1. This is an appeal against an order of a learned Judge dated the 16th October, 1959, dismissing a petition under Article 226 of the Constitution.
2. The facts necessary for the purposes of this appeal can be stated very shortly. The appellant was appointed the executive officer of the respondent Municipal Board in the year 1931. In 1958 the President of the Board held an enquiry into charges which he had framed against the appellant under Section 69-A of the U. P. Municipalities Act, 1916, on the 23rd September, 1958. On the 27th November, the President pursuant to Sub-section (4) of that section submitted the record of the enquiry with his recommendations to the State Government. On the 23rd May, 1959, the State Government made the following order:-
''On a perusal of the enquiry report, submitted by the Ex-President, Municipal Board, Hapur, under Sub-section (4) of Section 69-A of the U. P. Municipalities Act, 1916, the charges framed by him against you, are, prima facie, quite serious and for a proper consideration of the said report of the Ex-President on these charges, it is necessary to suspend you. The Governor has accordingly been pleased to order that you shall be suspended with immediate effect and you are hereby suspended till further orders.'
It is the validity of this order which is in question in this appeal.
3. It is common ground that the U. P. Municipalities Act (hereinafter referred to as the Act) contains no express provision empowering the State Government to suspend an executive officer of the Board pending the consideration of the record of the enquiry and the President's recommendation submitted to it under Section 69-A (4), but the learned Judge was of opinion that such a power must be implied as being necessary for the purpose of enabling the State Government to perform the duties imposed on it by that sub-section which is in these terms:-
'69-A (4). After the inquiry is completed, the President shall submit the record with his own recommendation to the State Government or to the Board as he may consider fit. The State Government or the Board, as the case may be, shall thereupon, notwithstanding anything contained in Sub-section (1) of Section 58 or 67 or 69, proceed to consider the report and may, after such further inquiry as it may deem necessary, punish, dismiss, remove or exonerate the Executive officer or the Secretary or such other officer to whom Section 69 applies, as the case may be.'
The argument for the appellant is that an examination of the Act shows that whenever the legislature intended that an authority should have the power of suspension it took care to make express provision to that effect, and that accordingly where the legislature has not expressly conferred a power of suspension upon the State Government, the inference is that it did not intend it to have that power. For the respondents it is contended, first, that the power to hold an enquiry implies the power to suspend pending the enquiry, secondly that as the State Government had the power to dismiss the appellant it has the implied power to suspend him while it is deciding upon its course of action and, thirdly, that as the State Government in the present case is the appointing authority it has a statutory power to suspend under Section 16 of the U.P. General Clauses Act.
4. Now it is desirable at the outset to be clear as to the precise nature of the suspension which it is claimed that the State Government has the power to impose. Suspension in ordinarily of two kinds, namely suspension as a punishment and suspension pending enquiry. We are concerned here only with the suspension pending enquiry. That suspension may however also be of two kinds, for a distinc-tion must be drawn between suspending an employee from service and suspending him from Performing the duties of his post or office. If there is a contract of service in the strict sense, the first kind of suspension involves the suspension of the contract, while the second involves only a suspension of the employee from the performance of his duties on the basis that the contract is subsisting, (see the judgment of Ramaswami, J., in Gurudeva Narayan Srivastava v. State of Bihar, (S) AIR 1955 Pat 131 at p. 134.
5. We think that there can be no doubt that the order of suspension made by the Government in the present case is of the first of these kinds. Under the U. P. Fundamental Rules (which admittedly apply in the absence of any rules framed under the Act) the order operates, if it operates at all, as suspension from service and while it is in force the employee draws no salary but receives in lieu thereof a subsistence grant.
6. The basis of the implied power which is claimed by the State Government is necessity: it is argued that a power to suspend the appellant must he possessed by the State Government if it is to carry out properly the duties imposed on it by Sub-section (4) of Section 69-A of the Act. Now these duties are to consider the President's report, to hold such further inquiry as it may deem necessary and thereafter to pass an order punishing, dismissing, removing or exonerating the officer concerned.
We agree that it may in some cases be desirable that during the time the report is under consideration by the Government the officer whose conduct is under investigation should be debarred from the Performance of any of his official duties; but this object can admittedly be achieved by the Board at the request of the State Government directing him not to attend his office or to perform his duties. In other words, he can be suspended from duty without being suspended from service.
We can therefore see no adequate ground for holding that it is essentially necessary in the phrase used by Maxwell (Interpretation of Statutes, 10th Edn. page 361) -- to enable the State Government to comply with the provisions of Section 69-A (4) that it should have the power to suspend the officer in the sense of suspending him from service. The argument founded on necessity in our opinion fails.
7. A specific power of suspension is vested in the State Government under Sections 40 (5), 48 (3), 158 (2) and 69 (2) of the Act. Sub-section (5) of section 40 empowers the State Government to suspend a member of a Municipal Board against whom pro-cedings have been commenced for his removal from the Board on the ground that he has so flagrantly abused his position as to render his continuance as ;i member detrimental to the Public interest. Sub-section (3) of Section 48 similarly empowers the State Government to place under suspension the President of a Board whom it is proposed to remove on the ground of gross misconduct in the discharge of his duties.
Sub-section (2) of See. 58 and sab-section (2)' of Section 69 empower the State Government to suspend respectively an Executive officer and an officer appointed under Section 68 of the Act pending the disposal of an appeal to it from a special resolu-tion of the Board finally dismissing or removing the officer concerned. Whenever express, powers of suspension have been given to, the State Government those powers, in the case of officers of the Board, are restricted to suspension Pending the disposal of appeals to the State Government, and it is we think reasonable to infer that it was the intention of the legislature that the State Government should not have a power of suspension in other cases.
8. An effective answer to the second conten-tion that the power of suspension is implied in the Power of dismissal is provided by the recent decision of the Supreme Court in Management Hotel Imperial, New Delhi v. Hotel Workers' Union, AIR 1959 SC 1342 in which it was laid down that the general power of a master to dismiss his servant does not necessarily include a power of suspension. It was however urged on the basis, of that decision that while the Government was considering the report and recommendation of the President it should be deemed to have had an implied power of suspension.
In that case the Supreme Court held that the ordinary law of master and servant under which a master cannot (in the absence of a provision in the contract to that effect) suspend an employee in the sense of depriving him both of the opportunity to work and to receive his pay must be deemed to have been modified in view of Section 33 of the Industrial Disputes Act, 1947. That section provides that no employer can, during the pendency of any conciliation proceeding before a labour Court or Tribunal Or National Tribunal in respect of an industrial dispute dismiss an employee without the express permission in writing of the authority before whom the Proceeding is pending.
The Supreme Court held that a term must be implied in the contract of employment that if the master has held a proper inquiry and come to the conclusion that the servant should be dismissed, and in consequence suspends him Pending the permission required under Section 33, he has the Power to suspend the contract of employment temporarily so that there is no obligation on him to pay wages and no obligation on the servant to work. The reason for the Court so holding was that
'The undisputed common law right of the master to dismiss his servant for proper cause has been subjected by Section 33 to a ban; and that in fairness must mean that pending the removal of the said statutory ban, the master can after holding a proper inquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under Section 33.'
In our opinion this decision is of no assistance to the respondents. The modification of the common law of master and servant was held by the Supreme Court to follow upon the enactment of certain legislation. There is nothing corresponding to this in the present case. The entire law is statutory, and we can find no parallel between the two cases. Unlike the case of an employer it is not necessary for the Government to wait for the decision of any one else before it finally decides under Section 69-A.
9. Finally it was urged that as the appellant was appointed by the State Government the latter had the power to suspend him, by virtue of section 16 of the U. P. General Clauses Act. We find no force in this contention. It is unnecessary to consider the nature of the suspension for which provision is made in Section 16 for in our opinion that section can have no application as the State Government was not the appointing authority. Section 57(1) of the U. P. Municipalities Act provides that every Board shall, unless the State Government otherwise directs, appoint an Executive Officer by special resolution. Sub-section (3) of that section then provides that
'The appointment, salaries and conditions of service of executive officers and medical officers of health shall be subject to the approval of the State Government.'
This Court in Moliammad Ali v. State of Uttar Pradesh, AIR 1958 All 681 has held that when a person is employed under a power the appointment holds good so long as the Government has not disapproved it. At the most, therefore, it can be said that the appointment of the appellant is made jointly by the Municipal Board and the State Government and it is impossible to hold that the State Government, merely because it possessed the power of disapproval, was the appointing authority. In the result therefore we are of opinion that this appeal must be allowed. The order of the learned Judge dated the 16th October. 1959 is set aside, and a writ in the nature of certiorari will issue quashing the order of the State Government dated the 23rd May, 1959. The appellant is entitled to his costs both in the writ petition and this appeal.