M. Madhavan Nair, J.
1. This original petition is by a Government servant, who has been placed under suspension pending enquiry on la charge of misconduct against him, for a writ of certiorari or other appropriate writ, direction or order to quash the order of his suspension. The misconduct charged against is that he had claimed and cashed travelling allowance falsely alleging that he had taken his wife and seven children with him when he was transferred to Trivandrum from Ernakulam, thereby having cheated the Government to the extent of Rs. 322 odd in July 1958, and that he had also submitted a bill for travelling allowance to the extent of Rs. 197 odd when he was transferred back to Ernakulam though that bill has not been cashed for want of sanction of the Comptroller. The Government has conducted some investigation through the Superintendent of Police, X-Branch, Trivandrum, and as a result thereof has come to the conclusion that there is prima facie case of misconduct against the petitioner, warranting action under the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960, and so has referred the matter to the tribunal for disciplinary proceedings to conduct an enquiry and forward a report to the Government with its findings and recommendations. The petitioner has been placed under suspension pending completion of the disciplinary proceedings against him by Ex. P. 1 order dated 3 May 1960. It is this order of suspension that is impugned in this writ petition.
2. The grounds taken by the petitioner are:
(1) the suspension is in fact a punishment entailing irreparable loss to the petitioner in that it has deprived him of his functions as a professor and an examiner for university examinations; it should not have been ordered without giving him an opportunity to show cause against the same; and that it has therefore offended the principles of natural justice;
(2) the authority who can, under Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, place the petitioner under suspension, is the Government of Kerala; but Ex. P. 1 order is only the act of a Secretary to Government who cannot be identified with the Government; and,
(3) as per the rule, suspension pending enquiry can be ordered only if it is found necessary in public interest, which aspect has not been adverted to in the instant case.
3. The State has filed a counter-affidavit in this case explaining the circumstances under which the impugned order was made. It is stated therein that Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, empowers the Government to suspend a Government servant whenever a disciplinary proceeding against him is contemplated or pending, that considering the position and status of the petitioner the charge against him is a grave one, that suspension is no punishment and no question of opportunity to show cause or of principles of natural justice arose in such a case and the impugned order was an order of the Government only communicated to the petitioner by the Secretary to Government.
4. The question is how far the grounds urged by the petitioner have been substantiated in this case.
5. It is a provision of our Constitution that all Government servants hold their office during the pleasure of the Governor. Article 310 of the Constitution expressly enacts:
Except as expressly provided by the Constitution...every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
The exceptions contemplated by the opening words of this article are firstly, the oases of certain officers specified in Articles 124 (Supreme Court Judges), 148 (Comptroller and Auditor-General), 218 (High Court Judges), 316 (Members of a Public Service Commission) and 324 (Election Commission) whose conditions of service and term of office are fixed by the Constitution; and secondly, the safeguards against certain kinds of punishment of State servants envisaged in Article 311. In all other cases, that is, in all cases not covered by some specific provision in the Constitution, the doctrine that a State servant holds his office at the pleasure of the Governor is to have its full away. Article 311 provides two safeguards for a Government servant, which are:
(1) the punishments of 'dismissal' and 'removal from service' cannot be inflicted by an authority subordinate to that by which he was appointed, and
(2) the punishments of 'dismissal,' 'removal' and 'reduction in rank' cannot be imposed without a reasonable opportunity of his showing cause against the same.
But these protections, guarantees or safeguards extend only to cases where the Government intends to inflict one of the three forms of punishments mentioned above, namely, dismissal, removal or reduction in rank; and when a case does not fall within the purview of those safeguards, the Government servant is not entitled to any notice to show cause from the Government or to any relief from the court of law. See Framji v. Union of India 1959 I L.L.J. 107, Dhingra v. Union of India 1958 I L.L.J. 644 and Satis Chandra v. Union of India : 4SCR655 .
6. An attempt was made in some cases to construe 'suspension' as a reduction in rank within the meaning of Article 311(2) of the Constitution and therefore as requiring notice to the officer before it is ordered.
7. This contention found favour in the case, Provincial Government, Central Provinces and Berar v. Shamsul Hussain A.I.R. 1949 Nag. 118 where an order of 'suspension' was held to amount to a 'reduction in rank' within the meaning of Section 240(3) of the Government of India Act, 1935, which corresponds to Article 311(2) of our Constitution. It was observed in Para. 12 of that judgment:
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 draw its pay. If then 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 he is officially called, means an officer whose rank has been reduced within the meaning of Sub-section (3).
This reasoning does not appear to have been followed or accepted in any other reported ruling. Nor are we able to express our agreement with the same.
8. 'Suspension' literally means the act of debarring an officer, for a time, from a function or privilege. It does not reduce the officer to a lower post or to a lower place in the same cadre than he was on the date of suspension. It only interrupts a person holding an office and performing its functions, and debars him, for the time being, from further functioning in the office. That can in no sense be said to amount to a reduction in his rank. Even an officer on leave is prevented from discharging the functions of his office, but nobody ever said that such an officer suffers a reduction in rank. When the period of leave is over or when the term of suspension is over, the officer returns to his office and occupies the same rank that he had before he took leave or was suspended, unless something else happened in the meanwhile which cannot be said to be a consequence of his being on leave or suspension. Hence an order of suspension cannot be equated to a reduction in rank.
9. In Kali Prosanna Roy v. State of West Bengal : AIR1952Cal769 Bose, J., held:
The dictionary meaning of 'suspended' is 'to debar usually, for a time, from any privilege, from the execution of an office or from the enjoyment of an income.' It is temporary privation of office, or privilege. By reason of suspension the person suspended does not lose his office nor does he suffer any degradation. He ceases to exercise the powers and to discharge the duties of the office for the time being. His rank remains the same....
10. In Prem Biharilal v. State of Madhya Bharat A.I.R. 1954 Madhya Bharat 49, Para. 7 a Bench of the Madhya Bharat High Court also took the same view and observed as follows:
No doubt a Government servant while under suspension cannot discharge the duties of his office and is not entitled to draw his salary. But this in no way affects his rank, grade, post or scale of pay to which he was entitled before he was suspended.. He retains a lien on the post he was holding at the time of suspension. So also...time passed under suspension pending enquiry into conduct is counted in reckoning service for purposes of pension, if the suspension is immediately followed by a reinstatement. It is thus clear that suspension has in no way the effect of reducing a civil servant from a higher to a lower service, grade or post or to a lower time-scale of pay.
11. Venkateswarlu v. State of Madras 1954 I L.L.J. 474 was a case of suspension pending enquiry. At p. 480 of the report it is held by Govinda Menon, J.:
On a reading of the decision of the Supreme Court in A.I.R. 1953 S.C. 250, it seems to me that in that judgment their lordships did not intend to equate 'suspension' with 'reduction in rank.' The two ideas are distinct and are intended to apply to different sets of circumstances. I am therefore of opinion that the contention of the learned Counsel that suspension is tantamount to reduction in rank is unacceptable. If that is so, there was no necessity for any opportunity being given to the petitioner, before he was suspended, to show cause why he should not be suspended.
12. In Thimma Reddi v. State of Andhra 1958 I L.L.J. 24 it is held:
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 Century Dictionary is : 'to defer, to debar from any privilege, office, emolument, etc., for a time.' It is clear that the 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 class of office in which capacity he has to discharge his duties. Thus, suspension and reduction in rank are two different things....
it follows that by not giving an opportunity to the petitioner before any action was taken under Rule 17(3) of the Madras Civil Services (Classification, Control and Appeal) Rules, Article 311 of the Constitution was not in any way infringed as the suspension is not one of the cases contemplated by that article
13. Thus, there is the consensus of authorities that an order of suspension does not amount to reduction in rank within the meaning of Article 311(2) of the Constitution.
14. The observations of Weston, C.J., and Falshaw, J., in an unreported case of the Punjab High Court in C.W. No. 110 of 1951 have been, quoted in Venkateswarlu v. State of Madras 1954 I L.L.J. 474 at 479. It may be useful to adopt the same here also.
It was observed by Bose, J. (Nagpur High Court), that when a man was suspended, he was, in his opinion, reduced in rank as he could neither perform the duties of his office nor draw the salary for it. This, however, does not appear to be a sufficient reason for holding that suspension during the pendency of an enquiry meant reduction in rank. The same two disabilities, namely, not being able to perform the functions of his office and not being able to draw his full salary would equally apply to an officer on leave on half pay. 'Suspension,' as a term, is of long usage and has a clear and well-defined meaning in this context, and in my opinion there can be no doubt that if suspension was a step which could not be taken without an opportunity being given to the officer concerned to show cause against it, suspension would have been Included specifically along with dismissal, removal and reduction in rank, in Article 311(2).
Although during its pendency the incidents of suspension are similar, whether it is imposed as a punishment after an enquiry, or is merely suspension pending an enquiry, there is one important difference between them, namely, that if an officer is exonerated as a result of the enquiry he will be given his arrears of pay for the interim period of suspension. If an officer could not be suspended pending an enquiry under Rule 56 without being given an opportunity to show cause against this action, it would really mean that two enquiries would have to be held against him, and it was in my opinion for this reason that suspension was omitted from Article 311(2).
15. In Mohammad Ghouse v. State of Andhra : 1957CriLJ481 the Supreme Court upheld an order of suspension of a Government servant made pending final orders on the enquiry into the charges against his conduct under the Madras Civil Services (Classification, Control and Appeal) Rules though the order appears to have been issued without any prior notice to the officer.
16. In In re T.M.R. Abdul Khader A.I.R. 1957 Mad. 46, Rajamannar, C.J. (with whom Ramaswami, J., concurred), held even though that was a case of an order of suspension from service for one year Imposed as a substantive punishment for misconduct of a Government servant, it did not attract the provisions of Article 311 of the Constitution and as such no notice to show cause was necessary before its imposition.
17. From the decisions quoted above, it is clear that an order of suspension pending an enquiry cannot be regarded as a punishment within the purview of Article 311(2) of the Constitution; and in that view neither any question of opportunity to show cause nor of violation of the principles of natural justice arises in this case.
18. Suspension pending enquiry into charges of misconduct of Government servants without a previous notice to show cause against such proposed suspension has come up for consideration in Kali Prosanna Roy v. State of West Bengal : AIR1952Cal769 , Venkateswarlu v. State of Madras 1954 I L.L.J. 474, Gurudeva Narayan v. State of Bihar : AIR1955Pat131 , Thimma Reddi v. State of Andhra 1958 I L.L.J. 24, Gopalakrishna Naidu v. State of Madhya Pradesh A.I.R. 1952 Nag. 170, and several other cases and in all these case it has been uniformly held by the different High Courts that no prior notice is necessary to validate the same.
19. We now come to the second contention that the order was not made by the appointing authority as provided in Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules and as such the order is without jurisdiction.
20. The contention is that Ex.P.1 does not express itself to be an executive action of the Government which can be made only in the form prescribed by Article 166 of the Constitution. The point is that it is not signed by Secretary as 'By order of the Governor,' and therefore it is an act of the Secretary in excess of his powers. A consideration of Article 166 of the Constitution and the Rules of Business of the Government of Kerala becomes necessary in this connexion.
21. Article 166 of the Constitution runs as follows:
166. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders or other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or Instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion.
22. A plain reading of the Article 166(1) of the Constitution clearly shows that the provision therein does not define how executive acts of Government are to be made but only Indicated how they are to be expressed after they have been made. No particular form is prescribed by the Constitution as to how an executive decision is to be taken. So the requirements of the Constitution will be fully satisfied if it can be shown that the executive decision has in fact been taken.
23. Article 166(2) provides that the Governor shall make rules showing how orders in the name of the Governor shall be authenticated and provides further that if an order is authenticated as per those rules its validity shall not be called in question on the ground that it is not in fact an order made by the Governor. Article 166(3) required the Governor to make rules for the convenient transaction of the business of the Government of the State.
24. In exercise of the powers conferred by the Clauses 2 and (3) of Article 166, the Governor had made certain rules which are known as the 'Rules of Business of the Government of Kerala.' These rules provide as follows:
5. The Governor shall, on the advice of the Chief Minister, allot the business of the Government among the Ministers by assigning one or more departments to the charge of a Minister..
6. Each department of the Secretariat shall consist of a Secretary to Government who snail be the official bead of that department,.
7. The Council (of Ministers) shall be collectively responsible for all executive orders, issued in the name of the Governor in accordance with these rules, whether such orders are authorized by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council, or otherwise.
* * *9. Without prejudice to the provisions of Rule 7, the Minister in charge of a department shall be primarily responsible for the disposal of the business appertaining to that department.
* * *11. All orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor.
12. Every order or instrument of the Government of the State shall be signed by a Secretary or an Assistant Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.
* * *22. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge..
* * *24. Except as otherwise provided herein, oases shall be submitted by the Secretary in the department to which the case belongs to the Minister-in-charge.
Rule 34(1) specifies the classes of cases which shall be submitted to the Chief Minister, and Rule 34(2) specifies the classes of cases which shall be submitted to the Governor before the orders are issued out.
25. These rules of business show that orders and decisions are to be made or taken by the Minister in charge of the department concerned and that his order or decision is to be authenticated by the Secretary who is the official head of that department or by some other officer empowered in this behalf. If therefore an executive decision or order is noted on the file by the Minister concerned and it is authenticated by the particular Secretary to the Government, then as per Article 166(2) it becomes an order of the Government, and the source of the order shall not be called in question in any proceeding. It does not appear necessary that every Government order should proceed from the Governor himself personally. By the Rules of Business of the Government he has authorized the Minister in charge of the department concerned to decide and act on his behalf and if the Minister's proceeding is subsequently authenticated by the Secretary to Government (which means his concurrence also to the proceeding) the decision or act of the Minister will be conclusively deemed to be that of the Governor under Article 166 of the Constitution. Of course sufficient safegaurds against any possible wantonness on the part of a Minister have been incorporated in the Rules of Business. Provisions exist for the Secretary and the Chief Secretary to look into the papers and place the matter before the Chief Minister, and also for the Governor to scrutinize any decision of a Minister and require it to be laid before the Council of Ministers for their consideration. The whole looks as if the Governor acts through his authorized agents, the Ministers.
26. In this connexion the following observation of the Supreme Court will be very pertinent.
27. In Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 Para. 7, S.R. Das, J. (with whom Patanjali Sastri, C.J., agreed), held:
It is at this stage that the learned Counsel for the petitioner passes on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed and authenticated in the manner therein provided. The learned Attorney-General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office flies by way of notings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression, the whole Governmental machinery, he contends, will be brought to a standstill.
I agree that every executive decision need not be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting In a particular way, but when the executive decision affects an outsider or is required to be officially notified or to be communicated, it should normally be expressed in the form mentioned in Article 166(1), i.e., in the name of the Governor. Learned Attorney-General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that article.are merely directory and not mandatory.Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must; take a decision as to whether the detention order should be confirmed or not under Section 11(1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question.
Mukherjea, J. (with whom Chandrasekhara Ayyar, J., agreed), observed (Para. 18):
The clause [Article 166(1) of the Constitution] does not undoubtedly lay down how an executive action of the Government of a State is to be performed; it only prescribes the mode in which such act is to be expressed. The manner of expression is ordinarily a matter of form, but whether a rigid compliance with a form is essential to the validity of an act or not depends upon the intention of the legislature..
Even if Clause (1) of Article 166 is taken to be an independent provision unconnected with Clause (2) and having no relation to purpose which is indicated therein, I would still be of opinion that it is directory and not imperative in its character. It prescribes a formality for the doing of a public act..
In the present case the order under Section 11(1) of the Preventive Detention Act purports to be an order of the Government of Bombay and is signed by the officer who was competent to sign according to the rules framed by the Governor under Article 166 of the Constitution, and in these circumstances I am unable to bold that the order is a nullity even though it has not been expressed to be made in the name of the Governor.
28. We have called for the file regarding the order of the petitioner's suspension to see exactly who made the order, whether it was by the Secretary as contended by the petitioner, or by the Government, as contended by the Government Pleader. In the file, it Is seen that the recommendation to place the petitioner under suspension was made by the Minister of Home Affairs who has ordered:
The case is referred to the E.C. under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. I also recommend that he may be placed under suspension pending enquiry under Rule 10 of the same rules.
and the same was agreed to by the Minister for Education. Further in the order G.O. Ms. No. 239, dated Trivandrum, 2 May 1960, we find:
* * *Having examined the records, the Government are satisfied that there is a prima facie case of misconduct against Sri Mayuranathan of having fraudulently claimed and cashed travelling allowance for his journeys on transfers, warranting action under the K C.S. (D.P.T.) Rules, 1960. The Tribunal for Disciplinary Proceedings is requested to conduct the proceedings according to the said rules and forward a report to Government with his findings and recommendations.
Sri Mayuranathan has been placed under suspension pending completion of the disciplinary proceedings against him.
(By order of the Governor)
Secretary to Government.
This in our opinion conclusively shows that the order of suspension was really an act of the Government and not of the Secretary to Government who has only communicated the same by Ex.P.1 to the petitioner.
29. In N. Balaraju v. Hyderabad Municipal Corporation : AIR1960AP234 it was held that any order passed by any Minister shall be deemed to have been made by the Governor on the advice of his Council of Ministers within the meaning of Article 166(2) of the Constitution.
30. In Pioneer Motors, Ltd., Tirunelveli v. O.M.A. Majeed : AIR1957Mad48 at 57 it is held;
The signature of the Secretary in the first instance embodies the consent of the Governor and indicates to the outside world the acceptance of the advice tendered by the Minister. Secondly, it authenticates and provides evidence that the pre-requisites for the emergence of an order of Government have been complied with. The production of that order is conclusive proof that the formalities for emergence of that order have been complied with and no further investigation is possible or is permitted to the Court.
The records in this case, and particularly the order quoted in Para. 28 above, show that the Secretary has signed the order as 'By order of the Governor' and that concludes the matter. Further at p. 60 in the same report, it is observed:
Under the Constitution, no Minister can issue an order which could be treated as an order of Government. What he could issue is only a direction to the Secretary, and it would of course be carried out under the Business Rules, subject to the exceptions, laid down there, but it is only when the Secretary or those under him carry out this duty that an order of Government results.
Here such procedure has obviously been carried out.
31. Further, the provisions of Article 166(1) have also been held to be directory and not mandatory. See P. Joseph John v. State of Travancore-Cochin 1966 I L.L.J. 235 and Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 . Substantial compliance with the provision has been proved by the records produced by the Government. Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 has further Indicated that when the executive decision is one addressed to a subordinate officer, the decision need not be formally expressed as provided in Article 166(1) of the Constitution. It follows that the second ground of objection urged by the petitioner is without merits.
32. It is contended on behalf of the petitioner that under Rule 10 of the Kerala Civil Services Rules he can be suspended only if the Government considered that his suspension was in the public interest, but in the circumstances of this case where 'it is patent that the charge is comparatively minor,' such public interest in his suspension cannot arise. The learned Government Pleader opposed this and submitted that the charge is one of cheating the Government, and as such, a grave one, and that the requirement of consideration of public interest is attached only to Clause (c) of Rule 10, but in this case the suspension launder Clause (a) of Rule 10 as per which whenever a disciplinary proceeding against an officer 'is contemplated or is pending' the Government can place the officer under suspension. We are unable to agree with this latter contention. The requirement of an advertance to the necessity of placing the delinquent officer under suspension in public Interest is attached to all the three Clauses (a), (b) and (c) of Rule 10(1) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Whether In a particular case the authority considered It necessary in public Interest to place the Government servant under suspension is a matter of subjective satisfaction of the authority concerned, viz., the Government in this case. The file that we called for in this case clearly shows that the Minister had adverted to certain aspects of the case, referring to the gravity of the charge and the position of the officer being 'an educated man, a professor, who should be example to his students' who are to take up the future responsibilities of the State. Moreover the Government have made certain investigation and have come to the conclusion that a prima facie case of misconduct exists against the professor. In these circumstances we cannot hold that the Government had taken a perverse view of this case, and whether we would have acted in the identical manner or not, in similar circumstances, is irrelevant. It is further clear that if the Court finds the act of the Government not to be perverse, even though the Court might itself have acted otherwise in the given circumstances, the discretion of the Government should not be Interfered with.
33. The learned Counsel for the petitioner has laid much stress on Baldev Singh v. Government of Pepsu A.I.R. 1954 Pepsu 98 where an order of suspension pending enquiry had been interfered with by the High Court under Article 226 of the Constitution. But the order vacated there was by a person not competent to suspend the officer concerned and as such it was found to be in excess of powers. The facts of this case, as we have already found above, bear no parallel to those in that case. It has been laid down by Farwell, L.J., in Rex v. Board of Education (1910) 2 K.B. 165 at 179:
If the tribunal has exercised its discretion entrusted to it bona fide, not influenced by extraneous or irrelevant consideration, and not arbitrarily or illegally, the Courts cannot interfere.
No circumstance for our interference has been made oat against the order impugned in this case.
34. The petition fails and it is hereby dismissed. But, in the circumstances of this case, we do not make any order as to costs.