# A. S. Erishna v. State of Madras Venkalarama Ayy"' ], November, 29

- **Citation:** [1957] 1 S.C.R. 414
- **Court:** Supreme Court of India
- **Decided:** 1954-01-25
- **Case number:** Civil Appeal No. 133 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-s-erishna-v-state-of-madras-venkalarama-ayy-november-29-1348
- **Pages:** 10

## Headnote

1956
A. S. Erishna
v.
State of Madras
Venkalarama
Ayy"' ],
November, 29.
414
SUPREME COURT REPORTS
[1957J
offence under s. 4(1)(g) to be in possession of materials,
still,
implement
or
apparatus
whatsoever
for
the
tapping of toddy or the manufacture of liquor. Under
s. 4(2)(a), if a person is found to be in possession of
materials or other things mentioned in the sub-section,.
there is a presumption that he has committed an
offence under s. 4(1)(g), but it is open to him to account
satisfactorily
therefor.
The
contention,
therefore,
that
there
is
no
reasonable
relation
between
the
.presumption and the offence is, in our opinion, based
on a misreading of the section.
Both the contentions urged on behalf of the appellants having failed, these appeals are dismissed.
Appeal dismissed.
MOHAMMAD GHOUSE
ti.
STATE OF ANDHRA
[S.
R.
DAS
C.J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs, JJ.J
Government - Servant-Judicial
Officer-DiscipHnary
Proceedings-Enquiry into charges-Jurisdiction of the High Court-Order
of suspension pending final orders by the Government-Power of the
High Court-Constitution of India, Art. 311-.Madras Civil Services
( ClaSJification, Control and Appeal) Rules, rr. 13, 17(e)-Madras
Civil
Services
(Disciplinary
Proceed in gs Tribunal) Rules, 1948And hra Civil Services (Disciplinary Proceedings Tribunal) Rules,
1953, r. 4(1) (a).
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 enquire<l into by one of the judges
of the Madras High Court who sent his reports on
August
20,
1953, and November 10, 1953.
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
ren1oved from
service on the charge of irregularities, and on
January 28, 1954, placed hi1n on suspension until further orders.
The appellant moved the High Court under Art. 226 of the Con~
. stitution of lndia for quashing the order of suspension on the
grmJnd (1) that under r. 4(1)(a) of the Andhra Civil Services (Dis·
ciplinary Proceedings Tribunal) Rules, 1953, an enquiry into the·
S.C.R.
SUPREME COURT REPORTS
415
conduct of a Government
servant
drawing a monthly salary of
Rs. 150 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 Art. 311 of the Constitution of India. The
High Court dismissed the application and on appeal
against
the
judgment.
Held : (I) that in view of the amendm~nt of r. 4 of the Andhra
Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, on
April I!, l 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 Art. 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.
C1vIL
APPELLATE
JuRISDICTION:
Civil
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. S. K. Sastri and Sardar Bahadur,
for the appellant.
Porus A. Mehta, T. V. R. Tatachari and T. M. Sen,
for the respondent.
1956.
November 29.
The Judgment of the Court
was delivered by
VENKATARAMA
AYYAR
J.-The
appellant
was
recruited to the Madras Provincial Judicial Service as
Distri

## Text

1956
A. S. Erishna
v.
State of Madras
Venkalarama
Ayy"' ],
November, 29.
414
SUPREME COURT REPORTS
[1957J
offence under s. 4(1)(g) to be in possession of materials,
still,
implement
or
apparatus
whatsoever
for
the
tapping of toddy or the manufacture of liquor. Under
s. 4(2)(a), if a person is found to be in possession of
materials or other things mentioned in the sub-section,.
there is a presumption that he has committed an
offence under s. 4(1)(g), but it is open to him to account
satisfactorily
therefor.
The
contention,
therefore,
that
there
is
no
reasonable
relation
between
the
.presumption and the offence is, in our opinion, based
on a misreading of the section.
Both the contentions urged on behalf of the appellants having failed, these appeals are dismissed.
Appeal dismissed.
MOHAMMAD GHOUSE
ti.
STATE OF ANDHRA
[S.
R.
DAS
C.J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs, JJ.J
Government - Servant-Judicial
Officer-DiscipHnary
Proceedings-Enquiry into charges-Jurisdiction of the High Court-Order
of suspension pending final orders by the Government-Power of the
High Court-Constitution of India, Art. 311-.Madras Civil Services
( ClaSJification, Control and Appeal) Rules, rr. 13, 17(e)-Madras
Civil
Services
(Disciplinary
Proceed in gs Tribunal) Rules, 1948And hra Civil Services (Disciplinary Proceedings Tribunal) Rules,
1953, r. 4(1) (a).
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 enquire<l into by one of the judges
of the Madras High Court who sent his reports on
August
20,
1953, and November 10, 1953.
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
ren1oved from
service on the charge of irregularities, and on
January 28, 1954, placed hi1n on suspension until further orders.
The appellant moved the High Court under Art. 226 of the Con~
. stitution of lndia for quashing the order of suspension on the
grmJnd (1) that under r. 4(1)(a) of the Andhra Civil Services (Dis·
ciplinary Proceedings Tribunal) Rules, 1953, an enquiry into the·
S.C.R.
SUPREME COURT REPORTS
415
conduct of a Government
servant
drawing a monthly salary of
Rs. 150 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 Art. 311 of the Constitution of India. The
High Court dismissed the application and on appeal
against
the
judgment.
Held : (I) that in view of the amendm~nt of r. 4 of the Andhra
Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, on
April I!, l 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 Art. 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.
C1vIL
APPELLATE
JuRISDICTION:
Civil
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. S. K. Sastri and Sardar Bahadur,
for the appellant.
Porus A. Mehta, T. V. R. Tatachari and T. M. Sen,
for the respondent.
1956.
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 an<l 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
1956
Mo1-ad Ghoust
v.
Stak •I Andhra
Mohammad Ghouse
v.
State of Andhra
Venkatarama
Ayyar ].
416
SUPREME COURT REPORTS
[1957]
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 Gudivarla, an<l 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,
an<l as a result of the enquiries
an<l reports received,
the following charge was framed against the appellant
on April 2, 1953:
"That you in or about A ugmt 1950 being at that
time Additional Sub-Juclge, Masulipatnam, entered into
a conspiracy with your brother Md. Riazu<l<lin 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 Mr~ Riazuddin at Vijavawa<la 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 onlv 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
S.C.R.
SUPREME COURT REPORTS
417
<lefaults,
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 di.smissed from service."
Vv'ith reference to the charges of irregularities, etc.,
Balakrislrna 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
foEows:
"In the resu:t, I find Mr. Ghouse guilty of the
charges framed to the extent already indicated.
In respect of another charge against Mr. Ghouse,
th;it I enquired into I expressed the • view
that
he
shoulll 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 evideace of his own incompetence.
But a judicial officer who systematically
sends fa'lse
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
1956
Mohammad Ghouse
v.
State of Andhra
Venkatarama
Ay;w].
1956
Mohammad Ghouse
v.
State of Andhra
Vmka/arama
AJ7"' J.
418
SUPREME COURT REPORTS
[1957]
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 Art. 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 Tribunals) 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 Art. 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 Judges observed that though Rule 4 of the
Andhra Civil Services Rules different in some respects
S.C.R.
SUPREME COURT REPORTS
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
Arts. 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 Art. 136 of the Constitution.
Before us, the appellant pressed
both
the grounds
which were raised by him in his application under
Art. 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, ano
( 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
Mohammad Ghaus•
v.
State of Andlzra
Venkatarama
Ayyar ].
Mohammad G!wusc
v.
State of Andhra
Venkalarama
Ayyar ].
420
SUPREME COURT REPORTS
[1957]
Sub-Inspector and below shall not be referred to the
Tribun;,i.l.''
The corresponding Rule in the Andhra Civil Services
(Disciplinary
Proceedings Tribunal) Rules, 1953,
which came into operation from October 1, 1953, 1s as
follows :
4 (!) ''The Government shall, subject to the provisions of rule 5, refer the following cases to the Tribunal, 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 sei·vants 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
<lisciplin<iry cases in \Vhic!1
tlie Government propose to
revise the original orders passed on such charges :
Prnvided that it shall not be necessary to consult
the Tribunal :
(i) in anv case
m
which the Tribunal has, at
any
prev10us
stage,
given
advice
in regard
to the
order to be passed and
no fresh question has thereafter arisen for determination, or,
(ii) Where the
Government propose
to pass
orders rejecting such appeal or petition.
(2) The Government may, subject to the provisions
of rule 5, also refer to the Tribunal any other case or
class of cases which, thev consider should
be dealt
with by the Tribunal :
.
Provided that the following cases shall not be referred to the Tribunal namelv-
(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)
S.C.R.
SUPREME COURT REPORTS
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 orclers 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
m as to whether the concluding proviso in Rule 4 of
the An<lhra
Civil Services
Rules qualifies
both subruks (I) 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
he deemed to have come into force on October 1, 1953.
That amendment is as follows :
"Jn 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
5--77 S.C. India/59
1956
Mohammad Ghous1
v.
State of Andhra
Venkatarama
Ayyar].
1956
Mohammad Ghous1
v.
StaJe of Andhra
V1Matuama
AJ!)'arJ.
422
SUPREME COURT REPORTS
[1957]
of the respondent that Ruic 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 Art. 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
Art. 311
that proposes to take action against the
appellant, and it is for that authority to pass the ultimate order in the matter.
The order passed by the
High Court on January 28, 1954, is merely one of
suspension pending final orders by the Government,
and such an order is neither one of dismissal nor of
removal from service within Art. 311 of the Constitution. It was also argued that the High Court had no
authority under the rules to suspend a judicial officer
pending final orders of the Government. But under
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
1s
perfectly intrll vires.
S.C.R.
SUPREME COURT REPORTS
423
It was lastly contended for the appellant tliat 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 wellfounded. 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.
OM PRAKASH GUPTA
v.
STATE of U. P.
(with connected appeals)
(S. R.
DAS c. J.,
BHAGWATI,
VENKATARAMA
AYYAR,
S. K. DAs and GovINDA MENON JJ.)
Implied repeal-Whether s. 409 of the Indian Penal Code is impliedly repealed by s. 5(J)(c) of the Prevention of Corruption Act,
1947 (II of 1947)-Whether the application of s. 409 of the Indian
Penal Code to a public servant infringes Art. 14 of the ConstitutionSanction-Whethei· sanction under s. 6 of the Prevention of Corruption Act necessary for prnsecution under s. 409 of the Indian Penal
Code.
The offences under s. 409 of the Indian Penal Code ands. 5(1)(c)
of
the
Prevention
of
Corruption Act,
1947
are distinct
and
separate, and there is no question of s. 5(1)(c) of the Prevention of
Corruption Act, 1947 repealing s. 409 of the Indian Penal Code.
Amarendra Nath Roy v. The State, A.LR. [1955]
Cal. 236,
:;ipproved.
The legislature would not have intended in the normal course
of things, that a temporary statute like the Prevention of Corruption Act, 1947, should supersede an enactment of antiquity
like
the Indian Penal Code.
In the view that the two offences under s. 409 of the Indian
Penal Code and s. S(l)(c) of the Prevention of Corruption Act are
distinct and
separate
there is no infringement of Art. 14 of the
1956
Mohammad Ghow1
v.
Stat• of A11dhra
V tnkatarama
Ayyar J.
1957
January, 11.