JUDGMENT
N. Pandey, J.
1. The salient and meaningful question which arises for determination in this reference to the Full Bench may be formulated in the following terms:
Whether in absence of any statute or rules, framed thereunder or any express term of contract of employment, an employee of the Bihar State Board of Religious Trust (in short ‘the Board’) can be placed under interim suspension and whether in such a situation such employee can legitimately be entitled to full remuneration or part of it as per different provisions, prescribed for the employees of the State Government?
2. In view of the legal issue, noticed above, the briefest reference to the facts would suffice our purpose. The petitioner at the relevant time was serving as Clerk in the office of the Bihar State Board of Religious Trusts. By means of this application under Article 226 of the Constitution, he prayed for quashing of the order of the Administrator dated 22.10.1992 (Annexure-1), whereby, he was placed under suspension in contemplation of a departmental proceeding with relation to certain charges.
3. A prayer has also been made for a direction to the respondents to make payment of entire remuneration for the period, the petitioner was under suspension. A stand has been taken that in absence of any provision under the Bihar Hindu Religious Trust Act (in short ‘the Act’) and its bye-laws or a specific notification or resolution, adopting Rules applicable to the Government servants, the order of interim suspension is illegal and without jurisdiction.
In alternative it has been urged even it is held that the Board is competent to suspend its employees in contemplation of a departmental proceeding, in absence of any specific provision for payment of subsistence allowances, the petitioner would be entitled for total remuneration for the period, he was under suspension.
4. It appears when the case was initially taken up before a Division Bench, a reliance was placed on behalf of the petitioner to an unreported decision of this Court in C.W.J.C. No. 6505 of 1989 Kapildeo Upadhayay v. Bihar State Board of Religious Trust and Ors. That was also a case of suspension with respect to an employee of the Board. Having noticed that there was no provision with the Board to pay only subsistence allowance during the period of suspension, the Court while quashing the order of suspension, directed the Board to pay full salary for the period of suspension.
5. Learned Advocate appearing for the Board pointed out that in that case except bye-laws Nos. 39 and 40, the provision of Section 26(2) of the Act was not brought to the notice of the Court, which empowers the Board and its authority to suspend an employee or to take any disciplinary action, including interim suspension. It is in these backgrounds this case was referred to a larger Bench.
6. Undisputedly under the common law suspension against an employee can be imposed in the following circumstances; namely, where a disciplinary proceeding against an employee is contemplated or pending or a case of any criminal offence is under investigation, inquiry or trial or by way of punishment with relation to certain charges of criminal or civil nature.
7. It has already been notices that in the present case admittedly the petitioner was placed under suspension in a contemplated disciplinary proceeding. Therefore, in these backgrounds I would like to examine the relevant provision of the Act and bye-laws to find out whether the Board or its authorities have jurisdiction to pass an order of suspension in contemplation of a departmental proceeding.
8. Section 26(1) of the Act empowers the Board to determine the service condition of its officers and servant. Sub-Section (2) gives a power to the Board to make appointment, promotion, leave or to take disciplinary action including suspension, dismissal etc. It would be apt to notice the relevant provision in extenso:
26. Appointment of officers and servants–(1) The Board may, from time to time, determine the number, designations, grades and scales of salary and other conditions of service of its officers and servants.
(2) The power of appointing, promoting and granting leave to such officers and servants and of reducing them in rank or suspending or dismissing them and of dispensing with their services shall vest in the ‘President:
Provided that — XXX XXX XXX XXX
9. The Board has also framed bye-laws in exercise of its power conferred under Section 83 of the Act. In terms of bye-laws 38 certain class of employees, shall be entitled to the cost of living allowance on the scales admissible to similar class of officers and servants of the State Government. Bye-laws 40 prescribes a procedure for conducting inquiry and imposition of substantive punishment against the employees.
10. From a bare reference to the provisions as noticed above, there appears no doubt that the Board of its authorities have got power under the relevant Act to suspend its officers and servants.
11. Mr. Ojha learned Counsel appearing for the petitioner also fairly agreed that in view of specific provision, enumerated under Section 26(2) of the Act, the Board has jurisdiction to pass an order of suspension. He also accepted that an order of interim suspension can be passed against an employee, while an inquiry is pending into its conduct, even though there is no such terms in the contract of appointment or in the relevant rules, but in such a case the concerned employees shall be entitled to his full remuneration for the period of suspension, if there is no provision under the statute or rules under which it can be withheld. He contended admittedly no statutory rule or bye-laws has been framed by the Board, nor the provision of Bihar Service Code were adopted, so as to justify its stand to pay only subsistence allowance during pendency of the departmental proceeding therefore, in such a situation, the petitioner will be entitled to his full remuneration and other emoluments for the period of suspension.
12. Mr. Mishra learned Counsel appearing for the Board, could not point out any specific provisions, justifying that for the period of suspension the petitioner would only be entitled for subsistence allowance, as it is available to the employees of the State Government, in terms of Rule 49(a) of the Civil Services (Classification, Control and Appeal) Rules or 96 of the Bihar Service Code. However, while referring the provisions of bye-laws 38, he submitted that employees of the Board are also entitled for the cost of living allowance on the scales admissible to similar class of officers and servants of the State Government. According to him, “cost of living allowance”, as indicated in bye-law 38 includes the payment of subsistence allowance in a given case. He further contended that a proposal was already submitted by the Board to the Government in the year, 1985 to approve necessary amendments with regard to the pension rules as also to adopt any other provision prescribed under the Bihar Service Code.
13. But unfortunately bare reference to by laws 38, as well as the alleged proposal before the Government, would show that no provision has been prescribed for payment of subsistence allowance. The cost of living allowances on the scales admissible to the employees is altogether different to that of subsistence allowances payable to the employees during suspension.
14. In the case of Kapildeo Upadhyay also this was noticed that neither any rule was framed by the Board to adopt the provisions of Bihar Service Code not there was any statute or rule, framed thereunder, so as to empower the Board to withhold salary of an employee during suspension in a departmental proceeding. Undisputedly till this day, neither any rule has been framed not the provision of Bihar Service Code have been adopted. In these backgrounds reference in this connection may be made to a judgment of the Supreme Court in the case of Management Hotel Imperial, New Delhi and Ors. v. Hotel Worker’s Union , wherein, it has been pointed out that it is open to the employer not to take work from the employee, but unless there are some provisions in the contract of employment or in the Rules framed, governing the terms and conditions of the services of the employee, making him entitled only to a subsistence allowance during the period of suspension, the employee has to be paid full salary for the period when he was under suspension.
15. Similar view was taken by the Supreme Court while examining an identical question in the case of T. Cajee v. U. Rormanik Sien and Ors. and held thus:
… In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him. The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case.
16. Yet a reference can also be made to the cases of B.P. Kapur v. Union of India and Anr. as also Balvantrai Ratilal Patel v. State of Maharashtra . In these cases also question arose about the entitlement of the public servant to subsistence allowance during the suspension. It has been unanimously held that the authority entitled to appoint a public servant would certainly be entitled to suspend him pending a departmental inquiry with relation to his conduct or pending a criminal proceeding. But what amount such employee should be paid during the interim suspension will depend upon the provisions of the statue or rule in that connection. If there is no rule or contract, such public servant will be entitled to his full emoluments during the period of suspension. The Court held that such type of suspension must be distinguished from suspension by way of punishment.
17. From a bare reference to the different authority of the Supreme Court, noticed above, there will be no difficulty in holding than an order of interim suspension can be passed against an employees, while inquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the rules. But in such cases, the concerned employee would certainly be entitled for full remuneration for the period of suspension.
18. In the present case I have already notices that no statute or rules framed thereunder or Otherwise in term of contract between the employer and employee was brought before, us, which could authorise the Board to withhold full remuneration of the petitioner.
19. Therefore, as per the ratio, laid down by the Supreme Court in the above mentioned cases, the Board has no option but to make payment of entire remuneration to the petitioner for the period he was under suspension.
20. In the light of the answer, rendered to the questions posed in this case, this writ application is, thus allowed. But in the background of the facts of the case, I leave the parties to bear their own costs.
B.N. Agrawal, J.
21. I agree.
S.K. Singh, J.
22. I agree.