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Allahabad High Court · body

1993 DIGILAW 302 (ALL)

Arunesh Kumar Sharma v. District Magistrate

1993-05-03

N.L.GANGULY

body1993
JUDGMENT : 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 15.9.1985 to 13.11.1985, 1.3.1986 to 25.4.1986, 15.9.1986 to 19.10.1986, 1.2.1987 to 7.3.1987, 21.6.1987 to 29.2.1988, 1.4.1988 to 15.8.1988 and 26.8.1988 to 29.9.1988. 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 6.10.1989 Shri A.K. Sharma ke service terminate kiye jaye. Attested Sd/- Illegible 6/10 Sd/- Illegible 29.12.1989 Seal Nayab Nazir 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. 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. 3. The local police challaned the Petitioner in a criminal case u/s 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 u/s 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 u/s 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 u/s 306 Indian Penal Code levelled against him. 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 u/s 306 Indian Penal Code levelled against him. The Standing counsel for the State of Uttar Pradesh 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 u/s 306 Indian Penal Code, levelled against him for abating the suicide of his wife. 4. Learned Counsel for the Petitioner placed before this Court the provisions of Rule 1 (2) of punishment and Appeal Rules for Subordinate Services, Uttar Pradesh 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. 5. 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. 5. The penal of the Rule quoted above shows that a Government servant against whom an enquiry is contemplated or is proceeding, may be placed order suspension pending conclusion of the enquiry in the present case there is nothing to indicate that the Respondents passed any order suspending the Petitioner. According to the provision of Rule 1-A (2) a Government servant shall be decreed to have bees placed or as the case nay be continued to be placed under suspension by an order of the appointing authority with effect from the date of his detention if he is detained in custody, whether that detention is en a criminal charge or otherwise for a period exceeding forty-eight hours. 6. It is evident from the facts of the present case that there is no order of that appointing authority or any other competent authority placing the Petitioner under suspension on account of his being involved in a criminal case or on the ground that he was in custody for more than forty-eight hours. Only a presumption may be raised that since he was arrested in a case u/s 306 Indian Penal Code and behind bar for more than forty-eight hours, he may be deemed to have been placed under suspension. 7. The facts of the present ease show that the Petitioner was never communicated by the authorities any suspension order passed against him. It was only he approached the District Magistrate on 26.12.1989 for giving a certified copy of the order dated 6.10.1989, he was informed by the endorsement of Nayab Nazir, Collectorate, Varanasi dated 20.12.1989 that on 6.10.1989 the District Magistrate has directed to terminate the services of the Petitioner and in pursuance of the said direction the services of the Petitioner was terminated on 12.10.1989 by the Additional District Magistrate (P.R.O.). Varanasi. The perusal of the orders Impugned do not show any reason or facts giving rise to the order of termination. The Petitioner has categorically stated that no opportunity was given to him before passing the termination order. Varanasi. The perusal of the orders Impugned do not show any reason or facts giving rise to the order of termination. The Petitioner has categorically stated that no opportunity was given to him before passing the termination order. It is well settled that before passing an order of termination at least the Rules of Natural Justice should have been followed. In the present case there is no semblance to show that there was any attempt to comply with the rule of natural Justice or to give an opportunity to the Petitioner. After hearing the learned Counsel for the Petitioner and learned standing counsel I am satisfied that although the Petitioner was involved in a criminal case and detained for more than forty-eight boats in custody, bat was finally discharged from the criminal charge u/s 304 Indian Penal Code by the court of Additional Session judge, Varanasi. The mere feet that he was involved in a criminal ease and detained is custody, the order of termination passed without complying with the roles of natural Justice cannot be allowed to stand. Such an order is wholly illegal. 8. The petition was filed on 5th January, 1990 and the case is pending since then. It would not be proper in the circumstances of the case to ask the Petitioner now to approach the Respondents again with a certified copy of the judgment dated 6.4.1991 passed by the Additional Sessions Judge. Varanasi for recalling the order of termination or reconsidering the Petitioner's grievances by the authorities below. It is clear from the facts of the case that the learned Additional Sessions Judge found that the allegations against the Petitioner were not sufficient for framing a charge against him u/s 305 Indian Penal Code and he was discharged. Thus, I am of the view that the orders impugned are liable to be quashed and the petition deserves to be allowed. 9. I direct that the Respondents shall reinstate the Petitioner on the post of peon within one month from the date of presentation of a certified copy of the order of this Court The Respondents are directed to pay the emoluments payable for the future regularly and shall also pay the back salary payable according to law within a period of four months from today. 10. The petition is allowed.