JUDGMENT By the Court.—The instant writ petition has been preferred under Article 226 of the Constitution of India by the State of U.P. against the judgment and order dated 21.9.1995 passed by U.P. Public Services Tribunal, Lucknow in Claim Petition No. 312/F/IV/1987. 2. The claimant-respondent was appointed as Overseer in Irrigation Department in the year 1965 on temporary basis and continued in service, at different places. On account of sudden serious illness on 1.3.1974 because of Cardiac ailment, he rushed for treatment hence could not apply for leave. He underwent treatment for a long period and reported for duty on 9.11.1975 with leave application alongwith medical certificate. However, no order was passed with regard to his posting. After receipt of the joining report of the petitioner, the Assistant Engineer directed the Block Development Officer vide his letter dated 14.5.1976 that claimant-respondent’s joining report should not be accepted and no work should be given to him. Failing to resume duty, the claimant-respondent submitted a representation which seems to have been rejected and informed by order dated 21.1.1987. Thereafter, the claimant-respondent approached the Tribunal. 3. Before the Tribunal, the claimant-respondent set up a case that under compelling circumstances, he could not submit the leave application and while reporting for duty, he had also furnished medical certificate with regard to prolong treatment with the request that he should not be prevented to resume duty. Further defence set up by the claimant-respondent is that in spite of the fact that he has discharged as temporary overseer for more than 9 years, he was not communicated in writing with regard to termination of services. Everything was done orally preventing the claimant-respondent to resume duty. It has further been pleaded by the respondent-claimant that the termination of service, that too when the claimant-respondent has served for about nine years by oral instructions shall be hit by Article 14, read with Article 21 of the Constitution of India. The State has got no right to dispense with employees’ services orally, as it shall be against the Constitutional mandate. 4. On the other hand, on behalf of the petitioner-State, the case set up before the Tribunal is that the services of the claimant-respondent were never satisfactory and he suffered with adverse entries for several years. The appointment order was on provisional basis and absence from duties was unauthorized and without sanction of leave. 4. On the other hand, on behalf of the petitioner-State, the case set up before the Tribunal is that the services of the claimant-respondent were never satisfactory and he suffered with adverse entries for several years. The appointment order was on provisional basis and absence from duties was unauthorized and without sanction of leave. Hence, the claimant-respondent has rightly not been permitted to resume the duty. The temporary appointment was automatically came to an end. 5. After considering the pleadings on record and the arguments advanced by the learned counsel for the parties, the Tribunal recorded a finding that once the claimant-respondent has submitted a joining report alongwith fitness certificate and medical report, it was incumbent on the appointing authority to pass appropriate orders and services should not have come to automatic end. The Tribunal further noted that no notice was served on the claimant-respondent nor was he communicated in writing with regard to termination of services. Such action on the part of the State authorities is held to be arbitrary by the Tribunal. The Tribunal further held that till the order is passed in writing with regard to service condition, the employees shall be deemed to be in service and the relationship of the employer and employee shall not be broken. We have considered the arguments, advanced by the learned counsel for the parties at length and perused the record. 6. A perusal of the appointment letter, filed with the writ petition reveals that the claimant-respondent was appointed on 28.3.1965 provisionally as Overseer in regular pay-scale alongwith dearness allowances and other allowances. The appointment was subject to approval by U.P. Public Service Commission to continue against regular temporary cadre of Overseers. The appointment letter further reveals that services could have been terminated after serving a month’s notice. At the face of record, a perusal of the appointment letter, reveals that the claimant-respondent’s appointment was against the temporary regular vacancy subject to approval by U.P. Public Service Commission to work against the regular temporary cadre of Overseers. Nothing has been brought on record as to why the petitioner-State has not forwarded the claimant-respondent’s name for approval to U.P. Public Service Commission. 7. Nothing has been brought on record as to why the petitioner-State has not forwarded the claimant-respondent’s name for approval to U.P. Public Service Commission. 7. Now, it is well-settled proposition of law that even temporary Government Employees’ Services are protected by Article 311 of the Constitution of India and once the appointment was against the regular temporary cadre, subject to approval of U.P. Public Service Commissioner, that too in the regular pay scale, the services of claimant-respondent were protected by Article 311 read with Articles 14 and 21 of the Constitution of India, vide V.P. Ahuja v. State of Punjab, 2000 (3) SCC 239 ; Prabhu Dayal Birari v. M.P. Rajya Nagrik Aapurti Nigam Limited, AIR 2000 SC 3058 ; Radhey Shyam Gupta v. U.P. State Agro Industrial Corporation, 1999 (2) SCC 21 . 8. The services could not have been dispensed with without passing a written order. Action of the Petitioner-State seems to be arbitrary exercise of power, more so when the claimant-respondent has been deprived to resume duty and continued in service without any written order of termination. 9. In a case in Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178 , their lordships of Hon’ble Supreme Court held that for sustaining the allegations of wilful absence from duty, it must be proved that the absence was wilful. If absence is due to compelling circumstances under which it is not possible to report for or perform duty, such absence cannot be held to be willful and employee cannot be held guilty of misconduct. The relevant portion of the aforesaid judgment is reproduced as under : “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 18. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty. 20. The question relating to jurisdiction of the Court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India, (2006) 5 SCC 88 , wherein this Court held: “25. It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 10. In the present case, though the claimant-respondent was working since more than 9 years, the State did not take care to discharge its Constitutional and statutory obligation by serving a notice or even terminating the services with due communication to the claimant-respondent in writing. In the present case, though the claimant-respondent was working since more than 9 years, the State did not take care to discharge its Constitutional and statutory obligation by serving a notice or even terminating the services with due communication to the claimant-respondent in writing. Such action on the part of the State to dispense with the services orally is autocratic and against the Constitutional mandate where State is expected to discharge duty fairly and justly in terms of Article 14 of the Constitutional of India to protect the right to livelihood guaranteed by Article 21 of the Constitution of India. 11. A Division Bench of this Court in a case in Shri Kanhaiyalal v. Uttar Pradesh Lok Sevaadhikaran and others, 2008 (26) LCD 1470, of which one of us (Hon’ble Devi Prasad Singh, J.) was a Member held that even temporary Government Servants charged for misconduct, is entitled to face regular inquiry. 12. In the present case, the defence set up by the State, prima facie, seems to co-relate to certain adverse entries or certain misconduct on the part of the claimant-respondent. In case, the defence set up by the petitioner-State is accepted then the action of the State Government in not permitting the claimant-respondent to resume duty or depriving him to continue in service without passing any written order, seems to be punitive in nature and shall not be sustainable being hit by Article 311 of the Constitution of India. 13. In an other case in Tirth Raj Misra v. State of U.P. and others, (2008) 3 UPLBEC 2500, of which one of us (Hon’ble Devi Prasad Singh, J.) was a Member, the question cropped up before this Court was as to whether the State has got right to dispense with services of its employee orally. It has been held that oral instructions or order depriving the employees from service shall amount to arbitrary exercise of power and against the Constitutional mandate, being hit by Article 14 read with Article 21 of the Constitution of India. Relevant portion from the judgment of Tirth Raj Misra (supra) is reproduced as under : “A plea has been taken by the respondents in the counter-affidavit that since the petitioner was engaged as Daily Wager to meet out exigencies of services, the respondents were entitled to terminate his services even by oral order. Relevant portion from the judgment of Tirth Raj Misra (supra) is reproduced as under : “A plea has been taken by the respondents in the counter-affidavit that since the petitioner was engaged as Daily Wager to meet out exigencies of services, the respondents were entitled to terminate his services even by oral order. The argument advanced by the learned Standing Counsel through plea taken in the counter-affidavit seems to be not sustainable. Whenever the service conditions of an incumbent are governed by some statutory provisions, rules or regulations then it shall always be incumbent upon the authorities to pass appropriate written order while dispensing the services. Passing of a oral order depriving a person from his/her source of livelihood, which is guaranteed under Article 21 of the Constitution of India, is an arbitrary exercise of power and shall be hit by Article 14 of the Constitution of India. Termination of service orally without complying the provisions of Industrial Disputes Act shall suffer from vice of arbitrariness and against the constitutional mandate. Accordingly, the writ petition deserves to be allowed.” 14. We are also of the view that in democratic polity, it is not just and fair on the part of the State Government to discharge its obligation by oral instructions. The basic principle of rule of law is that citizens must know where they stand in their usual course of life vide Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2260 (para 205). Unless an order is passed in writing, the employee shall not be aware that what are the reasons and what are the grounds on the basis of which his services have been dispensed with. The decision taken by the State Government to dispense with the services of its employee orally, in any way, shall not be sustainable being hit by Article 14 of the Constitution of India. It is always expected in democratic polity that the State shall discharge its obligation justly, fairly and not in arbitrary highhanded manner. 15. In view of above, the impugned judgment and order dated 21.9.1995, passed by the U.P. State Public Services Tribunal does not seem to suffer from any impropriety or illegality which may call for interference by this Court under Article 226 of the Constitution of India. 15. In view of above, the impugned judgment and order dated 21.9.1995, passed by the U.P. State Public Services Tribunal does not seem to suffer from any impropriety or illegality which may call for interference by this Court under Article 226 of the Constitution of India. However, keeping in view of the fact that the claimant-respondent, had not discharged duties, we confine the arrears of salary to 25% alongwith perks and other benefits. The claimant-respondent shall be deemed to be in service for all practical purposes including pensionary benefits by the petitioner-State. The impugned order dated 21.9.1995 passed by the U.P. Public Services Tribunal is modified accordingly. Let a decision be taken by the State-petitioner with regard to payment of arrears of salary as well as pentionary benefits in terms of the present modified judgment with due communication to the claimant-respondent, expeditiously say within a period of three months from the date of receipt of certified copy of this judgment. The standing counsel shall communicate the order forthwith. Writ petition is disposed of accordingly. —————