S.U. Khan, J. - (1.) HEARD learned counsel for the parties.
(2.) ORIGINAL petitioner has died and has been substituted by his widow. This writ petition is directed against order dated 5.12.1997 dismissing the original petitioner from service. Petitioner was appointed as Lower division clerk/Assis tant in U.P. Secretariat in the year 1975. Petitioner was not working in any Government department since 1986. In para-9 of the writ petition itself it is mentioned that: "the respondents abruptly stopped allocation of work and payment of salary to the petitioner and several years thereafter order dated 28.3.1992 suspending the petitioner with effect from 9.11.1989 was passed." Suspension order dated 28.3.1992 is Annexure-3 to the writ petition in which it is mentioned that petitioner was unauthorisedly absent from his duty since 1986 and a case regarding forgery had also been lodged against him in pursuance of the First Information Report. Petitioner was also arrested on 9.11.1989. In the said order it was mentioned that petitioner would be deemed to be under suspension w.e.f. 9.11.1989. Thereafter, charge-sheet was served on 25.8.1992. Petitioner gave reply on 15.9.1992. Thereafter Inquiry Officer submitted the report on 12.5.1993, copy of which is part of Annexure-6 to the writ petition. At the end of the said inquiry report it is mentioned that petitioner filed three replies on 15.9.1992, 23.11.1992 and 25.3.1993 respectively. In the said report it is mentioned that petitioner appeared before the Inquiry Officer on 8.4.1993. It was enquired from him whether he wanted to give any oral evidence. Petitioner stated that he did not require any opportunity of hearing. He also stated that he would get the Inquiry Officer appointed in senior I.A.S. scale. In the inquiry report it is mentioned that petitioner was constantly asserting that he was responsible for development of water management of Rural areas in the entire State of Uttar Pradesh and that he was in direct touch with Prime Minister and Water Resources Minister, and he was constantly writing to them. It is further mentioned in the inquiry report that since 1986-87 petitioner was being posted/transferred in different departments but due to his mental con dition no department was ready to permit him to join and petitioner was not work ing anywhere since 3.1.1987. Petitioner in his reply stated that he was doing commendable job and Indian Government should appoint him on some higher post. From the perusal of the replies Inquiry Officer concluded that petitioner was not fully in control of his senses. Inquiry Officer recorded in favour of the petitioner that it was not fully established that he deliberately absconded himself from duty. Wherever he was posted, the officer incharge concerned refused to permit him to join. Petitioner had also written letter to Water Transportation Services for arrang ing for 15 motor boats and 80 ply wood compartments.
(3.) ULTIMATELY Inquiry Officer suggested that the petitioner should be granted invalid pension and removed from service. Inquiry Officer further suggested that even though on the findings recorded by him termination of service was warranted but it would be a cruel action. ULTIMATELY special secretary concerned removed the petitioner from service through order dated 5.12.1997, Annexure-7 to the writ petition which has been challenged through this writ petition. In the said order it is mentioned that accepting the suggestion of the Inquiry Officer for granting invalid pension to the petitioner the case of the petitioner was referred to Chief Medical Officer in accordance with paragraph 442 and 457 of C.S.R. Petitioner was directed to appear before Chief Medical Officer, Lucknow on different dates. However, he failed to appear before C.M.O. hence it was not possible to grant invalid pension to him. As stated earlier petitioner died during pendency of writ petition and was substituted by his widow Meena Pandey. A Supplementary affidavit alongwith an application dated 5.9.2008 has been filed by Smt. Meena Pandey substituted widow of original petitioner. In the said Supplementary affidavit (Paragraphs 4, 5, 6, 7, 8 and 10) she has fairly admitted that her husband was suffering from mental illness. In para-5 it has been stated that as per directions issued in consequence of recommendations of Inquiry Officer to appear before C.M.O., husband of the defendant could not appear before C.M.O., Lucknow for medical check-up due to mental disorder. In para-6 it has been stated that petitioner was mentally out of order and unable to do any work. Words mental disorder in respect of her husband have been repeated by her in paragraphs 6, 7, 10 and 13 also.;