Manisana, J.@mdashThe writ Petitioner Gouri Ram Kalita was appointed as the Deputy Commissioner East Zone of the Gauhati Municipal
Corporation, for short ""the Corporation"" by the Commissioner of the Corporation with the approval of the Government, vide, order dated
16.6.84. By his order dated 29.3.90, the Commissioner suspended the Petitioner. The order of suspension has been challenged in this Court. The
relevant portion of the order of suspension is in the following terms:
Pending drawal of departmental proceedings, I, Shri Mukesh Chawla, IAS, Commissioner, Gauhati Municipal Corporation in exercise of powers
vested in me u/s 75(1) of the Gauhati Municipal Corporation Act, 1969 (Assam Act I of 1973), do hereby suspend Sri Gouri Ram Kalita, Deputy
Commissioner, East Zone, Guwahati Municipal Corporation with immediate effect.
2. Mr. J.P. Bhattacharjee, the learned Counsel for the Petitioner has advanced two submissions. First, no regulation has been made under the
Gauhati Municipal Corporation Act, 1971, for short ''the Act'', governing the conditions of service of the Petitioner and, therefore, the impugned
order of suspension could not be passed. Secondly, the Commissioner has no jurisdiction to suspend the Petitioner.
3. As regards the first contention of Mr. Bhattacharjee that in the absence of the statutory provision or regulations made u/s 75(1) the Petitioner
could not be suspended, he has relied on the decisions of the Supreme Court in Balvantray Ratilal Patel Vs. The State of Maharashtra, and P.R.
Nayak Vs. Union of India (UOI),
4. Mr. J.P. Bhattacharjee has drawn our attention to Section 75(1) of the Act. Section 75(1) of the Act provides:
Punishment of Municipal officer or staff, (1)--Every Municipal officer and staff may be fined, reduced in rank, suspended or dismissed for any
breach of departmental rules or discipline or for carelessness, negligence of duties or other misconduct by the authority by whom such officer or
staff is appointed as may be provided for in the regulation to be made in this behalf.
It is (sic, not) disputed that no regulation has been made as is provided u/s 75(1) or any other provision of the Act. Mr. Bhattacharjee has
submitted that suspension u/s 75(1) is by way of punishment. Be that as it may, it may be noted here that suspension may be by way of penalty, or
in contemplation of or after the start of, the disciplinary proceedings. (See T. Cajee Vs. U. Jormanik Siem and Another, para 14)
5. The question which, therefore, arises for consideration is whether, in the absence of regulation made u/s 75(1), the Petitioner could be
suspended. Section 71 of the Act provides that Subject to other provisions of the Act, appointment to the Corporation establishment shall be
made--(a) by the Corporation if the maximum salary of the officer is not below two hundred and fifty rupees per month ; (b) by the Commissioner
in all other cases with the approval of the Corporation"". However under provision to Section 72(6) of the Act, ""during the period of supersession,
appointments to the posts carrying any salary shall be made by the Commissioner with the approval of the State Government"". In view of
provisions u/s 71 and 12(6), the power to appoint is conferred by the Act, that is to say --either u/s 71 or under the proviso to Section 72(6), as
the case may be. Therefore, Section 18 of the Assam General Clauses Act, 1915 is attracted. Section It of the Assam General Clauses Act,
provides: ""Where, by any Act, a power to make appointments is conferred, then unless a different intention appears the authority having power to
make the appointment shall also have the power to suspend or dismiss any person appointed by it in exercise of that power"". Therefore, Section
18 is the statutory provision under which interim suspension can be made in the absence of regulation.
6. A reading of the impugned order of suspension shows that the order of suspension was made before the commencement of the disciplinary
proceeding, viz, interim suspension, and not by way of punishment. Merely because Section 75(1) is mentioned in the order of suspension, it would
not amount to punishment if the power to suspend is traceable under the Act. Section 18 of the Assam General Clauses Act is the provision under
which interim suspension can be made, as already stated.
7. With regard to the decisions of the Supreme Court relied on by Balvantray Ratilal Patel Vs. The State of Maharashtra, the Supreme Court has,
while dealing with Bombay Civil Services Rules and the Fundamental Rules, hold that the power 10 suspend ''''can only be a creature either by
statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore the absence of such power either us an express term
in the contract of in the rules formed under some statute would mean that the master would have no power to suspend a workman."" In P.R. Nayak
Vs. Union of India (UOI), the Supreme Court has while dealing with the All India Services (Disciplinary and Appeal) Rules, held that, if there is no
provision for suspension of an officer before the commencement of the disciplinary proceeding, the suspension before the commencement of
proceeding is illegal. The Supreme court has further held that there is no inherent power of suspension under the Fundamental Rules or any other
rules governing the service conditions of the civil servant in that case.
8. What has been laid down in the above cited cases of the supreme Court is that without an express term in the contract or without some
provisions of a statute or the rules there cannot be interim suspension. In the present case, it has already been concluded that there is statutory
provision, namely Section 18 of the Assam General Clauses Act, under which interim suspension can be made Therefore, the decisions of the
Supreme Court are not applicable the present case. That apart, the Petitioner in this case, is an employee of the Corporation. There is no
regulation of the corporation giving the employees of the Corporation a statutory status and imposing restriction on the employer as in the above
cited cases. It is already been concluded the present is a case of interim suspension An interim suspension is only in aid of and as an ancillary to the
final decision. It is inherent power of the master to suspend(sic) servant as it is the well-understood general law that the power(sic) suspend flows
naturally and as a necessary sequence from the power(sic) to appoint. Therefore, the Corporation like any other ordinary employer or master can
pass an order of interim suspension against (sic) employee when a departmental enquiry is contemplated or is pending against him, even though
there is no specific provision. This (sic) of ours finds support from the decision of the Supreme Court in T. Cajee Vs. U. Jormanik Siem and
Another, A five-judge bench of the Supreme Court has, while explaining the decision in The Management of Hotel Imperial, New Delhi and
Others Vs. Hotel Workers'' Union, held:
...Suspension is of two kinds. In the first place suspension may be as a punishment, but the present is not a case of this kind of suspension: in the
second place interim suspension may be made pending inquiry into a case where removal is the result sought. It was this type of interim suspension
which was dealt with in the case of The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, and it was pointed out
that without an express term in the contract or without some provision of a statute or the rules there could not be interim suspension in the sense
that the master could withhold the wages of the servant. But that case did not lay down that the master could not forbid the servant from working
while he was inquiring into his conduct with a view to removing him from service. It was specifically said there that if the master does so, namely,
forbids the servant to work and thus in fact suspends him as an interim measure he will have to pay the wages during the period of interim
suspension.... The effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to
pay the servant according to the terms of contract between them....
From this point of view also the decision of the Supreme Court cited above are not applicable to the present case.
9. The next question which arises for consideration is whether the Commissioner has jurisdiction to pass an order of suspension, The Gauhati
Municipal Corporation is a body corporate and has a permanent succession and a common seal u/s 5(2) of the Act. In Section 425(2), It is stated,
inter aha, that when the Corporation is superseded, ""such person or persons as the Government may appoint in that behalf, shall, so long as the
supersession of the Corporation lasts'', exercise and perform, so far as may be, the powers and duties of the Corporation and shall be deemed to
be the Corporation for the purpose"", (emphasis supplied). Therefore, during the period of supersession, there is substitution of functionaries, but
the Corporation is not merged with the State Government. Although under the proviso to Section 72(6) of the Act, during supersession, the
appointment to any post shall be made by the Commissioner with the approval of the state Government, it does not mean that the state
Government is the appointing authority of the officers and staff working in the Corporation. It will be deemed to have been appointed by the
Corporation or the Commissioner, as the case may be, under whose control the officers and staff are working.
10. As regards the expression ""with the approval"", in a decision of the Court in UC Koring Lyngdoh cs. EC District Council UK & J. Hills and
Ors. AIR 1971 Gau 196 (FB), it has been held that, if the appointment is required to be made ""with the approval"", the appointment is not valid nor
effectual in absence of the approval. We are of the view that the decision is that case is not helpful to the present case.
11. For the reason stated above, the impugned order of suspension was not beyond the power of the Commissioner. In the result, the petition is
dismissed. No costs.