Mootham, C.J. - (1.) This is an appeal against an order of a learned Judge dated the 16th October, 1959, dismissing a petition under Article 226 of the Constitution.
(2.) The facts necessary for the purposes of this appeal can be stated very shortly. The appellant was appointed the executive officer of the respondent Municipal Board in the year 1931. In 1958 the President of the Board held an enquiry into charges which he had framed against the appellant under Section 69-A of the U. P. Municipalities Act, 1916, on the 23rd September, 1958. On the 27th November, the President pursuant to Sub-section (4) of that section submitted the record of the enquiry with his recommendations to the State Government. On the 23rd May, 1959, the State Government made the following order: "On a perusal of the enquiry report, submitted by the Ex-President, Municipal Board, Hapur, under Sub-section (4) of Section 69-A of the U. P. Municipalities Act, 1916, the charges framed by him against you, are, prima facie, quite serious and for a proper consideration of the said report of the Ex-President on these charges, it is necessary to suspend you. The Governor has accordingly been pleased to order that you shall be suspended with immediate effect and you are hereby suspended till further orders." It is the validity of this order which is in question in this appeal.
(3.) It is common ground that the U. P. Municipalities Act (hereinafter referred to as the Act) contains no express provision empowering the State Government to suspend an executive officer of the Board pending the consideration of the record of the enquiry and the President's recommendation submitted to it under Section 69-A (4), but the learned Judge was of opinion that such a power must be implied as being necessary for the purpose of enabling the State Government to perform the duties imposed on it by that sub-section which is in these terms: "69-A (4). After the inquiry is completed, the President shall submit the record with his own recommendation to the State Government or to the Board as he may consider fit. The State Government or the Board, as the case may be, shall thereupon, notwithstanding anything contained in Sub-section (1) of Section 58 or 67 or 69, proceed to consider the report and may, after such further inquiry as it may deem necessary, punish, dismiss, remove or exonerate the Executive officer or the Secretary or such other officer to whom Section 69 applies, as the case may be." The argument for the appellant is that an examination of the Act shows that whenever the legislature intended that an authority should have the power of suspension it took care to make express provision to that effect, and that accordingly where the legislature has not expressly conferred a power of suspension upon the State Government, the inference is that it did not intend it to have that power. For the respondents it is contended, first, that the power to hold an enquiry implies the power to suspend pending the enquiry, secondly that as the State Government had the power to dismiss the appellant it has the implied power to suspend him while it is deciding upon its course of action and, thirdly, that as the State Government in the present case is the appointing authority it has a statutory power to suspend under Section 16 of the U.P. General Clauses Act.;