29 January 1970
Supreme Court


Case number: Appeal (civil) 990 of 1967






DATE OF JUDGMENT: 29/01/1970


CITATION:  1970 AIR 1494            1970 SCR  (3) 418  1970 SCC  (1) 362  CITATOR INFO :  F          1974 SC1281  (7)  RF         1976 SC1775  (13)  F          1977 SC1146  (11)

ACT: Public Servant-Master and Servant-Master’s right to  suspend servant pending enquiry-No such right expressly provided  in contract or statutorily-Effect of order of suspension.

HEADNOTE: On May 7, 1964, the respondent-State ordered a  departmental enquiry  against  the appellant who was a  temporary  public servant  in  its  service and placed  him  under  suspension pending  the enquiry.  On June 6, 1964 the appellant gave  a notice to the respondent resigning from service.  On  August 1,  1964  the  appellant was asked to file a  reply  to  the charges  .against him.  The appellant filed a writ  petition in  the  High Court to quash the proceedings on  the  ground that,  as he was no longer in the respondent’s service,  the respondent  could not take any departmental  action  against him.  The petition was dismissed. In appeal to this Court, HELD : (1) The general principle is that if the master has a power  to  suspend his servant pending an enquiry  into  his misconduct,  either  in the contract of service  or  in  the statute  or  the  rules  framed  thereunder  governing   the service, an order of suspension passed by the master 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 any wages during the period of suspension.  Such a power  to suspend  the  contract  of service  cannot  be  implied  and therefore,  if  in  the  absence of  such  a  power  in  the contract, statute or rules, an order of suspension is passed by  the master it only forbids the -servant to work  without affecting  the relationship of master and servant,  and  the master will have to pay the servant’s wages. [451 E]



In the present-case, the Madhya: Pradesh Government Servants (Temporary and quasi-Permanent Service) Rules, 1960, do  not provide  for .suspension during the pendency of an  enquiry. Therefore,  the order of suspension could not be  considered as an order suspending the contract -of service.  It follows that  when the appellant issued his notice on June 6,  1964, the contract of service was in force and it was open to  him to put an end to it. [452 G] (2)  In his notice, the appellant unequivocally informed the respondent  that  he  has terminated his  service  with  the Respondent.  He also intimated that any amounts due from him to  the  respondent under the provisos to r.  12(a)  may  be deducted  from  the salary due to him during the  period  of suspension.   Therefore, the notice was in  accordance  with the  requirements of r. 12.  It follows that ever since  the respondent received the notice on June 9, 1964 the appellant was not in its service and therefore, it was not open to the respondent to take any disciplinary proceedings against him. [454 C] 449 The  Management  of Hotel Imperial, New Delhi  and  Ors.  v. Hotel  Workers’  Union, [1960]1 S.C.R. 476, T. Cajee  v.  U. Jormanik Siem and Anr., [1961] 1 S.C.R. 750, R. P. Kapur  v. Union  of India, [1964] 5 S.C.R. 431 and Balvantray  Ratilal Patel  v.  State  of  Maharashtra,  [1964]  2  S.C.R.   577, followed. State  of  West Bengal v. Nipendra Nath  Bagchi,.  [1961]  1 S.C.R.  771  and  The State of Punjab v.  Khemi  Ram,  Civil Appeal No. 1217 of 1966 decided on 6-10-1969, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION  Civil Appeal No. 990 of 1967. Appeal  from the judgment. and order dated November 3,  1966 of the Madhya Pradesh High Court in Misc.  Petition No.  514 of 1964. G.   L.  Sanghi,  P.  N. Tiwari, J. B.  Dadachanji,  O.  C., Mathurand Ravinder Narain, for the appellant. I. N. Shroff for the respondents. The Judgment of the Court was delivered by Hegde,  J. The appellant was a probationary Naib  Tehsildar. He had been appointed temporarily.  While he was working  at Bilaigarh  in  1961,  the Commissioner  of  Raipur  Division directed  an enquiry against him on as many as  13  charges. By this order dated August 3, 1961, the Commissioner  placed him  under suspension pending enquiry.  Sometime later,  the State Government taking the view that the enquiry ordered by the  Commissioner may not be legal, revoked his orders  viz. the  order  directing  a departmental  enquiry  against  the appellant as well as the order placing him under suspension. But  on  the  same day, it ordered  a  departmental  enquiry against  him  and  at  the  sametime  it  placed  him  under suspension pending that enquiry.  In this connection a  show cause notice was issued to the appellant on August 1,  1964. But  even before that show cause notice was issued, on  June 6,  1964,  the  appellant gave a notice  to  the  Government terminating  his  services.  After the issue of  the  afore- mentioned  show  cause notice, he moved the  High  Court  of Madhya  Pradesh  to  quash the orders passed  by  the  State Government  on  the  ground that as he was no  more  in  the service  of the Government, the Government cannot  take  any departmental action against him. The  State  Government  resisted that  ’application  on  two



grounds   viz.  (1)  the  order  of  the  State   Government suspending   the  appellant  during  the  pendency  of   the departmental  enquiry  amounted  to  a  suspension  of   the contract  of service and hence the appellant could not  have unilaterally  terminated  his services and  (2)  the  notice given  by  him  on June 6, 1964 was invalid as  it  did  not conform to the rules. 450 The  High  Court accepted the aforesaid contentions  of  the State  Government  and dismissed the writ  petition.   Hence this appeal by special leave. Mr.  Sanghi, learned Counsel for the appellant  pressed  for our acceptance the two contentions advanced on behalf of the appellant  before  the High Court.  He urged that  the  view taken  by the High Court both as to the effect of the  order of suspension made on May 7, 1964 as well as to the validity of  the notice issued by the appellant on June 6,  1964  are erroneous  in law.  According to him the impugned  order  of suspension  merely  forbade  the  appellant  from  rendering service  and  it  did  not amount to  a  suspension  of  the contract  of service.  As regards the notice issued  by  the appellant he urged that it was in accordance with rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi- Permanent Service) Rules, 1960 (in short ’Rules’). The  parties are agreed that the appellant was  a  temporary public  servant  at  the relevant  time.   His  service  was neither  made  permanent nor quasi-permanent.   It  is  also -admitted that the conditions of his service are exclusively governed  by  the ’Rules’.  Therefore to find out  the  true effect  of the order of suspension made on May 7,  1964,  we must look to those ’Rules’. Three  kinds  of  suspension are known  to  law.   A  public servant  may be suspended as a mode of punishment or he  may be suspended during the pendency of an enquiry. against  him if   the  order  appointing  him  or  statutory   provisions governing his service provide for such suspensions.   Lastly he  may  merely  be forbidden from  discharging  his  duties during the pendency of an enquiry against him, which act  is also called suspension.  The right to suspend as -a  measure of  punishment as well as the right to suspend the  contract of  service  during  the pendency of  an  enquiry  are  both regulated  by the contract of employment or  the  provisions regulating the conditions of service.  But the last category of  suspension  refer-,red to earlier is the  right  of  the master  to forbid his servant from doing the work  which  he had to do under the terms of the contract of service or  the provisions governing his conditions of service, at the  same time  keeping  in force the master’s obligations  under  the con-tract.     In other words the master may ask his servant to  refrain from rendering his service but he  must  fulfill his part of the contract. The legal position as regards a master’s right to place  his servants  under  suspension  is  now  well  settled  by  the decisions  of  this  Court.   In  The  Management  of  Hotel Imperial, New Delhi and ors. v. Hotel Workers’ Union(1), the question  whether a master could suspend his servant  during the pendency of an enquiry came (1)  [1960] 1 S.C.R. 476. 451 up  for  consideration by this Court.   Therein  this  Court observed  that it was well settled that under  the  ordinary law  of master and servant the power to suspend the  servant without  pay could not be implied as a term in  an  ordinary contract  of service between the master and the servant  but must  arise  either  from an express term  in  the  contract



itself or a statutory provision governing such contract.  It was further observed therein that ordinarily in the  absence of  such a power either in express terms in the contract  or under  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 the wages during the so  called 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 suspension  has the  effect  of temporarily suspending the  relationship  of master and the servant with the consequence that the servant is  not bound to render service and the master is not  bound to pay. The same view was reiterated by this Court in T. Cajee v. U. Jormanik  Siem and anr.(1). The rule laid down in the  above decisions was followed by this Court in R. P. Kapur v. Union of  India(2).   The  law on  the  subject  was  exhaustively reviewed   in   Balvantray  Ratilal  Patel   v.   State   of Maharashtra(-).  Therein the legal position was stated  thus :  The general principle is that an employer can suspend  an employee  of his pending an enquiry into his misconduct  and the  only question that can arise in such a suspension  will relate to the payment of his wages during the period of such suspension.   It is now well settled that the power to  sus- pend, in the sense of a right to forbid a employee 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 a power either as an  express term  in  the  contract or in the rules  framed  under  some statute  would mean that an employer would have no power  to suspend  an  employee of his and even if he does so  in  the sense that he forbids the employee to work, he will have  to pay  the employee’s 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.  It is equally well settled that an order of interim suspension can be passed (1)  [1961] 1 S.C.R. 750. (2) [1964] 5 S.C.R. 431. (3) [1968] 2 S.C.R. 577. 452 against.  the employee while an enquiry is pending into  his conduct even though there is no such term in the contract of employment 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.  The distinction between suspending  the contract  of a service of a servant and suspending him  from performing  the duties of his office on the basis  that  the contract is subsisting is important.  The suspension in  the latter  case is always an implied term in every contract  of service.   When an employee is suspended in this  sense,  it means  that  the employer,merely issues a direction  to  him that  he should not do the service required of him during  a particular period.  In other words the employer is  regarded as  issuing  an  order to the  employee  which  because  the contract is subsisting, the employee must obey. In  support of the decision of the High Court,  the  learned



Counsel  for the Respondent relied on the decisions of  this Court in the State of West Bengal v. Nipendra Nath Bagchi(1) and  The State of Punjab v. Khemi Ram (2) . He did not  rely on  the other decisions referred to in the judgment  of  the High Court.  Hence it is ,not necessary to examine them. In  Bagchi’s  case(1), one of the questions that  arose  for decision  was whether on the strength of rule 75(a)  of  the West  Bengal  Service Rules, an officer may be  retained  in service  even  after his superannuation for the  purpose  of holding a departmental enquiry against him.  This Court held that  the rule in question was not designed to be  used  for the  purpose  of retaining a person in service  for  enquiry against  him  but  to  keep in  employment  persons  with  a meritorious record of service who although superannuated can render  some more service and whose retention in service  is considered necessary on public grounds.  This decision  does not  bear on the point under consideration.  In Khemi  Ram’s case  (2)  the  impugned suspension order was  made  on  the strength  of  statutory rules governing  the  conditions  of service.   Hence this Court came to the conclusion that  the order of suspension in that case amounted to suspending  the contract of service. In  the  present  case,  the  ’Rules’  do  not  provide  for suspension during the pendency of an enquiry.  Therefore the impugned  order  of suspension cannot be. considered  as  an order  suspending  the  contract  of  service.   From   that conclusion  it  follows that when the appellant  issued  the notice  terminating  his  services  on  June  6,  1964,  the contract  of service was in force and it was open to him  to put (1)[1961] 1 S.C.R. 771. (2)  Civil Appeal No. 1217/66 decided on 6.10.1969. 453 an  end  to the same.  For the reasons mentioned  above,  we hold  that  the High Court erred in opining  that  the  true effect of the order suspension made by the State  Government on May 7, 1964 was to suspend the contract of service. This  takes us to the legality of the notice served  by  the appellant on June 6, 1964.  That notice was evidently issued under rule 12 of the ’Rules’.  That rule reads "12. (a) Subject to any provision contained in the order  of appointment  or in any agreement between the Government  and the temporary Government servant, the service of a temporary Government  servant  who is not in  quasi-permanent  service shall  be  liable to termination at ,any time by  notice  in writing  given  either  by the  Government  servant  to  the appointing  authority or by the appointing authority to  the Government servant Provided  that the services of any such  Government  servant may  be  terminated  forthwith by payment to him  of  a  sum equivalent to the amount of his pay plug allowance,, for the period of the notice; or as the case may be, for the  period by which such notice falls short of one month or any  agreed longer period : Provided  further  that the payment of allowances  shall  be subject  to the conditions under which such  allowances  are admissible. (b)  The  period  of such notice shall be one  month  unless otherwise  agreed between the Government and the  Government servant." There is hardly any room for dispute that the notice contem- plated by the main cl. (a) of rule 12 can be given either by the  Government  or  its temporary  servant.   The  rule  in question  specifically says so.  It is not necessary for  us in  the present case to decide whether the two  provisos  to



that  rule or cl. (b) thereof apply to a notice given  by  a government  servant.  The appellant has assumed  that  those provisions also apply to a notice given under that rule.  We shall  for the purpose of this case proceed on the basis  of that   assumption   and  see  whether  the   appellant   has satisfied the notice given by the appellant on that part  of the rule also. The material portion June 6, 1964 reads thus "Whereas the undersigned holds no charge this day and is not on  duty  and  intends  to  bring  the  termination  of  his employment with the Government of M.P. forthwith on  receipt of this writing and L7Sup Cl (NP)/70-4 454 Whereas as required by the service rules the undersigned  do hereby forfeit and relinquish his claim for one month’s  pay or  allowance  whichever is necessary.  Now  therefore  this notice  is  hereby  served as required under  the  rules  on receipt  whereof the relationship of employer  and  employee now  existing between the Government of Madhya  Pradesh  and the  under-signed shall cease to exist and consequently  all rights  duties. and obligations arising from and  under  the aforesaid relationship shall hereafter absolutely cease." This notice was received by the Government on June 9,  1964. In that notice, the appellant has unequivocally informed the Government  that  he has terminated his  services  with  the Government.    This  part  of  the  notice   satisfies   the requirements  of the main part of rule 12(a).  In that  very notice he has also intimated that any amount payable by  him to  the government under the provisos to rule 12(a)  may  be forfeited  from the amounts due to him from the  government. It may be noted that considerable amount must have been  due to  him  towards  his  salary  during  the  period  of   his suspension.   By his notice he intimated to  the  government that  the amounts due from him to the government  under  the provisos to rule 12(a) may be deducted from that amount.  We fail  to see how this notice is not in accordance  with  the requirements  of rule 12. In our opinion the High Court  was wrong in holding that the notice in question did not  comply with the requirements of the said rule. No  other  ground was urged on behalf of the  respondent  in support of the order of the High Court. From the above findings, it follows that ever since June  9, 1964,   the  appellant  was  not  in  the  service  of   the Government.  Therefore it was not open to the government  to take  any disciplinary proceedings against him.   Hence  the impugned  orders are liable to be quashed.   We  accordingly allow  this appeal and quash those orders.  No order  as  to costs. Y.P.                  Appeal allowed. 455