Document Fragment View

Matching Fragments

26. The next general question that has been argued is the existence, if any, of power to suspend them. Because we are concerned only with the persons who have been serving either under the Mysore Government Road Transport Department or the Bangalore Transport Service, it is sufficient to refer to the relevant provisions of the Standing Orders relating to these two units of the Departments. The Standing Orders of the Mysore Government Road Transport Department, while providing for suspension as one of the punishments which could be imposed for misconduct, do not contain any specific provision for suspending delinquents during the pendency of an enquiry. The Standing Orders of the Bangalore Transport Service provide for suspension pending enquiry for a period not exceeding four days for the following misdemeanours : (I) Theft, (2) Drunkenness, (3) Misappropriation and (4) Assault ............ This is found stated in paragraph I of Standing Order IX. The heading of that Order is "punishment for misconduct and acts or omissions which constitute misconduct."

27. Their Lordships in the above case make a clear distinction between what amounts to actual suspending of the terms of the contract between master and servant and what amounts to a mere order of the employer forbidding the employee from working. Suspension in the real and substantial sense of the term can exist only in the former case. Where there is power to suspend provided in the contract of service itself, the employer is empowered to suspend or keep in abeyance the contract of service itself for a stated period. When a contract is so suspended, the relationship of master and servant is also suspended with the result that both are absolved from their respective duties, i.e., the servant is not bound to render service and the master is not bound to pay. Where, however, no such power exists, there can never be a suspension of the contract of service. An order forbidding an employee from rendering service is an order which could lawfully be made by the employer by virtue of the subsistence of the contract of service, which order by the same contract the employee is bound to obey; but because the contract is not suspended, the making of such an order by the master does not absolve him from paying full wages to the employee provided in the contract.

28. Except therefore in cases where the misdemeanours concerned are the four mentioned in the first paragraph of Part IX of the Bangalore Transport Service Standing Orders wherein suspension pending enquiry could be ordered to the extent of four days, there is in our opinion no power to suspend provided under the Standing Orders of either the Mysore Government Road Transport Department or the Bangalore Transport Service. In those cases although the employee would be bound by the order of the employer forbidding him to render service and also bound to obey the order made by him to attend every day the office or premises of the Department, the employee is entitled to receive his full remuneration for that period. There is some reference in these cases to payment of what is described as subsistence allowance to the extent of 50 per cent of the salary.

3. In view of Article 311(I) of the Constitution, he cannot: remove or dismiss any employee appointed by the General Manager or other authority to whom he is subordinate in rank;
4. There is not in any of the Standing Orders applicable to the Mysore Government Road Transport Department any provision empowering a disciplinary authority to suspend any delinquent, in the sense that the contract of service is to be deemed to be in suspension or in abeyance;
5. Under the Standing Orders applicable to the Bangalore Transport Service employees, there is power to make such orders of suspension to a maximum extent of four days in the case of four misdemeanours, viz., theft, drunkenness, misappropriation and assault. There is no power to make any such orders of suspension in other cases;