# BALVANTRAY RATILAL PATEL v. THE STATE OF MAHARASHTRA

- **Citation:** [1968] 2 S.C.R. 577
- **Court:** Supreme Court of India
- **Decided:** 1967-12-12
- **Case number:** Civil Appeal No. 442 of 1965
- **Bench:** J.C. Shah, V. Ramaswami, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balvantray-ratilal-patel-v-the-state-of-maharashtra-4241
- **Pages:** 12

## Headnote

577
Pow.er to suspend employee during enquiry-Scope of-Wh.'!ther !mp/uyee entitled to full remuneration during period of suspension or as
determined under Rules 151 and 152, Chapter VIII, Bombay Civil Service
Rules.
The appellant was a member of the State Medical Service and as such .
an employee of the responde'llt 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' !950, he wits suspended by an order of the Chi! Surgeon pending fur•
tber 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 rospondent 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 resoondent under s. 80 of the Civil Procedure Code and then filed a
s"Jit ag8.!nst the respondent praying for a declaraf on that the order of suspensioo v1as illegal a!ld inoperative in law and the apPellant continued in
service as thcugh no order for suspension had been made; he therefore
claime<\ remuneration and allowances
w:~h usual increments
from tlte
date of his suspension till the date of his re-instatement. A Single Bench
of the High Court decreed the suit in the appellant's faYour but a Division
Bench allowed an appeal and held that the respondent
had
inherent
power :o suspend the appellant and to withhold full remuneration for the
period of suspension undtr r. 151 of the Bombay Civil Service Rules.
In the appeal to this Coun it was contended, inter a/ia, on behalf of
the appellant (i) that the power to suspend is not an implied term in an
ordinary contract between ffiaster 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 provi ..
•ion 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 misi:onduct; and (ii) as the appellant was suspended pending an inquiry into the charge for the criminal offence alleged
lo have been committed by him and as the proceedings in connectfon with
thlit 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
antomatically come to an end on that date and the appellant was entitled
to full pav from then until February 11. 1960 when he wa5 ultimately
dismissed.
HELD :
dism.issin~ the appeal :
(i) The order of the State Government dated
February 13,
1950.
suspending the appellant pending enquirv
into his conduct
was valid.
[586 BJ
.
L2Sup.C.1/"' 8-6.
578
SUPREME COURT REPORTS
[1968] 2s.c.R
The general principle is that a employer can suspend an employee
A
pendrng an enqu.ry •mo his misconduct and the only questi0n that caa
~
tn. such s~spcns1on v.·ilJ relate le;> payment during the period of such
suspen~1on. It is .no"'· y,elJ-s·.!ttlcd that the power to suspend, in the sen&e
of a ngbr 0:0 f\Jrb1d a servant to work, is not an implied term in an ordinary contract bct~·.ccn master and servant, and that such a power can only
be the. creature ettncr nt a statute governing the contract, or of an cxpre~
term ID . the contract it.self.
Ordinarily, therefore, the absence of such
Power either as an express term in the contract or in the rules framed
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under some statute would mean that the master would have no pawer
to suspend a workman and even if he does so in the sense that be fo

## Text

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BALVANTRAY RATILAL PATEL
v.
THE STATE OF MAHARASHTRA
December 12, 1967
[J.C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.]
577
Pow.er to suspend employee during enquiry-Scope of-Wh.'!ther !mp/uyee entitled to full remuneration during period of suspension or as
determined under Rules 151 and 152, Chapter VIII, Bombay Civil Service
Rules.
The appellant was a member of the State Medical Service and as such .
an employee of the responde'llt 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' !950, he wits suspended by an order of the Chi! Surgeon pending fur•
tber 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 rospondent 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 resoondent under s. 80 of the Civil Procedure Code and then filed a
s"Jit ag8.!nst the respondent praying for a declaraf on that the order of suspensioo v1as illegal a!ld inoperative in law and the apPellant continued in
service as thcugh no order for suspension had been made; he therefore
claime<\ remuneration and allowances
w:~h usual increments
from tlte
date of his suspension till the date of his re-instatement. A Single Bench
of the High Court decreed the suit in the appellant's faYour but a Division
Bench allowed an appeal and held that the respondent
had
inherent
power :o suspend the appellant and to withhold full remuneration for the
period of suspension undtr r. 151 of the Bombay Civil Service Rules.
In the appeal to this Coun it was contended, inter a/ia, on behalf of
the appellant (i) that the power to suspend is not an implied term in an
ordinary contract between ffiaster 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 provi ..
•ion 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 misi:onduct; and (ii) as the appellant was suspended pending an inquiry into the charge for the criminal offence alleged
lo have been committed by him and as the proceedings in connectfon with
thlit 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
antomatically come to an end on that date and the appellant was entitled
to full pav from then until February 11. 1960 when he wa5 ultimately
dismissed.
HELD :
dism.issin~ the appeal :
(i) The order of the State Government dated
February 13,
1950.
suspending the appellant pending enquirv
into his conduct
was valid.
[586 BJ
.
L2Sup.C.1/"' 8-6.
578
SUPREME COURT REPORTS
[1968] 2s.c.R
The general principle is that a employer can suspend an employee
A
pendrng an enqu.ry •mo his misconduct and the only questi0n that caa
~
tn. such s~spcns1on v.·ilJ relate le;> payment during the period of such
suspen~1on. It is .no"'· y,elJ-s·.!ttlcd that the power to suspend, in the sen&e
of a ngbr 0:0 f\Jrb1d a servant to work, is not an implied term in an ordinary contract bct~·.ccn master and servant, and that such a power can only
be the. creature ettncr nt a statute governing the contract, or of an cxpre~
term ID . the contract it.self.
Ordinarily, therefore, the absence of such
Power either as an express term in the contract or in the rules framed
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under some statute would mean that the master would have no pawer
to suspend a workman and even if he does so in the sense that be forbids
the employee to work, be will have to pay wages during the petiod of su•-
pension.
Whc~e. 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 tempararily suspending the relationship of
master and ser.,.ant with the consequence that the servant is not bound to
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render service and the m.Ster is not bound to pay. [582 D-0; 583 C-DJ
It is equally well«ttled that an order of interim suspension can be
passed aaainst 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 entiUed 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 ID notice the Pi&-
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tinction ·between suspending the contract of service of an officer . .alfd suspeoding an officer from perfocming the duties of bis office QI\ th" basis tbal
the contract is subsisting. Tho.suspension in the l..:ter ·sense is always an
implied term in e-very contract of service.
Whee an officer ic;, suspended
in this sense it means that the Government men!ly issues a direction to
the officer that so long as the contract is subsisting and till the time the
officer is legally dismissed he mttSt not do anything in the discharge of the
duties of his office.
In •>!her words, the employer is regarded as issuing
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•n order to the em!Jloyee which, because the contract is subsisting, the
employee must obey. [582 H; 583 A.(;)
T~ 'Management of Hotel lm.,rid, New Delhi v.
Hotel
'!'orkerJ'
Union. [1960) 1 S.C.R. 476. T. Cajee v. U. Jormanik Siem, [1961) I S.C.R.
750; R. P. Kapur v. Union of India. [1964] 5 S.C.R. 431; Hanley v.
Pease & Partnrr!, Ltd. [1915] 1 K.B. 698; Wallwork v. Fieldinf?, [1922]
2 K.B. 66; Boston Deep Sea Fishing and Ice Co. v.
Ansell, [1888] 39
F
Cb. D. 339, referred to.
If there is no express term relating to payment during such suspension
or if there is no statutory provision in anv enactment or rule the employet:
is. entitled to his full remuneration for the period of his int~m •1ll>pension. [583 G-HJ
However, in the present c"'e Rule l~I of the Bombay Civil Ser•1ce
Rules empowered the State Government to withhold pay for the period
of interim suspension but the GO'o·emment servant was entitled under that
rule to a subsistence allowance at such rate as the suo;;pendiag authority
mav direct but not exceedinR one-fourth of bis pay. There was no force
in ihe contention that Rule 151 of the Bombay Civil Serfice Rules applies
onlv to a cas.e where a Government servant is ~uo;pended bv way of penalty
and not .:o a caoe of interim suspension. [585 DJ
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
die appellant should be suspended with immediate effect "pendin~ further
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B. R. PATEL v. MAHARASHTRA (Ramaswami, J.)
579
orders". It is clear therefore that the order could not be terminated automatica!ly but only by another order of the Government.
Uru:il 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 HJ
Narayan Prasad Rewany v. State of Orissa, A.l.R. 1957' Orissa 51, distinguished.
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.
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H. R. Gokhale, P. N. Duda, and J. B. Dadachanji, for the
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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 the
judgment of the Bombay High Court dated August 10, 1961 b1y
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,
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 MedicoLegal Section of that hospital.
On January 19,
1950, one
Nabimaltomed 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 InspectorGeneral 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 tbe Insp~ctor-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 Surreon-General alleging that he hnd been falseh·
580
SUPREME COURT REPORTS
[ 1968] 2 S.C.R ·
implicated by the Anti-Corruption Branch of
the Police and
asking him to c~nsider the representation before giving his sanction for prosecut10n 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
men:ioned in the Sub-Inspector's report orders may be issued for
placmg the appellant under susp~nsion. His recommendation was
approved by the Minister for Heal1h and by the Chief Min:s1er.
By a let'.er 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 da·ect February 16, 1950 that the
appellant
should be placed under suspens:on 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, Ahmedabarl, bsued 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 16th February, 1950, you are
informed that you arc suspended pending further orders
with effect from the af:ernoon 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 su pension February 19, 1950 to March
31, 1950, at Rs. 158-13-0 per menscm from April I, 1950 to
February 18, 1951 and at Rs. 119-2-0 per rnensem 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 smpcnsion. On May 6, 1950 sandon was given
for the prosecution of the appellant under s. 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 imprisonmen• 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
convic•ion 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.
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B. R. PATEL v. MAHARASHTRA (Ramaswami, !.)
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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 ~pplication 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 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 entiiled to salary and
allowances upto the date when he was dism'ssed 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 tho~h no order
of suspension had been made. He also granted a decree directing
the respondent to pay to the appellant Rs. 51,135.28 wi$ interest
on Rs. 43,223/- at the rate of 4 per cent p.a. and the cost of the
suit. The responden! 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 Ser;vices Rules.
The Appellate Bench
therefore held that the order of suspemion 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 ~he rules so far as the withholding of pay during
enquiry against his conduct was concerned. The Appellate Benell
also held that the suit was barred under Article 14 of the Schedule
to the Indian Limitation Act. For these reasons the Appellate
Bench all"wed the appeal, set aside the decree passed by the trial
582
SUpREME COURT REPORTS
[ 1968] 2 5.C.R
Judge and dismissed the suit and ordered the appellant to pay
four-fifths of the costs of the respondent throughout.
The tirst question to be considered in this appeal is whether
Government had the power to suspend the appellant by its on.Jer
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 i.mplicd term in an ordiriary 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 th.e 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 arc unable to accept the argument put forward on
hehalf 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 llotel Imperial, New Delhi v. Hotel Workers'
Union,(') T. Caiee v. U. Jormanik Siem,(') and R. P. Kapur v.
Union of India('). It is now wcll-sct!led 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
~overnin~ the contract, or of an express term in the contract itself.
Ordinarily, therefore, the absence of such power either
as an
express tcnn in the contract or in the rules framed under some
statute would mean tha: the ma;t.:r would have no power to suspend a workman and even if he dck:S so in the sense that he forb'ds
the employee to work, he will have to pay wages during the period
of sw;pension.
Where. however, there is power to suspend either
in the contract of employment or in the statute or the rules framed :hereunder, the order of suspemion has the effect of temporarily suspending the relationship of master and servant with the con-
'cqucncc that the servant is not bound to render service and the
master is no: bound to pay. This principle of law of master and
servant is well-established: (S::e Hanley v.
Pease
&
Partners,
Ud.,(1) Walli<'ork v. Fieldin1d') and the judgment of Cotton.
L. J. in BosMn Deep Sea Fish inf? and Ice Co. v. Ansell)('). It
is equally well-settled that an order of interim suspension can be
passed a~ainst the employee while an inquiry is pending into his
conduct even though there is no such tenn in the
contract of
appointment or in the rules, but in such a case the employee would
(ll !1960] I S.C.R. 476.
(1\ 11061] I S.C.R. 75,1.
(Jl [19641
S S.C.R. 4)1.
(41
1191 SJ I K.ll. 698.
(S)
J19221 2 K.B. 66.
(6)
118881 39 Ch. D. 339.
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B. R. PATEL v. MAHARASHTRA (Ramaswami. /.)
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 o'.her 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 suspend 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 anrl 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 Gvernment must be held to be the authori~ whieh
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 eventua!Jy 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 tOO 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. lt may
suspend any public servant pending. departmental enquiry or
pending criminal proceedings; this may be called interim suspension. The Governmen! may also proceed to hold a departmental
enquiry and after his being found guilty order suspension as a
584
SUPREME COURT REPORTS
[1968) 2 S.C.R.
punishment if the rules so permit. This will be suspension as a
penalty. As we have already pointed out, the question as to what
amoun'. should be paid to the public servant during the per:od 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 Rule;.
These rules provide as follows:
"151. A Government servant under suspension is
entitled to the following payments :-
(a) In the case or a military officer who is liable to
reven to m'Jitary duty, to the pay and allowances to which he would have been entitled
had he been suspended while in
military employment.
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(b) In any other case, to a subsistence grant at such
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rates as the suspending authority may direct,
but not exceeding one-fourth of the pay of the
suspended Government servant.
Provided thcll the suspending authority may direct
that !he Government servant under
suspension
shall
bc granted in addition such compensatory allowances
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as the Government may sanction by general or special
order for issue under th:s proviso.
Note !.-The grant of subsistence allowance cannot
altogether be withheld."
"152. When :he 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 reinstat.~d, the rev:sing or appcliate authority may grant to
him
for the
period of his absence <from du:y-
( a) if he is honourably acquitted, the full pay
to
which he would have been entitled if he had not
been dismissed, remov.ed or suspended and, by
an order :o be separately recorded any allowance of which he was in receipt prior to his disnfrs~tl, removal or suspension; and
(b) if otherwise. such proport;on of suci1 pay and
allowances a> the revising or appel!Jte au1hority
may prescribe.
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B. R. PATEL v. MAHARASHTRA (Ramaswami, J.)
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 treated as a period spent on duty unless the revising or appellate authority so direct. ....... Note 2Under this rule the revising or appellate authority can
·:onvert 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 inter:m suspension. We
see no warrant for accepting this argument: Suspension is used
in Rule 151 in a general sen°e 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 1 eason, 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
pend;ng
a
departmental
inquiry or a criminal proceed;ng.
Rules 153 and 156 state as
follows:
"15 3. 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 climinal charge should be considered as under suspension f·.om ·he date oE his arrest
and therefore enfrled only to the payments sp.ecified in
Rule l 51 until the termination
of
the proceedings
against him when, if he is not removed or dlsmis 1ed 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 impr'sonment was for
debt, of its being proved that the Government servan"s
liability aro0e from circumstances beyond his control."
lf the word "suspension" in Rules 153 and 156 contemplates suspension pending an inquiry we see no reason why it should be
5 8 (j
SUPREME COURT .llEl'ORTS
(1968] 2 S.C.R.
given a different ;n1crprcta'.ion in Rules 151 and 152.
We arc
Jccordingly of the opinion that Ruic 151 cmrowers the State Government 10 witW1old pay for the period of interim suspension but
the Governmen• sen·ant is entitled under that rule to a subsistence
allowance at such rate as the suspending authority may direct but
not cxccedin~ one-fourth of his pay. It follows therefore that the
order of !he S'.ate Government dated February 13, 1950 suspending !he appellant pending enquiry into his conduct was
legally
valid and the argument of the appellant on this asJ?CCt of the ea!e
must be rcjecred. The view that we have expressed is supported
by the ratio of the principle of the decision of this Coun in R. P.
Kapur v. Union of India(').
The question in that case al'05e
with regard to the interpretation of Fundamental Rule 53 which
provided for payment to a Government servant under suspension
and which states as follows :
"53 (l). A Government servant under suspension
shall be entit~d 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;
(ii) in the case of any oth.:r Government servantA
8
c
D
( a) a subsis'encc allowance at an amount equal to
E
!he leave salary which the Government servant
would have drawn if he had been on leave on
half J\erag.e pay or on half pay and in addition.
d"arness 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
compe!cnt to vary the amount of subsistence allowance.
for any period subsequent to the period of the first
twelve mon'.hs as follows :-
"
Fundamental Rule 54 is lo the following effect:
"54 (I) When a Government servant who has been
dismissed, removed. compulsorily retired or suspended !s
re-instated or would have been re-instated but for his
retirement on superannuation while under suspension.
!he aurhority compe'ent to order the re-instatement shall
consider and make a specific order-
( I) (1964) 5 S.C.R. 431.
F
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B
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B. R. PATEL v. MAHARASHTRA (Ramaswami, J.)
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 treateci
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
havtl 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 ii
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 similat
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 Rulps 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 1he Governtnent servant concerned or
criminal proceeding against him.
We proceed to consider the next question arising in this case
i.e:, whether the order of suspension ~ame 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 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. We see no justification for accepting this argument.
The order of suspens'on
dated February 19, 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
SUPREME COURT REPORTS
[1968) 2 S.C.R
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 v. State of
Orissa(').
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. l, 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 t.'ie 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 relevance.
We are therefore of the opinion that tl:e 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 Cour'. and Counsel for
the appellant is unable to make good his submission 011 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 jl'dgm~nt
of the Bombay High Court dated Augus• 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 cost~
of this Court.
R.K.P.S.
Appeal dismissed.
(I) ,\.I.R. 1957 Orissa 51.
A
B
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