{"id":130258,"date":"1970-01-29T00:00:00","date_gmt":"1970-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-p-gindroniya-vs-state-of-madhya-pradesh-ors-on-29-january-1970"},"modified":"2015-02-23T03:42:05","modified_gmt":"2015-02-22T22:12:05","slug":"v-p-gindroniya-vs-state-of-madhya-pradesh-ors-on-29-january-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-p-gindroniya-vs-state-of-madhya-pradesh-ors-on-29-january-1970","title":{"rendered":"V. P. Gindroniya vs State Of Madhya Pradesh & Ors on 29 January, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V. P. Gindroniya vs State Of Madhya Pradesh & Ors on 29 January, 1970<\/div>\n
Equivalent citations: 1970 AIR 1494, \t\t 1970 SCR (3) 418<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nV.   P. GINDRONIYA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MADHYA PRADESH & ORS.\n\nDATE OF JUDGMENT:\n29\/01\/1970\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nHIDAYATULLAH, M. (CJ)\nSHAH, J.C.\nGROVER, A.N.\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n 1970 AIR 1494\t\t  1970 SCR  (3) 418\n 1970 SCC  (1) 362\n CITATOR INFO :\n F\t    1974 SC1281\t (7)\n RF\t    1976 SC1775\t (13)\n F\t    1977 SC1146\t (11)\n\n\nACT:\nPublic Servant-Master and Servant-Master's right to  suspend\nservant pending enquiry-No such right expressly provided  in\ncontract or statutorily-Effect of order of suspension.\n\n\n\nHEADNOTE:\nOn May 7, 1964, the respondent-State ordered a\tdepartmental\nenquiry\t against  the appellant who was a  temporary  public\nservant\t in  its  service and placed  him  under  suspension\npending\t the enquiry.  On June 6, 1964 the appellant gave  a\nnotice to the respondent resigning from service.  On  August\n1,  1964  the  appellant was asked to file a  reply  to\t the\ncharges\t .against him.\tThe appellant filed a writ  petition\nin  the\t High Court to quash the proceedings on\t the  ground\nthat,  as he was no longer in the respondent's service,\t the\nrespondent  could not take any departmental  action  against\nhim.  The petition was dismissed.\nIn appeal to this Court,\nHELD : (1) The general principle is that if the master has a\npower  to  suspend his servant pending an enquiry  into\t his\nmisconduct,  either  in the contract of service\t or  in\t the\nstatute\t or  the  rules\t framed\t thereunder  governing\t the\nservice, an order of suspension passed by the master has the\neffect of temporarily suspending the relationship of  master\nand  servant  with the consequence that the servant  is\t not\nbound  to render service and the master is not bound to\t pay\nany wages during the period of suspension.  Such a power  to\nsuspend\t the  contract\tof service  cannot  be\timplied\t and\ntherefore,  if\tin  the\t absence of  such  a  power  in\t the\ncontract, statute or rules, an order of suspension is passed\nby  the master it only forbids the -servant to work  without\naffecting  the relationship of master and servant,  and\t the\nmaster will have to pay the servant's wages. [451 E]\nIn the present-case, the Madhya: Pradesh Government Servants\n(Temporary and quasi-Permanent Service) Rules, 1960, do\t not\nprovide\t for .suspension during the pendency of an  enquiry.\nTherefore,  the order of suspension could not be  considered\nas an order suspending the contract -of service.  It follows\nthat  when the appellant issued his notice on June 6,  1964,\nthe contract of service was in force and it was open to\t him\nto put an end to it. [452 G]\n(2)  In his notice, the appellant unequivocally informed the\nrespondent  that  he  has terminated his  service  with\t the\nRespondent.  He also intimated that any amounts due from him\nto  the\t respondent under the provisos to r.  12(a)  may  be\ndeducted  from\tthe salary due to him during the  period  of\nsuspension.   Therefore, the notice was in  accordance\twith\nthe  requirements of r. 12.  It follows that ever since\t the\nrespondent received the notice on June 9, 1964 the appellant\nwas not in its service and therefore, it was not open to the\nrespondent to take any disciplinary proceedings against him.\n[454 C]\n449\nThe  Management\t of Hotel Imperial, New Delhi  and  Ors.  v.\nHotel  Workers'\t Union,<\/a> [1960]1 S.C.R. 476, T. Cajee  v.  U.\nJormanik Siem and Anr.,<\/a> [1961] 1 S.C.R. 750, R. P. Kapur  v.\nUnion  of India,<\/a> [1964] 5 S.C.R. 431 and Balvantray  Ratilal\nPatel  v.  State  of  Maharashtra,<\/a>  [1964]  2  S.C.R.\t577,\nfollowed.\nState  of  West Bengal v. Nipendra Nath\t Bagchi,.<\/a>  [1961]  1\nS.C.R.\t771  and  The State of Punjab v.  Khemi\t Ram,  Civil\nAppeal No.<\/a> 1217 of 1966 decided on 6-10-1969, explained.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION  Civil Appeal No. 990 of
\n1967.\n<\/p>\n
Appeal\tfrom the judgment. and order dated November 3,\t1966
\nof the Madhya Pradesh High Court in Misc.  Petition No.\t 514
\nof 1964.\n<\/p>\n
G.   L.\t Sanghi,  P.  N. Tiwari, J. B.\tDadachanji,  O.\t C.,
\nMathurand Ravinder Narain, for the appellant.
\nI. N. Shroff for the respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nHegde,\tJ. The appellant was a probationary Naib  Tehsildar.
\nHe had been appointed temporarily.  While he was working  at
\nBilaigarh  in  1961,  the Commissioner\tof  Raipur  Division
\ndirected  an enquiry against him on as many as\t13  charges.
\nBy this order dated August 3, 1961, the Commissioner  placed
\nhim  under suspension pending enquiry.\tSometime later,\t the
\nState Government taking the view that the enquiry ordered by
\nthe  Commissioner may not be legal, revoked his orders\tviz.
\nthe  order  directing  a departmental  enquiry\tagainst\t the
\nappellant as well as the order placing him under suspension.
\nBut  on\t the  same day, it ordered  a  departmental  enquiry
\nagainst\t him  and  at  the  sametime  it  placed  him  under
\nsuspension pending that enquiry.  In this connection a\tshow
\ncause notice was issued to the appellant on August 1,  1964.
\nBut  even before that show cause notice was issued, on\tJune
\n6,  1964,  the\tappellant gave a notice\t to  the  Government
\nterminating  his  services.  After the issue of\t the  afore-
\nmentioned  show\t cause notice, he moved the  High  Court  of
\nMadhya\tPradesh\t to  quash the orders passed  by  the  State
\nGovernment  on\tthe  ground that as he was no  more  in\t the
\nservice\t of the Government, the Government cannot  take\t any
\ndepartmental action against him.\n<\/p>\n
The  State  Government\tresisted that  ‘application  on\t two
\ngrounds\t  viz.\t(1)  the  order\t of  the  State\t  Government
\nsuspending   the  appellant  during  the  pendency  of\t the
\ndepartmental  enquiry  amounted\t to  a\tsuspension  of\t the
\ncontract  of service and hence the appellant could not\thave
\nunilaterally  terminated  his services and  (2)\t the  notice
\ngiven  by  him\ton June 6, 1964 was invalid as\tit  did\t not
\nconform to the rules.\n<\/p>\n
450<\/span><\/p>\n
The  High  Court accepted the aforesaid contentions  of\t the
\nState  Government  and dismissed the writ  petition.   Hence
\nthis appeal by special leave.\n<\/p>\n
Mr.  Sanghi, learned Counsel for the appellant\tpressed\t for
\nour acceptance the two contentions advanced on behalf of the
\nappellant  before  the High Court.  He urged that  the\tview
\ntaken  by the High Court both as to the effect of the  order
\nof suspension made on May 7, 1964 as well as to the validity
\nof  the notice issued by the appellant on June 6,  1964\t are
\nerroneous  in law.  According to him the impugned  order  of
\nsuspension  merely  forbade  the  appellant  from  rendering
\nservice\t and  it  did  not amount to  a\t suspension  of\t the
\ncontract  of service.  As regards the notice issued  by\t the
\nappellant he urged that it was in accordance with rule 12 of
\nthe Madhya Pradesh Government Servants (Temporary and Quasi-
\nPermanent Service) Rules, 1960 (in short ‘Rules’).
\nThe  parties are agreed that the appellant was\ta  temporary
\npublic\tservant\t at  the relevant  time.   His\tservice\t was
\nneither\t made  permanent nor quasi-permanent.\tIt  is\talso\n<\/p>\n
-admitted that the conditions of his service are exclusively
\ngoverned  by  the ‘Rules’.  Therefore to find out  the\ttrue
\neffect\tof the order of suspension made on May 7,  1964,  we
\nmust look to those ‘Rules’.\n<\/p>\n
Three  kinds  of  suspension are known\tto  law.   A  public
\nservant\t may be suspended as a mode of punishment or he\t may
\nbe suspended during the pendency of an enquiry. against\t him
\nif   the  order\t appointing  him  or  statutory\t  provisions
\ngoverning his service provide for such suspensions.   Lastly
\nhe  may\t merely\t be forbidden from  discharging\t his  duties
\nduring the pendency of an enquiry against him, which act  is
\nalso called suspension.\t The right to suspend as -a  measure
\nof  punishment as well as the right to suspend the  contract
\nof  service  during  the pendency of  an  enquiry  are\tboth
\nregulated  by the contract of employment or  the  provisions
\nregulating the conditions of service.  But the last category
\nof  suspension\trefer-,red to earlier is the  right  of\t the
\nmaster\tto forbid his servant from doing the work  which  he
\nhad to do under the terms of the contract of service or\t the
\nprovisions governing his conditions of service, at the\tsame
\ntime  keeping  in force the master’s obligations  under\t the
\ncon-tract.     In other words the master may ask his servant
\nto  refrain from rendering his service but he  must  fulfill
\nhis part of the contract.\n<\/p>\n
The legal position as regards a master’s right to place\t his
\nservants  under\t suspension  is\t now  well  settled  by\t the
\ndecisions  of  this  Court.   In  The  Management  of  Hotel
\nImperial, New Delhi and ors. v. Hotel Workers’ Union<\/a>(1), the
\nquestion  whether a master could suspend his servant  during
\nthe pendency of an enquiry came
\n(1)  [1960] 1 S.C.R. 476.\n<\/p>\n
451<\/span><\/p>\n
up  for\t consideration by this Court.\tTherein\t this  Court
\nobserved  that it was well settled that under  the  ordinary
\nlaw  of master and servant the power to suspend the  servant
\nwithout\t pay could not be implied as a term in\tan  ordinary
\ncontract  of service between the master and the servant\t but
\nmust  arise  either  from an express term  in  the  contract
\nitself or a statutory provision governing such contract.  It
\nwas further observed therein that ordinarily in the  absence
\nof  such a power either in express terms in the contract  or
\nunder  the rules framed under some statute would  mean\tthat
\nthe  master  would have no power to suspend -a\tworkman\t and
\neven if he does so in the sense that he forbids the employee
\nto  work he will have to pay the wages during the so  called
\nperiod\tof suspension.\tWhere, however, there is  power,  to
\nsuspend\t either\t in  the contract of employment\t or  in\t the
\nstatute\t or the rules framed thereunder, the suspension\t has
\nthe  effect  of temporarily suspending the  relationship  of
\nmaster and the servant with the consequence that the servant
\nis  not bound to render service and the master is not  bound
\nto pay.\n<\/p>\n
The same view was reiterated by this Court in T. Cajee v. U.
\nJormanik  Siem and<\/a> anr.(1). The rule laid down in the  above
\ndecisions was followed by this Court in R. P. Kapur v. Union
\nof  India<\/a>(2).\tThe  law on  the  subject  was\texhaustively
\nreviewed   in\tBalvantray  Ratilal  Patel   v.\t  State\t  of
\nMaharashtra<\/a>(-).\t Therein the legal position was stated\tthus
\n:  The general principle is that an employer can suspend  an
\nemployee  of his pending an enquiry into his misconduct\t and
\nthe  only question that can arise in such a suspension\twill
\nrelate to the payment of his wages during the period of such
\nsuspension.   It is now well settled that the power to\tsus-
\npend, in the sense of a right to forbid a employee to  work,
\nis  not\t an  implied term in an\t ordinary  contract  between
\nmaster\tand servant, and that such a power can only  be\t the
\ncreature  either of a statute governing the contract, or  of
\nan  express  term  in  the  contract  itself.\t Ordinarily,
\ntherefore, the absence of such a power either as an  express
\nterm  in  the  contract or in the rules\t framed\t under\tsome
\nstatute\t would mean that an employer would have no power  to
\nsuspend\t an  employee of his and even if he does so  in\t the
\nsense that he forbids the employee to work, he will have  to
\npay  the employee’s wages during the period  of\t suspension.
\nWhere,\thowever,  there is power to suspend  either  in\t the
\ncontract of employment or in the statute or the rules framed
\nthereunder,  the  order\t of suspension\thas  the  effect  of
\ntemporarily  suspending\t the  relationship  of\tmaster\t and
\nservant\t with the consequence that the servant is not  bound
\nto render service and the master is not bound to pay.  It is
\nequally well settled that an order of interim suspension can
\nbe passed
\n(1)  [1961] 1 S.C.R. 750.\n<\/p>\n
(2) [1964] 5 S.C.R. 431.\n<\/p>\n
(3) [1968] 2 S.C.R. 577.\n<\/p>\n
452<\/span><\/p>\n
against.  the employee while an enquiry is pending into\t his
\nconduct even though there is no such term in the contract of
\nemployment or in the rules, but in such a case the  employee
\nwould  be  entitled to his remuneration for  the  period  of
\nsuspension  if there is no statute or rule under  which,  it
\ncould  be withheld.  The distinction between suspending\t the
\ncontract  of a service of a servant and suspending him\tfrom
\nperforming  the duties of his office on the basis  that\t the
\ncontract is subsisting is important.  The suspension in\t the
\nlatter\tcase is always an implied term in every contract  of
\nservice.   When an employee is suspended in this  sense,  it
\nmeans  that  the employer,merely issues a direction  to\t him
\nthat  he should not do the service required of him during  a
\nparticular period.  In other words the employer is  regarded
\nas  issuing  an\t order to the  employee\t which\tbecause\t the
\ncontract is subsisting, the employee must obey.
\nIn  support of the decision of the High Court,\tthe  learned
\nCounsel\t for the Respondent relied on the decisions of\tthis
\nCourt in the State of West Bengal v. Nipendra Nath Bagchi<\/a>(1)
\nand  The State of Punjab v. Khemi Ram<\/a> (2) . He did not\trely
\non  the other decisions referred to in the judgment  of\t the
\nHigh Court.  Hence it is ,not necessary to examine them.
\nIn  Bagchi’s  case(1), one of the questions that  arose\t for
\ndecision  was whether on the strength of rule 75(a)  of\t the
\nWest  Bengal  Service Rules, an officer may be\tretained  in
\nservice\t even  after his superannuation for the\t purpose  of
\nholding a departmental enquiry against him.  This Court held
\nthat  the rule in question was not designed to be  used\t for
\nthe  purpose  of retaining a person in service\tfor  enquiry
\nagainst\t him  but  to  keep in\temployment  persons  with  a
\nmeritorious record of service who although superannuated can
\nrender\tsome more service and whose retention in service  is
\nconsidered necessary on public grounds.\t This decision\tdoes
\nnot  bear on the point under consideration.  In Khemi  Ram’s
\ncase  (2)  the\timpugned suspension order was  made  on\t the
\nstrength  of  statutory rules governing\t the  conditions  of
\nservice.   Hence this Court came to the conclusion that\t the
\norder of suspension in that case amounted to suspending\t the
\ncontract of service.\n<\/p>\n
In  the\t present  case,\t the  ‘Rules’  do  not\tprovide\t for
\nsuspension during the pendency of an enquiry.  Therefore the
\nimpugned  order\t of suspension cannot be. considered  as  an
\norder  suspending  the\tcontract  of  service.\t From\tthat
\nconclusion  it\tfollows that when the appellant\t issued\t the
\nnotice\tterminating  his  services  on\tJune  6,  1964,\t the
\ncontract  of service was in force and it was open to him  to
\nput
\n(1)[1961] 1 S.C.R. 771.\n<\/p>\n
(2)  Civil Appeal No. 1217\/66 decided on 6.10.1969.\n<\/p>\n
453<\/span><\/p>\n
an  end\t to the same.  For the reasons mentioned  above,  we
\nhold  that  the High Court erred in opining  that  the\ttrue
\neffect of the order suspension made by the State  Government
\non May 7, 1964 was to suspend the contract of service.
\nThis  takes us to the legality of the notice served  by\t the
\nappellant on June 6, 1964.  That notice was evidently issued
\nunder rule 12 of the ‘Rules’.  That rule reads
\n“12. (a) Subject to any provision contained in the order  of
\nappointment  or in any agreement between the Government\t and
\nthe temporary Government servant, the service of a temporary
\nGovernment  servant  who is not in  quasi-permanent  service
\nshall  be  liable to termination at ,any time by  notice  in
\nwriting\t given\teither\tby the\tGovernment  servant  to\t the
\nappointing  authority or by the appointing authority to\t the
\nGovernment servant
\nProvided  that the services of any such\t Government  servant
\nmay  be\t terminated  forthwith by payment to him  of  a\t sum
\nequivalent to the amount of his pay plug allowance,, for the
\nperiod of the notice; or as the case may be, for the  period
\nby which such notice falls short of one month or any  agreed
\nlonger period :\n<\/p>\n
Provided  further  that the payment of allowances  shall  be
\nsubject\t to the conditions under which such  allowances\t are
\nadmissible.\n<\/p>\n
(b)  The  period  of such notice shall be one  month  unless
\notherwise  agreed between the Government and the  Government
\nservant.”\n<\/p>\n
There is hardly any room for dispute that the notice contem-
\nplated by the main cl. (a) of rule 12 can be given either by
\nthe  Government\t or  its temporary  servant.   The  rule  in
\nquestion  specifically says so.\t It is not necessary for  us
\nin  the present case to decide whether the two\tprovisos  to
\nthat  rule or cl. (b) thereof apply to a notice given  by  a
\ngovernment  servant.  The appellant has assumed\t that  those
\nprovisions also apply to a notice given under that rule.  We
\nshall  for the purpose of this case proceed on the basis  of
\nthat   assumption   and\t see  whether  the   appellant\t has
\nsatisfied the notice given by the appellant on that part  of
\nthe rule also.\n<\/p>\n
The material portion June 6, 1964 reads thus
\n“Whereas the undersigned holds no charge this day and is not
\non  duty  and  intends\tto  bring  the\ttermination  of\t his
\nemployment with the Government of M.P. forthwith on  receipt
\nof this writing and
\nL7Sup Cl (NP)\/70-4
\n454<\/span>
\nWhereas as required by the service rules the undersigned  do
\nhereby forfeit and relinquish his claim for one month’s\t pay
\nor  allowance  whichever is necessary.\tNow  therefore\tthis
\nnotice\tis  hereby  served as required under  the  rules  on
\nreceipt\t whereof the relationship of employer  and  employee
\nnow  existing between the Government of Madhya\tPradesh\t and
\nthe  under-signed shall cease to exist and consequently\t all
\nrights\tduties. and obligations arising from and  under\t the
\naforesaid relationship shall hereafter absolutely cease.”
\nThis notice was received by the Government on June 9,  1964.
\nIn that notice, the appellant has unequivocally informed the
\nGovernment  that  he has terminated his\t services  with\t the
\nGovernment.    This  part  of  the  notice   satisfies\t the
\nrequirements  of the main part of rule 12(a).  In that\tvery
\nnotice he has also intimated that any amount payable by\t him
\nto  the government under the provisos to rule 12(a)  may  be
\nforfeited  from the amounts due to him from the\t government.
\nIt may be noted that considerable amount must have been\t due
\nto  him\t towards  his  salary  during  the  period  of\t his
\nsuspension.   By his notice he intimated to  the  government
\nthat  the amounts due from him to the government  under\t the
\nprovisos to rule 12(a) may be deducted from that amount.  We
\nfail  to see how this notice is not in accordance  with\t the
\nrequirements  of rule 12. In our opinion the High Court\t was
\nwrong in holding that the notice in question did not  comply
\nwith the requirements of the said rule.\n<\/p>\n
No  other  ground was urged on behalf of the  respondent  in
\nsupport of the order of the High Court.\n<\/p>\n
From the above findings, it follows that ever since June  9,
\n1964,\tthe  appellant\twas  not  in  the  service  of\t the
\nGovernment.  Therefore it was not open to the government  to
\ntake  any disciplinary proceedings against him.\t  Hence\t the
\nimpugned  orders are liable to be quashed.   We\t accordingly
\nallow  this appeal and quash those orders.  No order  as  to
\ncosts.\n<\/p>\n
Y.P.\t\t      Appeal allowed.\n455<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V. P. Gindroniya vs State Of Madhya Pradesh & Ors on 29 January, 1970 Equivalent citations: 1970 AIR 1494, 1970 SCR (3) 418 Author: K Hegde Bench: Hegde, K.S. PETITIONER: V. P. GINDRONIYA Vs. RESPONDENT: STATE OF MADHYA PRADESH & ORS. DATE OF JUDGMENT: 29\/01\/1970 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-130258","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV. P. 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