BALVANTRAI RATILAL PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is brought, by certificate, from the judgment of the Bombay High Court dated August 10, l961 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.

(2.) The appellant was a member of the Bombay Medical Service. Class II and as such was an employee of the State of Maharashtra. In 1943, the appellant was posted at the Civil Hospital, Ahmedabad and on February 18, 1950 he was in-charge of the Medico-Legal Section of that hospital. On January 19, 1950, one Nabimahomed complained to Mr. Rathod, Sub-Inspector of Police, Anti-Corruption Branch, Ahmedabad, that the appellant had demanded Rs. 50 over and above his fees for issuing a certificate to him in order to enable him to claim compensation under the Workmen's Compensation Act. On January 20, 1950, a trap was arranged and it is alleged that the appellant received Rs. 55 from Nabimahomed Rs .5 as fees and Rs 50 as illegal gratification. The Sub-Inspector, Mr. Rathod then submitted a report to the Additional Assistant to the Inspector-General of Police, Anti-Corruption Branch setting out the facts leading to the trap and the recovery of the marked currency notes. The Additional Assistant to the Inspector-General of Police forwarded the report to the Surgeon-General who was the administrative head of the Medical Department with the request that the appellant should be placed under suspension from duty with immediate effect pending disposal of the case of corruption against him. On January 24, 1950, the appellant also addressed a representation to the Surgeon-General alleging that he had been falsely implicated by the Anti-Corruption 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 orders from the Surgeon-General, with the Government of Bombay, conveyed in his Memorandum No. s. 97/189/A dated 16tb February, 1950, you are informed that you are suspended pending further orders with effect from the afternoon of 18th instant. You should hand over your charge to Mr. S. S. Doctor. B. M. S. Class II at this hospital." On August 21, 1950 the Government directed that the appellant should be allowed subsistence allowance at Rs. 153-5-0 per mensem from the date of his suspension February 19, 1950 to March 31, 1950, at Rs. l58-13-0 per mensem from April 1, 1950 to February 18, 1951 and at Rs. 119-2-0 per mensem from February 19, 1951 onwards. The Government also directed that the appellant should be paid in addition Rs. 35 per mensem as dearness allowance and Rs. 14 as house rent allowance during the entire period of suspension. On May 6, 1950 sanction was given for the prosecution of the appellant under Section I61, Indian Penal Code. On February 26, 1951 the appellant was convicted by the First Class City Magistrate at Ahmedabad and sentenced to one day's imprisonment and a fine of Rs. 1000. The appellant flied an appeal to the Sessions Court, but his appeal was dismissed. Thereafter the appellant took the matter in revision to the Bombay High Court. The revision application was allowed and the conviction and sentence passed against the appellant were set aside. On March 14, 1952, the appellant made a representation to the Government praying that be should be reinstated in service. The Government, however, applied to the High Court for leave to appeal to this Court against the decision of the High Court and on the said application being rejected, the Government applied to this Court for special leave to appeal. This Court rejected the application on October 13, 1952. On November 27, 1952 the Government issued another order in regard to the payment of subsistence allowance to the appellant. On February 30, 1953 the Government directed that a department enquiry shou1d be held against the appellant. The Civil Surgeon, Ahmedabad was appointed Inquiry Officer and he was asked to complete the inquiry within three months and submit his report to the Government through the Surgeon-General. For reasons which are not apparent the departmental inquiry was delayed and ultimately an order of dismissal was made against the appellant 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 Section 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 in operative 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 the appellant Rs. 51,135.28 with interest on Rupees 43,223/- at the rate of 4 per cent p. a and the cost of the suit. The respondent appealed against the judgment of the trial Judge. The appeal was heard by a Bench consisting of the Chief Justice and Mody, J. The Appellate Bench held that the respondent had inherent power to spend the appellant and also to withhold full remuneration for the period of suspension under Rule 151 of the Bombay Civil Services Rules. The Appellate Bench therefore held that the order of suspension made by the respondent was legally valid as it was in exercise of the inherent power as regards prohibition of work, and in exercise of its powers conferred by the rules so far as the withholding of pay during enquiry against his conduct was concerned. The Appellate Bench also held that the suit was barred under Article 14 of the Schedule to the Indian Limitation Act. For these reasons the Appellate Bench allowed the appeal, set aside the decree passed by the trial Judge and dismissed the suit and ordered the appellant to pay four-fifths of the costs of the respondent throughout.

(3.) The first question to be considered in this appeal is whether Government had the power to suspend the appellant by its order dated February 13, 1950 pending enquiry into his alleged misconduct. It was contended on behalf of the appellant 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 contractor of an express term in the contract itself. It was urged that there was no express provision in the Bombay Civil services Rules granting a power to the Government to suspend a Government servant pending enquiry into the allegations made against him. The argument was put forward that in the absence of any express provision either in the contract of employment or in any statute or statutory rules governing such employment, there was no power to suspend a public servant pending inquiry into the allegations of his misconduct We are unable to accept the argument put for- ward on behalf of the appellant as correct. The general law on the subject of suspension has been laid down by this Court in three cases, viz., Management of Hotel Imperial, New Delhi v Hotel Workers' Union, (19601) SCR 476 ; T, Cajee vs. U. Jormonik Siem, (1961) 1 SCR 750 ant R. P. Kapur vs. Union of India, (1964) 5 SCR 431 . 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 contractor 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 suspensions 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 servant is well established:(See Hanley vs. Pease and Partners, Ltd., (1915) 1 KB 698:Wallwork vs. Fielding, 1922-2 KB 66 and the judgment of Cotton, L. J. in Boston Deep Sea Fishing and Ice Co. v Ansell, (1888) 39 Ch D 399. It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry 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 suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the lathe 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.