Dr. G. Thimma Reddy vs State of Andhra (Now Andhra Pradesh)

Chandra Reddy, J.—These two matters can be disposed of together as the latter arises out of the former. The petitioner in W.P. No. 573 of 1956 sought to have the order of the Government of Andhra State D/- 12-6-1956 in G. O Ms. No. 1030 (Health), placing him under suspension Bending enquiry into allegations of corruption and mal-practice by the Tribunal for disciplinary proceedings quashed. When Rule Nisi was issued, an interim stay was granted. After notice to the Parties and flearing both sides. Mr. Justice Krishnarao dissolved the interim stay. It is that order that is the subject of the Writ Anneal No. 83 of 1956.

The facts as emerge from the material on record are follows :

The petitioner entered service in 1930 as Assistant Surgeon and was promoted as D.M.O. In or about the year 1947. Till about May 1953. be served in that capacity in various districts. He was transferred to Krishna in June, 1953 and was there till August, 1953. Thereafter he was transferred to Anantapur as D.M.O. During his service in that district, certain charges were framed against him and an enquiry was held by the Tribunal for disciplinary proceedings and it was concluded on the 27th of September, 1955.

Another enquiry was started against him on complaints received from the members of the public in relation to his term of office in Krishna District. Pending this, the Director of Medical Services at the instance of the Government advised the petitioner to take leave on the ground that the Government were getting serious complaints against him. in whatever district he served. As the petitioner did not avail himself of this advice inspite of some reminders, the order now impugned was passed.

The main ground of attack against the order is that the order is vitiated because the procedure laid down in Art. 311 of the Constitution was not followed by the authorities concerned. Art. 311 requires inter alia that a member of a civil service of the Union or an all India service or a civil service of a State should be given a reasonable opportunity for showing cause against the action proposed to be taken in regard to him before he is dismissed or removed by an authority not subordinate to that by which he was appointed. It is urged that as the petitioner was not afforded an opportunity to show cause against the order of suspension, the order is null and void and has to be quashed. It, therefore, falls to be decided whether a suspension pending enquiry falls within the purview of Art. 311 (1) of the Constitution.

The provision of law under which action was taken in the instant case by the Government is rule 17(3) of the Madras Civil Service (Classification, Control and Appeal) Rules. That rule recites :

A member of service may be placed under suspension from service pending enquiry into grave charges where such suspension is necessary in public interest.

It is submitted by Mr. Ramachandra Rao that a suspension pending enquiry amounts to reduction in rank within the meaning of Art. 311. The foundation for this argument is a Bench decision of the Nagpur High Court in Provincial Govt. C. P. and AIR 1949 118 (Nagpur) . The passage called in aid in support of the proposition put forward by the counsel for the petitioner occurs at p. 579 (of ILR) : (at p. 120 of AIR).

When a man is suspended he is, in our opinion, reduced in rank. It is evident that suspension is not the equivalent of dismissal because, if it were, then the present contention would fall to the ground. Buff if the man continues in service what rank does he hold? Clearly not the rank he occupied at the date of suspension. He is not entitled to discharge any duties while under suspension. He is not entitled to draw his pay. It is evident then that he does not continue to hold his substantive rank because two of the fundamental attributes of rank, except when honorary, are the right to discharge its duties and the right to draw its pay. If he continues in service but ceases to hold the rank, he did, then there must have been a reduction in rank and in our opinion an officer ''under suspension'', which is what is officially called, means an officer whose rank has been reduced within the meaning of sub-s. (3).

In that case an officer concerned was dismissed after being placed under suspension for a few days. This order of dismissal was set aside in a civil court. But, he was not restored to his former position, nor was he paid the full pay. On the other hand it was made clear that the Government intended to give the officer (sic)th of his pay for three years as a matter of grace, after the case was over. To recover the arrears of salary, a suit was instituted against the Government. It is in that context that these observations were made.

We express our respectful disagreement with the proposition inculcated in that passage in such wide terms. It is difficult to construe a suspension pending enquiry as reduction in rank. We feel that it would be stretching the language of the expression ''suspension'' to equate to a reduction in rank. One of the meanings of the word as given in Chamber''s 20th dictionary is:

to defer, to debar from any privilege, office emolument etc., for a time.

It is clear that a suspension is a temporary act and cannot amount to a reduction in ''rank. A reduction in rank denotes a demotion to a lower category or a class of office in which capacity he has to discharge his duties. Thus, suspension and reduction in rank are two different things.

The decision of the Nagpur High Court was dissented from in almost all the High Courts. In Venkateswarlu v. State of Madras, 1954-1 Mad LJ 244 Y. Venkateswarlu Vs. State of Madras, Justice Govinda Menon dealt with this subject elaborately and after referring to the relevant provisions of law and the authorities on the topic expressed the opinion that suspension from service could not be equated with reduction in rank as mentioned in Art. 311 (2) of the Constitution, Another Bench of the same Court in In Re: T.M.R. Abdul Khader, was not prepared to follow the ruling of the Nagpur High Court referred to above. They decided that a suspension did not involve a reduction in rank so as to fall within the ambit of Art. 311 of the Constitution.

Dealing with the AIR 1949 118 (Nagpur) ), this is what H.K. Bose, Justice observed in Kali Prosanna Roy Vs. State of West Bengal,

It appears to me that the learned Judges of the Nagpur High Court have put a strained construction on the words ''reduced in rank'' as occurring in S. 240 (3), Government of India Act, 1935. It is no doubt true that the person is brought down to an inferior condition for the time being but in my view the expression ''reduced in rank'' in Art. 311 (2) has reference to permanent reduction or degradation of status.

The view taken by Justice H.K. Bose was approved of by a Bench of the same court in Shiva Nandan Sinha and Others Vs. State of West Bengal,

The view taken by the Patna High Court in Gurudeva Narayan Srivastava Vs. State of Bihar and Another, by a Division Bench accords with the doctrine stated in Kali Prosanna Roy Vs. State of West Bengal, A Division Bench of the Orissa High Court in Dandapani Gouda v. State of Orissa, AIR 1953 Orissa 329 (G), expressed the same opinion as that indicated above. The rule stated in Prem Biharilal v. State of Madhya Bharat, AIR 1954 Madh B. 49 (H), is to the same effect.

We may also state that another Bench of the same High Court in Gopalkrishna Naidu v. State of M.P., AIR 1952 Nag 170 (I), struck a different note. No doubt it does not refer to AIR 1949 118 (Nagpur) . We feel that Provincial Government, Central Provinces and Berar v. Syed Shamsul (A), does not state the proposition correctly and it cannot, therefore, be accepted as sound law. We express our respectful accord with the doctrine of the other cases cited above.

It follows that by not giving an opportunity to the petitioner before any action was taken under R. 17 (3) of the Madras Civil Service (Classification Control and Appeal) Rules. Art. 311 of the Constitution was not in any way infringed as the suspension is not one of the cases contemplated by that Article, Therefore the contention based on Art. 311 is also negatived.

It was next argued by Mr. Ramachandrarao that the Government did not act in good faith in suspending him because at the time the order was passed there was no enquiry pending against him. We must reject this as unsubstantial for the reason that there was a second enquiry pending against him before the Disciplinary Proceedings Tribunal. We cannot uphold the contention of Mr. Ramachandrarao that because a communication regarding the pendency of the enquiry before it was issued to him only after the writ petition was filed and not before he was suspended. The question is not whether the petitioner had notice of the proceedings against him before the Tribunal but whether in fact such aft enquiry was pending. A reference to the relevant document clearly shows that the enquiry was started even as early as February 1956. There is therefore, no substance in the argument attributing want of bona fides to the Government. Nor could effect be given to the submission that there was lack of good faith on the part of the Government as could be seen from the antecedent conduct of the Government, namely advising the petitioner to take earned leave. The circumstances under which that advice was tendered are set out in the counter-affidavit and we have no hesitation in accepting these allegations as true.

There remains the point raised by the petitioner that the order now impeached should be struck down for the reason that the Public Service Commission was not consulted before suspending him. At the outset, it must be stated that this was not a ground urged in the affidavit in support of the petition for quashing the order and it is not known whether really the Public Service Commission was consulted or not. Assuming this was not so done, we feel that the contention cannot prevail. Apart from the question whether suspension pending enquiry amounts to a penalty and attracts Art. 320(3) (c) which lays down that either the Union or the State Public Service Commission as the case may be should be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a Civil capacity, including memorials or petitions relating to such matters, there can be little doubt that the Government had acted within their right in not consulting the Public Service Commission.

Article 320 (3) contains a proviso in the following terms:

Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union and the Government or Rajpramukh, as the case may be, as respects other services and posts in connection with the affairs of a State may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

Though this follows Clause (3) in sub-s. 3, we are disposed to think that it governs the whole of sub-s. 3. It is thus manifest that power is conferred upon the Governor to make regulations specifying the categories of cases in which consultation with the Public Service Commission might be dispensed with. In pursuance of the powers conferred under this proviso, the Madras Public Service Commission Regulations, 1954, were passed. Regulation 18 has enacted that it shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the State except those enumerated therein and suspension from service pending an enquiry is not one of those that are included therein. It follows that failure to consult the Public Service Commission in regard to suspension pending an enquiry does not render the order illegal or invalid and therefore it cannot be set aside on that ground. This submission also is repelled.

For all those reasons, we hold that the order of suspension is quite valid and cannot be set aside. In the result, the writ petition is dismissed with costs. Advocates fee Rs. 100/-. In this view of the matter, the writ appeal has also to be dismissed and there will be no order as costs in the appeal.