Jaganmohan Reddy, J.
1. The petitioner in this writ petition challenges the order passed by the Government dated 26-6-1958 in G. O. Ms. No. 1584 dismissing him from service on a charge of corruption and irregularities in court work. For a proper appreciation o the contentions raised the facts relating to suspension and dismissal of the petitioner and the writ petition and appeal to' the Supreme Court filed by him prior to this petition may be enumerated.
2. The petitioner was recruited to the Madras Judicial Service as a District Munsif in 1935 and in 1949 he was promoted to the office of the Subordinate Judge and pasted at Masulipatam on 19-6-1950. The charge of bribery levelled against him was with respect to two connected suits tried by him, O. S. No. 95 of 1946 and O. S. No. 24 of 1949. On 27-7-1950, the trial having concluded, arguments were heard and judgment was reserved. On 10-8-1950, petitions were filed to re-hear the cases, which were allowed and, after hearing the parties, the cases were again reserved for judgment.
Lingam Sitharama Rao, the 5th defendant In both the suits, thereafter filed a petition in the High Court of Madras for transferring the suits to another court on the ground that the petitioner was trying through his brother, Basha, to obtain a bribe from the parties. The High Court passed an order staying the delivery of the judgment in those suits and the suits themselves were eventually transferred to the Sub Court, Gudivada, and the petitioner was also transferred on 16-9-1950, to the Sub Court at Amalapuram in East Godavari District, after which the High Court started investigation into the allegations made in the affidavit and the stay petition. After the; enquiries were made and the report was received, a charge was framed against him on 2-4-1953, in the following terms:
'That you in or about August 1950 being at that time Additional sub. Judge, Masutipatam entered into a conspiracy with your brother Md. Rasuddin alias Basha for the purpose of obtaining a bribe from the parties in O. S, Nos. 24/49 and 95/46 on the file of your Court, and that, in pursuance of the conspiracy, the said Md. Rasuddin at Vijayawada attempted between 11-8-1950 and 13-8-1950 to obtain a bribe from Lingam Satyanarayana 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 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 (if) to state whether you desire an oral enquiry to be held or only to be heard in person.' This charge was denied by the petitioner in his letter dated 27-4-53 wherein he stated that in the absence of a narration of facts on proof of which this serious charge against him could be sustained, he could only deny the charge and the circumstances appearing against him. He accordingly requested for the supply of information so That he might submit a full and satisfactory explanation. On the information being supplied to him, he filed a detailed written statement on 22-6-1953.
3. The High Court had, during this period also received complaints that the petitioner had committed serious irregularities in the discharge of his duties in the Subordinate Court, Amalapuram, to the effect 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 to cover his defaults, he had altered the records of the Court so as to be consistent with those returns-. Charges were framed with respect to these irregularities also on 15-1-1953 and further charges relating to the same matter were framed on 6-5-1953. With reference to these, the petitioner furnished replies on 22-6-1953.
These charges, both relating to the bribery and irregularities in official duties, were enquired into by one of the Hon'ble Judges of the High Court of Madras who held them to be proved in his report dated 20-10-1953. It may be stated that, prior to this report, the Andhra State came into existence on 1-10-1953, but the High Court of Madras continued to have jurisdiction over the Andhra area till the 5th .July. 1954 on which date a separate High Court for Andhra was established. This report was considered at a meeting of the Hon'ble Judges of the Madras High Court on 25-1-1934, where by a majority it was decided that the proper punishment to be awarded on the charge of bribery was dismissal from service and regarding the charges of irregularities in his duties etc. was removal from service.
Pursuant to this decision, by an order dated 28-1-1954, the High Court suspended the petitioner until further orders and it was communicated to him on 30-1-1954. The petitioner thereafter filed a writ petition in the High Court of Madras challenging the jurisdiction of the High Court to suspend him on the grounds, firstly that under the Andhra Civil Services Disciplinary Proceedings (Tribunal) Rules 1953, which had been put into effect from 1-10-1953, an enquiry into the conduct of the Government servants on a monthly salary of Rs. 250/-and above could be held only by a Tribunal to which the Government might refer and that therefore the proceedings of the High Court of Madras culminating in the order of suspension were without jurisdiction and consequently the order in question was void as it was in contravention of Article 311 of the Constitution of India,
When this petition was pending disposal, the Government of Andhra by its memorandum dated 12-8-1954 gave a notice to the petitioner calling upon him to show cause why in view of the findings he should not be dismissed from service as re-commended by the enquiring Judge and confirmed by the High Court. The writ petition, which was pending in the Madras High Court, was transferred to Andhra High Court which by its decision dated 19-11-1954 dismissed if, holding that though Rule 4 of the Andhra Civil Services (Disciplinary) Rules differed in some respects from the corresponding rule of the Madras Civil Services Rules, the differences are not of a substantial character and were due more to inexpert drafting than to any deliberate intention to bring about a change in them.
Consequently it held that the High Court had jurisdiction to hold an enquiry into the conduct of the subordinate Judicial officers and the order of suspension was valid. (Vide Mohomed Ghouse v. State of Andhra : AIR1955AP65 ). Against that judgment, the petitioner appealed by special leave to their Lordships of the Supreme Court who confirmed the order of the High Court and dismiss' ed the appeal. Mohammed Ghouse v- State of Andhra. : [1957]1SCR414 . Before the Supreme Court also, the petitioner pressed the same grounds urged before the High Court. The petitioner raised three contentions before their Lordships, viz., (1) that the proviso to Rule 4 of the Andhra Rules governs only Sub-rule (2) and not Sub-rule (1), and consequently an enquiry against a judicial officer could not be held by the High Court, but should be referred to a Tribunal of enquiry by the Government as he was an officer drawing a salary over Rs. 150/-per month; (2) that as the authority which appointed him was the Governor, 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 28-1-1954, was in contravention of Article 31b of the Constitution and was consequently bad; and (3) 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 the enquiring Judge should not be held to conclude the question against the petitioner and that the Government was bound to hold a fresh enquiry and decide for itself whether the charges were well-founded. With respect to the first contention, Venkatarama Ayyar, J., speaking for the Court, observed at page 249 thus;
'......There has been some argument before us as to whether the concluding proviso in Rule 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 [he 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 11-4-1955. and it expressly provides that the amendment shall be deemed to have come into force on 1-10-1953. 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 Rule 4 of the Andhra Civil Services Rules could not, in any event, apply 10 enquiries which had been validly initiated previously thereto.'
The second contention was also negatived, though if was observed that that contention does not appear to have been pressed in the High Court and was moreover without substance. With respect to this contention it was observed:
'....The order passed by the High Court on 28-1-1954, is merely one o 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 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 (he Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intra vires.'
The Supreme Court declined to enter' an the third contention on the ground that no such contention was raised either in the petition or in the High Court.. After the decision of the High Court, the petitioner sent his explanation on the 21-1-1957 to the show-cause notice against the proposed punishment of dismissal and removal from service, on a perusal of which and the other documents, the Government passed the impugned order.
4. On behalf of the petitioner the learned advocate challenges the jurisdiction of the High Court to frame charges and conduct an enquiry, on the ground that the enquiry conducted by the learned Judge was merely a departmental enquiry under the Andhra Rules and is different from the enquiry necessary under the constitution, for, inasmuch as it is only the appointing authority that has got a right 1o dismiss any person, it is only the Government as the appointing authority that should have caused the enquiry to be conducted.
The High Court, at any rate, did not have the power to enquire into the conduct of the petitioner, who was an Assistant Sessions Judge. He submits several other grounds which vitiated the enquiry and the order of dismissal. They are: (a) Though the petitioner had asked for a personal hearing, an oral enquiry was conducted by re-examining all the witnesses. (b) The depositions of the witnesses in support of the charges were marked, as exhibits on behalf of the petitioner, (c) Under the first charge he wished to cross-examine all the witnesses, but two of them were not produced for cross-examination, nor any reasons assigned therefor and a fresh witness not in the list of witnesses, Shimhadri, was examined and the petitioner had no opportunity of effectively cross-examining him. (d) Supplementary explanations given by him were not mentioned' in the order of the Government and consequently were riot considered at the time of imposing the punishment, (e) 'The suspension of the appellant was imposed as a penalty which the High Court was not competent to. (f) Lastly, the Government failed consider the important fact that his brother who was charged with the offence under Section 162 I, P. C. relating to the attempt to procure a bribe was discharged by the Magistrate on 27-9-1955, which fact would 'falsify the allegation of bribe against him, as the acquittal of his brother related to this very charge,
5. With respect to the first charge, namely, that the enquiry held bv the learned Judge of the Madras High Court in this case was merely a preliminary enquiry and therefore the Government was bound to hold a fresh-enquiry and decide for itself as to whether the charges were well-founded, it is 'necessary to-examine the relevant provisions of the Constitution and the rules regulating the recruitment and conditions of service of persons appointed to public services and posts in the State. Articles 309, 310 and 311, of the Constitution which relate to this matter should be read together. Article 310 provides that the tenure of office of persons serving the Union or a State will be during the Pleasure of the President or the Governor of the State. Article 309 and Article 311 are as under : --
'309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State : Provided that it shall be competent for the-President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'
311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which lie was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him :
Provided that this clause shall not apply--
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or
(c) where the President or Governor, as the case may be is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Clause (2), 'he decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.' It may be stated that prior to the Constitution of India, Section 241 of the Government of India Act, 1935 vested in the Provincial Government, power to prescribe conditions of service of person serving His Majesty in a civil capacity in connection with the affairs of the Province and that under this power the Government of Madras framed the Madras Civil Services 'Disciplinary Proceedings Tribunal) Rules, 1948, which came into force on 1-1-1949. . These rules were applicable to all officers under the rule-making control of the Provincial Government other than persons appointed by the Secretary of State for India.
The Madras rules with some modifications were adopted by the Andhra State and issued as Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953 on 22-10-1953 with retrospective operation from 1-10-1853. It is under these rules that disciplinary actions are taken and punishments imposed on public servants of the State. Apart from these, there are the Madras Civil Services (Classification, Control and- Appeal) Rules which were enforced from 20-9-1953, made in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution of India. These rules, were also adopted by the Andhra State.
The argument of the learned advocate to the appellant is, firstly, that under Rule. 4(l)(a) ail cases of the Government servants on a monthly salary of Rs. 150/- and over, in matters involving corruption in the discharge of their official duties must be referred to the Tribunal for disciplinary proceedings and that proviso (i) which states that cases arising in the judicial department shall not be referred to the Tribunal must be only confined to Sub-rule (2) of Rule 4. If this argument is accepted, there is no difficulty in applying to the officers of the judicial department me provisions of Rule 5 which applies to cases referred to both under Rules 4(1) and 4(2). The argument put forward by the learned advocate for the petitioner now is a mere repetition of the argument put forward before this Court and the Supreme Court on the previous occasion when the petitioner challenged the High Courts orders suspending him but that has, as already stated, been negatived. The proviso has been held to qualify both Sub-rule (1) and Sub-rule (2) of Rule 4, though it was observed that it was somewhat inartistically drafted.
By the time this matter was dealt with by Supreme Court, the Sub-rule itself was amended with retrospective effect from 1-10-1953 by the Government in G. O. Ms. No..938 of 1955. This aspect was again considered by the Supreme Court which observed that the argument based on the proviso had in view of the aforesaid amendment, become academic. Secondly, the learned advocate further contends that the exclusion of the cases of judicial officers from the purview of the Civil Services (Disciplinary Proceedings Tribunal) Rules would' have the effect of prescribing two different standards for officers of the State, which could not have been the intention of the farmers of the rules and consequently even if the proviso to Rule 4 takes away the cases of judicial officers from the purview of the Tribunal, under Rule 5(b), the Government is bound to refer their cases to a Court of law. In order to appreciate this argument it is necessary to examine the provisions of Rule 5 which are as under:
(5) (a) In every case referred to in Clause (a) of Sub-rule (1) and Sub-rule (2) of Rule 4 completion of investigation, the Special Branch of the C. I. D. or other departmental .authority concerned, shall forward to the Government all the records of the case.
(b).The Government shall, after examining such records and after consulting the Head of the Department concerned, if necessary, decide whether the case shall be tried in a Court of Law or by the Tribunal.
(c) If (he Government decide that the case shall be tried by the Tribunal, they shall send the records to the Tribunal.
(d), (e) and (f) x x x xA mere glance at the above rule would unmistak-ably demonstrate that what has to be referred tothe Government under Sub-rule (a) is the case of officers referred to in Clause (a) of Sub-rule (1) and Sub-rule (2) of Rule 4, which by virtue of the proviso to thatrule excludes judicial officers from the operation ofthis rule. Sub-rule (b) of Rule 5 is only consequential on the operation of Sub-rule (a), namely when therecords of officers whose cases are under investigation and have to be referred to the Tribunal are Forwarded to the Government, the Government is enjoined after examining such record and after consulting the Head of the Department, if necessary, to decide whether the case shall be tried by a Court of law or by the Tribunal.
The words 'such records' in Rule 5(b) are referable to the records of officers whose cases can be referred to a Tribunal under Rule 4 and it is- only in such cases that the Government can determine whether they will refer their cases to a Tribunal or to a Court of Law. In this view, the contention of the learned advocate that the cases of Judicial Officers, even though not referable to the Tribunal, must be referred to a court of law is devoid of force, nor is it supported by the decision cited by him Rajagopala Ayyar v. State of Madras, : AIR1955Mad182 . That case was exactly the reverse of the instant case, where it was urged that the Disciplinary Tribunal had no jurisdiction to inquire into the complaint against the petitioner, because 1 the petitioner was an officer in the judicial department, and that the Government had no power to refer the petitioner's case to the Tribunal because they had previously decided that the case against the petitioner should be tried in a Court of law and not by the Tribunal for disciplinary proceedings.
The first argument found favour with thelearned Judge who held that as the petitioner wasa Sub Magistrate, he was certainly a member ofthe judicial department and consequently his casecould not be referred to the Tribunal by virtue ofthe proviso to Rule 4(c). The argument 'of theGovernment Pleader that since there was no separation of the judicial functions in the CoimbatoreDistrict, the Sub-Magistrate must be deemed to bean officer of the Revenue Department 'was nega-tived on the ground that the charge against theofficer was not 'n relation to anything done' by himas an officer of the Revenue Department, but in Imcharacter as a Magistrate and therefore an officerof the judicial department. ' ,
Though the finding on the first contention concluded the matter, on the second contention the learned Judge held that the Government had every right under Rule 5(b) to review their order' sanctioning the prosecution by referring the case to a' Tribunal. We do not see bow this finding helps the petitioner, inasmuch as the expression of the views on the 2nd contention was based on the assumption that the first contention was negatived. Incidentally it may be mentioned that on appeal against this decision, a bench of the Madras High- Court in State of Madras v. Rajagopala Ayyar, 1956-2 Mart LJ 176: ((S) AIR 1956 Mad 613) set aside the decision by holding that the case of the Magistrate did not fall within the proviso to Rule 4(c), as he was not subject to the administrative control of the High Court and that the Government had jurisdiction to refer the case to the disciplinary Tribunal under the rules.
6. The nest argument is that the High Court was not competent to make an enquiry against His petitioner who was a District Judge within the meaning of Article 236 of the Constitution and as such the enquiry by the High Court must be deemed to be a preliminary enquiry only declaring a' prima facie case against the petitioner; as such the Government ought to have ordered another enquiry before the charges could be held proved against him. His contention is that even under Section 2 of the Public Servants (Inquiries) Act XXXVII of 1850, it is the Government that has got to conduct the enquiry against a public servant who is not, removable from service without the sanction of the Government.
But this argument ignores the provisions of Section 3 which says that the enquiry may be committed either to the Court, Board or other authority to which the person accused is subordinate or to any other person or persons to be specially appointed by the Government, commissioners for the purpose; notice of which commission shall be given to the person accused ten days at least before the beginning of the enquiry. It is, therefore, clear that the authority to which a person accused is subordinate is also competent to make the enquiry and if rules are made pursuant to a statutory provision authorising that authority to 'hold enquiries, it would be perfectly competent for that authority to do so. Under the Civil Services (Classification, Control and Appeal) Rules, dated 20-3-1953, Rule 5 divides the services into State Services and Subordinate Services.
State services under Section 6 are those which are enumerated in Schedule I in which the Madras State higher Judicial service and the Madras State Judicial Service ore shown at items 6 and 7. Rule 8 enumerates the various penalties, which may be imposed for good and sufficient reasons on members of the services specified in Rule 5, viz., (i) censure, (ii) fine, in the case of persons for whom such enalty is permissible under these Rules, (iii) with-holding of increments or promotion, including stoppage at an efficiency bar, (iv) reduction to a lower rank in the seniority list or to a lower post or time-scale, whether in the same service, or in another service. State or Subordinate, or to a lower stage in a time-scale, (v) Recovery from pay of the whole or part of any pecuniary loss caused to the State Government or the Central Government or to a local body by negligence or breach of orders, (vi) compulsory retirement otherwise than under Article 465(2) or under Note 1 to Article 465A of the Civil Service Regulations, (vii) removal from the civil service of the State Government, (viii) dismissal from the civil service of the State Government, and (ix) suspension, where a person has already been suspended under Rule 17(e), to the extent considered necessary by the authority imposing the penalty.
Under Rule 11 the High Court may impose on members of the Madras Criminal Judicial Service and the Madras State Judicial Service any of the penalties specified in items (i), (iii), (iv) and (v) in Rule Rule Under Rule 12, the State Government may impose any of the penalties specified in items (i) and (iii) to (viii) in Rule S on members of the State Services. Rule 13 authorises the High Court to suspend a person pending enquiry into grave charges under Rule 17 (e) (sic) members of the State Services viz., members of the Madras Criminal Judicial Service and the Madras State judicial Service. Rule 17 specifies the manner in which the enquiries should, be held into the several charges and the representations to be received and the orders to be passed. In so far as it is relevant for the present discussion, rule 17 is as under: ,
'17. (a) In every case where it is proposed to impose on a member of a service any of the penalties specified in items (i), (ii), (Hit) and (v) in Rule 8 or in rule 9, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed.
(b) (i) Without prejudice to the provisions of the Public Servants'. Inquiries Act, 1850 (Central Act XXXVII of 1850), in every case where it is proposed to impose on a member of a service any of the penalties specified in items (iv), (vi), (vii) and (viii) in rule 8, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable lime, to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may for special and sufficient reason to be recorded in writing, refuse to call a witness. After the inquiry has been completed, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. If no oral inquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
(ii) After the inquiry referred to In Clause (i) has been completed and after the authority competent to impose the penalty mentioned in that clause has arrived at provisional conclusions in regard to the penalty to be imposed, the person charged shall be supplied with a copy of the report of the enquiring authority and be called upon to show cause, within a reasonable time not ordinarily exceeding one month against the particular penalty proposed to be inflicted. Any representation in this behalf submitted by the person charged shall be duly taken into consideration before final orders are passed:
Provided that the provisions of this Sub-rule shall not apply to the members of the Madras Government Press Subordinate Service who shall in respect of disciplinary matters be dealt with according to the provisions of Article 311 of the Constitution of India.
Explanation. An opportunity to show cause against the imposition of any of the penalties referred to in this sub-rule shall be given, after the authority competent to impose the penalty arrives at a provisional conclusion in regard to the penalty to be imposed, either by such authority himself or under his direction, by a subordinate authority who is superior in rank to the officer on whom it is proposed to impose the penalty.
(c) (i) The requirement of Sub-rules (a) and (b) shall not apply where it is proposed to impose on a member of a service any of the penalties mentioned in Rules 8 or 9, on the basis of facts which have led to his conviction in a criminal court or by a court martial or where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him.
(ii) The provisions of Sub-rule (b) shall not apply where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow the procedure prescribed in that sub-rule.
(d) x xx x.(e) A member of a service may be placed under suspension from service pending enquiry into grave charges, where such suspension is necessary in the public interest.'
These rules authorise the Government not only to impose a penalty specified in Rule 11 (a), but also to suspend a person in the State Higher Judicial Ser-| vice pending an enquiry. The very tact that the High Court is authorised to impose penalties even to a limited extent, postulates the holding of an enquiry by the High Court. It is then and only then could it be determined from the nature of the charges held to be proved whether the penalties authorised by Rule ll(a) or other ' penalties which the State Government is authorised, are to be imposed or not.
If the former, it can itself impose; otherwise the result of the enquiry will be sent to the Government forgiving the necessary show cause notice. In both cases, it is clear that the High Court is the enquiring authority. Even Rule 17(e) would lend support to this view. We have already stated that the cases of Judicial Officers are taken out of the purview of the Disciplinary Tribunal Rules, and if this is considered together with Rules 11 (a), 17(a) and (b) Articles 227 and 235 of the Constitution which give powers of superintendence, and control over the District Courts and Courts subordinate thereto, the High Court has certainly jurisdiction to hold enquiries into the conduct of Judicial Officers on whom any of the penalties specified in Section 8 may be imposed, and it is clear may it is not confined merely to the holding of a preliminary enquiry for the purposes- of ascertaining whether there is a prima facie case for answering a charge.
It is true that Rule 17 does not specify the authority who is to hold the enquiry, but it merely states the procedure to be followed in holding the enquiries. As we have said, the answer to the question is provided in Rule ll(a), because the High Court cannot impose a penalty without holding an enquiry. If the High Court is competent to hold an enquiry, unless the enquiry is complete and it can arrive at a conclusion, it cannot determine what penalty is to be imposed, which would be commensurate with the charge proved, Apart from this, under Article 227(1), every High Court has the power of superintendence over all the courts and tribunals throughout the territories in relation to which it exercises jurisdiction, which is both administrative and judicial control. Vide Hari Vishnu Kamath v. Ahmed Ishaque. : [1955]1SCR1104 . Article 235 also vests the control over the-subordinate Courts in the High Court. Article 235 is in the following terms:
'235. The control over district courts and courts' subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in the article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.' This provision not only vests the control over the District Court and Courts subordinate thereto in the High Court, but also vests the High Court with the power of posting and promotion of and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of a District Judge. The word 'including' is used iii order to vest both these powers in the High Court. If Article 227 is read with Article 235, there is no doubt whatever that the High Court has not only powers of superintendence over the courts subordinate to it, but also of control over all these courts which include the District Court.
The learned counsel for the petitioner says the word 'Court' used in Article 235 does not signify the control over the person presiding over it. We must reject this argument as untenable. Both in Arts. 227 and 235, the word 'Court' has been used and it cannot be said that framers of the Constitution had not used this word to include persons presiding over those courts or other functionaries of those courts While the use of the word judge may denote only the person, the word 'Court' when used not only includes the person presiding over that court, hut also all the functionaries of that court and any matters pertaining thereto. The ordinary meaning to be given to this word not only includes the building in which the court is held, but also the judges and officials who preside there.
A reference to the Chambers Dictionary would show that the meaning of the 'cour1' is 'a halt ot justice; the judges and officials who preside there; any body of persons assembled to decide causes; a sitting of such a body.' It may be seen that Articles 227 and 235 are enacted for different purposes. While Article 227 deals with the official acts of the persons occupying those court's. Article 235 deals with the persons themselves in relation to the discipline and conditions of service, because' it specifically enacts thai nothing in that article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
This clarification or limitation, whichever way, it may be expressed, on the power of the High Court vested under Article 235, connotes that it is in relation to the persons presiding over the courts and in relation to their conditions of service. We entertain no doubt whatever that, on a reading of the relevant provisions, the High Court in exercise, of its powers of superintendence and control of the, courts subordinate to it and by virtue of the rules! having the force of law under the proviso to Article 309, read with Article 313, is vested with the power to hold an enquiry into the conduct of judicial officers, and to determine provisionally the punishment which' should be imposed upon them prior to their being afforded a reasonable opportunity of showing cause, under Article 311 of the Constitution.
In other words, there are two stages to an enquiry against a public servant; the first stage is when charges are framed and he is asked whether he, requires an oral enquiry or to be heard in person. The first opportunity is afforded to him at this stage to contest the allegations against him. The second stage is after the findings have been reached when the person empowered to appoint him must give the delinquent a reasonable opportunity to show cause against the action proposed to be taken agaiust him. As observed by their Lordships of the Supreme Court in S.A. Venkataraman v. Union of India, : 1954CriLJ993 , in relation to Act XXXVII of 1850 that the only. purpose for which, an enquiry under the Act could be made, is to help' the Government to come to a definite conclusion, regarding the misbehaviour of a public servant and! thus enable it to determine provisionally the punishment which should be imposed upon him, prior to, giving him a reasonable opportunity of showing cause, as is required under Article 311 of the Constitution.
They further observed that under the aforesaid Act, it is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses and that it is matter of convenience and nothing else. The essential element in the awarding! of penalties and punishments against public servants is not as to who conduces the enquiry, but whether the person has been given the opportunities referred to above and that the enquiry is fair and unbiased. In this view, we find no substance in the contention urged by the learned advocate for the petitioner, which contention has not been raised either at the enquiry or subsequently at the time of the showcause notice.
7. Now, coming to the other specific allegations relating to the irregularities in the conduct of, the enquiry against the petitioner, we shall deal with them seriatim.
8. It is contended by the petitioner that the 6th witness, Maddy Subba Rao was not called in for his cross-examination and that the other five witnesses who were to have been cross-examined, have been examined afresh against the scope of the enquiry. Ho further contends that if the witness Maddy Subba Rao was cross-examined, his defence would have been established. It would appear that Maddy Subba Rao is a person who is alleged to have dealings with the brother of the petitioner, Basha, and in explaining the incriminating telegram sent by Basha to the petitioner it was stated that when Basha could not get the money from his brother-in-law which was urgently needed to be sent to Kharagpur, Basha arranged for this money from Maddy Subba Rao at Bezwada.
This witness was examined by the District Judge on 8-12-1951 and contrary to the allegation, the petitioner cross-examined him before the enquiring Judge on 15-9-1953, when the witness stated that he does not remember that Basha at any time asked him for a loan to be sent to Khnragpur to his brother. The witness was further examined by the enquiring Judge also. In these circumstances, the complaint of the petitioner that he was not afforded an opportunity to cross-examine this witness is baseless. The further contention that the other five witnesses were examined afresh instead of being only cross-examined, also has no substance, in that, the petitioner had thereby got an opportunity to contradict the witnesses on their previous statements (copies of which were furnished to him) if they had not confirmed to their earlier versions or varied or improved or contradicted these statements. No prejudice has been alleged or proved.
9. The petitioner states that in exercise of the right given under Rule 17(b) when he was asked, whether he would require a personal hearing or an oral enquiry, he asked for a personal hearing, but the enquiring Judge held an oral enquiry. With respect to this allegation, it may be stated, firstly the petitioner did not object to an oral enquiry being held. On the other hand, he took part in the enquiry, examined and cross-examined the witnesses. It is clear that an oral enquiry is much more thorough and is more in the interests of the delinquent than a mere personal hearing. Even so, the petitioner was given the advantage of both the oral enquiry and a personal hearing, which in the circumstances is fair and equitable.
10. With respect to the second charge of irregularities in his official duties, the petitioner complains that when he wanted to cross-examine all the five witnesses two of them viz., Sundararn and Subrah-inanyam Sastry, were no; produced for cross-examination, nor any reasons assigned therefor and that a fresh witness, Simhadri, was examined without previous notice to him, which deprived him of an opportunity to effectively cross-examine him. It will be seen from his explanation itself that it was he who marked the depositions, though he says that he was allowed to mark such of those depositions that he wanted to. He says.
'Though at the first instance I wanted to examine 9 lawyers on my side and gave their names Nos. 1 and 2 who are the Secretary and President of the Bar Association, Amalapuram were summoned in person to give evidence and about the rest I was supplied with copies of depositions of lawyers recorded by the District Judge, East Godavari and allowed to mark such of those depositions that I wanted to.'
The learned enquiring Judge used/the depositions of these lawyers in favour of the petitioner, but did not rely on them because he preferred the evidence of the shorthand-writer, the suits clerk and the appeals clerk. The Judge says,
'In addition to examining the Secretary and the President of (the Bar Association, Amalapuram as his witnesses. Mr. Ghouse marked on his side the statements of several lawyers, whom the District Judge had examined in the preliminary enquiry he made in this matter. They are exhibits D-l to D-10. Most of these generally supported the statement of Mr. Ghouse that he used to reopen cases which had been closed and in which judgments had been reserved either at the request of the lawyers or to clear his own doubts. I do not doubt the correctness of these statements. But the important point is that they do not displace the evidence either' of the shorthand-writer or of 'the suits clerk Or the appeals clerk.'
It is also not shown that if he wanted to examine any of the witnesses or cross-examine them, they were not summoned or he was not given an opportunity to cross-examine them. In these circumstances the petitioner has not established any prejudice accruing to him by reason of any irregularity in this behalf. The petitioner cannot also complain against the examination of a new witness, Simhadri, because he had an opportunity to cross-examine him. If he had any difficulty in cross-examining him, he could have requested the Judge for time, but no such request appears to have been made.
11. The contention that some supplementaryexplanations given by him were not taken into con-sideration at the time of imposing the punishmentis again without substance, in the sense that theseexplanations had nothing to do with the show-causenotice. The only explanation given by him showing cause against the punishment proposed to beimposed was read and considered by the Govern-ment.
12. The petitioner further contends that the fact that his brother was dischargeed on a complaint under Section 162 I. P. C. ought to have been taken into consideration by the Government as it would have falsified the charge against him. We are not impressed with this contention for the simple reason, firstly, that the show-cause notice was prior to his brother being discharged and secondly, the fact that a person has been discharged in a criminal case is not conclusive in an administrative enquiry. The Government is not bound to accept the order of discharge by a Magistrate as conclusive in preference to an administrative enquiry held by a Judge of the High Court.
13. There is also no force in the contention that the suspension imposed by the High Court was by way of a penalty, because the order of suspension is itself until further orders, that is, order pending an enquiry. It is probably so worded in-order to make it clear that it is not as an imposition of penalty under Rule 8(ix). In any case, this matter-is no longer res Integra as it has already been held that the order of1 suspension by the High Court is not defective.
14. In the result, the several contentions raised by the petitioner being found to be without force, the writ petition is dismissed with costs. Advocate's fee Rs. 250/-.