Appeal No 133 of 1955
Appeal by special leave from the judgment and order dated November 191954 of the Andhra High Court in Writ Petition No 342 of 1954
N C Chatterji M section K Sastri and Sardar Bahadur for the appellant
Porus A Mehta T V R Tatachari and T M Sen for the respondent
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 OS No 95 of 1946 and OS 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 OS Nos 2449 and 9546 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 151953 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 251954 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 article 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 article 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 articles 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 article 136 of the Constitution
Before us the appellant pressed both the grounds which were raised by him in his application under article 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 aCases 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
bAll appeals to the Government from Government servants against disciplinary orders passed by heads of departments and other competent authorities on charges of corruption and cany 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 unnecessaryto 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 article 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 article 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 article 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 17e 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


Summary:
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 article 226 of the Con stitution of India for quashing the order of suspension on the ground 1 that under r 4Ia 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 article 31I of the Constitution of India
The High Court dismissed the application and on appeal against the judgment
Held1 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
2that an order of suspension pending final orders is neither one of dismissal nor of removal of service within article 311 of the Constitution
3that 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 17e against the Members of the State judicial Service