JUDGMENT : By the present writ petition, the petitioner prays for a writ of certiorari seeking quashing of order no. 379JKSRTC/EUV dated 03.06.2006 issued by respondent no.2, whereby, the services of the petitioner have been terminated; besides a writ of mandamus is also sought for to the effect that respondents be directed to reinstate the services of the petitioner as conductor retrospectively w.e.f. 3rd June, 2006 and to give all the consequential benefits to the petitioner by treating the period of his absence as on duty. 2. Briefly stated the case of the petitioner is that he was working as a conductor in the respondent corporation after having been engaged as a daily wager on 24.11.1979. He was, subsequently, regularized against the post of conductor in terms of Order No. RTC/EC-II/2549/2335 dated 7th August, 1980. It is further stated in the writ petition that the respondent corporation stopped the salary of the petitioner from November, 2004, and because of being ill he could not attend to his duties resulting, ultimately, in the issuance of order of termination against the petitioner in terms of impugned order. 3. The petitioner challenges the order impugned inter alia on the ground that the unauthorized absence of the petitioner was not wilfull or deliberate but was because of the serious ailments of the petitioner and because of the circumstances beyond his control; that no formal chargesheet was framed against the petitioner as no enquiry was conducted in the matter; that petitioner was not afforded an opportunity of hearing before issuance of impugned order; that the order impugned has been issued in violation of Rule 33 of the Civil Service Regulations, etcetera. 4. On notice, respondents appeared and filed their reply, wherein, it is stated that the petitioner has abandoned his service by his own volition as he chose to remain absent from duties from 1st November, 2004; that many communications were issued to the petitioner for resuming service which did not yield any result; that show cause notice was also issued against the petitioner, copy of which was published in the local newspaper “Srinagar Times” in its issue dated 29.07.2005; that petitioner does not specify the date from which he was suffering from the ailment of “Generalized Anxiety Disorder”, etcetera. 5. 5. The rejoinder affidavit has been filed by the petitioner to meet the contents of the reply and it is stated in the rejoinder affidavit that petitioner never abandoned his service; that respondents failed to conduct a full fledged enquiry which was their obligation and since no enquiry was conducted, the impugned order, therefore, is bad in law and is required to be quashed; that there was no occasion for a mentally sick patient to go through the newspaper to read the show cause notice; that the impugned order is stigmatic as it does not provide an opportunity of hearing to the petitioner; that the unilateral termination order cannot sustain in the eyes of law in absence of any enquiry, etcetera. 6. I have heard learned counsel for the parties and considered the submissions made. 7. The writ petition has some disputed and some admitted facets. The disputed facet pertains to the petitioner’s period of absence for which claim and counter claim is made by the two sides. The petitioner pleads to have been suffering from various ailments including the Generalized Anxiety Disorder which prevented him to report to his duties while as the stand of the respondents is that petitioner had chosen to abandon his services out of his own volition. The admitted facets of the case are that the petitioner is the employee of the respondent corporation having been appointed as daily wager in the year 1979 and subsequently regularized as Contractor in the year 1980. This is also admitted that till November, 2004 the petitioner had been attending to his duties and that no regular enquiry has been conducted in the matter. 8. Once the status of the petitioner, being the employee of the respondent corporation, is admitted, the court is required, therefore, to see the protection, guaranteed in terms of the applicable rules, to the employees, of the status of petitioner, in case the concerned authorities contemplate to order termination. 9. Admittedly, the respondents, on noticing the unauthorized absence of the petitioner, had placed his case before the Committee constituted for the purpose of taking a decision with reference to the action against the petitioner and the Committee, it appears, has declared the petitioner as having no interest to serve the Corporation, therefore, treated him having abandoned service, and, accordingly, recommended his termination under Rule 114(IV) of the Jammu and Kashmir Road Transport Corporation Rules. Further admission on part of the respondents, as supplied from the records made available before this Court, is that the services of the petitioner were terminated in terms of order impugned from the Corporation w.e.f. the date of his absence. 10. Pleadings of the parties and the material in the shape of records furnished by the respondents make it manifestly clear that the services of the petitioner have been terminated by declaring him as having abandoned service without holding any enquiry. Now, the question that requires to be adjudicated upon is whether such a course adopted by the respondents by declaring the petitioner as having abandoned service and, resultantly, terminating his service, is available under law to the respondents. In my opinion, the answer to this question is in negative, as the respondents were to ensure the protections guaranteed to the petitioner under Article 311 (2) of the Constitution of India read with Section 126(2) of the Constitution of Jammu and Kashmir which provides as under: 11. Article 311 (2) of the Constitution of India: “No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply— (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the president or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.” 12. Article 126 (2) of the Constitution of Jammu & Kashmir: “No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry: Provided that this sub-section shall not apply— (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.” 13. Another question which arises for consideration of this Court in the instant petition is whether wilful absence from duty is a misconduct which would require a regular departmental enquiry before imposition of any major penalty like dismissal or removal from service. In my view, the answer to this question would be in affirmative, as the issue is no longer res integra and has been settled by a catena of judgments of the Supreme Court. The leading judgment of a Constitution Bench was rendered by Hon’ble Supreme Court in “Jai Shankar Vs. State of Rajasthan, AIR 1966 SC 492 ”. Unauthorized or wilful absence from duty is a misconduct which necessitate holding of a disciplinary enquiry. The view of their Lordship is discernible from the following extracts: “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.” 14. The aforesaid view has been repeatedly followed and applied by Hon’ble Supreme Court in subsequent pronouncements, including “Prithipal Singh v. State of Punjab (2002) 10 SCC 133” and “State of Punjab v. Bakhshish Singh 1997 (4) SLR 590’. 15. The extracted provisions of the Constitution of India and the Constitution of Jammu and Kashmir State makes it obligatory upon the authorities to hold an enquiry prior to removal of a public servant from service. 16. The respondents were under a constitutional obligation to conduct a full dressed enquiry into the alleged unauthorized absence of the petitioner, which has not been done, rendering the impugned order bad in law. The respondents have not projected anything in defence to disprove the contents taken in support by the petitioner that he was not in a sound state of mind to report to his duties or to inform his department about his ailment, therefore, the presumption favours the petitioner. This plea taken in defence by the petitioner and having remained undisputed will, in my opinion, cover the only weak link of the case, i.e. the delay in filing the writ petition. The plea of the petitioner that he was not mentally fit is further corroborated by the documents placed on record in the shape of medical prescriptions and other allied documents. The individual suffering from mental disability or disorder is definitely an exception when it comes to application of Rule or the law of the land, therefore, an exceptional yardstick is required to be applied in his case. The individual suffering from mental disability or disorder is definitely an exception when it comes to application of Rule or the law of the land, therefore, an exceptional yardstick is required to be applied in his case. The explanation to the delayed approach of the petitioner, therefore, is held to be because of the ailment he has been suffering from. 17. This has been the consistent view of the courts of the country including the Hon’ble Apex Court that a Government employee should not be terminated in a mechanical way by issuing a stigmatic order and every termination, unless circumstances are so glaring, issued in absence of a regular enquiry has been held to be stigmatic. 18. The case of the petitioner, as records would reveal, has been processed for termination to avoid payment of idle wages to the petitioner when as a matter of fact the petitioner has not received a single penny from the respondents from the year 2004, therefore, processing the case of the petitioner on such count is also against the facts. 19. The learned counsel for respondents, in support of his submissions has made reference to and relied upon the judgment delivered by the Division Bench of this Court in case titled Gh. Mohammad v. State and others reported as 1998 SLJ p. 351. The reference to the case is made to show that respondents were not required to conduct a regular enquiry into the matter and that the termination is legally tenable. The judgment cited by the learned counsel pertains to a case where the appellant, in his capacity as the Incharge Stores at Leh, was alleged to have indulged in a fraud worth crores of rupees, as the physical verification of the stores reflected shortages. Faced with such situation, the appellant fled to escape the criminal liability of his actions and was arrested by the Police from Bombay. Therefore, the court was of the view that the case comes within the exceptional domain, therefore, dispensed with the requirement of holding a regular enquiry. The Division Bench, in the said case relied upon a judgment of the Apex Court reported as Supreme Court Service Rulings (1950-1992 Volume I), Page 145 and reproduced its paragraph 9. The relevant portion of the said paragraph is taken note of as under:- “…. The Division Bench, in the said case relied upon a judgment of the Apex Court reported as Supreme Court Service Rulings (1950-1992 Volume I), Page 145 and reproduced its paragraph 9. The relevant portion of the said paragraph is taken note of as under:- “…. This is not one of those cases in which the requirements of the Constitution compel the appointing authority to hold a full dressed enquiry with witnesses and opportunity to cross examine the witness which have been the foundation of the rulings given by this Court. This is an exceptional case of complete dereliction of duty and a pretence of serving without even attending a day on duty. In these circumstances, the charge sent to her sufficiently communicate to her what was to happen to her and she was also adequately given an opportunity of showing cause against the loss of appointment….” (Emphasis supplied) 20. Therefore, in my considered opinion the impugned order of termination has not been issued legally infringing the right of audience of the petitioner. The respondents could have conveniently adopted the course of enquiry and there is nothing on record or projected that would demonstrate that there were such compelling circumstances that warranted terminating the services of the petitioner at the drop of the hat. 21. In the overall facts and circumstances of the case I am of the view that the absence of the petitioner, however long, cannot result in automatic cessation of employment. The petitioner, is required to be given an opportunity of hearing and depending upon the nature of defence taken by him, further action can be taken. 22. Reference and reliance, in this connection is made to a judgment delivered in case titled Mushtaq Ahmad Khan v. State of J&K and others reported as 2004 (3) JKJ 10 (HC) (DB). 23. In the above background, the instant writ petition succeeds and is allowed in the following manner: i. By a writ of Certiorari, the impugned order bearing No. 379JKSRTC/EUV dated 3rd of June, 2006 is quashed; ii. By a writ of Mandamus, the respondents are directed to reinstate the petitioner in service as Conductor forthwith; iii. The respondents shall be at liberty to conduct an enquiry against the petitioner vis-à-vis his alleged unauthorized absence. By a writ of Mandamus, the respondents are directed to reinstate the petitioner in service as Conductor forthwith; iii. The respondents shall be at liberty to conduct an enquiry against the petitioner vis-à-vis his alleged unauthorized absence. In the event, the respondents decide to conduct the enquiry against the petitioner same shall be conducted and concluded within a period of three months from the date the copy of this judgment is served on the respondents. It goes without saying that the petitioner shall be given an opportunity of hearing in the enquiry process. iv. The respondents are further directed to pay the petitioner the salary for the services rendered after his reinstatement/ joining the service and the decision with reference to payment of consequential benefits vis-à-vis the period from November, 2004 till the decision in the writ petition, shall depend on the inquiry, if any, conducted; and v. If no enquiry is conducted against the petitioner within the time granted, then the petitioner shall be entitled to all consequential benefits. 24. Writ petition alongwith all connected MP(s) disposed of as above. 25. The record, as produced by the learned counsel for the respondents, is returned to the learned counsel for respondents in the open court.