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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,

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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).

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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

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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

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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

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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

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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.