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2009 DIGILAW 1551 (ALL)

ASHOK KUMAR DIXIT v. STATE OF U P

2009-04-20

C.K.PRASAD, DILIP GUPTA

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( 1 ) THE writ petitioner-appellant (hereinafter referred to as the petitioner), aggrieved by an order dated 8. 4. 2009 passed by a learned Single Judge in Writ Petition No. 19047 of 2009 declining to interfere with the order of suspension has preferred this appeal under Rule 5 of Chapter VIII of Allahabad High Court Rules. ( 2 ) THE short facts giving rise to the present appeal are that the petitioner was working as a Locol Bodies Clerk in the Collectorate at Kushi Nagar. He was arrested in Case Crime No. 132 of 2009 under Sections 364 and 363/366 IPC and remained in custody for more than 48 hours. The District Magistrate, Kushi Nagar by order dated 30. 3. 2009 placed him under suspension on the ground of his arrest in the aforesaid criminal case. ( 3 ) THE petitioner challenged the aforesaid order of suspension, inter alia, contending that he having been released on bail, the deemed order of suspension shall come to an end. This submission did not find favour with the learned Single Judge. He disposed of the writ application, inter alia, observing that the petitioner, if he so chooses may make an appropriate representation and in case, it is so done, the District Magistrate, Kushi Nagar will consider and decide the same expeditiously. ( 4 ) MR. Ashok Khare, learned Senior Advocate appearing on behalf of the petitioner, submits that once the petitioner has been enlarged on bail, the deemed order of suspension shall come to an end and in support of this submission, he placed reliance on a Full Bench decision of this Court in the case of Chandra Shekhar Saxena Vs. Director of Education (Basic), U. P. Lucknow and Anr. reported in 1997 (1) LBESR 294 (All) (FB) and our attention has been drawn to paragraph 27 (C) of the judgment, which reads as follows:- "27 (C ). The deemed suspension provided under sub-rule (2) of Rule 49-A shall be confined to the period of detention in custody and not beyond that. " ( 5 ) WE do not find any substance in the submission of Mr. Ashok Khare. The Full Bench decision of this Court in the case of Chandra Shekhar Saxena (supra) was considered by the Supreme Court in the case of Union of India Vs. " ( 5 ) WE do not find any substance in the submission of Mr. Ashok Khare. The Full Bench decision of this Court in the case of Chandra Shekhar Saxena (supra) was considered by the Supreme Court in the case of Union of India Vs. Rajiv Kumar, reported in AIR 2003 SC 2917 , in which it has been held as follows:- "17. View of the Full Bench of the Allahabad High Court (supra) that the legal fiction created ceases to be effective for the purpose of suspension while operative for other purposes is clearly unsustainable and we do not approve of the same. " ( 6 ) IN view of the authoritative pronouncement of the Supreme Court, this point need not detain us much. We are of the opinion that the order of deemed suspension shall remain effective till a specific order in this regard is passed. ( 7 ) MR. Khare, then submits that the facts of the case do not justify the petitioners suspension. This submission also does not commend us. The fact of the matter is that the petitioner was arrested in a criminal case and remained in custody for more than 48 hours and by force of law, he shall be deemed to be under suspension, which will continue unless it is modified or revoked later on. We do not find any merit in this appeal and it is dismissed accordingly. .