Amiya Kumar Mookerji, J. - (1.) This Rule is directed against an order dated of 21st December, 1973 passed by the project Administrator and Coordinator (Department of Animal Husbandry) terminating the petitioner's service on account of his continued absence without report to the office and his whereabouts. The petitioner was an employee attached to Haringhata Dairy Firm under Milk Commissioner of West Bengal. Thereafter on the 14th of August, 1973 the petitioner was appointed temporarily until further orders to the post of fourth grade correspondent clerk. In the planning and Design Division under Planning Circle, P.W.D. in the scale of pay of Rs. 230-425/-. In pursuance of the said order of appointment, the petitioner joined the post on the 18th of August, 1973. The petitioner was arrested in connection with a police case instituted under Section 25/27 of the Arms Act before the Sub-divisional Judicial Magistrate, Krishnagar and he was arrested on the 19th of September, 1973 and was lodged in Krishnagar Jail. As a result of his arrest, the petitioner could not attend office and could not make any application praying for leave. Thereafter on the 18th of October, 1973 the petitioner's father received a letter written by the Executive Engineer, Planning and Design Division asking the petitioner to report for duty. The petitioner's father by a letter dated 31st of October, 1973 informed the Executive Engineer that his son was in Custody in connection with a police case. Application for bail was fixed for hearing on 6th of Nov, 1973 and the petitioner could join his service as soon as he was released. The executive Engineer again wrote on the 5th of November, 1973 asking the petitioner's father to inform him the date of the petitioner's arrest, the nature of the charge and the name of the police station conducting the case. On the 19th of November, 1973 the petitioner's father replied to the said letter and supplied all the information's sought for. The petitioner was released on parol on 21st January, 1974. Meanwhile on the 5th of January, 1974 while the petitioner was in jail custody in Krishnager, he was served with the impugned order dated 21st December, 1973 issued by the respondent No. 2 intimating him about his termination of service. The petitioner being aggrieved moved this court in an application under Art. 226 of the Constitution and obtained the present Rule.
(2.) Mr. Maitra, appearing on behalf of the petitioner contended that there was no provision for any automatic termination of the petitioner's service on account of his continued absence. As the petitioner being a Government servant was detained in custody for a period exceeding 48 hours, the petitioner shall be deemed to have been suspended, by an order of the appointing authority, with effect from the date of his detention namely on the 19th of September, 1973 and he shall remain under suspension until further orders. So, question of termination of the petitioner's service does not arise in this case. Mr. Roy, appearing on behalf of the respondent contended that Rule 34 (3) of the West Bengal Service Rule, Part I read with Rule 175 of the said Rules provides that where a government servant, who is not in permanent employment fails to resume his duties on the expiry of the maximum period of extraordinary leave granted to him, he shall be deemed to have resigned his appointment and accordingly ceased to be in government employment.
(3.) In the instant case, it is not disputed that no leave was applied for and granted. That being so, Rule 34 (3) of the West Bengal Service Rules Part I has got no application to the facts and circumstances of the present case.;