the VII Additional Chief Judicial Magistrate, Varanasi. 8. After acquitted the petitioner again by letter dated 8.8.1990 to the respondents requested to permit him to join his duties as he had been acquitted in the criminal case aforesaid. Respondent No. 3 by means of letter dated 23.8.1990 directed the petitioner to report for joining along with copy of the judgment dated 28.6.990 in criminal case No. 311 of 1990 acquitting him from the charges. Copy of the letter dated 23.8.1990 is appended as Annexure 8 to the writ petition. In pursuance of the aforesaid letter dated 23.8.1990 the petitioner submitted his joining before respondent No. 3 but was again refused on the ground that there is an order from higher authorities in this regard. The petitioner thereafter vide letter dated, 5.9.1990 (Annexure 9 to the writ petition) informed the Chief Personnel Officer about the situation. No order has been passed permitting the petitioner to join his duties. FACTS OF WRIT PETITION NO. 18059 OF 1991 9. The petitioner thereafter vide letter dated, 5.9.1990 (Annexure 9 to the writ petition) informed the Chief Personnel Officer about the situation. No order has been passed permitting the petitioner to join his duties. FACTS OF WRIT PETITION NO. 18059 OF 1991 9. The counsel for the petitioner submits that in the aforesaid hack ground the petitioner filed Writ Petition No.18059 of 1991 for a writ of mandamus commanding the respondents to permit him to join his duties and also pay his arrears of salary as well as his salary month to month as and when it falls due. It is further submitted that all of a sudden the petitioner was served with an order dated 10.11.1992 purported to have been passed by respondent No. 1 terminating the services of the petitioner under Rule 18 of the U.P. Fundamental Rules. The order of termination dated 10.1.1992. appended as Annexure 11 to the writ petition is as under :- ^^%%dk;kZy; Kki%% Jh t; 'kadj frokjh voj vfHk;Urk dh foRrh; gLr iqfLrdk Hkkx&2 ls 4 ds ewy fu;e 18 ds vUrxZr fnukad 8-12-81 ls vuqifLFkr jgus ds dkj.k mudh lsok;s rqjUr ls lekIr dh tkrh gSaa A g-@& ,l- ,l- JhokLro SUBMISSIONS ON BEHALF OF THE PETITIONER 10. The contention of the counsel for the petitioner is that petitioner was falsely implicated in the criminal case lodged by the department. He was not permitted to join his duties on one pretext or the other, during the pendency of the criminal case No. 311 of 1990 as well as after his acquittal by the court in the aforesaid case. It is urged that instead of acting in a lawful manner allowing the petitioner to join his duties after acquittal, the impugned order of termination was passed without affording him any opportunity of hearing or conducting any disciplinary proceedings whatsoever as such that action of the respondents is violative of Article 311 of the Constitution. The alleged basis of remaining absent from duty in the order of termination is against the record as well. 11. It is further urged that the petitioner filed Writ Petition No. 5535 of 1992 praying for a writ in the nature of certiorari quashing the order dated 10.1.1992 passed by respondent No. 1 terminating his service under Rule 18 of the Fundamental Rules. 11. It is further urged that the petitioner filed Writ Petition No. 5535 of 1992 praying for a writ in the nature of certiorari quashing the order dated 10.1.1992 passed by respondent No. 1 terminating his service under Rule 18 of the Fundamental Rules. The impugned order of termination in fact is an order of dismissal in the garb of an order of termination which is bad as it has been passed, by an authority subordinate and lower in rank to the appointing authority, it is further submitted that the petitioner was always ready and willing to join but the respondents have not permitted him and as such Rule 18 cannot be relied upon and is not attracted. Lastly it has been urged by the counsel for the petitioner that after acquittal of the petitioner in the aforesaid criminal case, termination of his services during the pendency of Writ Petition No. 18059 of 1991 amounts to contempt. The attention of the Court was drawn to the avernments made in paragraph 23 of the writ petition in which it has been averred that respondent No. 1 has interfered with the judicial proceedings pending in this Court under Writ Petition No. 18059 of 1981 and thus he is guilty of contempt and is liable to be punished and this act of his is contemptuous. 12. The counsel for the petitioner has relied upon the decisions of Hon'ble Supreme Court rendered in Krishna Kumar Vs. Divisional Assistant Electrical Engineer and Others, AIR 1979 SC 1912 in support of his contention that termination by, an authority lower in rank is bad. He has further relied upon the decisions rendered by the Hon'ble Supreme Court in Jai Shanker Vs. State of Rajasthan, AIR 1966 SC 492 & The State of Assam and Others Vs. Akshaya Kumar Deb, (1975) 4 SCC 339 to establish that the action of respondents is hit by Article 311 of the Constitution. 13. In Jai Shanker (supra) it has been held that overstaying on leave without any opportunity to show cause is illegal and is hit by Article 311 of the Constitution. Termination from service of an incumbent by way of punishment amounts to removal from Service and the protection under Article 311 of the Constitution cannot be taken away. 13. In Jai Shanker (supra) it has been held that overstaying on leave without any opportunity to show cause is illegal and is hit by Article 311 of the Constitution. Termination from service of an incumbent by way of punishment amounts to removal from Service and the protection under Article 311 of the Constitution cannot be taken away. It was held that removal from service without affording an opportunity to show cause is illegal and in violation of Article 311 of the Constitution. 14. In State of Assam v. Akshaya Kumar Deb (Supra) it has been held that termination, from service in terms of fundamental Rule 18 is illegal if opportunity to show cause is not given. The Court in the aforesaid case considered whether the termination under Fundamental Rule 18 is removal within the meaning of Article 311(2) of the Constitution. The Court held that 'cessation' of service pursuant of this Rule would, in substance and effect, stand on the same footing as "his removal" from service within the contemptation of Article 311(2) of the Constitution, particularly when it is against the will of the employee who is willing to serve, or who had never lost the animus to rejoin duty on the expiry of his leave. It has been further held that it cannot be said that removal under Fundamental Rule 18 does not visit the employee with any evil consequence. Submissions on Behalf of Respondents 15. Sri Shabha Jeet Yadav, counsel for the respondents, submits that the petitioner did not join in spite of notices appended as Annexure C.A. 3 dated 27.1.1982, Annexure C.A. 4 dated 25.5.1982 and Annexure C.A. 5 dated 12.7.1982. He submits that the notice dated 12.7.1982 contained in Annexure C.A. 5 was also published in a newspaper directing the petitioner to join his services. The counsel for the respondent has invited the attention of the Court to a letter of respondent No. 2 to the petitioner dated 19.7.1982 contained in Annexure C.A. 8 to the counter affidavit in which it has been stated that the joining report of the petitioner dated 14.7.1982 was being returned along with letter to get it counter signed from the Chief Medical Officer, Ghazipur. The said letter dated 19.7.1982 is reproduced as under :- dk;kZy; vf/k'kklh vfH;Urk] izFke v- izdYi 'kk[kk] m-iz- ty fuxe okjk.klh i=kad &13071 ih- ,l-&6@52 fnukad 16&7&82 Jh t; 'kadj frokjh] voj vfHk;Urk ! The said letter dated 19.7.1982 is reproduced as under :- dk;kZy; vf/k'kklh vfH;Urk] izFke v- izdYi 'kk[kk] m-iz- ty fuxe okjk.klh i=kad &13071 ih- ,l-&6@52 fnukad 16&7&82 Jh t; 'kadj frokjh] voj vfHk;Urk ! vkids Tokbfuax fjiksVZ fnukad 14&7&82 ds lkFk layXu fpfdRlk izek.k i= dks bl vk'k; ls eqy :i ls okil fd;k tk jgk gS fd vki —I;k fpfdRlk izek.k i= dks vius vuin xkthiqj ds eq[; fpfdRlk vf/kdkjh ls izfr gLrk{kfjr djkdj dk;kZy; esa vfoyEc izLrqr djsaA mijksDr mod'k ls lacaf/kr vkosnu i= ,oa eq[; vfpfdRlk vf/kdkjh }kjk izfrgLrk{kfjr fpfdRlk izek.k i= dk;kZy; ds vxzsRrj dk;Zokgh gsrq rqjUr izsf"kr djsaA ¼,e- th- nso?kj½ vf/k'kklh vfHk;Urk layXud %&fpfdRlk izek.k i= 1& fnukad 9&3&82 ls 14&4&82 2& 15&4&82 ls 20&5&82 3& 3& 21&5&82 ls 13&7&82 4& fQVus'k lkfVZQdsV 16. He further submits that validity of Fundamental Rule 18 has not been challenged by the petitioner and placed reliance upon the decision rendered in Government of Tamil Nadu and Another Vs. K. Rajaram Appasamy, (1997) 5 SCC 57 and Rule 4(6) of the U.P. Government (Discipline and Appeal) Rules, 1999. The provision of Rule 4(6) is as under :- "Where penalty of dismissal or removal from service imposed upon a Government Servant is set aside or declared rendered void in consequence of or by a decision of a court of law and the Appointing Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof a minor nature omitted: (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the Appointing Authority, be deemed to have continued in force on and from the date of the original order of dismissal removal. (b) if he was not under such suspension, he shall, if so directed by the Appointing Authority be deemed to have been placed under suspension by an order of the Competent. Authority and from the date of the original order of dismissal or removal." Conclusions 17. From a perusal of Annexures CA. (b) if he was not under such suspension, he shall, if so directed by the Appointing Authority be deemed to have been placed under suspension by an order of the Competent. Authority and from the date of the original order of dismissal or removal." Conclusions 17. From a perusal of Annexures CA. 3, C.A. 4 and C.A. 6, i.e., letter dated 27.1.1982, 25.5.1982 and 12.7J.982 respectively it is evident that they are, prior to letter dated 19.7.1982. It is apparent from letters dated 19.7.1982 contained in Annexures C.A. 7 and C.A. 8 to the counter affidavit that the petitioner had submitted his joining report which was being returned to the petitioner in original for being counter signed by the Chief Medical Officer Ghazipur. These letters contained in Annexures C.A. 3, C.A. 4 and C.A. 6 thereto have no relevance in so far as the question of not joining in pursuance of notice is concerned: The argument of the counsel for the respondents that the petitioner did not respond in spite of notice is fallacious and against the record. On the contrary it appears from the record that the petitioner was always ready and willing to join his duties. A bard reading of Rule 4(6) of the U.P. Government Servants Disciplinary and Appeal Rules shows that neither the Government Servants rule nor Fundamental Rule 18 is applicable, to the facts and circumstances of the case in exercise of which the petitioner was terminated from service. 18. Fundamental Rule is under which the services of the petitioner had been terminated is as under:- "18. Unless the Government in view of the special circumstances of the case, shall otherwise determine alter five years' continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, Government servant ceases to be in Government employment." 19. It is evident that the petitioner has been dismissed from service in the garb of termination without affording any reasonable opportunity of hearing or holding any enquiry and as such the action of the respondents is in violation of Article 311 of the Constitution. The petitioner had been continuously approaching the respondents to permit him to join his duties and even after he was acquitted the criminal case No. 301/1990 u/s 409 I.P.C. the respondents did not permit him to join. 20. The petitioner had been continuously approaching the respondents to permit him to join his duties and even after he was acquitted the criminal case No. 301/1990 u/s 409 I.P.C. the respondents did not permit him to join. 20. It is evident from the facts of the case as well as from the that he was neither given any show cause notice before termination of his services nor any departmental proceeding had been held, The petitioner has been acquitted in the criminal proceedings and since no departmental proceedings Were held he is entitled to reinstatement in service will all consequent benefits. In D.K. Yadav Vs. J.M.A. Industries Ltd., (1993) 3 SCC 259 , it has been held by the apex court that the principle of natural justice are inbuilt and they have to be read even where no expressly provided for. 21. For the reasons stated above, both the writ petitions are allowed. The order of termination dated 10.1.1992 is set aside. The respondents are directed to reinstate the petitioner in service. They are further directed to pay arrears of his salary as well as his salary regularly month to month after reinstatement as and when it falls due with all consequential benefits within a period of three months from the date of production of a certified copy of this order before them by the petitioner. In case the aforesaid payments are not made within the time granted the same shall be payable to the petitioner with interest at the rate of 10% per annum and shall be recoverable by the District Magistrate as arrears of land revenue from the respondents within two months thereafter to be paid to the petitioner.