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1975 DIGILAW 170 (KAR)

M. RANGAPPA v. AGRL PRODUCE MKTG COMM, HIRIYUR

1975-11-11

K.J.SHETTY

body1975
( 1 ) THE question involved in this writ petition is, whether the Chairman of a Market Committee is competent to place the Market Superintendent under suspension. ( 2 ) THE facts leading up to the petition are these: the petitioner was originally a Supervisor appointed by the Agricultural Produce market Committee, Hiriyur. In 1967, he was promoted as market Superintendent by the said Market Committee. By Government order dated 7th Feb. 1973, the post held by the petitioner was treated as a government Post, and the petitioner was held to be Government servant with effect from first May 1963. The petitioner, however, continued to remain in service in the Market Committee itself. On 17th July, 1975, the chairman of the Market Committee suspended the petitioner, with a direction to hand over charge tp another employee of the Market Committee. Calling into question the validity of the said order, the petitioner has moved this Court with an application under Art. 226 of the Constitution. ( 3 ) THE power of the Chairman of the Market Committee is located under S. 46 of the Karnataka Agricultural Produce Marketing (Regulation) act, 1966 (hereinafter called "the Act" ). By S. 46 (1), the Chairman has been constituted as the chief controlling and supervising officer of the market Committee. S. 46 (2) (c) confers power on the Chairman to exercise supervision and control over the officers and servants (whether such officers or servants are Government servants or not) of the Market Committee in matters of executive administration, concerning accounts and records and disposal of all questions relating to the service of the employees. The order of suspension, on behalf of the Chairman of the Market Committee, is sought to be supported by the power conferred under S. 46 (2) (c ). Mr. Reddy, learned counsel for the respondents, submitted that the Chairman being the chief controlling and supervising officer of the Market Committee, could suspend any officer of the Market Committee including the lent officers who are Government servants although such power has not been: specifically conferred upon the Chairman. Mr. Reddy, learned counsel for the respondents, submitted that the Chairman being the chief controlling and supervising officer of the Market Committee, could suspend any officer of the Market Committee including the lent officers who are Government servants although such power has not been: specifically conferred upon the Chairman. ( 4 ) SO far as the position of the lent officers is concerned, rule 445 of the Karnataka Civil Services Rules provides that a Government servant transferred to foreign service remains, subject to the general and disciplinary rules which would have applied to him as a servant of Government had he not been so transferred. In other words, the Government servant who is under foreign service remains under the general and disciplinary rules of his appointing authority. Against this background, the power of the chairman to suspend the petitioner has therefore, to be construed it is admitted on all hands that the impugned order 'of suspension was not, by way of punishment. There are as many as three kinds of suspension known to law. These categories have been explained by the Supreme Court in V. P. Gindroniya. v. State of M. P. , AIR. 1970 SC. 1494,:". . . . A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him or statutory provisions governing his service provide for such suspensions. Lastly he may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension. The right to suspend as a measure of punishment as well as the right to; suspend the contract of service during the pendency of an enquiry are both regulated by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to earlier is the right of the master to forbid his servant from doing the work which he had to do under the terms of the contract of service or the provisions governing his conditions of service at the same time keeping in force the master's obligations under the contract. In other words the master may ask his servant to refrain from rendering his service but he must fulfil his part cf the contract. "it was further stated at page 1497:". . . In other words the master may ask his servant to refrain from rendering his service but he must fulfil his part cf the contract. "it was further stated at page 1497:". . . The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term 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 employer is regarded as issuing an order to the employee which because the contract is subsisting the employee must obey. "the case of the petitioner, as it seems to me, though it does not fall under the first and the second categories of suspension, may fall in the last category referred to above, that is, within the right of the master to forbid his servant from doing the work which he had to do under the terms of contract of service or the provisions governing the conditions of service. In other words, the master may ask his servant to refrain from rendering his service, but he must fulfil his part of the contract. That recognises the authorrity of the master to issue a direction to his employee that he should not do the service required of him during a particular period. Such power is always ah implied term in every contract of service. I do not see any reason why that power could not be preserved to the Chairman of the Market Committee under whom the lent officer is working. The Chairman may not have the power to suspend the petitioner as a measure of punishment, but nothing prevents him from exercising his supervisory power by issuing a direction to hint not to perform his duty. While so doing, the Chairman of course, must be prepared to perform his part of the contract, that is, he must pay the full salary of the petitioner in the absence cf a statutory rule providing for withholding of such salary. It is needless to state that there exists no such rule. While so doing, the Chairman of course, must be prepared to perform his part of the contract, that is, he must pay the full salary of the petitioner in the absence cf a statutory rule providing for withholding of such salary. It is needless to state that there exists no such rule. ( 5 ) THE contention next urged that there cannot be two masters for the petitioner, is too difficult to accept. The plurality of masters in the case of lent officers cannot be avoided and not contrary to the contract of employment even under the common law. In V. R. Mundevadi v. State of Mysore, (1968) 2 Myslj. 541, 544. , this Court observed:"there can be, in an appropriate case, a plurality of masters as there would be when a, master places the services of his servant at the disposal of another, either on a particular occasion or during a particular period, and the temporary employer assumes control over the lent servant or the lent servant submits himself to his direction and control. The master who lends the servant would be his general master and the borrower wquld become his special employer. The servant would then become pro hacvice the servant of the borrower. " ( 6 ) HAVING regard to the above principles, the position of the petitioner could be summarised thus: The petitioner was under the dual control, first by the Government under the general and disciplinary rules; second, under the control of the Chairman of the Market Committee. The order of suspension, in the context, could therefore be treated as a direction to the petitioner not to perform the duties of his post. ( 7 ) WHILE taking leave of the above question, ordinarily, I would have kept the impugned order undisturbed. But since it contains an additional direction asking the petitioner to hand over the charge of his post, it has become necessary to quash that part of the order. Otherwise, it would cause irreparable injury to the petitioner. If the petitioner is asked to hand over charge of his office, he would cease to be the Superintendent of the market Committee, and not entitled to draw any emoluments. Therefore, that part of the order is accordingly quashed, no costs in the circumstances. --- *** --- .