- Bookmark
- Share
- CaseIQ
Mohammed Ghouse v. State Of Andhra Pradesh .
Factual and Procedural Background
The petitioner, then holding the post of a Subordinate Judge, was subjected to an enquiry conducted by the Madras High Court into several charges. The High Court found the charges substantiated and, on its recommendation, the Government of Andhra Pradesh dismissed the petitioner. The petitioner challenged the dismissal by invoking Article 226 of the Constitution before this Court seeking to quash the dismissal. This Court refused to quash the dismissal; the petitioner now seeks leave to appeal to the Supreme Court of India and applies for leave under Article 132 and Article 133 of the Constitution.
Legal Issues Presented
- Whether the Madras High Court had jurisdiction to hold the disciplinary enquiry without the enquiry first being initiated by the State Government.
- Whether the case attracts Article 133(1)(b) of the Constitution (permission to appeal to the Supreme Court on the basis that the High Court's order involves a claim or question respecting property of like amount or value).
- Whether the case raises a substantial question of law as to the interpretation of the Constitution within the meaning of Article 132(2).
Arguments of the Parties
Petitioner's Arguments
- The primary contention was that the High Court had no jurisdiction to hold the enquiry unless it was initiated by the State Government.
- The petitioner argued that the case qualified for leave to appeal to the Supreme Court under Article 133(1)(b) and Article 132(2) of the Constitution.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| D. S. Garewal v. State of Punjab, (Civil Appeal No. 426 of 1958 D/- 11-12-1958) | Authority for the proposition that a provincial/state government may be competent to institute or conduct disciplinary enquiries where it has power to impose some of the penalties; rejection of the argument that only a central authority could institute the enquiry. | The Court relied on this decision to support its view that the High Court (and the State authority) could properly conduct the enquiry and that the petitioner's jurisdictional objection was unsustainable. |
| Subba Rao v. Veeraju (FB) | Interpretation of Article 133 regarding 'substantial question of law' (distinguishing between a substantial question of law generally and a substantial question of law as to the interpretation of the Constitution). | The Court held that this ruling did not assist the petitioner because it concerned a different statutory/constitutional framing (the distinction between a substantial question of law and one as to constitutional interpretation) and therefore did not advance the petitioner's case on Article 132/133 grounds. |
Court's Reasoning and Analysis
The Court analyzed the petition on several lines, as follows:
- Jurisdiction of the High Court to hold the enquiry: The Court referred to Rules 11 and 17 framed under Article 309 of the Constitution and concluded that the High Court was competent to conduct the disciplinary enquiry without its being initiated by the State Government. The Court observed that Rules 11 and 17 authorize the Government and the High Court to take certain disciplinary steps, and Rule 17(e) reinforces the High Court's authority to hold enquiries.
- Alternative constitutional authority: The Court observed that Articles 227 and 235 of the Constitution vested the High Court with ample power to hold enquiries, providing an additional basis for the High Court's competence.
- Article 133(1)(b) contention: The Court rejected the submission that the matter fell within Article 133(1)(b). It reasoned that even if the petitioner succeeded ultimately in the Supreme Court, success would not vest in him any enforceable right to claim an amount of the value of Rs. 20,000; at best a favourable outcome would lead to a fresh enquiry. Reinstatement by the Government would not automatically entitle the petitioner to pay and allowances unless the Government, on fresh consideration, concluded that suspension was wholly unjustified (reference was made to Fundamental Rule No. 54 and the substituted Clause (2) of Rule 54).
- Article 132(2) contention: The Court found the argument under Article 132(2) unsubstantial because the decision of this Court was founded on administrative rules (Rules 11 and 17 under Article 309) rather than a substantial question of constitutional interpretation. The Court relied on its earlier reasoning and the Supreme Court's decision in D. S. Garewal v. State of Punjab to conclude there was no substantial question of law as to the interpretation of the Constitution involved.
- On Subba Rao v. Veeraju: The Court explained that the Madras High Court decision did not help the petitioner because it dealt with Article 133 in a different context and the Constitution itself distinguishes between a 'substantial question of law' and a 'substantial question of law as to the interpretation of the Constitution' (noting Article 133(2)).
Based on these points, the Court concluded that neither the threshold for Article 133(1)(b) nor for Article 132(2) was met and that there was no substantial question of constitutional interpretation warranting leave to appeal to the Supreme Court.
Holding and Implications
The leave asked for to file an appeal to the Supreme Court is refused and the petition is dismissed.
Implications:
- The direct effect is that the petitioner's application for leave to appeal under Articles 132 and 133 is denied and the earlier orders refusing to quash the dismissal remain in force.
- The opinion indicates that no substantial question of law as to the interpretation of the Constitution arises from this case; the decision rests on administrative rules (Rules 11 and 17 under Article 309) and existing authority. The Court did not purport to lay down any new precedent beyond applying existing rules and the cited authorities.
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). . 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, (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 the contention that the High Court is not competent to hold an enquiry as could be seen from the judgment of the Supreme Court already referred to.
For all the aforesaid reasons, we feel that the leave asked for cannot be granted. In the result, the petition is dismissed.
Alert