K.A. Swami, C.J.
1. During the course of hearing of this appeal, it is submitted that the arguments on the validity of the order dated 20.8.1993 passed in W. M. P. No. 29180 of 1992 filed in W. P. No. 20256 of 1992 will be the same as in the main W. P. No. 20256 of 1992. In view of this, by consent of both sides, we have also taken up W. P. No. 20256 of 1992 for final disposal along with this appeal.
2. Head the writ appeal and the writ petitions for final disposal.
3. The writ appeal is preferred against the order dated 24th August, 1993 passed in W. M. P. No 29180 of 1992 filed in W. P. No. 20256 of 1992. Learned single Judge has refused to stay the order of suspension dated 30th November, 1992, challenged in the writ petition. However, he has directed that 50% of the salary shall be paid to the appellant/petitioner as subsistence allowance.
4. In the writ petition, the appellant/petitioner has sought for quashing the official Memorandum D-1 (B) TE/92/3678, dated 30th November, 1992 passed by the Syndicate of the University of Madras placing the appellant/petitioner under suspension.
5. The appellant/petitioner is a Director of the Centre for continuing Education and Extension, University of Madras. The Syndicate of the University resolved to place the appellant/petitioner under suspension pending an inquiry contemplated into the grave charges and to refer all the matters related to the appellant/petitioner to the Special Syndicate Committee consisting of the following members :
1. Thiru. V. Srinivasan (Convener)
2. Thiru V. V. Nathan
3. Tmt. Kavinilavu Dharmaraj
4. Prof. R. V. Dhanapalan
5. Prof. A. P. Kamalakara Rao
6. Thiru A. Devaraj
7. Prof. T. R. Balakrishnan.
The Syndicate has also referred to the events that have led to its resolution to place the appellant/petitioner under suspension. Those events as stated in the resolution are as follows :
'312 (Sec. D. 1/B)
A-53 & A-68 considered the minutes of the meeting of the Special Committee held on 27th August, 1992 to enquire into the matters of Dr. V. Nagarajan alleged to be Director of two Companies without permission from the Syndicate and of his evaded replies to this Office letters to clarify his position.
(i) Resolved to accept the recommendations of the Special Committee in the above minutes. Considered the first recommendation of the special Committee to the Syndicate for taking appropriate action based on its findings that there is prima facie evidence to show that Dr. V. Nagarajan, has violated the University Rules as per the Statute 10 of Chapter IX, Volume 1 of the University of Madras Calendar engaging in remunerative work in two Companies viz. M/s TANC Computer Pvt. Ltd. and M/s. House of Computer Software System Pvt. Ltd., taken note of the legal opinion that he has violated the Madras University Employees Conduct Rules 11 (a) and also considered (item No. 68) his suppressing the facts that he has a partnership firm viz., M/s Hi-Tech. Computer System against which a court case appears to be pending for alleged default of payment to the Indian Bank. Thousand Lights branch and he appears to have given a written statement confirming the above fact that his firm viz. M/s. Hi-Tech. Computer systems, had several transactions with the Bank, but a the same time his giving a letter to the University dated 21.9.1992 denying that such companies ever started any activities and are defunct.'
Pursuant to the aforesaid resolution, the Register of the University has conveyed the Order of suspension by the communication dated 30th November, 1992 produced at page 1 of the typed set of papers, which reads thus :
'Whereas an enquiry not grave charges against Dr. N. Nagarajan, Professor, Department of Adult and continuing Education, University of Madras is contemplated.
And whereas in the circumstances of the case it is necessary in the public interest to place the said Dr. V. Nagarajan, Department of Audit and Continuing Education under suspension from service. Now therefore under resolution of the Syndicate of this University dated 27.11.1992, the said Dr. V. Nagarajan, is with immediate effect placed under suspension from service, until further orders. During the period of suspension, the said Dr. V. Nagarajan will be paid subsistence allowance and dearness allowance admissible under F. R. 53 (i).
He will in addition be paid the admissible compensatory allowances. The Head Quarter of the said Dr. V. Nagarajan during the period of suspension shall be at Madras and the said Dr. V. Nagarajan shall not leave the headquarters without obtaining the previous permission of the authority concerned.'
The aforesaid order of suspension has been challenged on the following Grounds;
(i) that the is no provision contained in the Madras University Act, 1923 (hereinafter referred to as the Act) and the laws of the University, placing a teacher under suspension pending inquiry, therefore, there is no power vested in the Syndicate to place the appellant/Syndicate to place the appellant/petitioner under suspension pending inquiry.
(ii) that the order of suspension is arbitrary and the same is passed without any basis.
(iii) that there is no provision contained in the Act or the laws of the University regarding payment of subsistence allowance during the period of suspension, pending inquiry and as such, the direction in the order of suspension than the appellant/petitioner shall be paid the subsistence allowance as per F. R. 53 is also without the authority of law, in as much as in the absence of any specific provision as to payment of subsistence allowance, the appellant/petitioner is entitled to full pay and allowance.
Ground No. (i) : It is contended that Sec. 19 (h) of the Act does not empower the Syndicate to place the appellant/petitioner who belongs to the teaching staff of the university, under suspension pending inquiry, that Sec. 19 (h) has to be read with Statute 5 of Chapter IX of the Statutes and Ordinances and so read, there is no power in the Syndicate to place the appellant/petitioner under suspension pending inquiry. We ar of the view that the interpretation tried to be placed by learned counsel for the appellant cannot all be accepted. Sec. 19 provides for the powers of the Syndicate. It opens with the words, the Syndicate shall have the following powers, namely (a) to (g)..... (h) to suspend and dismiss the University Professors, Readers and Lectures and the Teachers and Servants of the University. Statute 5 of Chapter IX of the Statutes and Ordinance reads thus :
'The Syndicate shall have power, upon sufficient cause shown and after due investigation by a resolution approved of by not less than two thirds of the members of the Syndicate, to suspend any Teacher of the University from office and from the emoluments thereof in whole or in part for any period not exceeding one year, or to require him to retire, or to deprive him of office and during the suspension of any teacher in make provision for his work, provided no such sentence of suspension etc., shall have effect until approved by His Excellency the Chancellor.'
As Statute 5 only provides for suspension as penalty for a period of one year and as Sec. 19 (h) does not been specifically provide for suspension pending enquiry, the expression 'suspension' found in Sec. 19 (h) of the Act should be read only a conferring power on the Syndicate to order suspension as a penalty and not empowering the syndicate to place a teacher under suspension pending inquiry. There is no warrant for interpreting Sec. 19 (h) in the manner suggested by learned counsel for the appellant. Power to suspend includes power to suspend pending inquiry and also direct suspension as penalty in terms of the regulations. It is also established principles of law that the power to suspend or dismiss is inherent in the appointing authority and as such it is not possible to hold that there is no power to suspend pending inquiry. In fact, it has been stated in P. R. Nayak v. Union of India, : (1972)ILLJ535SC , that the order of suspension without affecting the right of a civil servant to receive other emoluments lies within the general inherent competency of the appointing authority. Again, in B. R. Patel v. State of Maharashtra, A. I. R. 1988 S. C. 800 it has been specifically stated that on general principle, every employer would have a right to suspend an employee would have a right to suspend an employee in one of the two ways. He may be suspended pending departmental inquiry or pending criminal proceedings which may be called interim suspension. The Government may proceed to hold a departmental inquiry and after being found guilty, order suspension as penalty, if the rules so permit. In such case, the suspension will be as a penalty. Therefore, the power of suspension is inherent in the general power of the Appointing Authority. However, in the instant case, Sec. 19 (h) specifically confers upon the Syndicate power to suspend. Statute 5 of Chapter IX of Statutes and Ordinance, in addition to that, provides for the mode of imposition of suspension as penalty. Therefore, we are of the view that the contention of the learned counsel for the appellant/petitioner that the is not power vested in the Syndicate to place the appellant/petitioner under suspension pending inquiry cannot be accepted. In addition to this, we may also refer to a Division Bench decision of this Court in C. Arumugham v. The University of Madras & Anr., W. A. No. 946 of 1989, dated 20.11.1989. That was also a case of suspension pending inquiry. With reference to Sec. 19 (g) and (h) of the Act and Clause 2 (g) and (h) of Chapter XII of the Statutes, a Division Bench of this Court has observed thus :
'We also do not see any force in the said submission of the learned counsel for the appellant that under the statute governing the appellant's service, there is no power given to the Syndicate to place the appellant under suspension pending enquiry. A reference to the Madras University Act and the statute shows that the syndicate has the power to make appointments of Professors and others, which power would include the power to take disciplinary action and place an employee under suspension pending inquiry. The Madras University Act and the statute framed thereunder specifically give the power to the syndicate to suspend as well as dismiss an employee. Reference in this connection may be usefully made to Sec. 19 (g) and (h) of the Madras University Act and Clause 2 (g) and (h) of Chapter XII of the Statute.'
It is contended that the decision in paragraph No. 3 of the judgment (extracted above) is not the ratio of the case. Therefore, it can only be treated as obiter. It is not possible to accept such a contention. In fact, the question that arose in that case was a to whether pending inquiry, reader could be suspended. With reference to the provisions contained in Sec. 10 (g) and (h) of the Act and Clause 12 (g) and (h) of Chapter XII of the Statutes. This Court held that such a power resided with the Syndicate. Therefore, that is the ratio of the said decision.
6. Learned counsel for the appellant placed reliance on another Division Bench decision of this Court in Tamil Nadu Medical Counsel & Anr. v. P. Andree, W. A. No. 885 of 1992, dated 19.1.1983. IN that case, a Division Bench of this court held that there was no power vested in the Medical Council to place the respondent therein under suspension pending inquiry. The decision rested on the provision contained in Sec. 10 (1) of the Tamil Nadu Medical Registration Act. Read with bye-laws 69 and 70 of the bye-laws. With reference to those provisions, the Division Bench stated thus :
'The second contention of the learned counsel for the appellants is that bye-law 70 of the bye-laws of the Madras Medical Council provides that subject to the provisions of Sec. 10 (1) of the Act. The President or the vice-President, when he acts as President, may impose any of the penalties specified in bye-law 69 on any members of the establishment referred to in Sec. 10 (1) of the Act and as suspension is one of the penalties enumerated in bye-law 69 the President has the power to place the respondent under suspension even pending enquiry into the charges framed against him or contemplation of disciplinary proceedings. There is no merit in this contention of the learned counsel for the appellants. Bye-law 69 enumerates various penalties which may be imposed upon the members of the establishment employed under Sec. 19 (1) of the Act and the penalty of suspension is one of the penalties which may be imposed upon the members of the establishment for good and sufficient reasons. It must be remembered that the suspension contemplated under bye-law 69 can be imposed only as a measure of punishment after holding an enquiry into the charges framed against the member of the establishment employed under Sec. 10 (1) of the Act. Bye-law 89 does not empower the President to place a member of establishment, under temporary suspension pending disciplinary proceedings or contemplation of the disciplinary proceedings. Admittedly, in the present case, not even charges have been framed against the respondent in these circumstances, it has to be held that neither bye-law 69 nor bye-law 70 empowers either the second appellant herein or the Executive Committee of the Tamil Nadu Medical Council to place the respondent under suspension pending disciplinary proceedings or contemplated of disciplinary proceedings. Therefore, the learned single Judge is quite right in holding that the second appellant herein, the Executive Committee is not competent to place the respondent under temporary suspension and therefor the impugned order is liable to be quashed. In view of the above discussion of ours, we see no infirmity in the order of the learned single Judge warranting interference in this writ appeal. There is no merit in this writ appeal and the same is liable to be dismissed and accordingly the writ appeal is dismissed No costs.'
In this regard, it may be relevant to state that Sec. 10 (1) of the Tamil Nadu Medical Registration Act does not, in specific terms, empower the medical council suspension of an official, pending inquiry, it specifically provides.
The council shall appoint a registrar who shall act as Secretary of the council and who shall also act as treasurer, unless the council shall appoint another person as treasurer. Every person so appointed shall be removable at the pleasure of the council. Thus, it does not contain any provision for placing the person under suspension, pending inquiry bye-laws also do not provide for it. That being so, as already pointed out, the decision turned upon the provisions contained in Sec. 10 (1) of the Tamil Nadu Medical Registration Act, 1914 and the bye-laws framed thereunder. Therefore, the same cannot at all be applied to the case on hand, wherein the Act and the statues to suspend the teacher or other members of the staff of the varsity. Hence, we are of the view that there is a power vested in the Syndicate to place under suspension a member of the teaching staff and also the establishment staff, pending inquiry. Accordingly, Ground No. (i) is rejected.
Ground No. (ii) it is also not possible to hold that the order of suspension has been passed in arbitrary exercise of power. We have already reproduced the entire resolution of the Syndicate. The contents of the resolution go to show that the appellant/petitioner being a member of the teaching staff of the university used his services as alleged in the resolution and engaged himself in remunerative work in two companies. M/s. TANC Computers Private Limited and M/s. House of Computer Software System Private Limited and also M/s. Hi-Tech, Computer Systems. Therefore it is not possible to hold that the Syndicate has acted without any basis and arbitrarily in placing the appellant/petitioner under suspension. Hence, ground (ii) is rejected.
Ground No. (iii) No provision either in the Act or in the Statute in brought to our notice providing for payment of subsistence allowance during the period of suspension, pending inquiry. No doubt, the order of suspension dated 30th November, 1992 states that during the period of suspension, the appellant/petitioner will be paid subsistence allowance and dearness allowance admissible under F. R. 53 (i) it is submitted on both sides that fundamental rules of the Government of Tamil Nadu are not extended to the teachers of the University. Therefore, the Fundamental Rules cannot at all be applied to the teachers of the University. In the aforesaid B. R. Patel v. State of Maharashtra : (1968)IILLJ700SC , while considering this aspect of the matter, it has been observed thus :
'The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. It there is no express term relating to payment during such suspension or there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment of if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employed with this qualification that in view of the peculiar structural hierarchy of Government, administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principle 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. The Government may also proceed to hold a departmental enquiry and after hid being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to that public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection.'
Therefore, it is clear that in the absence of any specific provision in the statute or in the Act providing for payment of subsistence allowance during the period of suspension, the University has to pay the full pay and allowance. Hence, ground No. (iii) is upheld.
7. For the reasons stated above, the writ petition in disposed of in the following terms.
(a) No ground to interfere with the order of suspension. However, the direction contained in the order of suspension as to payment of subsistence allowance is set aside.
(b) During the period of suspension, pending inquiry, the appellant/petitioner shall be paid full pay and allowance.
In view of the disposal of the writ petition, the interim order passed therein comes to an end. Therefore, the writ appeal becomes infructuous. It is dismissed as infructuous. In the facts and circumstances, of the case, there shall be no order as to costs. W. P. No. 257 of 1993 as directed by the learned single judge be posted for hearing before the learned single judge on 14.12.1993.