M.S. Menon, J.
1. The petitioner is an Assistant Engineer who has been placed under suspension by Ext. P-7 dated 2-7-1957 and regarding whom a formal and public inquiry has been ordered by Ext. P-9 dated 21-11-1957 under Sec. 2 of the Public Servants (Inquiries) Act, 1122. Section 2 of the Act reads as follows: 'If, after a preliminary inquiry or otherwise, our Government are of opinion that there are sufficient grounds for making a formal and public inquiry into the truth of any imputation of misconduct by any person in the service of Our Government not removable from Office without their sanction, our Government shall cause the substance of the imputations to be drawn up into distinct articles of charge and shall order a formal and public inquiry to be made into the truth thereof.' It is clear from the section that the foundation for ordering a formal and public inquiry is the Government's SATISFACTION that there are sufficient grounds for making such an inquiry into the truth of any imputation of misconduct by a person in the service of the Government and not removable from Office without their sanction.
2. Ext. P-9 however speaks not of imputations of 'misconduct' hut of imputations of 'irregulariy' which as conceded by the learned Government Pleader is not the same thing. 'Misconduct' as stated in Batt's Law of Master and Servant (4th Edition p. 63) 'comprises positive acts and not mere neglects or failures.'
The definition of the word as given in Ballen-tine's Law Dictionary (]948 Edition) is : 'A transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand; it is a violation of definite Maw; a forbidden act. It differs from carelessness.'
3. Confronted with the defect in the wording of Ex. P-9 all that the Government Pleader could submit was that it was a slip in the drafting of the notification and that if we read the notification along with the articles of charge whichhave been drawn up the notification can be considered to be in order.
The articles of charge drawn up do not form part of the notification and it is clear that they have not been published along with the notification. In these circumstances we are not prepared to say that the notification can be sustained. It follows that Ext. P-9 has to be quashed and we decide accordingly.
4. The second contention of the petitioner is that there is no provision by which he can be suspended pending a formal and public inquiry under the Public Servants (Inquiries) Act, 1122. This contention is certainly without foundation. Rule 12 (1) (a) of the Kerala Civil Services (Classification, Control and Appeal) Rules 1957 made in exercise of the powers conferred by the proviso to Article 309 of the Constitution by the Governor of Kerala provides :
'12 (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a member of a service under suspension, where - (a) An inquiry into his conduct is contemplated, or is pending.'
The said Rules were made in supersession of all the previous rules on the subject and it is hence unnecessary to consider the earlier provisions to which our attention was drawn by counsel for the petitioner.
5. The only contention of counsel for the petitioner in the light of rule 12 (1) (a) was that the said rule is not applicable to formal and public inquiries under the Public Servants (Inquiries) Act 1122. We see no warrant for this submission, There is nothing in the said rules or in the Public Servants (Inquiries) Act 1122, which precludes the application of Rule 12 (1) (a) to cases where the inquiry ordered by the Government is a formal and public inquiry under Section 2 of the Act.
6. The petition is allowed in the manner and to the extent indicated above. No costs.
7. We make it clear, as desired by the learnedGovernment Pleader, that nothing in this judgmentwill preclude the Government from taking suchfurther action as they deem fit in accordance withthe law.