N. Sundaram v. State Of Bihar — 1976 DIGILAW 157 (PAT)

Judgment HARI LAL AGRAWAL, J. 1. In this application the petitioner has impugned the order dated 14th December, 1974 (Annexure 9 to the Writ application) passed by the State Government (Irrigation Department) suspending the petitioner, an Executive Engineer (Mechanical), in the Department of Irrigation, on the ground that the same was invalid and contrary to the rules. 2. The relevant facts for the determination of the validity of the impugned order are as follows: The petitioner was appointed as a Junior Engineer in the year 1955 and was gradually promoted as Executive Engineer in November, 1972. In the year 1973, he was posted in the Department of Minor Irrigation (Tubewell Wing). In August, 1972, the State Government decided to sink 1500 tubewells and 5000 large diameter wells in connection with the emergency food production programme with the financial assistance of the Central Government. 752 tube-wells were proposed to be sunk by March, and another 752 tube-wells by June, 1973. In order to make purchases for the Minor Irrigation Department, a Cabinet Sub-Committee consisting of Dr. Jagannath Mishra, the then Minister In charge of the Department of Irrigation, Sri Darcga Prasad Ray, the then Minister In charge of the Department of Finance, and Shri Chandra Shekhar Singh, tha then Minister In charge of the Department of Minor Irrigation, was formed. The Cabinet Sub-Committee approved tha purchase of diesel driven Turbine pumping sets to the extent of 25 per cent of the total requirements of pumps and other items, and in accordance with the approval accorded by the Cabinet SubCommittee (Annexure 1), the Director of Purchase (Respondent No. 8) called for tenders. One of the tenderers who matters in this case was Messrs. Delta Engineering Company (Private) Ltd., Merrut (briefly the Company), whose tender was approved by the Cabinet Sub-Committee and an order for 50 diesel driven turbine pumping sets was placed with them by respondent No. 8, which was followed by another order for 100 units, A written agreement was duly entered into on 26-5-1973 between the Government of Bihar and the Company (Annexure 2). According to the terms of the agreement, the goods had to be consigned in the name of the petitioner (consignee) and the first 50 sets had to be supplied in April 1973 and another 50 sets in May, 1973. The Company, however, made delay and supplied 51 sets by August, and 49 sets by September, 1973. According to the terms of the agreement, the goods had to be consigned in the name of the petitioner (consignee) and the first 50 sets had to be supplied in April 1973 and another 50 sets in May, 1973. The Company, however, made delay and supplied 51 sets by August, and 49 sets by September, 1973. 3. According to the case of the petitioner, under the terms of the agreement and the standing rules and practice, he had to make payments of the bills immediately after the supply of the goods were made and the verification reports in respect of the goods were received from the Overseers and the S.D.Os. concerned. The petitioner, accordingly, made payments of the bills of the Company. It appears that respondent No. 8 had issued a telegram on the 29th September, 1973, to the Company informing that inasmuch as they had failed to supply the units within the stipulated time, the agreement stood automatically cancelled and the supplies made after 31st May, 11973, would not be accepted. The plea of the petitioner is that he had no information of this telegram until November, 11973 and, payments had already been made before that. 4. As the point which has been urged before, us and falls for our decision does not call for investigation of the above matters in any detail, it is not necessary to give any detailed narration of all those facts which the petitioner has stated. In the application as well as in the reply to the counter-affidavit filed on behalf of the respondents in this regard and suffice it to state that the petitioner has attempted to make out a ease that the payments made by him were all bona fide and the liability or responsibility with respect to the same, if any, attached to other officers and authorities. Before, however, passing the impugned order of suspension, an explanation was called for from the petitioner for the alleged irregularities by a letter dated 20-8-1974 (Annexure 10 to the reply to the counter-affidavit). In this letter a clarification was sought for from the petitioner on two points so that the matter of making payments of the price of the pumping Sets may be examined, namely, (i) as to why he had made payments of Rs. In this letter a clarification was sought for from the petitioner on two points so that the matter of making payments of the price of the pumping Sets may be examined, namely, (i) as to why he had made payments of Rs. 23.57 lacs to the company without the orders of the Chief Engineer and the Director of the State Tube-well when there was no fund available, and (ii) as to why he took delivery of the remaining 49 sets from the company against the direction of the Director of Purchase and made payments, tq the extent of 90 per cent (Rs. 10.31 lacs) on the above. The petitioner sent. his reply on 9-9-1974 (Annexure 10/A) explaining the circumstances under which the payments were made. As already said earlier, we are not concerned with the merits of the explanation at tthis stage. The petitioner was then served with the impugned order dated I4th December, 1974 (Annexure 9)i suspending him from the date of the order and entitling him to receive only the subsistence allowance in accordance with R, 96 of the Bihar Service Code. The case of the petitioner, however, is that he never made any payment illegally and committed no irregularity in the matter of making the payments. 5. In the impugned order it has been stated that the petitioner had committed. serious irregularities in relation to the purchase of 100 sets of diesel operated turbine pumping sets from the Company,. causing heavy loss to the State Government and, therefore, the State Government had directed to suspend the petitioner. The order of suspension is impugned by the petitioner on the following grounds: (i) It appeared from the impugned. order of suspension that the petitioner was suspended by way of punishment and inasmuch as the order of punishment was visited to him without holding the departmental enquiry and giving him an opportunity of showing cause, the same was ultra vires Article 311 of the Constitution of India: (ii) The order was discriminatory in nature as the various other officers against whom action was taken were not suspended and only the petitioner was picked out. It, therefore, violated the principles of equality contained in Article 16 of the Constitution of India; (iii) The order of suspension was contrary to the rules governing the service conditions of the petitioner inasmuch as according to the said rules, the petitioner could be suspended only for the reasons mentioned in Rr. 99 and 100 of the Biter Service Code or on commencement of a departmental enquiry within the meaning of the executive instruction issued by the State Government on the 4th of April, 1960, relating to the "Principles to be followed in ordering suspension" and (iv) If the order of suspension could be held to be under the general power of the master forbidding the servant not to work, the master must perform his obligation, that is, the obligation to pay salaries and, therefore, the second part of the impugned order giving only subsistence allowance to the petitioner cannot be sustained. 6. A counter-affidavit was filed by the respondents out of time as prescribed by the rules framed by this Court, but by our order dated the 26th July, 1976, we have condoned the delay in filing the same. The petitioner also filed a reply to the counter-affidavit. In the long drawn counter-affidavit statements have been made on behalf of the respondents to show that the petitioner did not conduct himself fairly and properly in regard to the payments made by him to the company towards the price of the pumping sets which were supplied out of time. As I have said above, we need not go into the details of this controversy between the parties. The respondents have, however, endeavoured to fix the responsibility primarily on the petitioner as being the drawing officer, for making the unauthorised payments. With respect to the facts asserted by the petitioner, with which we are concerned have to be discussed in some detail, the case of the respondents in the counter-affidavit is that: "In case of supply of M/s Delta Engineering, before decision was taken by the Government to suspend Mr. Sunda ram, an explanation was called for from him for the irregularities committed by him and after detailed examination of his explanation the said decision was taken and departmental enquiry had been ordered by the Government. A criminal case (Case No. 1 dated 28-1-1975) has thereafter been instituted by Vigilance Department against the petitioner and nine others u/ss. Sunda ram, an explanation was called for from him for the irregularities committed by him and after detailed examination of his explanation the said decision was taken and departmental enquiry had been ordered by the Government. A criminal case (Case No. 1 dated 28-1-1975) has thereafter been instituted by Vigilance Department against the petitioner and nine others u/ss. 120B, 418, 465, 477A I.P.C. _and u/s. 55 (2) of Prevention of Corruption Act and Police investigation thereon is going on. The above statements practically admit the case of the petitioner that at the time the impugned order was passed, no departmental proceeding had been initiated against him nor the criminal proceeding was launched and, therefore, it is obvious that the order of suspension was passed before these two conditions, being conditions precedent for passing an order of suspension, as seriously contended by the learned counsel appearing for the petitioner, existed. Mr. Md. Khaleel, Government Pleader No. III, who appeared on behalf of the respondents, fairly admitted that the order of suspension was passed at a time when neither the criminal proceeding nor the departmental enquiry had been initiated. It has, therefore, to be seen as to whether the impugned order of suspension could still be sustained. 7. In order to appreciate the question raised, it will be useful to refer to the relevant provisions governing the service conditions of the petitioner as also the executive instruction referred to above. The relevant rules are ,Rr. 99 and 100 of the Bihar Service Code, 1952 , which read as follows: "99. A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence grant that may be granted in accordance with principles laid down in R. 96) or such periods, until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin his duties, as the case may be. An adjustment of his allowances for such periods, therefore, be made according to the circumstances of the case, the full amount being only in the event of the Government servant being acquitted of blame or if the proceedings taken against him, were for his arrest or debt of its being proved that the Government servants liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified." "100. A Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g., while released on bail) if the charge made or proceedings taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowance, the provisions of R. 99 shall apply." The State Government in the year 1960 had issued an executive instruction with respect to the principles to be followed in ordering suspension in a communication addressed to All Departments of Government/All Heads of Department/District Officers, by the Chief Secretary, and that reads as follows: "Subject: Principles to be followed in ordering suspension. The undersigned is directed to say that in supersession of all previous instructions on the above subject, the State Government have been pleased to order that the following principles should be followed while taking a decision to suspend a Government servant: (i) If a Government servant is facing trial in a Criminal Court, he should be suspended if he has been refused bail, and committed to prison. (ii) If a criminal charge made against him is such that on being found guilty, he is likely to be sentenced to a term of imprisonment, or on which he is likely to be dismissed or removed in a departmental enquiry, he should be suspended immediately after charges have been framed. (ii) If a criminal charge made against him is such that on being found guilty, he is likely to be sentenced to a term of imprisonment, or on which he is likely to be dismissed or removed in a departmental enquiry, he should be suspended immediately after charges have been framed. (3) In cases where a Government servant is being proceeded against departmentally, if there are good reasons to believe on the basis of materials available at the time of initiation of the proceedings that he has been guilty of gross misconduct or corruption which, if proved, will lead to dismissal or removal, he should be suspended even if the suspension is likely to continue for a long time. (4) In all cases where there are reasons to believe that a Government servant if allowed to continue in active service might tamper with the evidence, he should be required to proceed on leave as may be due to him, or if there be no leave to his credit, on extraordinary leave. If he refuses to proceed on leave, he may be suspended. (5) Even in cases which do not fall into any of the categories mentioned above, the power and discretion of Government or of appointing authority to order suspension will remain unimpaired if there are special circumstances warranting such action. (6) Although suspension during the pendency of an enquiry is not a punishment, there is stigma attached to it which is not wholly removed, even if the officer is later exonerated. An order of suspension should, therefore, be passed only after very careful consideration. Care should also be taken to see that the period of suspension is not unduly prolonged because of delay in the disposal of the inquiry or proceedings. Attention is invited in this connection to R. 21 (iv) of the Rules of Executive Business, according to which any proposal to suspend a gazetted officer is to be submitted to the Chief Minister through the Civil Secretary before the issue of orders. Attention is invited in this connection to R. 21 (iv) of the Rules of Executive Business, according to which any proposal to suspend a gazetted officer is to be submitted to the Chief Minister through the Civil Secretary before the issue of orders. The above instructions should be followed carefully in future and should be brought to the notice of all officers subordinate to you." At this very stage I may also refer to R. 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930, which prescribes the various kinds of penalties which can be imposed upon members of the Civil Services to show that suspension was one of the modes of penalties. Rule 96 of the Bihar Service Code, 1952 provides that a Government servant under suspension shall be entitled to a "subsistence grant at an amount equal to the leave-salary which the Government servant would have drawn, if, he had been on leave, on half average pay, or on half pay and in addition cost of living allowance based on such leave-salary." 8. Now I proceed to, consider the argument of Mr. Shreenath Singh appearing for the petitioner. The first two grounds urged by him in challenge of the impugned order can be disposed of without much discussion. The first ground that the impugned order is by way of punishment has got no substance. Whereas it is no doubt true that suspension is also a mode of punishment prescribed under the Civil Services (Classification, Control and Appeal) Rules, and if visited to any delinquent member of the civil services, there may be a stigma attached to it, but at the same time the power of suspension can be exercised by the master in certain circumstances before the actual stage of imposing any punishment is arrived at. The power of suspension is based on sound public policy and cannot be challenged. The contention of Mr. Singh, however, is based upon an observation made in the impugned order that the petitioner has committed serious irregularities in the matter of purchase of the pumping sets. That observation can hardly be said to be any ultimate conclusion, followed by a penalty of suspension as such. The authorities simply purported to indicate by that observation the reasons for taking a decision to suspend the petitioner. That observation can hardly be said to be any ultimate conclusion, followed by a penalty of suspension as such. The authorities simply purported to indicate by that observation the reasons for taking a decision to suspend the petitioner. The facts disclosed from the writ application and the counter affidavit clearly indicate that later on a regular inquiry and a criminal proceeding followed and, therefore, this contention, as already said. must be rejected. 9. The second contention that by picking out the petitioner alone and leaving the other connected Officers from being suspended, there has been a violation of the principles contained in Art. 16 of the Constitution, has equally no force. Article 16 simply provides equal opportunity to all citizens in matters relating to employment or appointment to any office under the State. It has been contended on behalf of the State that the petitioner was the disbursing officer and responsible for making the actual payment, the principal controversy involved in the matter, and as such he cannot challenge the order of suspension on this ground that the State should have suspended as a matter of course all the officers connected with the transaction. A master certainly has got a discretion in passing an order of suspension against one or the other delinquent employee facing any proceeding. Article 16 of the Constitution has absolutely no application to such a situation and the argument based upon this provision is entirely misdirected and must be rejected. 10. The next two points, however, that in the absence of any proceeding, either departmental or criminal, pending on the date of the impugned order, the impugned order cannot be sustained, and for the same reason there is no warrant for reducing the salary of the petitioner to the subsistence allowance, seems to have some force and has got to be considered in some detail. 11. I have already extracted above the relevant rules, namely, Rr. 99 and 100 of the Bihar Service Code. It would be noticed from those rules that when a Government servant is under arrest or detention for reasons stated in R. 99, then the suspension is automatic for the period he remains in custody, and for a similar reason under R. 100, he may be put under suspension when he is out of custody. It would be noticed from those rules that when a Government servant is under arrest or detention for reasons stated in R. 99, then the suspension is automatic for the period he remains in custody, and for a similar reason under R. 100, he may be put under suspension when he is out of custody. These rules being statutory, governing the service conditions of the employees of the State Government, specifically provide for suspension under the given circumstances. In the absence of the provisions made under these rules for giving subsistence allowance under R. 96, the Government servant would not have been entitled to any such allowance at all in asmuch as the order of suspension amounted to a suspension of the contract of service. But since these rules provide for giving subsistence allowance in accordance with R. 96, a government servant gets that. It is apparent that the contingencies contemplated either under R. 99 or R. 100 of the Bihar Service Code cannot be directed against the case of the petitioner as there was no proceeding at all against the petitioner and as such there was no occasion for his being placed under suspension or detention. 12. Now it has to be seen as to whether the case of the petitioner can be covered under the executive instruction issued by the State Government on the 4th of April, 1960 (already quoted earlier). It has not been disputed that this instruction will have the force of law as it is well settled by several decisions of the Supreme Court that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can exercise its executive power in issuing administrative instruction providing for recruitment and laying down conditions cf service. Reference may be made only to the case of Sant Ram Sharma ( AIR 1967 SC 1910 ) which has been followed subsequently in a large number of decisions of that Court. The learned Government pleader No. III did not contest this position, rather sought to take shelter under cl. (v) of the said instruction. The first two paragraphs of this executive instruction speak of a criminal proceeding very much similar to the situations covered by Rr. 99 and 110 of the Bihar Service Code. The third condition is where a Government servant is being proceeded against departmentally. (v) of the said instruction. The first two paragraphs of this executive instruction speak of a criminal proceeding very much similar to the situations covered by Rr. 99 and 110 of the Bihar Service Code. The third condition is where a Government servant is being proceeded against departmentally. During the pendency of a departmental proceeding also an order of suspension can be passed only if there may be good reasons to believe on the materials available at the time of initiation of the proceeding that the Government servant was guilty of gross misconduct or corruption which, if proved, would lead to his dismissal or removal from service. The fourth contingency contemplated under the said executive instruction is a case where there may be reasons to believe that a Government servant, if allowed to continue in active service, might tamper with the evidence. In this situation, he should firstly be required to proceed on leave and the order of suspension can be passed only on his refusal to proceed on leave. It has not been disputed by the learned Government Pleader that neither of these two contingencies existed in this case and the impugned order cannot be brought under the mischief of these two clauses as well. 13. Faced with this situation, the learned Government Pleader, as already indicated earlier, sought to support the order of suspension, under cl. 5 of the said executive instruction, which is in the nature of a residuary or inherent power of a master and gives the State Government a general power of suspension in cases which are not covered under any of the specific clauses. This clause authorises to pass an order of suspension if there were special circumstances warranting such action. 14. Before I proceed to consider the relevant law relating to the general power of a master to suspend a servant and refer to the catena of decisions cited at the Bar, I would like to point out at the outset that cl. 5 of the executive instruction in itself prescribes the existence of some special circumstances warranting an order of suspension. The impugned order, however, does not indicate any special circumstance whatsoever for the action. In the counter-affidavit filed on behalf of the respondents also, no case has been made out that the order of suspension of the petitioner was on account of any special circumstance warranting the action. The impugned order, however, does not indicate any special circumstance whatsoever for the action. In the counter-affidavit filed on behalf of the respondents also, no case has been made out that the order of suspension of the petitioner was on account of any special circumstance warranting the action. In the counter-affidavit, the order has rather been attempted to be supported on the plea of holding a departmental inquiry, followed by a regular departmental proceeding and a criminal prosecution. Relevant statements made in paragraph 19 of the counter-affidavit have already been quoted earlier. It is, therefore, apparent that the learned Government Pleader had to fall upon this residuary power as a matter of necessity to salvage the impugned order. It has new to be seen as to whether the order can be supported under the general authority of a master to pass an order of suspension against his employee. 15. The Supreme Court had to consider the right of the Government in the matter of suspension of public servants in a large number of cases. In the Management of Hotel Imperial, New Delhi V/s. Hotel Workers Union ( AIR 1959 SC 1342 ) and T. Cajee V/s. Jormonik Siem ( AIR 1961 SC 276 ), it was observed that under the ordinary law of master and servant, 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 arise either from the express term in the contract itself or statutory provision governing such contract. It was further held in these two cases that an order of interim suspension could be passed against an employee 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 a case he would be entitled to his remuneration for the period of his interim suspension, if there is no statute or rule existing under which it could be withheld. 16. Wanchoo, J., who delivered the judgment for the court in the above two cases, again had to consider the same question in the case of R. P. Kapur V/s. Union of India, ( AIR 1964 SC 787 ). 16. Wanchoo, J., who delivered the judgment for the court in the above two cases, again had to consider the same question in the case of R. P. Kapur V/s. Union of India, ( AIR 1964 SC 787 ). Delivering the majority judgment of the Court it was observed by the learned judge that suspension during investigation, enquiry or trial relating to a criminal charge was intimately related to disciplinary matter and therefore, an employer can suspend an employee pending enquiry into his conduct, and the question of payment during the period of such suspension will depend upon the provision of the statute or rule in that connection. If there is such a provision, payment during the period of suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emolument during the period of his suspension. If I say so with respect, the learned Judge laid down the law very succinctly on this question as follows: "On general principles, therefore, the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so directed. This will be suspension as a penalty." The Supreme court again in the case of Balvantrai Ratilal V/s. State of Maharashtra ( AIR 1968 SC 800 ) : (1968 Lab IC 984) while considering a case under the Bombay Civil Service Rules, observed that on general principles, the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold departmental enquiry and after his being found guilty, order suspension as a punishment if the rules so permit. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold departmental enquiry and after his being found guilty, order suspension as a punishment if the rules so permit. It was further observed by the Supreme Court that the distinction between suspending the contract of service of any officer and suspending an officer from performing the duties of Ms office on the basis that the contract is subsisting, must be kept in mind as suspension In the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense, it means that the Government merely Issued a direction to the officer that so long as the contract is subsisting until the time the officer is legally dismissed, he must not do anything in discharge of the duties of his office and the employee is bound to obey the said order. These observations are the basis for the alternative argument of Mr. Shreenath Singh that in case this court holds that the order of suspension was under the general and implied authority of the Government, then in that case as the contract of service is subsisting the petitioner must be paid his full salary. 17 It would not be necessary to consider this alternative argument of Mr. Shreenath Singh for the view that I propose to take on his first and main argument, namely, that the order of suspension itself was contrary to the rules governing the service conditions of the petitioner. The Supreme Court in the case of V.P. Gindroniya V/s. State of Madhya Pradesh ( AIR 1970 SC 1494 ) : (1970 Lab IC 1332) again took the view that the power to suspend, in the sense of right to forbid an employee to work, is not an implied term In an ordinary contract between the master and servant, such a power can only be the creature either of a statute governing the contract, or of an express term under the contract Itself. The power of suspending an employee from performing the duties of his office on the basis that the contract is subsisting however is always an implied term in every contract of service. 18. The power of suspending an employee from performing the duties of his office on the basis that the contract is subsisting however is always an implied term in every contract of service. 18. In the case of P. R. Nayak V/s. Union of India ( AIR 1972 SC 554 ) : (1972 Lab IC 313), the question was more explicitly answered by the Supreme Court. It was held that an order of suspension of the delinquent member of the service made before the actual initiation or commencement of disciplinary proceedings was bad, being violative of R. 3 (1) of the All India Services (Discipline and Appeal) Rules (1969). Rule 3 (1) of the above Rules authorised the Government to place under suspension the member of the Service against whom such proceedings were started if the Government was so satisfied, having regard to the nature of the charges and circumstances of the case. The appellant in that case, the Managing Director of the Indian Refineries Ltd. a Public Sector undertaking, was put under suspension in anticipation of a contemplated disciplinary proceeding against him by the President of India. The High Court had dismissed his writ application and then the matter went to the Supreme Court. The Supreme Court set aside the order of suspension as the same was not supported by any rule governing the appellants conditions of service. The order was not upheld even under the general and implied authority of the master, as it adversely affected the rights and privileges of the appellant. The Supreme Court in that case overruled its earlier decision in the Govt. of India V/s. Tarak Nath Ghose ( AIR 1971 SC 823 ) : (1971) Lab IC 487), where a contrary view was taken. One more decision that was cited on behalf of the petitioner is H. L. Mehra V/s. Union of India ( AIR 1974 SC 1281 (1974 Lab IC 984). This decision, however, has no direct bearing on the point in issue as the appellant in that case was suspended during the course of a criminal proceeding, which initially had resulted in his conviction, but later on he was acquitted. The President however passed a fresh order years thereafter directing for continuing the departmental inquiry and also purported to continue the earlier order of suspension until the termination of the said proceeding. The President however passed a fresh order years thereafter directing for continuing the departmental inquiry and also purported to continue the earlier order of suspension until the termination of the said proceeding. It was held that the earlier order of suspension having become extinct on the passing of the order of dismissal, the same could not be revived subsequently. 19. From a review of the authorities noticed above on the subject, the principle that follows is that a public servant may be suspended as a mode of punishment. He may also be suspended during the pendency of an inquiry against him, if the order appointing him or the statutory provision governing his service provides for such suspension. There is yet another; mode of suspension and that is by merely forbidding from discharging his duties during the pendency of an enquiry. 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. The last category of suspension, the master forbidding his servant . from doing the work however keeps the contract of service in force and the master must fulfil lis part of the contract that is, must pay the salary. From the facts of the case in hand as disclosed by the various affidavits and counter-affidavits, it is apparent that the order of suspension passed against the petitioner on 14th December, 1974 (Annexure 9) is not covered under any of the categories of suspension. It is not a case of any "interim suspension while any inquiry into his conduct was pending, nor the two conditions contemplated under Rr. 99 and 100 of the Bihar Service Code were existing. At best the petitioner can be said to have been suspended in anticipation of a contemplated disciplinary proceeding against him which, as a matter of fact, followed closely thereafter. The order cannot be supported under cl. (5) of the executive instruction already referred to earlier as no case of any special circumstance justifying immediate suspension of the petitioner was either made out in the impugned order of suspension, or in the counter-affidavit filed on behalf of the respondents. Learned Government Pleader was at a loss to point out to us any such special circumstance. 20. (5) of the executive instruction already referred to earlier as no case of any special circumstance justifying immediate suspension of the petitioner was either made out in the impugned order of suspension, or in the counter-affidavit filed on behalf of the respondents. Learned Government Pleader was at a loss to point out to us any such special circumstance. 20. Before, however, closing the discussion, reference has also to be made to a decision of this Court in Asit Ranjan Bakshi V/s. Bihar State Electricity Board, (1972 BLJR 62), a case relied upon by the learned Government Pleader. The petitioner in this case was working as the Subdivisional Electrical Engineer at Daltonganj. A first information report was lodged by a cultivator against the petitioner and the store-keeper alleging that they had taken bribe from him for changing his meter. The petitioner was arrested, but was granted bail by this Court on "17-7-1968 and on 7-10-1970, he was served with an order of suspension "pending a thorough and detailed inquiry into the matter", permitting him to draw only subsistence allowance in the meantime. This court on a review of a large number of Supreme Court cases, refused to quash the order of suspension. From the facts of that case, it is clear that the petitioner there was suspended when a case was already pending before filepolice against him. Learned Government Pleader, however, placed reliance upon an observation made in paragraph 12 of the report that the order of suspention in that case was made in exercise off the general power of the Government to pass an interim order of suspension, and if the appointing authority was prims faciesatisfied on the basis of the repart of gross misconduct on the part of the petitioner, it had a right to suspend him from doing any work until a detaned inquiry is made and completed. This caseis entirely distinguishable from the facts of the instant case as it has never been the case of the respondents that the petitioner was suspended in exercise cf the general power of the Government, as already discussed earlier. This caseis entirely distinguishable from the facts of the instant case as it has never been the case of the respondents that the petitioner was suspended in exercise cf the general power of the Government, as already discussed earlier. In Naysks case ( AIR 1972 SC 554 ) : (1972 Lab IC 313), the decision which was delivered Subse quent to the above decision in Bakshis case (1972 BLJR 62), the Supreme Court has clearly laid down that a master has got no authority to pass an order of suspension in anticipation of a conternplated disciplinary proceeding by him The impugned order, therefore, is directly hit by the above weighty and, direct authority of the Supreme Court. 21. For the reasons discussed above, this application must succeed. 1 world, accordingly, allow the same and: qoaash the order of suspension dated 14th December, 1974 passed by the State Goverment contained in Annexure "9" to time writ application. Let an appropriate writ issue accordingly. 22. Before parting with this, ease, I would like to observe that the respondents would have done better in waiting only for a few months mere in passing the impugned order of suspension as the departmental inquiry in this case was instituted very shortly thereafter.- Haw-ever, it will be still open to the mslimrities concerned to pass any fresh order of suspension against the petitioner, if so advised, in accordance with law; 23. In the circumstances of this would direct the petitioner to, hear his: own costs. S.K.CHOUDHURI, J. 24 I agree.