Summary
The appellant was a member of the State Medical Service and as such an employee of the respondent State. On a report made in January 1950 by the Anti-Corruption branch, sanction was given in May 1950 for his prosecution under s. 161 Indian Penal Code for accepting a bribe and the trial court convicted him of the offence in February 1951. In February 1950, he was suspended by an order of the Civil Surgeon pending further orders and in August 1950,directions were given about the payment of subsistence allowance to the appellant during the period of his suspension. Thereafter a revision application against his conviction was allowed by the High Court and a special leave petition to this Court was rejected. In February 1953 the respondent State Government directed that a departmental enquiry should be held against the appellant, as a result of which an order of dismissal was made against the appellant on February 11, 1960. While the enquiry was going on the appellant gave notice to the respondent under s. 80 of the Civil Procedure Code and then filed a suit against the respondent praying for a declaration that the order of suspension was illegal and inoperative in law and the appellant continued in service as though no order for suspension had been made; he therefore claimed remuneration and allowances with usual increments from the date of his suspension till the date of his reinstatement. A Single Bench of the High Court decreed the suit in the appellant's favour but a Division Bench allowed an appeal and held that the respondent had inherent power to suspend the appellant and to withhold full remuneration for the period of suspension under r. 151 of the Bombay Civil Service Rules.
In the, appeal to this Court it was contended, inter alia, on behalf of the appellant (i) that the power to suspend is not an implied term in an ordinary contract between master and servant and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself; in the absence of any express provision either in the contract of employment or in the Bombay Civil Service Rules, there was no power to suspend a public servant pending inquiry into the allegations of his misconduct; and (ii) as the appellant was suspended pending an inquiry into the charge for the criminal offence alleged to have been committed by him and as the proceedings in connection with that charge ended with the acquittal of the appellant by the High Court on February 15, 1952, the order of suspension must be deemed to have automatically come to an end on that date and the appellant was entitled to full pay from then until February It, 1960 when he was ultimately dismissed.HELD : dismissing the appeal (i)The order of the State Government dated February 13, 1950. suspending the appellant pending enquiry into his conduct was valid. [586 B]L2Sup.C.11/ 8- 6.578 The general principle is that a employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. it is now well-settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension.Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. [582D-G; 583 C-D]It is equally well-settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. In this connection it is important to notice the distinction between suspending the contract of service of an officer and sus- pending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the latter sense is always -an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time, the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. [582 H;583 A-C]The Management of Hotel Imperial, New Delhi v. Hotel Workers' Union, [1960] 1 S.C.R. 476, T. Cajee v. U. Jormanik Siem, [1961] 1 S.C.R. 750; R. P. Kapur v. Union of India,[1964] 5 S.C.R. 431; Hanley v. Pease & Partners, Ltd. [1915]1 K.B. 698; Wallwork v. Fielding, [1922] 2 K.B. 66; Boston Deep Sea Fishing and Ice Co. v. Ansell, [1888] 39 Ch. D.339, referred to.If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. [583G-H]However, in the present case Rule 151 of the Bombay Civil Service Rules empowered the State Government to withhold pay for the period of interim suspension but the Government servant was entitled under that rule to a subsistence allowance at such rate as the suspending authority may direct but not exceeding one-fourth of his pay. There was no force in the contention that Rule 151 of the Bombay Civil Service Rules applies only to a case where a Government servant is 'suspended by way of penalty and not to a case of interim suspension. [585 D]R. P. Kapur v. Union of India, 5 S.C.R. 431, relied on.(ii)The order of suspension dated February 13, 1950 recited that the appellant should be suspended with immediate effect"pending further 579orders". It is clear therefore that the order could not be terminated automatically but only by another order of the Government. Until therefore a further order of the State Government was made terminating the suspension the appellant had no right to be reinstated in service and to the remuneration claimed. [587 H]Narayan Prasad Rewany v. State of Orissa, A.T.R. 1957 Orissa 51, distinguished.See the full content of this document
Extract
Balvantray Ratilal Patel VS. The State Of Maharashtra
PETITIONER: BALVANTRAY RATILAL PATEL Vs.RESPONDENT: THE STATE OF MAHARASHTRADATE OF JUDGMENT: 12/12/1967BENCH: RAMASWAMI, V.BENCH: RAMASWAMI, V.SHAH, J.C.BHARGAVA, VISHISHTHACITATION: 1968 AIR 800 1968 SCR (2) 577CITATOR INFO : D 1970 SC 140 (5)R 1970 SC1494 (8)ACT: Power to suspend employee during enquiry-Scope of-Whether employee entitled to full remuneration during period of suspension or as determined under Rules 151 and 152, ChapterVIII, Bombay Civil Service Rules.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 442 of 1965.Appeal from the judgment and decree dated August 10, 1961 of the Bombay High Court in Appeal No. 23 of 1960.H.R. Gokhate, P. N. Duda, and J. B. Dadachanji, for the appellant.H. M. Seervai, Advocate-General for the State of Maharashtra,R. Gopalakrishnan and R. N. Sachthey, for the respondent.The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by certificate, from judgment of the Bombay High Court dated August 10, 1961 by which the appeal of the respondent against the judgment of S. M. Shah, J. of that High Court was allowed and the suit of the appellant was dismissed.The appellant was a member of the Bombay Medical Service, ...
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