JUDGMENT Sudhir Agarwal, J. 1. The order dated 28.09.2015 having been recalled vide order of date passed on Recall Application, the writ petition is restored to its original number. 2. On the request of learned counsels for parties, this Court proceeds to hear the matter finally since it is an old matter of 2001 and counsels for both the parties requested and agreed that this matter may be heard and decided at this stage. 3. Heard Sri Vishal Singh, Advocate, for petitioner and Sri P.K. Sinha, Advocate, for respondents. 4. Admittedly, petitioner was confirmed Clerk in the establishment of respondent-1, Hindustan Aeronautic Limited. Petitioner claims that he fell ill and therefore absented from duty from 01.10.1990 and onwards. Invoking power under Standing Order 19 (II), Manager (Karmik), Hindustan Aeronautic Limited passed termination order on 26/28.02.1991, which reads as under: %hnd1%^^iwoZ dk;kZy; vkns'k la[;k 90@391 fnukad 1-12-90 ds lUnHkZ esa Jh jktsUnz izlkn f=ikBh] LFkk;h fcYyk la[;k 8104] fyfid Vad.kd ^^,^^ okf.kT; foHkkx us dEiuh ds izekf.kr LFkkbZ vkns'kksa ds /kkjk&19 dh mi /kkjk ¼ii½ ds vuqlkj fnukad 1-12-90 ls viuh fu;qfDr ds LFkku ij cus jgus dk vf/kdkj [kks fn;k gSA vr% budk uke mDr frfFk ls bl e.My dh ukekoyh ls vyx fd;k tkrk gSA^^%hnd2% "With reference to earlier Office Order No. 90/391 Dated 01.12.1990, Shri Rajendra Prasad Tripathi, permanent badge No. 8104, Clerk-Typist "A" Commerce Department has lost the right to continue on the place of his appointment from 1.12.90 as per the Section 19 Sub-Section (ii) of the certified Standing Orders of the company. Therefore, his name is removed from the Nominal Roll of this Division from the said date." (English Translation by Court) 5. the Relevant provision of Standing Order under which the aforesaid order was passed, reads as under: %hnd1%^^;fn dksbZ deZdkj vukf/kd`r : i ls 10 fnu ls vf/kd le; rd vuqifLFkr jgrk gS ;k ewyr% Lohd`r vodk'k dh vof/k ;k ckn esa c<+kbZ xbZ vodk'k dh vof/k ds ckn Hkh ds ckn Hkh vuqifLFkr jgrk gS] rks og viuh fu;qfDr ds LFkku ls viuk vf/kdkj [kks nsxk ;fn og fuEufyf[kr ugha djrk%& ¼d½ viuk vf/kdkj [kks nsus ds fnukad ls vkB fnu ds Hkhrj ykSV ugha vkrk] vkSj@ ;k ¼[k½ izcU/kdksa dks lUrks"kizn%hnd2% (B) Doesn't satisfactorily explain the reason of his unauthorized absence to the Managers." (English Translation by Court) 6. Learned counsel for petitioner submitted that admittedly termination of petitioner is on account of alleged misconduct of unauthorized absence and that being so, it is stigmatic and hence petitioner could not have been terminated without holding departmental enquiry. It is further contended that under the Standing Order, there is nothing to show that service would be automatically terminated. 7. First of all, having read relevant Standing Order we do not find any automatic termination if a workman absented for a long time. It says that an employee will loose his right of appointment if fails to resume duty after expiry of period of sanctioned leave etc. Meaning thereby, aforesaid Standing Order is applicable to only those persons who are employed on daily basis inasmuch once a person is already appointed, unless he is terminated, question of loss of right of appointment does not arise. 8. In any case in absence of specific and clear provision affecting appointment of workman, a vague Standing Order cannot be taken recourse to end services of an employee for any other reason, not stated clearly in the Standing Order. Further, even otherwise, if it is taken that the unauthorized absence for a longer period justify an action since it is a misconduct, then termination would not be simplicitor but by way of punishment and this cannot be done without holding disciplinary proceedings. 9. In the matter relating to industrial law, termination on the ground of misconduct, i.e., loss of confidence was held stigmatic and Court in Chandu Lal Vs. Management of Pan American World Airways AIR 1985 SC 1128 held that disciplinary proceedings were necessary. The relevant extract of the judgment reads as under: "If the termination in the instant case is held to be grounded upon conduct attaching stigma to the appellant, disciplinary proceedings were necessary as a condition precedent to infliction of termination as a measure of punishment. Admittedly this has not been done. Therefore, the order of termination is vitiated in law and cannot be sustained." 10. There are some provisions in other statutes also where automatic termination was contemplated, but Supreme Court held that no automatic termination can apply in case of absence from duty. 11. A similar provision existed in Jodhpur Service Regulations, i.e. Regulation 13. It was considered by a Constitution Bench in Jai Shanker Vs. There are some provisions in other statutes also where automatic termination was contemplated, but Supreme Court held that no automatic termination can apply in case of absence from duty. 11. A similar provision existed in Jodhpur Service Regulations, i.e. Regulation 13. It was considered by a Constitution Bench in Jai Shanker Vs. State of Rajasthan AIR 1966 SC 492 and the relevant observations read as under: "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 whey 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." 12. A similar view was taken by another Constitution Bench in Deokinandan Vs. State of Bihar AIR 1971 SC 1409 wherein Rule 46 of Bihar Service Code was considered and 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. Hence there is a clear violation of Article 311. 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." 13. Following above decisions, and considering Fundamental Rule 18, Court in State of Assam Vs. 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." 14. The constitutional protection guaranteed by Art. 311 (2) cannot be taken away "in this manner by a side wind." 14. Referring to and relying on the above authorities, A Division Bench of this Court (in which I was also a member) has taken same view in Special Appeal No. 18 of 2006 (State of U.P. and others Vs. Ymauna Prasad Rai) decided on 12.1.2006. 15. In view of the aforesaid settled law, this Court has no occasion to take a different view in the case in hand and therefore impugned punishment order cannot be sustained. 16. The writ petition is allowed. Punishment order dated 26/28.02.1991 is hereby set aside. Petitioner shall be entitled to all consequential benefits but in respect to arrears of salary, from the date of absence till today, looking to the fact that petitioner has absented from duty without providing proper medical certificate before authorities concerned and has invited entire problem himself, in the interest of justice, he would get only 25 per cent of back wages. In respect to all other aspects, period of absence shall be treated as on duty.