Allowed

Ram Bhawan Prasad @ Ram Bhawan Prasad v. The Magadh Univerrsity, Bodh Gaya and Ors.

Patna HC3 Sept 2012CWJC/14274/2012

Case brief

AI extract

What is this about?

The High Court allowed the writ petition setting aside a retrospective suspension order dated 4.11.2011 regarding the petitioner, a university servant. The court held the retrospective portion was invalid as the petitioner had resumed duties, and the prospective portion lacked adequate application of mind.

What did the court decide?

The order of suspension dated 4.11.2011 is set aside without prejudice to the rights of the respondents to pass a fresh order in accordance with the Statute.

Ram Bhawan Prasad @ Ram Bhawan Prasad Vs The Magadh… — Service and Employment | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14274 of 2012

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====================================================== 1. Ram Bhawan Prasad @ Ram Bhawan Rai Son Of Late Ayodhya Prasad Resident Of Villge - Chakmusha, Police Station - Janipur, District - Patna .... .... Petitioner/s Versus 1. The Magadh Univerrsity, Through The Registrar, Bodh Gaya, Bihar 2. The Vice Chancellor, Magadh University, Bodh Gaya 3. The Registrar, Magadh University, Bodh Gaya 4. The Principal, Jagat Narayan Lal College, Khagaul .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Gouranga Chatterjee For the Respondent/s : Mr. Anil Kumar Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER

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2 03-09-2012 Heard the learned Counsel for the petitioner and the University.

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The petitioner is aggrieved by the order of suspension dated 4.11.2011 with retrospective effect from 13.5.2011.

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Learned Counsel for the petitioner submits that pursuant to institution of Phulwari PS Case No. 115 of 2011 under Sections 147, 148, 341, 323, 379 and 302 IPC the petitioner was taken into custody on 13.5.2011 and released on bail on 6.9.2011. It arose out of a dispute between agnates and a counter case No. 115 of 2011 under Sections 147, 148, 341, 323 and 307 IPC was also lodged. There are no allegations in context of official duties to support the suspension. Retrospective suspension is wholly unjustified in the eye of law. After release from custody he petitioner was permitted to join duty on 14.9.2011.The impugned order has been passed thereafter. It is therefore completely unsustainable.

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Reliance has been placed on a Bench decision reported in 2000 (1) PLJR 227 (Ajay Kumar Jha v. State of Bihar) holding that suspension on

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Patna High Court CWJC No.14274 of 2012 (2) dt.03-09-2012

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grounds of a conduct leading to a criminal prosecution wholly unconnected to the discharge of duties was not sustainable. Reliance was next placed on Statute No. 10(1)(ii) which reads as follows:-

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“In cases of criminal prosecution, a University servant should be suspended if the charge against him is such that on being found guilty for it he is likely to be sentenced to a term of imprisonment or on which he would be dismissed or removed from service, in a departmental enquiry. In such cases however the order of suspension need not be passed in every case immediately after cognizance has been taken. In suitable cases it may be passed after charges have been framed. “

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Cognizance may have been taken but charges are yet to be

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framed.

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Counsel for the University submitted that custody on 13.5.2011 automatically leads to suspension till release on 6.9.2011. For the period thereafter he relies on the aforesaid provision to contend that even in a case where criminal prosecution has been instituted and the person is likely to be sentenced for a term of imprisonment he could be suspended. It is submitted that the criminal prosecution in which the petitioner has been implicated is inter alia under Section 302 IPC and therefore the impugned order may not be interfered with. No such provisions fell for consideration in the case of Ajay Kumar Jha (Supra).

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Custody leads to automatic suspension and no formal orders are required as the government servant is incapable of performing duties. After release from custody, it is the employer’s prerogative in accordance with the service rules for the manner in which it may consider to deal with the employee. If the petitioner was permitted to resume duties on 14.9.2011, quite obviously he cannot be subsequently placed under suspension with retrospective effect. It had to be a fresh order prospective in nature. Prima

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Patna High Court CWJC No.14274 of 2012 (2) dt.03-09-2012

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facie if the petitioner has been placed under suspension on 4.11.2011, it can be interpreted that he goes under suspension from that date and not from 13.5.2011 or 14.9.2011.

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But the Court does find merit in the submission on behalf of the petitioner relying upon Statute 10 extracted above. Undoubtedly, as was submitted on behalf of the University, the petitioner could have been suspended on the likelihood of being sentenced to imprisonment. But the provision has to be read in its entirety and not in a truncated manner. The second part of the provision clarifies that even in such cases suspension need not be ordered automatically after cognizance. In a suitable case it may be passed after charges have been framed That is a protection available to the delinquent under the Statute itself. An interpretation, when available, favourable to the delinquent, must be followed, if it can be so done without violence to the language of the provision.

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The suspension of the petitioner from 13.5.2011 to 6.9.2011 is therefore held to be valid relating to the period of custody. If his joining was accepted on 14.9.2011 there cannot be any suspension retrospectively by order dated 4.11.2011. The order is bad to that extent. The order dated 4.11.2011 prospectively is also not sustainable as it does not display adequate application of mind to the provisions of the Statute as considered above. The order of suspension dated 4.11.2011 is set aside, but without prejudice to the rights of the respondents afresh in accordance with the provisions of the Statute.

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The writ application stands allowed.

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(Navin Sinha, J)

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Snkumar/-

Ram Bhawan Prasad @ Ram Bhawan Prasad v. The Magadh Univerrsity, Bodh Gaya and Ors.

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Ram Bhawan Prasad @ Ram Bhawan Prasad v. The Magadh Univerrsity, Bodh Gaya and Ors.

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