1. This is an application under Article 226 of the Constitution for a Writ in the nature of Certiorari for quashing an Order of Suspension dated 27th May 1950 passed by the Rent Controller, Calcutta.
2. On 22nd January 1945 the petitioner was appointed as Cashier at the Rent Controller's Office, Calcutta.
3. On 27th May 1950 the petitioner was suspended by the Rent Controller upon the accusation of the Registrar of the Office of the Rent Controller that the petitioner had defalcated a sum of Rs. 17,649-0-6. A formal complaint was also lodged against the petitioner at the Hare Street Police Station on that very day and the petitioner remained in Police custody till 7th June 1950 when he was released on bail by Order of the Chief Presidency Magistrate, Calcutta.
4. Thereafter the petitioner made representations for payment of his salary to the Rent Controller and it appears that a sum of Rs. 55 per month is being given by way of subsistence allowance from the date of suspension and the petitioner has been paid such allowance up to April 1951.
5. On 9th March 1951 a charge has been framed by the Presidency. Magistrate under Section 409, Penal Code for criminal breach of, trust in respect of a sum of Rs. 29,654-5-6 and the Criminal Proceedings are pending.
6. The: petitioner moved this. application and obtained a Rule Nisi on 18th May 1951.
7. The main contention of the Learned Counsel for the petitioner is that the Order of Suspension was passed without giving the petitioner a reasonable opportunity of showing cause against the action proposed to be taken, against him and so the Order is bad as it has been made in violation of the provisions of Article 311(2) of the Constitution of India.
Article 311 (2) is as follows :
'No such person as aforesaid shall be dismissed or removed or reduced is rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'
8. It is submitted by the learned counsel for the petitioner that the suspension of the petitioner amounts to reduction in rank within the meaning of Article 311(2) and therefore the petitioner should have been afforded the opportunity of showing cause as contemplated by the Article.
9. Reliance is placed on a decision of the Nagpur High Court reported in Provincial Govt. C. P. & Berar v. Shamsul Hussain, A. I. R. 1949 Nag. 118 in which Vivian Bose J. has held that 'When a man is suspended he is in our opinion reduced in rank.' The learned Judge has given his reasons for his conclusion at p. 120 of the Report. (para. 12). With great respect to the learned Judge I am unable to agree with that decision.
10. The dictionary meaning of 'Suspend' is 'to debar usually, for a time, from any privilege, from the execution of an Office or from the enjoyment of an income.' It is temporary privation of office, or privilege. By reason of suspension the person suspended does not lose his office nor does he suffer any degradation. He ceases to exercise the powers and to discharge the duties of the Office for the time being. His rank remains the same and his pay does not suffer any reduction. He cannot draw his salary during the period of suspension. His powers, functions and privileges remain in abeyance but he continues to be subject to the same discipline and penalties and to the same Authorities. It appears to me that the learned Judges of the Nagpur High Court have put a strained construction on the words 'reduced in rank' as occurring in Section 240(3), Government of India Act, 1935. It is no doubt true that the person is brought down to an inferior condition for the time being but in my view the expression 'reduced in rank' in Article 311(2) has reference to permanent reduction or degradation of status. (See Section 7, Police Act (Act V (5) of 1861) which draws distinction between Suspension and Reduction).
11. It was contended by the Learned Counsel for the petitioner that an Order of suspension can be validly made only by the Authority making the appointment but as in the present case the Rent Controller did not appoint the petitioner but the Provincial Government- of Bengal appointed him, the Order of suspension made by the Rent Controller was bad.
12. Although the Order of the Rent Controller is being challenged specifically in the present proceedings the Rent Controller has not been made a party. The Rent Controller has however affirmed an affidavit for the Respondent and it is stated that the petitioner had been appointed by the then Rent Controller and So the Rent Controller is the appointing authority. The petitioner on the other hand maintains that he has been appointed by the Provincial Government. Bub sufficient materials have not been placed before me to enable me to come to any definite conclusion. The Bond of Indemnity, the relevant portion whereof has been set out in the petition shows that the petitioner undertakes to indemnify the Governor and/or the Rent Controller. The Respondent's Counsel placed before me a few documents which also do not satisfactorily clarify the position. The entire records in connection with the petitioner's service have not been produced before me.
13. If the Rent Controller is really the appointing authority then even in the absence of any express power conferred upon him to suspend an employee, he has such power by virtue of Section 16, General Clauses Act 1897. If he is not the appointing authority then he has no power to suspend. According to the ordinary law of Master and Servant there is not implied power in the Employer to punish a servant by suspension, the power must be express, and if in exercise of such an express power a servant is suspended by his master the effect of the order of suspension is to suspend the contract of service as a whole and the Servant can neither insist on working nor claim his pay during the period of suspension: Secy, of State v. Surendra Nath, I. L. E. (1939) 1 Cal. 46. If however he is subsequently dismissed: he is entitled to his pay for the period of suspension: Warburton v. Taff Vale Railway Co. (1902) 18 T. L. R. 420. So also if the suspension order is withdrawn he is entitled to his pay for the period of suspension.
14. In the present case whether the appointing authority was the Rent Controller or the Provincial Government it is clear that the Order of suspension made by the Rent Controller has the full approval and sanction of the Provincial Government. The facts stated by the petitioners in paras. 14, 17 and 21 of the petition make the position clear. In the circumstances the Order off Suspension cannot be declared to be invalid.
15. It may also be noted that the petitioner has been guilty of unreasonable delay in making this application. The order of suspension was made on 27-5-1950 but this application was not moved till 18-5-1951.
16. It appears from the affidavit in opposition of the Rent Controller that he has made certain positive assertions in his affidavit especially in paras. 9 and 18. This kind of statement made by a responsible public Official when the matter is sub judice before the Criminal Court is absolutely unwarranted. The deponeno should have been more guarded in his expressions.
17. In my view this petition must fail. The Rule is accordingly discharged with costs.