ASHOK KUMAR DIXIT Vs. STATE OF UP

JUDGEMENT

(1.) HEARD Shri Ashok Khare, Senior Advocate assisted by Shri K.K. Singh for the petitioner. Learned standing counsel appears for the respondents. The petitioner is serving as Local Bodies Clerk in the Collectorate at Kushi Nagar. He has been placed under suspension by the District Magistrate, Kushi Nagar on 30.3.2009 on the ground of his arrest by the police on 23.3.2009 in Case Crime No. 132 of 2009 under Section 364 IPC and Sections 363/366 IPC, giving rise to this writ petition. It is contended by Shri Ashok Khare appearing for the petitioner that petitioner's brother and Smt. Sarita Dixit a major girl entered into marriage on their consent and free will. A first information report was lodged by the family of the girl alleging her abduction. In Writ Petition No. 5140 of 2009 Keshav Dixit and others, the arrest of the family members and the couple has been stayed by the Court on 26.3.2009. On the same ground the petitioner arrested on 23.3.2009 was granted bail by the Sessions Judge, Deoria on 30.3.2009. The petitioner would submit that his brother's marriage with a major girl with their consent could not be a basis to prosecute him and that the circumstances in which he was arrested were not seen by the District Magistrate before issuing the suspension order. Shri Ashok Khare would submit that the fact, that the petitioner was detained in jail from 23.3.2009 to 30.3.2009, may be a ground for his deemed suspension but that as held in Chandra Shekhar Saxena vs. Director of Education (Basic), U.P. Lucknow and Anr 1997 (1) LBESR 294 (All) (FB) while interpreting Civil Services Classification Rules the deemed suspension will last only till the petitioner was released from the jail. As soon as he was granted bail Rule 4 (8) of U.P. Government Servants (Discipline and Appeal) Rules 1999, provides that the suspension has to be released. The suspension order, according to Shri Khare, will continue to remain in force only for the period the petitioner was in jail. The provisions of deemed suspension or the suspension by the order of the competent authority on the detention of the government servants in custody for more than 48 hours has been enacted in the statutory rules. It is clarified in Rule 4 (3) (a) and (b) of the U.P. Government Servants (Discipline and Appeal) Rules, 1999, as follows:- "4. Suspension- (3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be place under suspension by an order of the Authority Competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours. (b) The aforesaid Government Servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it." Sub rule (3) (a) and (b) of Rule 4 of the Rules of 1999, provide that the Government servant shall be deemed or may be continued to be place under suspension by an order of the Authority Competent. In the present case, as soon as the District Magistrate came to know that the petitioner was arrested and detained in jail on 23.3.2009 for more than 48 hours, he placed him under suspension. The order was passed on 30.3.2009. On the same day the petitioner was granted bail by the Sessions Judge, Deoria. The petitioner is under statutory duty under sub rule (3) to inform in writing to the competent authority about his detention and may make a representation against his deemed suspension. It is then obligatory upon the competent authority to consider his representation in the light of the facts and circumstances, and pass appropriate orders to continue the deemed suspension from the release from custody or to revoke it or to modify it. The statutory rules enacted after the decision of the full bench, will prevail over the interpretation of Rule 49A, U.P. (CS) CCS Rules 1930 by the Court on 4.11.1996. Apparently the petitioner has neither informed the District Magistrate not made a representation. The writ petition is accordingly disposed of with directions that if the petitioner makes an appropriate representation to the District Magistrate, Kushi Nagar, giving the facts and circumstances in which he was detained; the orders of the High Court and the order granting him bail, the District Magistrate will consider the representation very expeditiously, and in any case within a week from the date the petitioner files the representation in his office.