High Court · 2009

6. Challenging the said proceeding the respondent herein initially filed a civil suit (Original Suit No.38/06) on the file of the Civil Judge, Jr D ivn, Imphal, Manipur at Lamphel, but withdrew the same. A copy of the order is a lso made available to us the relevant portion of which reads as follows :- (cid:28) ent in the office of the defendant, so that plaintiff desires to withdraw the ca se. The contention of the petitioner is that there is possibility of settlem It is objected by the Ld Counsel for the O.P./defendant and submits that there is no such proposal and prays for rejection of the present petition. I have perused the materials on record. The accd. Filed the application under order XXIII Rule 1 of C.P.C. I do not see any formal defects which requires to be raised by the plain tiff/ petitioner. However, I am of considered view that the petitioner/plaintiff is willin g to withdraw and by such withdrawal, no injury shall be caused to the O.P./ def endant. Hence, the prayer for withdrawal is allowed but the prayer for liberty b ring fresh suit is turn down. (cid:29) eal arises came to be filed. Subsequently the writ petition from out of which the present app

7. The writ petition was allowed on the ground that the impugned or der of suspension pending enquiry came to be issued pursuant to a resolution of the Board and the said resolution came to be passed in a meeting which was not c onvened in accordance with law. Under Sec 10 of the above mentioned Act a meetin g such as the one where the resolution, on the basis of which the impugned suspe nsion order came to be passed, is required to be preceded by at least 10 days no tice. Admittedly the notice issued did not satisfy the requirement of Sec 10. Th erefore, the learned Judge came to the conclusion that the resolution passed in a meeting which was eventually convened is void ab initio. Further, the learned Judge came to the conclusion that on the date of the impugned suspension order t here was no authority of law on the part of the Board to keep the respondent und er suspension as there was no rule framed at that point of time by the Board nor there was anything in the parent enactment which enabled the Board to keep one of its employees under suspension. The learned Judge, therefore, concluded that in the absence of any such authority of law the Board could not legally keep an employee under suspension.

8. Mr GN Sahewalla, learned counsel for the appellant, argued that the conduct of the respondent in filing the Original Suit and withdrawing the sa me does not justify the interference of this court in exercise of the extraordin ary jurisdiction under Article 226 of the Constitution of India. Secondly the le arned counsel argued that the authority of the employer to keep an employee unde r suspension during the pendency of a disciplinary proceeding is inherent in the power of the employer and no separate law is required for valid exercise of suc h power and, therefore, the conclusion of the learned Judge by the judgment unde r appeal that the Board lack the necessary authority of law to keep the responde nt under suspension is unsustainable. For the sake of convenience we shall deal with the second submis 9. sion of the appellant first. The nature of the power of the employer to keep an employee under suspension fell for consideration of a Constitution Bench of the Supreme Court in AIR 1970 SC 1494 (VP Gindroniya vs. State of Madhya Pradesh & a nr). In the said judgment the Supreme Court recognised the authority of the Stat e to suspend an employee of the State from service either as a measure of punish ment for some misconduct or as a matter of caution either during the pendency of a disciplinary enquiry or an impending disciplinary proceeding. It is further h eld by the Supreme Court that in the context of ordinary law of master and serva nt in the matter of private employment, such a power to keep and employee under suspension without pay could not be implied but must arise either by an express term in the contract itself or a statutory provision governing such contract. (cid:28)7. The legal position as regards a master’s right to place his servants under s uspension if now well settled by the decisions of this Court. In Management of H otel Imperial, New Delhi vs. Hotel Workers’ Union, (1960) 1 SCR 476 = (AIR 1959 SC 1342), the question whether a master could suspend his servant during the pen dency of an enquiry came up for consideration by this Court. Therein this Court observed that it was well settled that under the ordinary law of master and serv ant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must a rise either from an express term in the contract itself or a statutory provision governing such contract. (cid:29)

10. In the absence of such power that undoubtedly the employer has t he authority to direct an employee not to attend to work the employee is bound t o pay the wages during the period of so called suspension. (cid:28)It was further observed therein that ordinarily in the absence of such a power either in express terms in the contract or under the rules framed under some sta tute would mean that the master would have no power to suspend a workman and eve n if he does so in the sense that he forbids the employee to work he will have t o pay the wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or t he rules framed thereunder, the suspension has the effect of temporarily suspend ing the relationship of master and the servant with the consequence that the ser vant is not bound to render service and the master is not bound to pay. (cid:29)

11. y of the various earlier cases summarized at para 8 as follows:- After examining such legal position the Supreme Court on a surve (cid:28)The general principle is that an employer can suspend an employee of his pendin g an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such sus pension. It is now well settled that the power to suspend, in the sense of a rig ht to forbid a employee to work, is not an implied term in a ordinary contract b etween master and servant, and that such a power can only be the creature eit her of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that an employer would have no power to suspend an employee of his and even if he do es so in the sense that he forbids the employee to work, he will have to pay th e employee’s wages during the period of suspension. Where, however, there is pow er to suspend either in the contract of employment or in the statute or the rule s framed thereunder, the order of suspension has the effect of temporarily susp ending the relationship of master and servant with the consequence that the ser vant is not bound to render service and the master is not bound to pay. It is e qually well settled that an order of interim suspension can be passed against th e employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distin ction between suspending the contract of a service of a servant and suspending h im from performing the duties of his office on the basis that the contract is su bsisting is important. The suspension in the latter case is always an implied te rm in every contract of service. When an employee is suspended in this sense, it means that the employer, merely issues a direction to him that he should not do the service required of him during a particular period. In other words the empl because the cont oyer is regarded as issuing an order to the employee which ract is subsisting, the employee must obey. (cid:29)

12. Examined in the light of the above mentioned decision of the Sup reme Court we are of the opinion that the impugned suspension order in substance is an order prohibiting the respondent from attending the work. Though the cont ract of employment itself is not terminated by the employer, that is the Board, in view of the contemplated disciplinary enquiry thought it fit to tell the empl oyee not to attend the work. But in the absence of any specific provision under the Act referred to above or the Rules made thereunder on the relevant date whic h enabled the Board to keep away the respondent from work without payment, the o nly inference that can be drawn is that though the employer Board is undoubtedly entitled in law to tell the respondent employee not to attend the work it is bo und to pay the employee all the salaries and other allowance to which he is enti tled in terms of the contract of employment. The impugned suspension order state s that during the subsistence of the order the respondent is entitled to receive subsistence allowance admissible to him during the period of his suspension. As on the date of the impugned suspension order admittedly there was no rule or la w which enabled the Board to keep the respondent under suspension only on the pa yment of subsistence allowance though subsequently by virtue of the notification dated 10-11-06 Rules known as the Board of Secondary Education Manipur Service Rules for the Officers of the Board of Secondary Education came to be framed and Rule 21 of the said Rules declares that the Manipur Govt Servants Conduct Rules and the Rules regarding suspension, discharge, removal from service etc shall b e applicable to the officers of the Board pending the creation of its own Rules by the Board. We are informed that in the Manipur Govt Servants Conduct Rules su spension of an employee of the Stat of Manipur is permissible on payment of subs istence allowance. We do not propose to go into that question at this stage. Rul e 21 referred to above obviously by incorporation makes the Manipur Govt Servant Conduct Rules applicable to the employees of the Board. Whatever are the conseq uences following from the Manipur Govt Servant Conduct Rules may follow from the date of its incorporation, that is, 10-11-06 but until such time we are of the opinion that though the Board is entitled to tell the respondents to abstain fro m work during the pendency of the disciplinary proceeding the Board is bound to pay the full salary and other allowances, if any, that were being paid to the em ployee. The question as to what is the effect of the incorporation of Rule 21 re ferred to above is a matter that can be examined by the Board afresh and pass ap propriate orders in this regard for the period subsequent to 10-11-06.

13. We are left with the first issue identified by us as to the main tainability of the present writ petition from out of which the present appeal ar ises.

14. The learned counsel for the appellant relying upon a decision of the Supreme Court in AIR 1987 SC 88 (Sarguja Transport Service vs. State Transp ort Appellate Tribunal, Gwalior & Ors) submitted that in view of the principle l aid down in the said judgment this court ought not to have entertained the writ petition as permitting a petition such as the one in the background of the petit ioner’s earlier conduct would be inconsistent with the requirement of the public policy. The issue before the Supreme Court in the above case was whether a person who approached the High Court under Article 226 of the Constitution at an earlier instance and withdrew the proceedings half way can be permitted to l itigate the same issue in the second round of litigation by way of a fresh writ petition. The Supreme Court took note of the provisions of Order 23 Rule 1 Sub R ule (4) of the CPC which precludes a plaintiff, who had earlier filed a suit and withdrew the suit without leave of the court for filing a fresh suit, from inst ituting a fresh suit and came to the conclusion that the said Rule is based on p rinciples of public policy and is not the same as the rule of res judicata & . T he principle underlying the above mentioned Rule should be extended even to the proceedings under Art 226 (cid:28)in the interest of administration of justice to the c ases of withdrawal of writ petition also (cid:29). The learned counsel for the appellant , therefore, argued that the same principle would apply in the instant case also .

15. On the other hand Mr S Jayanta, learned counsel for the responde nt submitted that the Supreme Court in the above case did not consider the situa tion where a civil suit is filed and withdrawn and a subsequent writ petition on the same cause of action came to be filed. On the other hand the learned counse l submitted that the Supreme Court at para 9 of the judgment observed - (cid:28) & & Whi le the withdrawal of a writ petition filed in High Court without permission to f ile a fresh writ petition may not bar other remedies like a suit or a petition u nder Art 32 of the Constitution & & (cid:29). It is, therefore, submitted that it is to be implied from the said judgment that the respondent ought not to be debarred f rom approaching this court on the ground that he had earlier filed a suit on the same cause of action and withdrew the same.

16. We express our inability to accept the submission of the learned counsel for the respondent for the following reason:- First of all a judgment of the court is an authority only for th e proposition that is decided by it but not for a proposition that may follow a s a logical consequence of such a decision. Secondly, it is well established tha t existence of an effective alternative remedy is a factor which is required to be considered by the High Court while exercising the discretionary jurisdiction under Art 226 of the Constitution of India. In an appropriate case the court can always decline to exercise the jurisdiction under Art 226 on the ground that th ere is an efficacious alternative remedy available to the petitioner. If that is the legal position the fact that an efficacious alternative remedy by way of a suit in which all the questions of both fact and law can be adjudicated upon, is available and was availed by the respondent at an earlier point of time would c ertainly be a factor which ought to have weighed this court in entertaining the writ petition.

17. In the background of the above mentioned discussion, though as a proposition of law, we accept the submission of the appellant that the writ pet ition ought not to have been entertained but in the facts and circumstances of t he case we do not propose to non-suit the respondent on that ground.

18. indicated above. The appeal stands disposed of. In the circumstances, the order under appeal stands modified as