PETITIONER: MOHAMMAD GHOUSE Vs. RESPONDENT: STATE OF ANDHRA DATE OF JUDGMENT: 29/11/1956 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. DAS, S.K. CITATION: 1957 AIR 246 1957 SCR 414 ACT: Government Servant-judicial Officer-Disciplinary Proceed- ings-Enquiry into charges-jurisdiction of the High Court- order of suspension Pending final orders by the Government- Power of the High Court-Constitution of India, Art. 3II- Madras Civil Services (Classification, Control and Appeal) Rules, Yr. 13, I7(e)-Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948 Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, r. 4 (I) (a). HEADNOTE: The appellant was at the relevant dates posted as Subordinate Judge at Masulipatam and Amalapuram. Charges were made against him of bribery and serious irregularities in the discharge of official duties, and they were enquired into by one of the judges of the Madras High Court who sent his reports on August 2o, ,953, and November Io, 953. On the basis of the reports the High Court decided on January 25, 1954, that the appellant should be dismissed from service on the charge of bribery and removed from service on the charge of irregularities, and on January 28, 1954, placed him on suspension until further orders. The appellant moved the High Court under Art. 226 of the Con- stitution of India for quashing the order of suspension on the ground (1) that under r. 4(I)(a) of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, an enquiry into the 415 conduct of a Government servant drawing a monthly salary of Rs. 15o and above could be made only by a Tribunal to be appointed by the Government, and that as the rule came into, effect from October 1, 1953, the order of the Madras High Court dated January 28, 1954, was without jurisdiction, and (2) that the order was repugnant to Art. 31I of the Constitution of India. The High Court dismissed the application and on appeal against the judgment. Held:(1) that in view of the amendment of r. 4 Of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, on April II, 955, excluding, with retrospective effect, the jurisdiction of the Tribunal in respect of enquiries into the conduct of the judicial officers, the order of the Madras High Court dated January 28, 1954, was not open to attack. (2)that an order of suspension pending final orders is neither one of dismissal nor of removal of service within Art. 311 of the Constitution. (3)that under r. 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, the High Court had the power to impose suspension pending enquiry into grave charges under r. 17(e) against the Members of the State judicial Service. JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 133 of 1955.
Appeal by special leave from the judgment and order dated
November 19,1954, of the Andhra High Court in Writ Petition
No. 342 of 1954.
N. C. Chatterji, M. S. K. Sastri and Sardar Bahadur, for
the appellant.
Porus A. Mehta, T. V. R. Tatachari and T. M. Sen, for the
respondent.
1956. November 29. The Judgment of the Court was delivered
by
VENKATARAMA AYYAR J.-The appellant was recruited to the
Madras Provincial Judicial Service as District Munsif in
1935. In 1949 he was promoted to the office of Subordinate
Judge, and on June 19, 1950, he was posted as Subordinate
Judge of Masulipatnam, Krishna District. Among the suits
which he tried were O.S. No. 95 of 1946 and O.S. No. 24 of
1949, which were connected, and on July 27, 1950, arguments
were heard therein, and judgment reserved. On August 22,
1950, while judgment was still pending, Lingam
54
416
Sitarama Rao, who was the fifth defendant in both the suits,
filed an application in the High Court of Madras for
transferring them to some other court on the ground that the
appellant was attempting through his brother to obtain bribe
from the parties, and on this application, the High Court
passed an order on the same date, staying the delivery of
judgment. The suits themselves were eventually transferred
to the court of the Subordinate Judge of Gudivada, and the
appellant was also transferred on September 16, 1950, to the
Subordinate Court of Amalapuram in East Godavari District.
Thereafter, the High Court started investigation into the
allegations made in the affidavit in the stay petition, and
as a result of the enquiries and reports received, the
following charge was framed against the appellant on April
2, 1953:
” That you in or about August 1950 being at that time
Additional Sub-Judge, Masulipatnam, entered into a
conspiracy with your brother Md. Riazuddin alias Basha for
the purpose of obtaining a bribe from the parties to O.S.
Nos. 24/49 and 95/46 on the file of your Court, and that, in
pursuance of the conspiracy, the said Md. Riazuddin at
Vijayawada attempted between 11 -8-1950 and 13-8-1950 to
obtain a bribe from Lingam Satya Narayana Rao and his son
Lingam Seetarama Rao (the 5th defendant in both the above
suits).
You are hereby required within 15 days of the receipt by you
of this proceeding (i) to submit a written statement of your
defence and to show cause why disciplinary action should not
be taken against you in respect of the above charge,
and (ii) to state whether you desire an oral enquiry to be
held or only to be heard in person.”
The appellant filed his written statement in answer to the
charge on June 22, 1953.
Meantime, complaints had also been received by the High
Court that the appellant had committed serious
irregularities in the discharge of his official duties in
the Sub-Court, Amalapuram, such as that he had delayed
delivering judgments in the suits and appeals for an
unreasonable time, that he had made false returns to the
District Court, and that to cover his
417
defaults, he had altered the records of the court so as to
be consistent with those returns. Charges were framed with
reference to these irregularities on January 15,1953, and
further charges relating to the same matter were framed on
May 6, 1953, to all of which he filed his explanation on
June 22, 1953.
One of the Judges of the High Court of Madras, Balakrishna
Ayyar, J., was deputed to enquire into these charges, and
after making an elaborate enquiry in which several witnesses
including the appellant were examined, he sent a report on
October 20, 1953, that the charge of corruption was made
out, and he concluded as follows:
” Therefore, I find the charge proved. What punishment
should be imposed on Mr. Ghouse can be decided only after he
has been heard in that regard, but, at this stage, I am
inclined to take the view that he should be dismissed from
service.”
With reference to the charges of irregularities, etc.,
Balakrishna Ayyar J. submitted his report on November 10,
1953, in which also he found that the charges were all
substantially established, and he concluded as follows:
“In the result, I find Mr. Ghouse guilty of the charges
framed to the extent already indicated.
In respect of another charge against Mr. Ghouse, that I
enquired into I expressed the view that he should be
dismissed from service. In view of that no further
recommendation for punishment in respect of these charges is
necessary. Certain observations, however, may not be out of
order. A judicial officer who delays judgments, in the
absence of special or extenuating circumstances, furnishes
evidence of his own incompetence. But a judicial officer
who systematically sends false returns is guilty of moral
turpitude. If in addition ‘he instructs members of his
office to make false entries-in the records of the court he
would be guilty of even more blameworthy conduct. One would
hardly desire to keep such persons in service.”
These reports were considered at a meeting of the Judges of
the Madras High Court on January 25,1954, and they decided
that “the proper punishment to be
418
awarded to the officer as regards the two counts are (1)
regarding the first charge of bribery, dismissal from
service and (2) regarding the second charge of various
delinquencies, such as delaying judgments, etc., removal
from service.” Then they passed an order on January 28,
1954, placing the appellant on suspension until further
orders, and the same was communicated to him on January 30,
1954.
On April 28, 1954, the appellant filed in the High Court of
Madras a petition under Art. 226 of the Constitution, for a
writ quashing the order of suspension dated January 28,
1954, on the grounds, firstly, that under the Andhra Civil
Services (Disciplinary Proceedings Tribunal) Rules, 1953,
which had been published by the Andhra Government on October
22, 1953, with effect from October 1, 1953, enquiry into the
conduct of Government servants on a monthly salary of Rs.
150 and above could be held only by a Tribunal to which the
Government might refer the same, and that, therefore, the
proceedings of the High Court of Madras after October 1,
1953, culminating in the order of suspension dated January
28, 1954, were without jurisdiction, and secondly, that the
order in question was void, as it was in contravention of
Art. 311 of the Constitution. It must be mentioned that the
State of Andhra had come into existence on October 1, 1953,
but that the High Court of Madras continued to have
jurisdiction over the Andhra State until July, 1954, when a
separate High Court was established therefor. The writ
petition which was pending in the High Court of Madras was
then transferred to the Andhra High Court.
At the hearing, the only contention that would appear to
have been pressed by the appellant was that by reason of the
Andhra Civil Services (Disciplinary Proceedings Tribunal)
Rules, 1953, coming into force on October 1, 1953, it was
only a Tribunal as provided in Rule 4 (1) (a) of those Rules
that could enquire into the charges, and that the
proceedings in the High Court of Madras subsequent thereto
were without jurisdiction. In rejecting this contention,
the learned Judge.% observed that though Rule 4 of the
Andhra Civil Services Rules differed in some respects
419
from the corresponding Rule of the Madras Civil Services
Rules, 1948, the differences were of an unsubstantial
character, and were due more to inexpert” drafting than to
any deliberate intention to effect a change in the Madras
Rules. They further held that if the Rule in question was
intended to affect the jurisdiction of the High Court to
hold an enquiry into the conduct of a Subordinate judicial
officer, it would be in contravention of Arts. 227 and 235
of the Constitution, which vested in the High Court the
control and: superintendence of all the Courts in the State.
In the result, they dismissed the application. The matter
now comes before this Court in appeal under Art. 136 of the
Constitution.
Before us, the appellant pressed both the grounds which were
raised by him in his application under Art. 226. On the
question whether by reason of the Andhra Civil Services
Rules coming into operation with effect from October 1,
1953, the High Court had ceased to have jurisdiction to
proceed with the matter, it is necessary first to refer to
the relevant Rules. Rule 4 of the Madras Civil Services
(Disciplinary Proceedings Tribunal) Rules, 1948, which was
the Rule in force when the enquiry against the appellant was
started, runs as follows:
4.” The Government may, subject to the provisions of rule 5,
refer to the Tribunal:-
(a)Cases relating to Government servants on a monthly
salary. of Rs. 150 and above, in respect of matters
involving corruption on the part of such Government servants
in the discharge of their official duties.
(b)All appeals to the Government from Government servants
against disciplinary orders passed by heads of departments
and other competent authorities on charges of corruption,
and
(c)any other case or class of cases which the Government
consider, should be dealt with by the Tribunal.
Provided that cases arising in the Judicial Department and
against Government servants in the subordinate ranks of
police forces of the rank of
420
Sub-Inspector and below shall not be referred to the
Tribunal. ”
The corresponding Rule in the Andhra Civil Services
(Disciplinary Proceedings Tribunal) Rules, 1953, which came
into operation from October 1, 1953, is as
follows :
4 (1) ” The Government shall, subject to the provisions of
rule 5, refer the following cases to the Tribu-
nal, namely:-
(a) Cases relating to Government servants on a monthly
salary of Rs. 150 and above in respect of matters involving
corruption on the part of such Government servants in the
discharge of their official
duties and
(b) All appeals or petitions to the Government against
orders passed on charges of corruption and all disciplinary
cases in which the Government propose to revise the original
orders passed on such charges:
Provided that it shall not be necessary to consult
the Tribunal:
(i) in any case in which the Tribunal has, at any previous
stage, given advice in regard to the order to be passed and
no fresh question has there-after arisen for determination,
or,
(ii) where the Government propose to pass orders rejecting
such appeal or petition.
(2) The Government may, subject to the provisions of rule
5, also refer to the Tribunal any other case or class of
cases which, they consider should be dealt with by the
Tribunal:
Provided that the following cases shall not be referred to
the Tribunal namely:-
(i) Cases arising in the Judicial Department;
(ii) Cases arising against the Government servants in the
subordinate ranks of the ‘police forces of the rank of Sub-
Inspector and below, unless the cases are against them
together with officers of higher ranks. ”
The argument of the appellant is that whereas under the
proviso to Rule 4 of the Madras Civil Services Rules,
enquiries against subordinate judicial officers could not be
referred to a Tribunal, under Rule 4 (1) (a)
421
of the Andhra Civil Services Rules it was obligatory on the
part of the Government to refer the cases of all.
Government servants drawing a monthly salary of’ Rs. 150 and
above to a Tribunal. According to the appellant, the result
of this change was that such enquiry as was held after
October 1, 1953, by the High Court and all orders passed by
it thereafter were bad, and that he had a right to have his
case referred to and determined by the Tribunal in
accordance with Rule 4 (1) (a). There has been some
argument before us as to whether the concluding proviso in
Rule 4 of the Andhra Civil Services Rules qualifies both
subrules (1) and (2) or only sub-rule (2). While, on the
one hand, there is force in the contention of the appellant
that having regard to its setting, the proviso should more
properly be read as qualifying subrule (2), we are inclined
to agree with the learned Judges of the High Court that,
read as a whole, the Rule does not show an intention to
depart from the procedure laid down in the Madras Civil
Services Rules. The point, however, is one of academic
interest, as the Rule in question has subsequently been
amended by G. 0. No. 938 dated April 11, 1955, and it
expressly provides that the amendment shall be deemed to
have come into force on October 1, 1953. That amendment is
as follows:
” In rule 4 of the said rules, the proviso occurring after
sub-rule (2) shall be omitted, and in lieu thereof, the
following sub-rule shall be inserted, namely:
(3) Notwithstanding anything contained in subrule (1) or
sub-rule (2), the following cases shall not be referred to
the Tribunal, namely:
(i) cases arising in the Judicial Department; and
(ii) ‘cases arising against Government servants in the
subordinate ranks of the Police forces of the rank of Sub-
Inspector and below, unless the cases are against them
together with officers of higher ranks. ”
By reason of this amendment, which is expressly
retrospective in character, the main ground of objection on
which the application of the appellant was founded, is no
longer tenable. In view of this conclusion, it becomes
unnecessary.to consider the contention
422
of the respondent that Rule 4 of the Andhra Civil Services
Rules could not, in any event, apply to enquiries which had
been validly initiated previously thereto.
It was next contended on behalf of the appellant that as the
authority which appointed him was the Governor of the
Province, it was only that authority that could dismiss or
remove him from service, and that the order of suspension
made by the High Court on January 28, 1954, was in
contravention of Art. 311 of the Constitution, and was, in
consequence, bad. This contention does not appear to have
been pressed in the High Court, and is, moreover, without
substance. The facts are that Balakrishna Ayyar J. sent his
report on the enquiry into the charges against the
appellant, and expressed his opinion that he should be
dismissed or removed from service. The High Court approved
of it, and passed an order on January 28, 1954, suspending
him until further orders. The report was then sent to the
Government for action, and, in fact, the Andhra Government
has issued a notice to the appellant on August 12, 1954, to
show cause why he should not be dismissed or removed from
service. Thus, it is the appropriate authority under Art.
311 that proposes to take action against the appellant, and
it is for that authority to pass the ultimate order in the
matter. The order passed by the High Court on January 28,
1954, is merely one of suspension pending final orders by
the Government, and such an order is neither one of
dismissal nor of removal from service within Art. 311 of the
Constitution. It was also argued that the High Court had no
authority under the rules to suspend a judicial officer
pending final orders of the Government. But under Rule 13
of the Madras Civil Services (Classification, Control and
Appeal) Rules, it is the High Court of Judicature at Madras
that is constituted as the authority which may impose
suspension pending enquiry into grave charges under rule
17(e) against the Members of the State Judicial Service.
The order in question, therefore, falls within-this rule,
and is perfectly intra vires.
423
It was lastly contended for the appellant that even if the
High Court could hold a preliminary enquiry into the conduct
of a judicial officer, it had no jurisdiction to decide the
matter finally, that the findings given by Balakrishna Ayyar
J. should not be held to conclude the question against the
appellant, and that the Government was bound to hold a fresh
enquiry and decide for itself whether the charges were well-
founded. No such question was raised in the petition or in
the High Court, and we must, therefore, decline to entertain
it.
In the result, the appeal is dismissed with costs.
Appeal dismissed.