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Mohammed Ghouse Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAndhra Pradesh High Court
Decided On
Case NumberS.C.C.M.P. No. 2627 of 1959
Judge
Reported inAIR1960AP194
ActsConstitution of India - Articles 132(2), 133(1), 226 and 309
AppellantMohammed Ghouse
RespondentState of Andhra Pradesh
Appellant AdvocateG. Chandrasekhara Sastry and ;C. Narasimhachari, Advs.
Respondent AdvocateD. Narasaraju, Adv. General
DispositionPetition allowed
Excerpt:
.....will not serve any purpose of petitioner - order of high court even if set aside by supreme court fresh inquiry against petitioner shall be initiated - leave cannot be granted. - - x x x (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or..........the enquiry without its being initiated by the state government. after referring to the relevant rules, namely, rules. 11 and 17 framed under art, 309 of the constitution, we decided that it was quite competent for the high court to enquire into the charges and that it was not necessary that it should have been initiated by the state government. alternatively, we also found that articles. 227 and 235 of the constitution invested this court with ample power to hold enquiries. against this judgment, the petitioner wants to file an appeal to the supreme court and seeks leave both under article 132 and article 133 of the constitution.3. it is urged in support of this petition that 'this case attracts article 133(1)(b) and also article 132(2) of the constitution. we do not think we can give.....
Judgment:

Chandra Reddy, C.J.

1. This is a petition for leave to file an appeal to the Supreme Court of India against the order of this Court refusing to quash the dismissal of the petitioner. After an enquiry held by the High Court of Madras into several charges against the petitioner and on the recommendation of the High Court, the Government of Andhra Pradesh dismissed the petitioner, who was at the material time holding the post of a Subordinate Judge, as the charges were held to have been substantiated. To quash that order, the petitioner invoiced the jurisdiction of this Court under Article 226 of the Constitution.

2. The main contention raised on behalf of the petitioner in the writ petition was that the High Court had no jurisdiction to hold the enquiry without its being initiated by the State Government. After referring to the relevant rules, namely, Rules. 11 and 17 framed under Art, 309 of the Constitution, we decided that it was quite competent for the High Court to enquire into the charges and that it was not necessary that it should have been initiated by the State Government. Alternatively, we also found that Articles. 227 and 235 of the Constitution invested this Court with ample power to hold enquiries. Against this judgment, the petitioner wants to file an appeal to the Supreme Court and seeks leave both under Article 132 and Article 133 of the Constitution.

3. It is urged in support of this petition that 'this case attracts Article 133(1)(b) and also Article 132(2) of the Constitution. We do not think we can give effect to either of the two contention. Article 133. in so far as it is material for this enquiry, recites:

'(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies. X X X (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value;'

We find it difficult to hold that this case comes within clause (b) quoted above. Even assuming that the' petitioner ultimately succeeds in his appeal to the Supreme Court, that does not vest any right in him to claim any amount of the value of Rs. 20,000/-, if the order of this Court is set aside, the petitioner' would only be entitled to a fresh enquiry. Granting that the Government decide to reinstate him, it does' not follow that he would be entitled to get his pay and allowances. In this connection, we may read Fundamental Rule No. 54 relied on for the appellant. It is in these words :

'54 (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order,

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and

(b) whether or not the said period shall be treated as a period spent on duty.'

4. In the said rules, for Clause (2) of Rule 54, the following shall be substituted, namely;

'Where the authority mentioned in Clause (1) is of the opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.'

We do not think that this rule comes to tile rescue of the petitioner. As we have already stated, the reversal of the order of this Court would not result in the reinstatement of the petitioner. Even if such a thing happens, he cannot get his salary and allowances, unless the Government feel that the Suspension was wholly unjustified. This could be done only if a fresh enquiry is held and the Government come to the conclusion that the petitioner was innocent and that the suspension was wholly; unjustified. Therefore, it follows that the contention based on Article 133(1) of the Constitution should be rejected.

5. The argument founded on Article 132(2) is equally unsubstantial. As already observed, the decision of this Court is based on Rules. 11 and 17 of the Rules framed under Article 309. It was pointed out in the judgment of this Court:

'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 Service pending an enquiry. The very fact 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 11 (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 for giving 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.'

This opinion of ours gains ample support from the judgment of their Lordships of the Supreme Court in D. S. Garewal v. State of Punjab, (Civil Appeal No. 426 of 1958 D/- 11-12-1958). : AIR1959SC512 . Their Lordships of the Supreme Court repelled a similar argument. The point urged there was that the Punjab Government had no authority to institute proceedings under the (All India Services Discipline and Appeal) Rules, 1955 and it was only the Central Government that was competent to institute the enquiry. Negativing the contention, Wanchoo J,, speaking for the Court, observed as follows :

'In the first place, it cannot be postulated at the very outset of the enquiry whether there would be any punishment at all, and even if there is going to be punishment, which particular punishment out of the seven mentioned in Rule 3 would be imposed. Therefore, even on the assumption that the Government which has to impose the punishment must also institute the enquiry, it cannot be said at this stage that the Punjab Government which can impose at least four out of seven penalties is not the proper Government to institute the enquiry.'

This passage furnishes a complete answer to the point raised by the learned counsel for the petitioner. We, therefore, feel that there is no substantial question of law as to the interpretation of the Constitution, involved in this case.

6. The ruling of the Madras High Court in Subba Rao v. Veeraju, : AIR1951Mad969 (FB), does not give any assistance to the petitioner. There, the learned Judges were interpreting Article 133 of the Constitution which only speaks or a 'substantial question of law and not a 'substantial question of law as to the interpretation of the Constitution'. That the Constitution itself recognises the distinction between a substantial question of law and a substantial question of law ns to the interpretation of the Constitution becomes apparent from a reading of Article 133(2) which is as under:

'Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that 8 substantial question of law as to the interpretation of this Constitution has been wrongly decided.'

7. Even otherwise, there is no substance in thecontention that the High Court is not competent tohold an enquiry as could be seen from the judgment of the Supreme Court already referred to.For all the aforesaid reasons, we feel that theleave asked for cannot be granted. In the result,the petition is dismissed.


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