JUDGMENT By the Court.—This special appeal and of the judgment dated 1st August 2005, allowing the writ petition No. 19431 of 2003, of the petitioner respondent and the order, dated 29th September, 2005, passed on the review application of the petitioner-respondent. 2. Learned Standing Counsel, for the appellant submitted that the Hon’ble Single Judge has not correctly appreciated Fundamental Rule 18, which provided for automatic termination of a Government servant, who is absent unauthorisedly beyond 5 years and, therefore, the judgment under appeal is liable to be set aside. Sri Ashok Khare, Senior Advocate assisted by Sri Arun Kumar, however submitted that all the aspects have been considered by the Hon’ble Single Judge and the contention of the learned Standing Counsel, with respect of Fundamental Rule 18 is contrary to law inasmuch as in the case of unauthorized absence without holding an enquiry and complying the provisions of Article 311 (2) of the Constitution of India, the service of a Government servant cannot be dispensed with. The automatic termination would not be attracted in the present case in view of the law laid down by the Apex Court in Jai Shanker v. State of Rajasthan, AIR 1966 S.C. 492 and Deokinandan v. State of Bihar, AIR 1971 S.C. 1409 . 3. We have heard the learned counsel for the parties and perused record. It is not disputed that the petitioner respondent, who was appointed as Junior Engineer in 1974 absented from duty on 8th February, 1981, on account of illness and continued to remain absent till 4th January, 1989. He submitted an application along with a fitness certificate from Chief Medical Officer before the Executive Engineer on 5th January, 1989, who referred the matter to the Chief Engineer for his decision, but the matter appears to remain pending. Ultimately, the petitioner respondent has to approach this Court several times in the following writ petitions: (1) Writ Petition No. 24123 of 1993, disposed of on 10-5-1994, with the direction to Chief Engineer to look into the matter and take appropriate decision within a month and to intimate the petitioner thereafter. (2) Writ Petition No. 20902 of 2005 decided on 5th February, 1998, whereby order dated 26-4-1995, passed by the Chief Engineer rejecting the petitioner’s request to join, was quashed and he was directed to pass a fresh speaking order in accordance with law. (2) Writ Petition No. 20902 of 2005 decided on 5th February, 1998, whereby order dated 26-4-1995, passed by the Chief Engineer rejecting the petitioner’s request to join, was quashed and he was directed to pass a fresh speaking order in accordance with law. (3) Writ Petition No. 17912 of 1998 disposed of on 28-5-1998 directing the Chief Engineer to comply with the Courts order dated 5th February, 1998, passed in Writ Petition No. 20902 of 1995. (4) Writ Petition No. 8318 of 1999 which was allowed on 19th January, 2001, whereby the order dated 2-12-1998 passed by the Chief Engineer disallowing the petitioner to join services was quashed with the following order and direction. “It is thus evident that according to Rule 18 as it stood before its amendment, absence of a Government servant from duty for more than 5 years whether with or without leave automatically resulted in cessation of employment but according to Rule 18 as it stands amended, continuous absence from duty for a period beyond five years will not automatically result in cessation of employment albeit it will attract the provisions of rules relating to disciplinary proceedings. The impugned order seems to have been passed in ignorance of the amended provision and as such it cannot be sustained. Accordingly, the writ petition succeeds and is allowed. The impugned order is quashed without prejudice to the right of the disciplinary authority to initiate disciplinary proceedings against the petitioner and take appropriate decision in accordance with law.” 4. The appellants, however, instead of holding any disciplinary enquiry as permitted by this Court, it appears adopted a rigid attitude and inspite of several representations made by petitioner respondent, neither allowed him to join nor took any other action at all and conspicuously kept silence over the matter. We are also informed that judgment dated 19th January, 2001, attained finality since no special appeal was filed against the same, still the said judgment remained unexecuted, due to total inaction on the part of respondents. 5. We are also informed that judgment dated 19th January, 2001, attained finality since no special appeal was filed against the same, still the said judgment remained unexecuted, due to total inaction on the part of respondents. 5. In these circumstances, the petitioner respondent had to approached this Court on fifth occasions by means of the Writ Petition No. 19431 of 2003 seeking the following directions : (i) issue a writ, order, or direction in nature of mandamus directing the respondent to permit the petitioner to join/resume the discharge of his duties as Junior Engineer, Public Works Department, Constructive Division-II, Azamgarh forthwith and pay his salary. (ii) issue a writ, order, or direction in nature of mandamus directing the respondents to pay the petitioner the arrears of his salary with interest due with effect from January 1981 and other consequential benefits like seniority, promotion to which the petitioner would have become entitled in case he was permitted to resume/join his duties after recovering from his illness. (iii) Issue/pass any other/further order as this Hon’ble Court may feels fit and proper in the circumstances of the case. (iv) Award cost to the petitioner. 6. After exchange of the counter affidavit and rejoinder affidavit, the Hon’ble Single Judge has allowed the writ petition observing that the attitude of the appellant respondents is highly objectionable, rigid, and contrary to law. 7. The only submission advanced on behalf of the appellant respondent is that Fundamental Rule 18 provides automatic cessation of service, if a Government servant is absent continuously for a period of more than 5 years. Therefore, it is pleaded that there was no occasion to allow the petitioner respondent to join after eight years. 8. In our view Fundamental Rule 18 has to be read along with the protection available to a Government Servant under Article 311 (2) of the Constitution of India. A Constitution Bench of the Apex Court in the case of Jai Shanker v. State of Rajasthan (supra) considering the similar provision contained in Regulation 13 of Jodhpur Service Regulations held as under: “It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. A Constitution Bench of the Apex Court in the case of Jai Shanker v. State of Rajasthan (supra) considering the similar provision contained in Regulation 13 of Jodhpur Service Regulations held as under: “It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. It is, however, contended that under the Regulations all that Government does, is not to allow the person to be reinstated, Government does not order his removal because the incumbent himself gives up the employment. We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other, a person is entitled to continue in service if he wants until his service is terminated in accordance with law. One circumstance deserving removal may be overstaying one’s leave. This is a fault, which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made it is necessary that Government should give the person an opportunity of showing cause why he should not be removed. During the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blamable, was unable to return to duty for over a month, and if later on he wished to join as soon as the said reasons disappeared? Would in such a case Government remove him without any hearing, relying on the regulations? The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him. We cannot accept this as a sufficient answer. 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. 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 Regulation involves a punishment for overstaying one’s leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true 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 at least 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 Art. 311. A removal is removal and if it is punishment for overstaying 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 Art. 311 and this is what has happened here.” 9. A similar view was taken by another Constitution Bench of the Apex Court in the case of Deoki Nandan (supra) wherein considering Rule 46 of Bihar Service Code, the Apex Court held as under : “In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forfeiture of the office also amounts to misconduct under Rule 46 of the Pension Rules disentitling the said officer to receive pension. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Hence there is a clear violation of Article 311. Therefore, it follows even on this ground the order has to be quashed.” 10. Following the above decisions and considering Fundamental Rule 18, the Apex Court in the case of State of Assam v. Akshay Kumar, AIR 1976 SC 37 in para 13 and 17 held as under : "(13) From a reading of F.R. 18, it is discernible that it regards continuous absence of an employee, whether with or without leave, for a period of five years or more, as conduct which must normally entail “cessation” or termination of his service. Although not in so many words, but by necessary intendment, the Rule regards such conduct of the employee, as a fault or blameworthy behaviour which renders him unfit to be continued in service. In this context, the “cessation” of service pursuant to this Rule would, in substance and effect, stand on the same footing as his removal’ from service within the contemplation 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. Another reason for equating cessation’ of service under this Rule with `removal’ within the meaning of Article 311 (2), is that it proceeds on a ground personal to the employee involving an imputation which may conceivably be explained by him in the circumstances of a particular case. Cases are not unknown where the absence of a Government servant, even for prolonged periods, has been due to circumstances beyond his control. The case of the Japanese soldier who remained cut off and stranded in the jungles of remote Pacific island for three decades after the termination of World War II, is a recent instance of this Kind.” "(17) From the Constitutional standpoint, therefore, the impugned termination of service will not cease to be removal’ from service merely because it is described or declared in the phraseology of F.R. 18 as a cessation’ of service. The constitutional protection guaranteed by Art. 311 (2) cannot be taken away “in this manner by a side wind.” 11. The constitutional protection guaranteed by Art. 311 (2) cannot be taken away “in this manner by a side wind.” 11. In view of the aforesaid settled law, we have no occasion to take a different view in the case in hand and therefore, we hold that the judgment under appeal does not require any interference, so far as the merits of the case is concerned. 12. However, the learned standing counsel submitted that the Hon’ble Court as imposed a very exemplary cost of Rs. 25,000/- which is highly excessive. In the facts and circumstances we find that the aforesaid amount of cost is excessive and, therefore, the same is reduced to Rs. 500/-. With the aforesaid modification in the order under appeal the special appeal, is dismissed. Appeal Dismissed. ———