N.L. Ganguly, J. - (1.) THIS writ petition is directed against the order dated 6 -10 -1989 passed by the District Magistrate, Varanasi. ordering the termination of the services of the Petitioner (Annexure 5 to the writ petition) and order dated 12 -10 -1989 (Annexure 4 to the writ petition) passed by the Additional District Magistrate, Varanasi terminating the services of the Petitioner with Immediate effect, in pursuance of the order of the District Magistrate dated 6 -10 -1989. The Petitioner was appointed by the orders of the Additional District Magistrate (P.R.O.), Varanasi on ad hoc basis as peon in Varanasi Tehsil with effect from 15 -9 -85 to 13 -11 -85, 1 -3 -86 to 25 -4 -86, 15 -9 -86 to 19 -10 -86, 1 -2 -87 to 7 -3 -87, 21 -6 -87 to 29 -2 -88, 1 -4 -88 to 15 -8 -88 and 26 -8 -88 to 29 -9 -88. Later the Petitioner was selected by the Selection Board along with 13 other persons for appointment on the permanent basis by a letter dated 7 -7 -1987. Later on by an order dated 28 -1 -1988 the District Magistrate, Varanasi appointed Petitioner on the post of peon in scale of Rs. 305 -390 in Tehsil Bhadohi. Since then, i.e. with effect from 1 -2 -1989 the Petitioner was serving continuously. The Petitioner received letter dated 12 -8 -1989 sent by the District Magistrate, Varanasi to the effect that his services were terminated in pursuance of the order of the District Magistrate dated 6 -10 -1989. The Petitioner stated that he could not know as to bow in what circumstances his services were terminated in view of the order dated 6 -10 -1989. He made application to the District Magistrate for getting a copy of the order dated 6 -10 -1989. An endorsement dated 6 -10 -1989 was made by the Issuing Clerk on the application of the Petitioner: Copy order D.M. Dinank 6 -10 -89 Shri A.K. Sharma ke service terminate kiye jaye. Sd/ - Illegible 6/10 Attested Seal Sd/ - Illegible Nayab Nazir 29 -12 -89 Collectorate Varanasi.
(2.) THE Petitioner stated that his wife died in his village Prasurampur on 25 -7 -1989 when he was not there in the village. He stated to be at Bhadohi Tehsil from where he used to go to his village only in holidays. The death of Petitioner's wife was not a natural death. Petitioner's father had lodged a FIR with the police. It was stated In the FIR that when the father of the Petitioner, the informant, reached the village house, he knocked the door, but there was no response. The window was not shut. On pushing the window pan, he found the wife of the Petitioner lying dead on the cot. He sent message through his nephew Lal Chandra Sharma to the Petitioner for calling him. After the Petitioner came to the village, the report was lodged. The local police challaned the Petitioner in a criminal case under Section 306 Indian Penal Code. He was arrested and sent to look -up for more then 24 hours. The Petitioner was not suspended nor was given any opportunity of hearing before passing the order of termination. The Petitioner challenged the order of termination dated 12 -10 -1989 and 6 -10 -1989 as mentioned above". The Petitioner challenged the order of termination of his services on the ground that no opportunity was given to him before passing the termination order nor he was suspended by the authorities. The Court was pleased to send for counter affidavit on behalf of the Respondents. Counter affidavit of Sri Prem Shanker Lal Srivastava, Nayab Nazir, Collectorate, Varanasi states that the appointing authority of the Petitioner terminated the services of the Petitioner by the Impugned order, since the Petitioner was involved in a criminal case under Section 304 -B Indian Penal Code on the charge of murder of his wife, It was stated in the counter affidavit that the criminal case registered against the Petitioner was under investigation. The counter affidavit states that the services of the Petitioner was rightly terminated on the grounds stated is the counter affidavit. A rejoinder affidavit was filed by the Petitioner to the counter affidavit. The Petitioner reiterated that he was challaned in a case under Section 306 Indian Penal Code and was also released on bail later on. The Petitioner filed a certified copy of the judgment and order dated 6 -4 -1991 passed by the VIII Additional Sessions Judge, Varanasi. The said certified copy shows that the Petitioner was discharged from the charges under Section 306 Indian Penal Code levelled against him. The Standing counsel for the State of U.P. was served with a copy of the rejoinder affidavit along with the copy of the judgment of the Additional Sessions Judge, Varanasi on 9 -8 -1991. No supplementary counter affidavit has been filed to rebut or deny the fact that the Petitioner was discharged from the charge under Section 306 Indian Penal Code, levelled against him for abating the suicide of his wife.
(3.) LEARNED Counsel for the Petitioner placed before this Court the provisions of Rule 1 (2) of punishment and Appeal Rules for Subordinate Services, U.P. The provisions of the said Rule 1A (1) (2) are quoted as under: 1 -A (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension, pending the conclusion of the inquiry, in the discretion of the appointing authority: Provided that in the case of any Government servant, or class of government servants, belonging to a State service, the appointing authority may delegate its power under this sub -rule to the next lower authority: Provided further that any other authority empowered by the Government, by general or special order in this behalf, may place a Government servant under suspension under this sub -rule. (2) A Government servant shall be deemed to have been placed, or, as the case may be continued to be placed, under suspension by an order of the appointing authority: (a) With effect from the date of his detention, if he is detained in custody, whether the detention is on a criminal charge or otherwise, for a period exceeding forty -eight hours; (b) With effect from the date of his conviction if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty -eight hours and is not forthwith dismissed or removed consequent on such conviction. Explanation -The period of forty -eight hours referred to in Clause (b) of this sub - rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose intermittent periods of Imprisonment, if any, shall be taken into account.;