Suspension pending enquiry does not amount to reduction in rank and therefore does not fall within the ambit of Article 311 of the Constitution.

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 pending 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 hearing; both sides, Mr. Justice Krishnarao dissolved the interim stay. It is that order that is the subject of the Writ Appeal No. 83 of 1956.

2. The facts as emerge from the material on record are as 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 in spite of some reminders, the order now impugned was passed. 3. 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.

4. 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 Berar v. Shamshul Hussain, TLR (1948) Nag 576 : (AIR 1949 Nag 118) (A). 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. But 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 dra