TMI Blog1967 (12) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... Branch of the Police and asking him to consider the representation before giving his sanction for prosecution of the appellant and before making an order of suspension. The Surgeon-General forwarded the report of Sub-Inspector, Mr. Rathod as well as the representation of the appellant to the State Government by his letter dated February 1, 1950. He requested the Government that in the circumstances mentioned in the Sub- Inspector's report orders may be issued for placing the appellant under suspension. His recommendation was approved by the Minister for Health and by the Chief Minister. By a letter dated February 13, 1950, the Deputy Secretary to the Government informed the Surgeon-General that the appellant should be suspended with immediate effect pending further orders.. The Surgeon-General thereafter issued an order to the Civil Surgeon, Ahmedabad dated February 16, 1950 that the appellant should be placed under suspension pending further orders from the date of the receipt of the memorandum. In pursuance of the directions received by him from the Surgeon-General, the Civil Surgeon, Ahmedabad, issued the following office order and sent it; to the appellant : Under orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant on February 11, 1960. Before the conclusion of the departmental inquiry and while that inquiry was going on the appellant gave a notice to the respondent under s. 80 of the Civil Procedure Code. On April 11, 1953 the appellant brought the present 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 passed. The appellant claimed remuneration and allowances with usual increments from the date of his suspension till the date of his reinstatement. The respondent controverted the allegations made in the plaint and asserted that the suspension of the appellant was not illegal. Shah, J. of the Bombay High Court before whom the suit was tried held that the appellant was entitled to salary and allowances upto the date when he was dismissed i.e., February 11, 1960. He granted to the appellant a declaration that the order of suspension was illegal and inoperative in law and the appellant continued to be on duty till February 11, 1960 as though no order of suspension had been made. He also granted a decree directing the respondent to pay to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India(3). 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. This principle of law of master and servant is well-established: (See Hanley v. Pease Partners, Ltd., (4) Wallwork v. Fielding, (5) and the judgment of Cotton, L. J. in Boston Deep Sea Fishing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the government like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions Of the statute or statutory rules made in that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant Mr. Gokhale contended that Rule 151 applies only to a case where a Government servant is suspended by way of penalty and not to a case of interim suspension. We see no warrant for accepting this argument. Suspension is used in Rule 151 in a general sense and Rule 151 applies to all kinds of suspension, whether it is imposed by way of penalty or as an interim measure pending departmental inquiry or a criminal proceeding. We see no reason, either in the context or the language of Rule 151, to place a restricted interpretation upon the meaning of the word suspension in that rule. On the contrary, the language of Rules 153 and 156 suggests that the suspension contemplated by these rules includes not only suspension by way of penalty but also interim suspension pending a departmental inquiry or a criminal proceeding. Rules 153 and 156 state as follows 153. Leave may not be granted to a Government servant under suspension. 156. A Government servant committed to a prison either for debt or on a criminal charge should be considered as under suspension from the date of his arrest and therefore entitled only to the payments specified in Rule 151 until the termination of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsistence allowance for any period subsequent to the period of the first twelve months as follows Fundamental Rule 54 is to the following effect: 54(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is re-instated or would have been re-instated but for his retirement on superannuation while under suspension. the authority competent to order the reinstatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub- rule (1) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be. It was held by the majority decision of this Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving, regard to the terms of that rule it was held by the Orissa High Court that the order ceased to be operative as soon as criminal proceedings had terminated. In the present case, however, the appellant was not suspended under any rule similar to rule 93A of the Orissa Service Code, Vol. 1 and the decision of the Orissa High Court has therefore no rele- vance. We are therefore of the opinion that the order of suspension of the appellant made by the State Government on February 13, 1950 did not come to an end on the date of the order of acquittal made by the High Court and Counsel for the appellant is unable to make good his submission on this aspect of the case. It is not necessary for us to express any opinion as to whether the suit is barred under Article 14 of the Schedule to the Indian Limitation Act as we have held that the claim of the appellant is devoid of merit. For the reasons already expressed, we hold that the judgment of the Bombay High Court dated August 10, 1961 is correct and this appeal must be dismissed. In view of the circumstances of the case we do not propose to make any order as to costs ,of this Court. Appeal dismissed. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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