A suspension order based on a prima facie finding of misappropriation without material evidence is unsustainable in law. Suspension of a public servant pending the disposal of a criminal case against another person is not permitted under the Bihar Service Code.

Sarwar Ali, J.

These writ applications have been heard one after the other and are being disposed of by a common JUDGMENT :. In all these writ applications the petitioners pray for quashing of the ORDER :s of suspension which are Annexure-1 in all the three applications. All these ORDER :s have been passed on 18.8.1977.

2. The department of the Agriculture of the State maintains farms at different places for seed production. Two of such farms are at Piprakothi and Musahari. The farms are under the management and supervision of Junior Assistant Agronomist. The Regional Director of Agriculture Research Institute, Dholl, (Muzaffarpur) had over all control over the farms and the officers concerned. In the year 1969-70 the total production of potatoes in the two farms aforesaid was 1177.40 quintals and 769.60 quintals respectively. For safe storage of these potatoes tenders were invited firm different Cold Storages. M/s Himalaya Ice and Cold Storage Muzaffarpur, was one of the tenders. Its tender having been accepted potatoes were stored in the said cold storage. It may be stated that Sri Jugal Kishore Banka was the proprietor of the said firm. For reasons which need not be discussed here the potatoes which were stored in the said cold storage deteriorated. On 3.11.1970 Junior Assistant Agronomist, received a letter dated 24.10.1970 from Sri Banka wherein he intimated that he had thrown away the deteriorated potatoes and partly sold the damaged potatoes and he had kept the sale proceed with himself for adjusting towards the rental of the cold storage. In the said letter it was stated that deterioration took place due to the breakdown of machineries. The entire matter having been brought to the notice of the Director of Agriculture, Bihar, explanations were called for from different persons including the petitioners. Subsequently it was decided to file criminal and civil cases against Sri Banka. The petitioners in C.W.J.C. Nos. 2146 and 2149/77 filed complaint petitions against Sri Banka for misappropriation of seed potatoes which were entrusted to M/s. Himalaya Ice and Cold Storage. In the criminal cases the trial court has passed an ORDER :on 8.3.1975 committing Sri Banka to the court of Sessions. A Criminal Miscellaneous application being Criminal Miscellaneous No. 4313 of 1975 challenging the ORDER :aforesaid is pending in this court. A civil suit has also been filed bearing money suit No. 28 of 1973 in respect of the damage sustained by the State in relation to part of the potatoes entrusted to the Cold Storage. It has been decided to file another suit for damages but the suit has not been filed as yet. (for reasons which need not be discussed here).

3. It is in the context of the damage and loss sustained by the State of Bihar in relation to the storage of the potatoes aforesaid that the Impugned ORDER :s of suspension have been passed.

4. In the view that we are taking in this case it is not necessary to give further facts in detail but it would be propel' to notice some of the main contention that have been urged In this case. We may, however indicate that it would be necessary to adjudicate in relation to some of the contentions only.

5. On behalf of the petitioners in C.W.J.C. Nos. 2146 and 2149/77 it has been contended that:-

(a) The suspension of the petitioners is for having misappropriated foundation potatoes seeds stored in the Cold Storage. There was no material on the basis of which even a prima facie conclusion to this effect could have been arrived at. Indeed the State has throughout asserted that it was Sri Banko who had misappropriated. The ORDER :of suspension has thus been passed without application of the mind to the materials that were available to the State. Such an ORDER :is not sustainable in law.

(b) The impugned ORDER :is penal in nature. It can only be passed after complying with the requirements of natural justice. This not having been done the ORDER :is fit to be set aside.

(c) The petitioners were