JUDGMENT
Shambhu Prasad Singh, J.
1. The petitioner, by this application under Articles 226 and 227 of the Constitution of India prays for quashing the notification (annexure 5 to the writ petition) placing him under suspension with effect from 23rd of September, 1974, 10 A.M. copy whereof was forwarded to him by memo No. I Gen(I)3000/74-1956 dated September 21, 1974.’ The order of suspension was passed by the Vice-Chancellor (respondent No. 2) of Magadh University (respondent No. 1) and copy thereof was sent to the petitioner by the Registrar (respondent No. 3) of the said University.
2. Shri Edal Singh, father of respondent No. 5, created a trust on 18th of April, 1919, and Nalanda College, Bihar-sharif (hereinafter called ‘the College’) was established in the year 1920. It was to be maintained out of the income of the properties of the Trust. Under the terms of the trust deed, the trustees had the sole authority to form the Governing Body of the College. In the year 1951, the college was affiliated to Bihar University and remained so till the year 1961. After the establishment and incorporation of the Magadh University, the college became affiliated to that University in the year 1962. The petitioner, as his case is, was appointed permanent Principal of the college in the year 1961. In the year 1970 the college became a constituent college of the said University. A registered deed
of agreement dated 8th of June, 1970, was entered into between respondent No. 5 as the executor of the said trust and the Secretary of the college and the Registrar of Magadh University for the purpose. One of the terms of the agreement was that the existing terms and conditions of the teachers and other employees of the college would not be affected by the said conversion.
3. The petitioner alleges that Shri Ram Raj Prasad Singh, the present Education Minister of the State of Bihar (respondent No. 6) hails from Nalanda District and was ill-disposed towards the petitioner on account of some extraneous considerations. As soon as Shri Singh took charge as Education Minister on 30th of April, 1974, he made up his mind to get rid of the petitioner from the college. Under the influence of respondent No. 6, respondent No. 2 transferred the petitioner under a notification (Annexure “1”) Memo No. 956/G.I./dated 2-5-1974 from the college to Magadh University as Professor-in-charge, Development, though such post does not exist or existed, and one Dr. N. C. Agrawal, Reader and Head of the University Department of Applied Economics and Commerce to the post of Principal of the college. As the post of Processor-in-charge, Development, was much inferior to that of a Principal of a constituent college, on 8th of May, 1974, the petitioner made a representation to respondent No. 2 against the order of his transfer but the latter kept quiet. On 18th of May, 1974, respondent No. 2 sent a letter (Annexure “2”) to the petitioner through special messenger directing him to hand over charge of the office of Principal to Shri D. Chatterjee (respondent No. 4) and directing the petitioner to join his new. post by 21st of May, 1974. The petitioner then instituted title Suit No. 88 of 1974, on 21st of May, 1974, in the Court of Subordinate Judge, Bihar-sharif, challenging the notification of his transfer as illegal, void, mala fide, unconstitutional, without jurisdiction and violative of principle of natural justice. The petitioner further prayed for a permanent injunction restraining the defendants of that suit (respondents Nos. 2, 3, 4 and 5 of this writ petition) from transferring the petitioner from the post of Principal of the college and also restraining respondent No. 4 from taking over charge from the petitioner. The petitioner also made an application before the trial court for issue of an ad interim injunction. The Subordinate Judge by his
order dated 21st of May, 1974, issued notices to respondents 2, 3 and 4 to show cause as to why ad interim injunction should not be granted. He, however, did not grant an ad interim injunction. Respondent No. 2 having come to know of the issuance of the show cause notice lost control over himself and out of anger immediately rushed to Biharsharif on 22nd of May, 1974 and from the camp there issued an order (Annexure “3”) disclosing therein that respondent No. 4 would be deemed to have taken over charge as acting Principal of the college with effect from the afternoon of 22nd of May, 1974. On 23fd of May, 1974, the petitioner brought to the notice of the trial court that respondent No. 2 was out to see/that the petitioner’s suit somehow or other became infructuous and again prayed for issue of an ad interim injunction. That court again did not issue ad interim injunction. Against the order dated 21st of May, 1974, passed by the trial court refusing to grant ad interim injunction the petitioner appealed to the District Judge, Patna. His appeal was numbered as Misc. Appeal No. 61 of 1974 and the District Judge after admitting the appeal, ordered the parties to maintain status quo as prevailing on 21st of May, 1974. The appeal was transferred to the court of 4th Additional District Judge, Patna, for disposal. By his judgment and order dated 29th of July, 1974, the 4th Additional District Judge, Patna, allowed the appeal. As a result thereof the petitioner is still continuing as the Principal of the college. Respondent No. 2 became all the more angry on account of the order of the appellate court, made it an issue of prestige and in order to feed fat his grudge and teach a lesson to the petitioner, vindictively passed the order of suspension against him which is under challenge in this writ application.
4. One counter-affidavit has been filed on behalf of respondents Nos. 1 to 4 and another on behalf of respondent No. 6. Respondent No. 2 has also filed a separate counter-affidavit. In their counter-affidavits the respondents deny the charges of mala fide and vindictiveness and assert that the order of suspension passed against the petitioner is legal and valid.
5. Mr. B. C. Ghose appearing on behalf of the petitioner urged the following three points :–
(i) The order of suspension was bad as it was passed mala fide.
(ii) The Vice-Chancellor had no power to pass an order of suspension against the petitioner and, therefore, the order was bad.
(iii) In any event, the order was wrong and illegal inasmuch as there was nothing there to indicate that any prima facie case was made out against the petitioner.
6. Learned counsel appearing on behalf of the respondents contended that the allegations made in the writ application did not establish mala fide and there was power in respondent No. 2 to pass the order of suspension against the petitioner as Section 21 of the Magadh University Act, 1961 (Bihar Act 4 of 1962) has been amended by an Ordinance, Section 7 whereof adds a new Clause (jj) to it.
7. Clause (jj) of Section 21 of the said Act reads as follows :–
“(jj) shall have power to suspend a teacher of a college or University where there is prima facie case against him or where he has been arrested and has been refused bail and committed to prison or where criminal charge made against him is such that on being found guilty he is likely to be sentenced to a term of imprisonment or dismissed or discharged in a departmental enquiry.”
According to Mr. Ghose, the Ordinance was ultra vires, but even if it was intra vires, no order of suspension under Clause (jj) could be passed unless a prima facie case was established. On the other hand, learned counsel for the respondents maintained that under the last part of Clause (jj) an order of suspension could be passed even if prima facie case was not established.
8. It would thus appear that the controversy between the parties is as to the interpretation of the last sub-clause of Clause (jj), namely, “or where criminal charge made against him is such that on being found guilty he is likely to be sentenced to a term of imprisonment or dismissed or discharged in a departmental enquiry”. It is not in dispute that the case of the petitioner is not covered by the first two sub-clauses of Clause (jj), for neither there is a finding that a prima facie case has been established against him nor he has been arrested and has been refused bail and committed to prison. Mr. B. C. Ghose submitted that the expression ‘criminal charge’ in the last sub-clause must mean a charge in respect of which a first information has been lodged or a petition of complaint filed or cognizance other-
wise taken. According to learned counsel for the respondents, the expression means a charge or allegation criminal in nature irrespective of the fact whether a first information has been lodged or a petition of complaint filed or cognizance otherwise taken relating to it. Reliance was placed on the expression “or dismissed or discharged in a departmental enquiry” and it was submitted that dismissal or discharge in a departmental enquiry can take place even when the matter has not been reported to police or magistrate. In my opinion, there is substance in the contention of Mr. Ghose. Under last sub-clause of Clause (jj) a teacher may be suspended if the criminal charge made against him is of such a nature that on being found guilty he is likely to be (1) sentenced to a term of imprisonment or (2) dismissed or discharged in a departmental enquiry. ‘Criminal Charge’ must be given a meaning to cover both types of cases. If it is given a meaning as contended by learned counsel for the respondents, then it cannot cover cases of suspension on the ground that there is likelihood of the teacher being sentenced to a term of imprisonment, whereas if it is given an interpretation, as put upon it by learned counsel for the petitioner, it may cover cases of suspension on both the grounds, namely, (1) likelihood of the teacher being sentenced to a term of imprisonment or (2) likelihood of his being dismissed or discharged in a departmental enquiry. It is now well established by authorities that even if a criminal charge fails in a court of law, a delinquent may be punished in a departmental enquiry. It would be against the recognised canons of construction to give the expression ‘criminal charge’ two different meanings for the purposes of maintaining suspension on the two grounds mentioned in the last sub-clause.
9. It also cannot be contended that an interpretation of the expression ‘criminal charge’, as held in the preceding paragraph, will in any way amount to curtailment of the powers of the authority in respect of suspension in appropriate cases. The authority can pass an order of suspension against a teacher even in cases where the matter has not been reported to the police or magistrate, but in such cases it must record a finding that in its opinion there is a prima facie case against the teacher to bring the suspension under the first sub-clause of Clause (jj). Undoubtedly suspension affects a
person. Not only his reputation is affected but generally when a person is suspended, he is not given his full emoluments but only a subsistence allowance. Therefore, it appears proper and desirable that before a person is put under suspension, except when the matter hag been reported to police or magistrate, the authority must record a finding that there is a prima facie case against him. The interpretation put upon the last sub-clause of Clause (jj) by learned counsel for the petitioner also appears appropriate, for the second sub-clause and the last sub-clause when read together indicate that both of them relate to cases where the matter has been reported to police or magistrate. Once the matter is reported to police or magistrate and the teacher is arrested, re-I’used bail and committed to prison, he will be suspended under the second sub-clause, but in cases which are not covered by the second sub-clause, namely, when he is not arrested at all or arrested but not refused bail, he may be suspended under the last sub-clause.
10. As the writ application must succeed on the third ground urged on behalf of the petitioner, I do not consider it necessary to examine the other two points raised on his behalf.
11. In the result, the application is allowed and the notification (Annexure “5”) placing the petitioner under suspension with effect from 23rd of September, 1974, is quashed. In the circumstances of the case, there will be no order as to costs.
Lalit Mohan Sharma, J.
12. I agree.