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
HR 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 section 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 Class 11 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 580 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 section 97189A dated 16th 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 section section Doctor BMS Class 11 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 158 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 161 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 filed 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 he should be reinstated in service
581 The Government however applied to the High Court for leave to appeal to this Court against the decision if 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 20 1953 the Government directed that a departmental enquiry should 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 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 ie 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 5113528 with interest on Rs 43223 at the rate of 4 per cent pa 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 suspend the appellant and 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 582 Judge and dismissed the suit and ordered the appellant to pay four fifths of the costs of the respondent through out
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 contract or 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 forward 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 The Management of Hotel Imperial New Delhi vs Hotel Workers  Union1 T Cajee vs U Jormanik Siem2 and R P Kapur vs Union of India3
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 vs Pease  Partners Ltd 4 Wallwork vs Fielding 5 and the judgment of Cotton L J in Boston Deep Sea Fishing and Ice Co vs Ansell 6
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 1  3  5 2  4 6 583 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 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
The general principle therefore is that an employer can sus pend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension
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
On the other hand if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith
This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned
It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct 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 584 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 connection
On behalf of the respondent Advocate General of Maharashtra relied upon Rules 151 and 152 of Ch
VIII of the Bombay Civil Service Rules
These rules provide as follows 151
A Government servant under suspension is entitled to the following payments  a In the case of a military officer who is liable to revert to military duty to the pay and allowances to which he would have been entitled had he been suspended while in military employment
b In any other case to a subsistence grant at such rates as the suspending authority may direct but not exceeding one fourth of the pay of the suspended Government servant
Provided that the suspending authority may direct that the Government servant under suspension shall be granted in addition such compensatory allowances as the Government may sanction by general or special order for issue under this proviso
Note 1
The grant of subsistence allowance cannot altogether be withheld 152
When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable or when a Government servant who has been dismissed removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty a if he is honourably acquitted the full pay to which he would have been entitled if he had not been dismissed removed or suspended and by an order to be separately recorded any allowance of which he was in receipt prior to his dismissal removal or suspension and b if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe
585 In a case falling under clause a the period of absence from duty will be treated as a period spent on duty
In a case falling under clause b it will not be treat ed as a period spent on duty unless the revising or appellate authority so direct 
Note 2 Under this rule the revising or appellate authority can convert a period spent under suspension into one of leave admissible under the rules
The period of suspension cannot however be converted into leave without pay except in accordance with the conditions in Rule 752
Subsistence allowance paid under this rule should be adjusted or recovered from the Government servant when the period of suspension is converted into leave with or without pay
 On behalf of the appellant 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 conssidered 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 proceedings against him when if he is not removed or dismissed from service an adjustment of his pay and allowances should be made according to the conditions and terms prescribed in rule 152 the full amount being given only in the event of the Government servant being considered to be acquitted of blame or if the imprisonment was for debt of its being proved that the Government servant s liability arose from circumstances beyond his control
 If the word suspension in Rules 153 and 156 contemplates suspension pending an inquiry we see no reason why it should be 586 given a different interpretation in Rules 151 and 152
We are accordingly of the opinion that Rule 151 empowers the State Government to withhold pay for the period of interim suspension but the Government servant is 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
It follows therefore that the order of the State Government dated February 13 1950 suspending the appellant pending enquiry into his conduct was legally valid and the argument of the appellant on this aspect of the case must be rejected
The view that we have expressed is supported by the ratio of the principle of the decision of this Court in R P Kapur vs Union of India1
The question in that case arose with regard to the interpretation of Fundamental Rule 53 which provided for payment to a Government servant under suspension and which states as follows 531
A Government servant under suspension shall be entitled to the following payments namely  i in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil Employ who is liable to revert to Military duty the pay and allowances to which he would have been entitled had he been suspended while in military employment iiin the case of any other Government servant a a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition dearness allowance if admissible on the basis of such leave salary Provided that where the period of suspension exceeds twelve months the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first twelve months as follows Fundamental Rule 54 is to the following effect 541 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 1  587 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 that Fundamental Rule 5 3 contemplates all kinds of suspension whether it is a penalty or as an interim measure pending departmental inquiry or criminal proceeding
It is manifest that Rules 151 and 152 of the Bombay Civil Service Rules are couched in a similar language to that of Fundamental Rules 53 and 54 and it must be held for this reason also that Rules 151 and 152 of the Bombay Civil Service Rules comprise in their scope both kinds of suspension whether it is a penalty or as an interim measure pending an inquiry into the conduct of the Government servant concerned or criminal proceeding against him
We proceed to consider the next question arising in this case ie whether the order of suspension came to an end on February 15 1952 when the appellant was acquitted by the High Court in revision and whether in consequence the appellant is entitled to full pay for the period from February 15 1952 to February 11 1960 when he was ultimately dismissed
It was contended on behalf of the appellant that he was suspended pending an inquiry into the charge for the criminal offence alleged to have been com mitted 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
We see no justification for accepting this argument
The order of suspension dated February 13 1950 recites that the appellant should be suspended with immediate effect pending further orders
It is clear therefore that the order of suspension could not be automatically terminated but it could have only been terminated by another order of the Government
Until therefore a further order of the State Government was made terminating the suspension 588 the appellant had no right to be reinstated to service
On behalf of the appellant reliance was placed on the decision of the Orissa High Court in Narayan Prasad Rewany vs State of Orissa1
But the facts of that case are clearly to be distinguished
The order of suspension in that case did not contain the phrase pending further  orders
Furthermore the order of suspension was passed under R 93A of the Orissa Service Code Vol 1 under which the Government servant could be suspended during the periods when he was not actually detained in custody or imprisoned
Having 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
RKPS Appeal dismissed
1 AIR 4957 Orissa 51


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 section 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 1950directions 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 section 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 iThe order of the State Government dated February 13 1950
suspending the appellant pending enquiry into his conduct was valid
586 B L2Sup
C11 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
582 D 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 vs Hotel Workers  Union   T Cajee vs U Jormanik Siem   R P Kapur vs Union of India   Hanley vs Pease  Partners Ltd  Wallwork vs Fielding  Boston Deep Sea Fishing and Ice Co vs 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
583 G 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 vs Union of India 5 SCR 431 relied on
iiThe order of suspension dated February 13 1950 recited that the appellant should be suspended with immediate effect pending further 579 orders
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 vs State of Orissa ATR 1957 Orissa 51 distinguished