N. P. Singh, J.-

The petitioner who is a Touring Veterinary Officer of the State Government, by an order dated 28.10.1981, passed by the Director, Animal Husbandary, Bihar has been put under suspension. A copy of the said order-is Annexure-1 to this writ application. The said order says that as the petitioner bad been taken in custody he was being suspended with effect from 25.9.1981 till further orders. It further says that during the period of suspension he shall be entitled to subsistence allowance in accordance with Rule 96 of the Bihar Service Code (hereinafter referred to as 'the said Code').

2. According to the petitioner, as the aforesaid order was passed in exercise of the powers under Rule 99 of the said Code. It shall net remain in force after the petitioner was released on bail. The further grievance of the petitioner is that he could not have been suspended unless the departmental proceeding had been initiated against him.

3. The petitioner was taken into custody on 25.9.1981 in connection with a criminal case and was released on bail on 28.9.1981. In the impugned order, it has not been mentioned that the petitioner was being suspended under Rule 99 of the said Code., However, according to the learned Government Pleader, the order of suspension of the petitioner shall be deemed to be under Rule 49A of the Civil Services (Classification, Control and Appeal) Rules, 1950 (hereinafter referred to as 'the said Rules'), as such merely becauset he petitioner has been released on bail, the order of suspension shall not be inoperative. If the order is he1d to be one under Rule 99 of the said Code, then in view of Bench-decisions of this Court, in the case of Satya Narayan Pd. Shrivastava. Vs. State of Bihar and others1, there should not be any difficulty in holding that the petitioner shall be deemed to be under suspension only for the period during which he was detained in custody. As such it has to be construed whether the impugned order of suspension shall be deemed to have been passed under Rule 99 of the Code. It is an admitted position that no departmental proceeding has been initiated against the petitioner.

4. The power of Government to suspend any Government-servant has been the subject matter of controversy from time to time. This issue has become all the more complicated because of issuance of different Rules and Regulations in that respect from time to time governing the same classes of employees. The power to suspend in the sense of a right to forbid a Government servant to work is not an implied term of an ordinary contract between master and servant. This power can only be the creature either of a statute governing contract or expressed term in a contract itself. As was pointed out by the Supreme Court in the case of The Management, Hotel, Imperial... Vs...Hotel Workers Union2 :-

"Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed there under, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay."

The question as to whether it is an absolute privilege of the employer to suspend its employee and whether during this period the employee is entitled to his pay or part there of was further examined in the case of T. Cajee Vs. U. Jormanlk slems3 where it was observed as follows :-

" ... In the circumstances therefore though an order of interim suspension could be made against the respondent while enquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed there under which would justify the withholding of the whole or part of the remuneration”

Thus, the power to suspend was circumscribed with the limitation that it should be as an interim measure while an inq