Case: Mohammad Ghouse Vs. State Of Andhra

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 thereafter 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."8. The argument of the appellant is that whereas under the proviso to R.4 of the Madras Civil Services Rules, enquiries against subordinate judicial officers could not be referred to a Tribunal, under R.4 (1) (a) of the Andhra Civil Services Rules it was obligatory on the part of the Government to refer the cases of all Government servants and 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 R. 4(1)(a). There has been some argument before us as to whether the concluding proviso in R. 4 of the Andhra Civil Services Rules qualifies both sub-rules (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 sub-rule (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. O, 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:"The rule 4 of the said rules, the proviso occurring after sub-r.(2) shall be omitted, and in lieu thereof, the following sub-rule shall be inserted, namely:-(3) Notwithstanding anything contained in sub-rule (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 rank."9. 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 of the respondent that R.4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previously thereto.10. 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, inconsequence, 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 R. 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 R.17(e) against the Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intra vires.11. 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.12.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 sub-rule (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. O, No. 938 dated April 11, 1955, and it expressly provides that the amendment shall be deemed to have come into force on October 1,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 of the respondent that R.4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previouslyit 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 R. 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 R.17(e) against the Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intrasuch question was raised in the petition or in the High Court and we must, therefore, decline to entertain it.