Mohammad Ghouse vs State Of Andhra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 133 of 1955

Decision Date: 29 November 1956

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, T.L. Venkatram Ayyar

In the matter titled Mohammad Ghouse versus State of Andhra, the Supreme Court rendered its judgment on the twenty-ninth of November, 1956. The bench for this appeal comprised Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S. K. Das. The appellant, Mohammad Ghouse, challenged a decision made by the Madras High Court concerning his suspension from service. The citation for this case appears as 1957 AIR 246 and 1957 SCR 414. The substantive issues related to the provisions governing disciplinary proceedings against a government servant who is a judicial officer, specifically the jurisdiction of the High Court to order suspension pending final decisions by the Government, and the compatibility of such orders with Article 311 of the Constitution of India. The statutory framework referenced includes the Government Servant-Judicial Officer-Disciplinary Proceedings-Enquiry into charges-Jurisdiction of the High Court-Order of suspension pending final orders by the Government-Power of the High Court under the Constitution of India, Article 311, the Madras Civil Services (Classification, Control and Appeal) Rules, Year 13, clause 17(e), the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948, and the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, rule 4(I)(a). The appellant was at the relevant times posted as Subordinate Judge at Masulipatam and Amalapuram. Charges of bribery and serious irregularities in the performance of official duties were leveled against him. The allegations were investigated by a judge of the Madras High Court, who transmitted reports dated 20 August 1953 and 10 November 1953. Acting upon those reports, the High Court, on 25 January 1954, adjudicated that the appellant should be dismissed from service on the bribery charge and removed from service on the irregularities charge, and subsequently, on 28 January 1954, ordered his suspension pending further orders.

The appellant filed an application under Article 226 of the Constitution before the Madras High Court seeking the quashing of the suspension order. He contended that, pursuant to rule 4(I)(a) of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, an enquiry into the conduct of a government servant drawing a monthly salary of Rs 150 or more could be conducted only by a Tribunal appointed by the Government, and since the rule became effective on 1 October 1953, the High Court’s order dated 28 January 1954 lacked jurisdiction. He further argued that the suspension order conflicted with Article 311 of the Constitution. The High Court dismissed the application, and the matter was taken on appeal before this Court. The Court held, firstly, that an amendment to rule 4 of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, effected on 11 April 1955, expressly excluded, with retrospective effect, the Tribunal’s jurisdiction over enquiries into the conduct of judicial officers; consequently, the High Court’s suspension order could not be attacked on the ground of lack of jurisdiction. Secondly, the Court observed that an order of suspension pending final orders does not amount to dismissal or removal of service within the meaning of Article 311 and therefore is not prohibited by that constitutional provision. Thirdly, relying on rule 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, the Court affirmed that the High Court possessed the authority to impose suspension pending an enquiry into grave charges, as authorized by rule 17(e), against members of the State judicial service. The appeal was decided in accordance with these findings.

By special leave, the Supreme Court entertained the appeal against the judgment and order dated 19 November 1954 of the Andhra High Court in Writ Petition No. 342 of 1954. Counsel for the appellant, namely N C Chatterji, M S K Sastri and Sardar Bahadur, appeared on behalf of the appellant, while counsel for the respondent, namely Porus A Mehta, T V R Tatachari and T M Sen, represented the respondent. The judgment was delivered on 29 November 1956 by Justice Venkatarama Ayyar. The appellant had entered the Madras Provincial Judicial Service as a District Munsif in 1935. He was elevated to the position of Subordinate Judge in 1949 and, on 19 June 1950, was posted as Subordinate Judge of Masulipatnam in Krishna District. During his tenure at Masulipatnam, he presided over two connected suits, O.S. No. 95 of 1946 and O.S. No. 24 of 1949. Arguments in those suits were heard on 27 July 1950 and judgment was reserved. While the judgment remained pending, on 22 August 1950 the fifth defendant in both suits, Lingam Sitarama Rao, filed an application before the Madras High Court seeking transfer of the suits to another court on the allegation that the appellant, through his brother, was attempting to extort a bribe from the parties. The High Court, upon consideration of that application, issued an order on the same day staying the delivery of the judgment. Subsequently, the two suits were transferred to the jurisdiction of the Subordinate Judge of Gudivada, and the appellant himself was transferred on 16 September 1950 to the Subordinate Court at Amalapuram in East Godavari District. After the transfer, the High Court commenced an inquiry into the allegations set out in the affidavit filed with the stay application. As a result of the inquiries and the reports received, a formal charge was framed against the appellant on 2 April 1953. The charge read in substance that, in or about August 1950, while serving as Additional Sub-Judge at Masulipatnam, the appellant had conspired with his brother, Md Riazuddin alias Basha, to obtain a bribe from the parties to O.S. Nos. 24/49 and 95/46, and that the brother, at Vijayawada, had attempted between 11 August 1950 and 13 August 1950 to solicit a bribe from Lingam Satya Narayana Rao and his son Lingam Seetarama Rao, who were the fifth defendants in the said suits. The charge required the appellant, within fifteen days of receipt, to file a written statement of defence, to show cause why disciplinary action should not be taken, and to indicate whether he desired a full oral enquiry or to be heard in person. The appellant complied by filing his written statement on 22 June 1953. During the same period, the High Court also received complaints that the appellant had committed serious irregularities in the performance of his official duties at the Sub-Court of Amalapuram, including undue delay in delivering judgments in suits and appeals, and other allegations relating to his conduct while in office.

The record showed that the appellant had submitted false returns to the District Court and, in order to conceal these defaults, had altered the court records so that they corresponded with those false returns. Charges relating to these irregularities were first framed on 15 January 1953, and additional charges concerning the same matter were framed on 6 May 1953. The appellant responded to all of the charges by filing an explanation on 22 June 1953. The High Court of Madras appointed one of its judges, Balakrishna Ayyar, J., to conduct an inquiry into the allegations. After a thorough investigation in which several witnesses, including the appellant, were examined, Judge Ayyar submitted a report on 20 October 1953 concluding that the charge of corruption was established. He stated that the charge was proved and that any determination of punishment could be made only after the appellant was heard, but that, at that stage, he was inclined to recommend dismissal from service. Judge Ayyar later submitted a second report on 10 November 1953 concerning the other irregularities. In that report he again found that the charges were substantially established and declared the appellant guilty of the framed charges. He expressed the view that the appellant should be dismissed from service with respect to another charge he investigated, and held that no further recommendation for punishment on those charges was necessary. He also observed that a judicial officer who delays judgments without special or extenuating circumstances displays incompetence, that an officer who systematically sends false returns commits moral turpitude, and that if the officer also instructs sub-ordinates to make false entries in court records, the conduct becomes even more blameworthy and such persons should hardly be retained in service.

These two reports were examined at a meeting of the Judges of the Madras High Court held on 25 January 1954. The judges collectively decided that the proper punishment for the two counts should be as follows: for the first count, which involved bribery, the appellant should be dismissed from service; for the second count, which comprised various delinquencies such as the undue delay of judgments, the appropriate penalty should be removal from service. Accordingly, an order was passed on 28 January 1954 directing that the appellant be placed on suspension pending further orders, and this suspension was communicated to him on 30 January 1954. Subsequently, on 28 April 1954, the appellant filed a petition under Article 226 of the Constitution in the High Court of Madras, seeking a writ to set aside the suspension order dated 28 January 1954. The petition was based on two principal grounds. First, it contended that the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, which the Andhra Government had published on 22 October 1953 and which took effect from 1 October 1953, provided that inquiries into the conduct of government servants drawing a monthly salary of Rs 150 or more could be conducted only by a Tribunal to which the Government might refer the matter; consequently, any proceedings of the High Court of Madras after 1 October 1953, culminating in the suspension order, were without jurisdiction. Second, the petition argued that the order was void because it contravened Article 311 of the Constitution.

In the petition the appellant contended that, according to the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, only a Tribunal could inquire into offences committed by Government servants whose monthly salary was Rs. 150 or more, and that, consequently, the Madras High Court had no jurisdiction to continue the disciplinary proceedings after 1 October 1953, the date on which those Rules became effective; the appellant further argued that the suspension order dated 28 January 1954 was void because it contravened Article 311 of the Constitution. It is relevant to note that the State of Andhra came into existence on 1 October 1953, yet the Madras High Court retained jurisdiction over Andhra until a separate High Court for the new State was created in July 1954, after which the pending writ petition was transferred to the Andhra High Court. At the hearing before the Madras High Court, the sole argument advanced by the appellant was that the 1953 Rules, specifically Rule 4(1)(a), limited the power to inquire into the charges to a Tribunal and therefore the court’s subsequent actions were beyond its authority. The learned judge rejected this contention, observing that although Rule 4 of the Andhra Rules differed in certain respects from the corresponding Rule 4 of the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948, the differences were merely technical and resulted from imprecise drafting rather than any intentional alteration of the earlier rule. The judge further held that, if the 1953 Rule were intended to deprive the High Court of its jurisdiction to conduct inquiries into the conduct of a subordinate judicial officer, such an intention would be inconsistent with Articles 227 and 235 of the Constitution, which vest the High Court with control and superintendence over all courts within the State. Accordingly, the application was dismissed. The present appeal before this Court is filed under Article 136, and the appellant reiterates the same two grounds raised in his Article 226 petition. To determine whether the commencement of the Andhra Civil Services Rules on 1 October 1953 removed the High Court’s jurisdiction, it is necessary to examine the relevant provisions. Rule 4 of the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948— which governed the inquiry when it was initiated—provides: “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 ….”

Rule 4 of the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948, authorised the Government, subject to the conditions of Rule 5, to refer three categories of matters to the Tribunal. The first category, set out in sub-rule (a), encompassed cases involving Government servants who drew a monthly salary of Rs 150 or more and were alleged to have committed corruption in the performance of their official duties. The second category, set out in sub-rule (b), covered appeals made by Government servants against disciplinary orders that had been passed by heads of departments or other competent authorities on the charge of corruption. The third category, set out in sub-rule (c), permitted the Government to refer any other case or class of cases that it considered should be dealt with by the Tribunal. A proviso to these provisions expressly excluded two types of cases from referral: those arising in the Judicial Department and those against Government servants who occupied subordinate ranks in the police forces, specifically officers of the rank of Sub-Inspector and below.

The Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, which became operative on 1 October 1953, contained a corresponding Rule 4 with a similar structure but with distinct wording. Sub-rule 4(1)(a) mandated that the Government refer to the Tribunal all cases concerning Government servants receiving a monthly salary of Rs 150 or more where the matter involved alleged corruption in the discharge of official duties. Sub-rule 4(1)(b) required the Government to refer all appeals or petitions addressed to it that challenged orders passed on corruption charges, as well as any disciplinary cases in which the Government intended to revise the original orders on such charges. The rule further provided that it would not be necessary to consult the Tribunal in two circumstances: first, where the Tribunal had already given advice on the order at an earlier stage and no new question had arisen thereafter; and second, where the Government proposed to pass orders rejecting the appeal or petition. Sub-rule 4(2) gave the Government, again subject to Rule 5, the discretion to refer any other case or class of cases it deemed appropriate for the Tribunal, but it inserted a proviso that barred referral of cases arising in the Judicial Department and cases against Government servants in the subordinate ranks of the police forces of the rank of Sub-Inspector and below, unless such cases were brought against those officers together with officers of higher rank.

The appellant argued that, under the proviso to Rule 4 of the Madras Civil Services Rules, enquiries against subordinate judicial officers could not be referred to the Tribunal, whereas Rule 4(1)(a) of the Andhra Civil Services Rules imposed a duty on the Government to refer every case involving a Government servant drawing a monthly salary of Rs 150 or more to the Tribunal. According to the appellant, this statutory alteration meant that any enquiry conducted after 1 October 1953 by the High Court and every order that the High Court subsequently issued were invalid. He further contended that, because of this change, he possessed a statutory right to have his matter referred to and finally determined by the Tribunal in accordance with Rule 4(1)(a). Before this Court, there was a dispute regarding the interpretation of the concluding proviso in Rule 4 of the Andhra Civil Services Rules: whether the proviso applied to both sub-rules (1) and (2) or solely to sub-rule (2). While on one hand the appellant maintained that the wording of the proviso indicated a broader application, the Court was required to examine the language of the rule and the intention behind its enactment to resolve this point.

In considering the question of how the proviso to Rule 4 of the Andhra Civil Services Rules should be interpreted, the Court observed that the appellant’s argument—that, given the context, the proviso ought to be read as qualifying sub-rule (2)—had a certain degree of merit. Nevertheless, the Court was inclined to adopt the view expressed by the learned Judges of the High Court, namely that when the entire rule is read as a whole there is no indication of an intention to depart from the procedure prescribed in the Madras Civil Services Rules. The Court noted, however, that this point was largely of academic interest because the rule in dispute had subsequently been amended by Government Order No. 938 dated 11 April 1955. That amendment expressly declared that it would be deemed to have taken effect on 1 October 1953 and provided for the omission of the proviso that followed sub-rule (2). In its place, a new sub-rule (3) was inserted, which stated that notwithstanding anything contained in sub-rule (1) or sub-rule (2), certain cases would not be referred to the Tribunal: (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 such cases were against them together with officers of higher rank. Because this amendment was expressly retrospective, the Court concluded that the principal ground of objection on which the appellant’s application was based could no longer be sustained. Consequently, it was unnecessary to examine the respondent’s contention that Rule 4 of the Andhra Civil Services Rules could not apply to enquiries that had been validly initiated before the amendment.

The appellant further contended that, since the authority which appointed him was the Governor of the Province, only that authority possessed the power to dismiss or remove him from service, and that the order of suspension issued by the High Court on 28 January 1954 contravened Article 311 of the Constitution and was therefore void. The Court observed that this argument had not been raised before the High Court and, on its face, lacked substance. The factual record showed that Justice Balakrishna Ayyar submitted a report on the enquiry into the charges against the appellant, recommending dismissal or removal. The High Court accepted this report and, on 28 January 1954, passed an order suspending the appellant pending further orders. Subsequently, the report was forwarded to the Government for action, and the Andhra Government issued a notice on 12 August 1954 requiring the appellant to show cause why he should not be dismissed or removed. Accordingly, the appropriate authority under Article 311 was the Government itself, which was tasked with taking the final decision. The High Court’s order of 28 January 1954 was therefore a provisional suspension pending the Government’s ultimate order, not an order of dismissal or removal within the meaning of Article 311.

The Court observed that the order issued on January 28, 1954, did not constitute either a dismissal or a removal from service as defined by Article 311 of the Constitution. The appellant had further argued that the High Court lacked any statutory power to suspend a judicial officer while the Government’s final decision was pending. In response, the Court referred to Rule 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, which expressly designates the High Court of Judicature at Madras as the body empowered to impose a suspension pending an inquiry into serious charges, as prescribed under Rule 17(e), against members of the State Judicial Service. Accordingly, the Court held that the order of suspension fell squarely within the scope of that rule and was therefore fully within the Court’s legal authority. The appellant’s final contention was that, even assuming the High Court could conduct a preliminary inquiry into a judicial officer’s conduct, it did not possess jurisdiction to make a final determination, that the findings of Justice Balakrishna Ayyar should not be treated as conclusive on the appellant’s liability, and that the Government was obligated to conduct a fresh inquiry and independently decide whether the charges were substantiated. The Court noted that none of these issues had been raised either in the petition before it or during the proceedings in the High Court. Consequently, the Court declined to consider the matter. The judgment concluded by dismissing the appeal and ordering the appellant to bear the costs of the proceedings.