JUDGMENT : VED PRAKASH VAISH, J. 1. By way of the present petition, the petitioner seeks quashing and setting aside of the Office Order No. 5 of 2016 issued under Memo dated 16th January, 2015 whereby the regularisation order of the petitioner dated 10th September, 2009 was cancelled. The petitioner also prays for direction to the respondents to reinstate him in service to make payment of subsistence allowance w.e.f. July, 2014. 2. Briefly recapitulating the facts leading to the filing of the present petition are that the petitioner was initially appointed as a Section Assistant on Work Charge basis for a period of four months vide Office Order No. 23 of 1991 under Memo No. 8314-19, dated 8th November, 1991. The petitioner continued to work for more than 18 years with annual increments and raise in pay from time to time. 3. It is stated that vide Office Order No. 16 of 2009 under Memo dated 10th September, 2009, the petitioner was brought temporarily under regular cadre for a period of three months w.e.f. 8th September, 2009 to 6th December, 2009 in place of one Shri A. Jalil (Retd.) Section Assistant in the time scale of pay Rs. 3100-70-3520-EB-80-4160-90-5060/- plus other allowances as admissible. 4. It is further stated that when the petitioner had gone for a picnic along with his friends on 24th May, 2015, someone got in possession of petitioner's mobile phone and sent an intimidating message to a politician as a consequence of which an FIR was registered against the petitioner under Section 506 of IPC read with Section 66A (b) (c) of the Information Technology Act. The petitioner was arrested on 3rd June, 2014, but later enlarged on bail. 5. After releasing on bail, the petitioner reported to the office to resume duties, but he was handed over a letter dated 4th July, 2014 by the Assistant Executive Engineer, PWD (Roads) whereby he was called to give explanation in relation to the incident as alleged in the FIR within three days. It is further stated that the petitioner was also asked not to report for work for few days. 6. The petitioner submitted his reply vide letter dated 7th July, 2014. However, he was not allowed to join duty. It is further stated that the petitioner was also asked not to report for work for few days. 6. The petitioner submitted his reply vide letter dated 7th July, 2014. However, he was not allowed to join duty. The petitioner then made a representation during November, 2014 to the Chief Engineer, PWD (Roads) praying for grant of subsistence allowance since he was not being allowed to resume duty. 7. In the interregnum, the respondents issued the impugned Office Order No. 5 of 2014 under Memo dated 16th January, 2015 whereby it has been stated that the regularisation order of the petitioner issued under Office Order No. 16 of 2009 under Memo dated 10th September, 2009 was cancelled. 8. The petitioner thus challenged the impugned order issued under Memo dated 16th January, 2015 as also the action of the respondents in disallowing him to resume duty w.e.f. July, 2014 despite there being no suspension order on various grounds. 9. Learned counsel for the petitioner contended that the respondents have acted most arbitrarily, illegally and discriminatory manner in not allowing the petitioner to resume duty inasmuch as there was no suspension order. Learned counsel also assails the impugned order Memo dated 16th January, 2015 as illegal, arbitrary and being issued without following the due process of law. 10. It is further contended that the respondents cannot terminate the services of the petitioner without following the due process of law. It is stated that the order of cancellation of regularisation was issued after a lapse of six years and the stand of the respondents of not seeking approval of the Personnel Department cannot be attributed to the petitioner. 11. Learned counsel for the petitioner placed reliance on the judgements reported as 'Delhi Transport Corporation v. D.T.C. Mazdoor Congress' reported as (1991) Suppl. 1 SCC 600 and contended that a permanent pot in a public service covers normally substantive right to the post and that the arbitrary, unbridled and naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitutional purpose of equality and allied purposes. 12. Learned counsel for the petitioner also relied upon the judgments reported as 'Shiv Nandan Mahto v. State of Bihar' reported as (2013) 11 SCC 626 and 'Secy., State of Karnataka & Ors. 12. Learned counsel for the petitioner also relied upon the judgments reported as 'Shiv Nandan Mahto v. State of Bihar' reported as (2013) 11 SCC 626 and 'Secy., State of Karnataka & Ors. v. Umadevi' reported as (2006) 4 SCC 1 and claimed reinstatement with back wages and for regularization. 13. The respondents opposed the petition and affidavit-in-opposition was filed. It is stated that as per Government instructions laid down in the extract from letter No. E3D/7/102/65/41, dated 25th June, 1966 work charged personnel are engaged on no work no pay basis and no pecuniary punishment can be imposed on them and they are not to be placed under suspension' and hence the petitioner was never suspended. 14. The respondents further stated that the petitioner was brought temporarily under regular cadre by respondent No. 5 for a period of three months vide Office Order under Memo dated 10th September, 2009 without the approval of the Government in Personnel & A.R.(B) Department as laid down in para (ii) of O.M. dated 12th July, 1993. It is further stated that respondent No. 5 was instructed vide letter dated 9th January, 2015 to submit proposal for regularisation of the petitioner along with appointment order, cancellation order and other connected documents for forwarding the same to the Government. Accordingly, respondent No. 5 issued an office Order under Memo dated 16th January, 2015 cancelling the unapproved office order under Memo dated 10th September, 2009. 15. Learned counsel for the respondents contended that the office order under Memo dated 16th January, 2015 was issued in accordance with the Government Rules and Regulations. It is further stated that since the service of the petitioner was on work charged basis, he could not be suspended and hence paid subsistence allowance. It is further stated that as the petitioner was charge sheeted in the case as reported by the police and the matter had not been resolved, the petitioner was not allowed to resume duty. 16. I have given my anxious consideration to the submissions made by learned counsel for the parties and carefully gone through the material on record. 17. Admittedly, the petitioner had been continuously working since 1991 till he was arrested in the criminal case in June, 2014. The respondents have also not disputed that the petitioner was brought temporarily under regular cadre vide order dated 10th September, 2009. 17. Admittedly, the petitioner had been continuously working since 1991 till he was arrested in the criminal case in June, 2014. The respondents have also not disputed that the petitioner was brought temporarily under regular cadre vide order dated 10th September, 2009. The services of the petitioner were also extended from time to time in the same cadre. Although the respondents stated that the regularisation of the petitioner vide order dated 10th September, 2009 was done without the approval of the Government in Personnel & A.R.(B) Department, yet the respondents sent the recommendations for regularisation of the petitioner for approval to the Personnel & A.R.(B) Department vide letter dated 30th March, 2015 which is still awaited. 18. It is strange that on the one hand the respondents issued impugned office order vide memo dated 16th January, 2015 and on the other they sent the recommendation for regularisation of the petitioner for approval on 30th March, 2015 and that too after a period of six years. 19. The petitioner served the respondents for more than 22 years from 1991 to 2014 and in my view the services of the petitioner cannot be terminated without following the due process of law. Work-charge employees, are, also Government servants. To determine the nature of the appointment given to the petitioner what has to be seen is the substance of the matter, the attending circumstances, the mode, manner and the terms of the appointment etc. Mere use of the words in the appointment letter that the appointment was on work charge basis, will not make the appointment as a temporary, substantive or on work-charge basis. 20. After considering judgement in Delhi Transport Corporation's case (supra) the Hon'ble Supreme Court in the case of 'D.K. Yadav v. J.M.A. Industries Ltd.' reported as (1993) 3 SCC 259 has held that before terminating the services of an employee, the principle of natural justice are required to be complied with. It was held: "13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Article 14 and 21 etc. It was held: "13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Article 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reached superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the right guaranteed in Parts III and IV of the Constitution......" 14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without offended Article 14. The order terminating the service of the employees was set aside." 21. It is not in dispute that an order of discharging casts a stigma. Having regard to 22 years of service rendered by the petitioner, passing the impugned order and not allowing him to attend the office without following due procedure prescribed therefor, in my considered opinion, cannot be sustained. It is now trite that he who carries the procedural sword must perish with it. 22. It is thus settled law that right to life as enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. 22. It is thus settled law that right to life as enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In 'Delhi Transport Corporation v. D.T.C. Mazdoor Congress's' case (supra) Constitution Bench, per majority, held that termination of the service of a workman giving one month' s notice or pay in lieu thereof without inquiry offended Article 14 of the Constitution. The order of terminating the service of the employees was set aside. 23. In the year 2009, the petitioner was brought under regular cadre. Thereafter, his services were extended in that cadre from time to time. However, after a lapse of six years the respondents are taking a stand that the order of cancellation was issued since the regularisation of the petitioner was done without the approval of the Government in Personnel & A.R.(B) Department. It is also admitted that the Government has now sent the recommendation for regularisation of the petitioner for approval to the Personnel & A.R. (B) Department vide letter dated 30th March, 2015. However, the approval has not been received by the respondents. 24. The respondents have issued impugned office order under Memo. Dated 16th January, 2015 without affording any opportunity of hearing to the petitioner. The services of the petitioner could not have been terminated without following the due process of service law. The petitioner was admittedly holding a post and the order of cancellation of regularisation was issued after a lapse of six years and that too without affording an opportunity to the petitioner, which is totally illegal and unjustified. If the approval was not sought by the department, the said fault cannot be attributed to the petitioner and that too after expiry of six years of holding the regular post for no fault of the petitioner. 25. The petitioner was disallowed to resume duty w.e.f. July 2014 whereas the impugned order was issued as late as 16th January, 2015 which in itself defeats and vitiates all principles of natural justice. 25. The petitioner was disallowed to resume duty w.e.f. July 2014 whereas the impugned order was issued as late as 16th January, 2015 which in itself defeats and vitiates all principles of natural justice. The action of the respondents is highly arbitrary and illegal in disallowing the petitioner to resume duty w.e.f July 2014 despite there being no suspension order. 26. The respondents have already admitted in the affidavit-in-opposition that the petitioner was brought under regular cadre w.e.f. 2009, thus the stand of the respondents that the petitioner could not be suspended since he is a work-charge employee also has no legs to stand on. 27. It is also contended on behalf of the petitioner that Uma Devi's judgment was pronounced in April, 2006 and the petitioner has already put in 15 years of temporary service, as such, was due for consideration for regularisation as mandated by the Hon'ble Supreme Court. The respondents thereafter regularised the services of the petitioner in the year 2009. The petitioner had thus put in about 22 years of service and even in terms of Uma Devi's judgment the services of the petitioner cannot be termed as illegal for lack of approval. 28. The appointment of the petitioner was brought under regular cadre w.e.f. 2009 and was always to be treated as such as it was continued further though in the order it was mentioned that the appointment is on a work-charge basis but it was in the regular pay scale and was against a vacancy of the person who retired in the year 2009. 29. In the case of 'Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others' reported as (2013) 10 SCC 324 after considering there judges bench decision, the Hon'ble Supreme Court has held that if the order of termination is void ab initio, the workman is entitled to full back wages. The relevant para of the said judgment is extracted hereunder:- "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from the service cannot easily be measured in terms of money. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from the service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments". 30. In the facts and circumstances of the case and the law enunciated by the Hon'ble Supreme Court, I am of the considered opinion that action of the respondents in disallowing the petitioner to resume duty is illegal, void ab initio and against the principles of natural justice. The petitioner is also entitled to full back wages. However, Mr. P.N. Nongbri, learned counsel for the petitioner, on instructions, submits that the petitioner will restrict his claim of back wages to the extent of 50%. An application in the form of statement of the petitioner has been placed on record wherein it is stated that the petitioner is satisfied if 50% of the back wages are paid to him. The said application/statement of the petitioner is taken on record. 31. An application in the form of statement of the petitioner has been placed on record wherein it is stated that the petitioner is satisfied if 50% of the back wages are paid to him. The said application/statement of the petitioner is taken on record. 31. In the light of the aforesaid discussion, the present writ petition is allowed and the respondents are directed to allow the petitioner to join the service. The respondents are also directed to pay 50% of back wages within a period of 3(three) months. The respondents are further directed to consider the case of the petitioner for regularisation in accordance with law. 32. No order as to cost.