Judgment Case ID: 457

Judgment:
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. 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 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 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: (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 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 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.

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. 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 article 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 article 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.