Dr. M.N Dasanna v. Government Of Andhra Pradesh

Anantanarayana Ayyar, J.:-

(1) .a departmental enquiry no. 16 of 1962 was held against mr. M. N. Dasanna who was officer - in - charge of the government hospital at vijayawada. After the enquiry shri nandagiri venkatrao, chairman of the disciplinary proceedings tribunal sent a report, dated 31st july, 1964 to the government. The government, after observing prescribed formalities, passed g. O. Ms. No. 3674 (health) , dated 3rd december, 1964 as a final order dismissing dr. M. N. Dasanna from service with effect from the date of receipt of that order by him. The doctor filed this writ petition praying to issue writ or order or direction particularly a writ of certiorari after calling for the records in departmental enquiry no. 16 of 1962 and to quash the order of dismissal passed by the government in g. O. Ms. No. 3674 (health) , dated 3rd december, 1964. There are two respondents to the writ petition. The first respondent is the government of andhra pradesh. The second respondent is the chairman, tribunal for disciplinary proceedings.

(2) The tribunal for disciplinary proceedings at hyderabad had a chairman and another member. On 22nd august, 1962, shri k. Umapathi rao, (chairman) framed twenty - two charges against dr. M. Dasanna (hereafter referred to for convenience as charged officer). Charge no. 1 ran as follows : -

"that you in abuse of your official position as officer - in - charge of the government hospital, vijayawada, and actuated by corrupt motives, demanded rs. 40 and accepted a sum of rs. 20 as illegal gratification on 14th october, 1961 from late sri jampana nageswararao of vijayawada, in the government hospital, vijayawada for giving treatment to late pagadala eladri of vijayawada."

witnesses: - 1. Sri s. S. N. Reddy, d. S. P. A. C. B. , vijayawada range, vijayawada. 2. Sri g. Maheswararao, inspector, a. C. B. , vijayawada. 3. Sri tatineni koteswararao, son of venkatramiah, vijayawada. 4. Sri yelamanchilli venkateswararao, son of ramakotiah of vijayawada. 5. Sri chalamala seshaiah, of vijayawada. 6. Sri dr. N. M. Rahman, government hospital, vijayawada. 7. Sri p. C. Jishnu, superintendent, central excise, mahabubnagar. Charge no. 1 involved a trap and evidence about it. Chargenos. 2 to 22 related to individual cases of corruption i. E. Demanding and receiving bribes ; but they did not involve trap.

(3) Shri nandagiri venkata rao, who was the chairman, sent a report of the tribunal, dated 31st july, 1964. In it, he concluded as follows : - "inlthe result, i have found charges nos. 1, 2, 3, 8, 10, 11, 12, 13, 18 and 22 as proved against charged officer and the rest of the charges go as unproved. " the government after considering the report of the tribunal, communicated a memo no. 3906 - a/64 - 1, health, dated 15th september, 1964 to the charged officer as follows : - " a copy of the report of the tribunal for disciplinary proceedings enquiring into the allegations of corruption against dr. M. N. Dasanna. Is forwarded to him. (2) the government agree with the presumptions drawn and findings arrived at by the tribunal in respect of the charges in d. E. No. 16 of 1962 and direct dr. M. N. Dasanna to show cause why he should not be dismissed from service. " the charged officer duly sent his explanation, dated 30th october, 1964. The government passed the impugned g. O. Ms. No. 3674, dated 3rd december, 1964 dismissing the charged officer from service. The andhra pradesh civil services (disciplinary proceedings tribunal) act, 1960 ( xi of 1960) as it stood at the dates of the enquiry and report and the impugned g. O. Had provisions as follows. The preamble to the act says that it is ' an act to provide the constitution of a tribunal for disciplinary proceedings to inquire into allegations of misconduct on the part of government servants and for other matters connected therewith'. Section 2 (d) defines "tribunal"as meaning the "tribunal constituted under section 3 "section 3 deals with the constitution and composition of tribunal. It reads thus : - " (1) the government shall constitute a tribunal for disciplinary proceedings consisting of one or more members. * * * * * (3) every member of the tribunal shall be a judicial officer of the status of district judge and his appointment shall be made by the government. (4) if the tribunal consists of mere than one member, one of the members shall be designated by the government as the chairman of the tribunal. " under section 4, the government shall refer to the tribunal for inquiry and report cases of allegations of misconduct on the part of government servants. Section 5 deals with the power of tribunal to summon and examine witnesses and direct production of documents. It says : -

(4) "the tribunal shall, for the purposes of conducting an inquiry under this act, have the powers of a civil court while trying a suit, under the civil procedure code, 1908 v of 1908). " section 6 states the procedure of tribunal, section 6 (1) runs as follows : - "if the tribunal consists of more than one member, an enquiry into a case referred to the tribunal under section 4 shall be held by all the members sitting together or by a single member as the chairman may direct. " section 7 refers to the report of the tribunal to be submitted to the government. As it stands now, it reads thus : - "7. On the conclusion of an inquiry, the tribunal shall report its findings to the government. Provided that where a single member of the tribunal holds an inquiry into a case as provided in sub - section (1) of section 6 he alone shall report his findings and recommend the penalites and his report to the government in this regard shall be deemed to be the report of the tribunal for the purpose of this act. " this proviso to section 7 has been added by the andhra pradesh civil services (disciplinary proceedings tribunal) amendment act, (xxvii of 1965). It was published in the gazette on 22nd december, 1965 after final order has been passed against the charged officer in g. O. Ms. No. 3674, dated 3rd december, 1964. But the act was a validating act in addition to being an amending act. Section 4 of the act runs as follows : -

(5)

"notwithstanding any judgment, decree or order of any court, every inquiry held or purporting to have been held, every finding reported or purporting to have been reported, every penalty recommended or purporting to have been recommended or every report made or purporting to have been made to the government in accordance with the provisions of the principal act. Or the andhra civil services (disciplinary proceedings tribunal) rules, 1953 read with the andhra tribunal for disciplinary proceedings (summoning and examination of witnesses and documents) act, 1956, by any single member of the tribunal before the commencement of this act shall, for all purposes, be deemed to have been held, reported, recommended or made by the tribunal in accordance with the provisions of the principal act, as amended by this act; and accordingly every such inquiry finding, penalty or report and any order passed or other action taken or penalty imposed by the government on the consideration of the report so made shall be, and shall be deemed always to have been as valid as, if the provisions of the principal act, as amended by this act, were in force at all material times when such inquiry was held or finding was reported or penalty was recommended or report was made or order was passed or action was taken or penalty was imposed."

(6) Consequently, the report in this case has to be considered as having been made when this proviso was in force. Section 10 deals with the power to make rules. In exercise of the powers conferred by section 10 (1) , the government passed g. O. Ms. No. 895, dated 18th july, 1961. The relevant provisions of that g. O. Are extracted hereunder. Rule 2 (b) defines corruption as follows : - "corruption shall have the same meaning as criminal misconduct in the discharge of official duties under section 5 (1) of the prevention of corruption act, 1947 (ii of 1947). " under rule 3, the government shall, subject to the provisions of rule 4 refer to the tribunal, for enquiry and report under section 4 of the act, case mentioned in that rule. Rule 7 deals with procedure. It runs thus : - " (1) the following procedure shall be followed by the tribunal in conducting enquries in cases of corruption referred to it. (i) as soon as the records relating to allegations of corruption against government servant are received the tribunal shall frame appropriate charges, communicate them to the government servant charged. (iv) the tribunal shall, as far as possible observe the basic rules of evidence relating to the examination of witnesses and the marking of documents and the enquiry shall conform to the principles of natural justice:. (2) (i) after the enquiry has been completed, the tribunal shall send the report of its findings and recommendations to the government together with its opinion (iii) after the government have arrived at provisional conclusions in regard to the penalty to be imposed, the government servant charged shall be supplied with a copy of the. Report of the tribunal. And he shall be called upon to show cause within a reasonable time. Against the particular penalty proposed to be imposed. (4) all or any of the provisions of sub - rules (1) and (2) may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived by the tribunal where there is difficulty in observing the requirements of those sub - rules and the requirements can be waived without injustice to the person charged. (6) where the chairman or any member of the tribunal is prevented by death, transfer or other cause from concluding enquiry or from reporting his findings in any case referred to the tribunal, his successor may deal with any evidence taken down by his predecessor in office as if such evidence had been taken down by him and may proceed with the enquiry from the stage at which his predecessor had left it, or report his findings to the government. " sub - rule (6) was newly added by g. O. Ms. No. 690, dated 12th june, 1964. After this amendment to the rule came into effect, the tribunal made report dated 31st july, 1964 to the government. This writ petition was filed on 6th april, 1965. For a proper understanding of the contentions in this writ petition and for a proper decision, certain dates are important and we give them below. On 22nd august, 1962, shri k. Umapathi rao (chairman) of the tribunal framed charges against the charged officer and communicated to him. At that time, the tribunal had two members including the chairman. On 7th january, 1963, shri k. Umapathi rao (chairman) transferred departmental enquiry no. 16 of 1962 to the other member, shri m. Nazmuddin. On 22nd january, 1963 the charged officer applied to the chairman to withdraw the case to his file for certain reasons. Accordingly, shri k. Umapathi rao (chairman) withdraw the case to his file. Between 19th march, 1963 and 21st march, 1963, shri k. Umapathi rao (chairman) examined. P. Ws. 1 to 3 in full and p. W. 4 in part. In the meanwhile, shri m. Nazmuddin retired and shri shanker pershad succeeded him as member. On 21st march, 1963, the chairman (shri k. Umapathi rao) transferred the case, which was then part - heard to shri shankar pershad (who had succeeded shri m. Nazmuddin) between 18th april, 1963 and 20th june, 1963 and evidence of p. W. 4 was completed and p. Ws. 5 to 33 were examined by shri shanker pershad (member). Subsequently shri shanker p. Rshad was succeeded and relieved by shri g. Ramayya choudary who became a member. Between 29th july, 1963 and 16th august, 1963. Shri g. Ramayya choudary (member) continued the enquiry and examined p. Ws. 34 to 38. The prosecution evidence was closed. On 20th august, 1963, the charged officer filed his written statement. Between 18th september, 1963 to 11th october, 1963 d. Ws. 1 to 13 were examined by shri g. Ramayya choudary (member). On 26th october, 1963, shri g. Ramayya choudary heard arguments in full. On 7th february, 1964 shri g. Ramayya choudary went away on transfer. The report to the government was not yet prepared. Shri g. Ramayya choudary was succeeded by shri c. Jagannathacharyulu as member. Shri c. Jagannathacharyulu wanted to hear the arguments afresh. The charged officer filed a petition on 14th february, 1964 before him that shri g. Ramayya choudary should send report to the government. Para. 5 of the petition is in the following terms : - "it would be in the interest of the prosecution and the defence and consistent with principles of natural justice in a serious matter of this kind, which will have serious consequences on the future of the charged officer that the judge or officer who heard the most important portion of the case, and the arguments immediately thereafter and is therefore in a position to came to definite conclusions on the respective case of parties, should submit the report in the case. It should not be difficult for the government under section 3 (1) and 3 (2) of the act of 1960 to appoint the transferred officer who heard the case, as additional member of the tribunal for just and short period and direct him to submit his report in the case. " on 20th february, 1964 shri c. Jagannathacharyulu dismissed the application by an elaborate order, after hearing the arguments on both sides and considering the various provisions of law.

(7) On 23rd march, 1964, the charged officer filed a petition before government for appointment of shri g. Ramayya choudary as member of the tribunal and for clothing shri g. Ramayya choudary with powers to prepare and submit a final report. On 12th june, 1964, the government passed g. O. Ms. No. 690 adding sub - rule (6) to rule 7 of g. O. Ms. No. 895, dated 18th july, 1961. On 19th june, 1964, the government rejected the petition of the charged officer, dated 23rd march, 1964. Shri c. Jagannathacharyulu went away on transfer and was succeeded by shri nandagiri venkata rao as member. On 9th june, 1964 and 10th july, 1964, the government placed the charged officer under suspension. On 31st july, 1964 shri n. Venkata rao sent a report to the government. He was then chairman of the tribunal. On 15th september, 1964 the government sent a notice to the charged officer and called for his explanation. On 3rd december, 1964, the government passed the government order which is impugned in this writ petition. In support of the writ petition, the charged officer (petitioner) filed an affidavit in which he stated the above facts and urged various grounds. On behalf of both the respondents, a counter - affidavit was filed by the assistant secretary to government.

(8) We are dealing below with various contentions which were actually argued and urged before us. In addition to the general contentions which are urged against the enquiry findings and report as a whole, some special arguments have been advanced regarding charge no. 1.

(9) Shri kuppuswamy, the learned advocate for the petitioner, contends that the report dated 31 - 7 - 1964, which was made and signed by shri n. Venkata rap (chairman) alone and in which the other member did not join does not comply with the requirements of the law and is, therefore not a valid and proper report and that consequently all subsequent proceedings including the impugned g. Q. Are illegal and of no effect in law. Before the proviso to section 7 was added by the amending act (xxviii of 1965) a contention was raised before a division bench of this court in doraiswamy naidu v. State of a. P. (1966) 1 an. W. R. 133. On behalf of doraiswamy naidu, who challenged a government order dismissing him from service on a report from the tribunal as follows (at page 133) : ". That having regard to the provisions of the hyderabad public servants (tribunal of enquiry) act (xxiii of 1950) (hereinafter called the "enquiry act ") the report of only one of the two members constituting the tribunal is not a finding within the meaning of section 8 and as such the government could not act upon it under section 9. " section 6 (z) of the "enquiry act"is substantially identical with section 6 (1) of the andhra pradesh enquiry act ii of 1960. Section 8 of the enquiry act runs as follows :

(10) "on the conclusion of an inquiry, the tribunal shall report its findings to government. " this section is substantially similar to section 7 of the andhra pradesh act without the proviso in material particulars relevant for this case. Similarly section 9 of the enquiry act is substantially similar to section 8 of the andhra pradesh act in material particulars. The learned judges of the division bench passed judgment on 7th september, 1965 holding as follows : - "the principle of joint responsibility which has been well established not only on principle but also upon authority and which was also the intention of the legislature as can be gleaned from the provisions of the act, transgressed in this case. ;. The principle of joint responsibility is a substantial and basic principle underlying the constitution of the tribunal and framed in the interest of the delinquent officers. This principle having been violated, we have no option but to declare that the government has not acted on any report or finding of the tribunal as contemplated by section 9 (corresponding to section 8 of the andhra pradesh act) and consequently the decision is without jurisdiction and must be set aside. " to arrive at the above finding, the learned judges relied on the following grounds : - (1) section 8 of the enquiry act uses two different words "enquiry"and '' report"which must be given distinct meanings. Therefore, "enquiry"did not include finding (report) for the purpose of section 6 of the enquiry act corresponding to section 6 of the andhra pradesh act. (2) report and finding must necessarily be of all members where the tribunal consists of more than one member. The report and finding are the joint responsibility of the tribunal which means of all the members constituting it while the enquiry i. E. , recording of evidence, etc. , is capable of being delegated statutorily to one of the members. (3) the report and finding by one member of the tribunal was not a mere material irregularity but a violation of the principle as a result of which the government did not have before it, under section 9, the report and finding of the tribunal which would be the result of all the members bringing their minds to bear on the matters in controversy and coming to a conclusion. Because of this decision, the government introduced, l. A. Bill xxv of 1965 which ultimately became act xxviii of 1965. Shri kuppuswami for the petitioner relies strongly on the statement of objects and reasons as follows : - ". In a recent decision, the andhra pradesh high court has observed that the very purpose of having a tribunal of more than one member is that all members should bring to bear their mind to the matters in controversy and come to the conclusion and that where a single member holds an inquiry the findings and report shduld be given by all the members. (a) the intention was that, where a single member held an inquiry under section 6 (1) , he alone should report his findings and recommend the penalties in the report to be submitted to the government. (b) where a single member holds an inquiry, it may not be appropriate to require the other member who has not inquired into the case and who does not have the opportunity of hearing the evidence, to take part in the further proceedings of recording the findings and submitting the report to the government. In order to make the intention clear and to validate the action taken by the government in the past on the findings and reports of a single member of the tribunal, the andhra pradesh civil service (disciplinary proceedings tribunal) amendment ordinance, 1965, was promulgated by the governor. The bill seeks to replace the said ordinance. " it is clear that the recent decision referred to in the above passage is the decision of this court in doraiswamy naidu v. State of a. P. , (1966) 1 an. W. R. 133. For convenience of discussion, we have marked the two sentences in the above passage as (a) and (b). Shri kuppuswami relies on the words in the above passage which we have underlined and contends that shri nandagiri venkata rao had not held the enquiry but still made a report. In s. C. Prasharv. Vasantsen, (1963) 1 s. Cj. 687 : (1963) 49 i. T. R. (s. C.) 1 : (1964) 1 s. C. R. 29 : a. I. R. 1963 s. C. 1356. It was observed by the supreme court as follows (at page 1367) : "it is indeed true that the statement of objects and reasons for introducing a particular piece of legislation cannot be used for interpreting the legislation of the words used therein are clear enough. But the statement of objects and reasons can be referred to for the purpose of ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation aimed at. The decision of the calcutta high court in debi dutt v. T. B. Bellan, a. I. R. 1959 cal. 567 was adverted to in the statement of objects and reasons. It seems to me that sub - section (4) of section 34 was enacted to supersede the view expressed in the calcutta decision aforesaid. " in the present case, the proviso to section 7 as stated in section 2 of the amendment act (xxviii of 1965) is clear and unambiguous. It is substantially identical with portion (a) of the statement of objects and reasons. Portion (b) in the statement of objects and reasons was meant as a reason to justify portion (b) which, in substance, is the proviso to section 7. In portion (b) , the framers of the bill indicated why they did not look with approval on a member, who had not held enquiry in the case, joining in recording the findings and submitting report to the government. They refer to the member who need not join in recording finding and sending report as one ' who has not inquired into the case and who does not have the opportunity of hearing the evidence. ' this is an indirect indication as to what the member, who was to send the report, must have already done. But, what such single member, who was to send report, must have already done is directly and unambiguously stated in portion (a) and also in the proviso to section 7 introduced by the amending act itself by reference to the member as a single member of the tribunal who holds enquiry as provided in sub - section (1) of section 6. It does not require that the single member should have the opportunity of hearing the evidence or in particular, that he should have heard the witnesses. Therefore, we find that portion (b) in the statement of objects and reasons cannot be utilised for interpreting the proviso to section 7 which is clear and unambiguous. The result is that if shri nandagiri venkata rao is an officer who held enquiry under section 6 (1) , then his report is a valid report in view of the proviso to section 7. The enquiry was held by a single member throughout whether it was chairman - member or non - chairman - member and it was held, as directed by the chairman as per section 6 (1) of the act. The same individual (human being) did not hold the enquiry throughout. But, there was official identity of all the individuals as member who held enquiry d. E. No. 16 of 1962, being member of the tribunal. Under sub - rule (6) of rule 7, shri nandagiri venkata rao, as member of the tribunal, was competent to lawfully deal with evidence which had been taken down by his predecessor as if such evidence had been taken down by him. Under this rule, shri n. Venkata rao proceeded to hear arguments on 9th arid 10th of july, 1964. Beyond doubt, the hearing of arguments was certainly a part of the enquiry under section 6 (1). Evidence had been recorded by several members who had been members before shri n. Venkata rao, i. E. , shri k. Umapathi rao, shri shanker pershad and shri g. Ramayya choudary. Under rule 7 (6) shri shanker pershad could deal with evidence which had been recorded by shri k. Umapathi rao and continue the enquiry. Similarly when shri ramayya choudary took charge, he could deal with the evidence which had been recorded up to that stage and continue the enquiry. Likewise, each of the successors could continue the proceedings of enquiry and report, like participants in a relay race until it was over and report was sent. Every one who preceded shri venkata rao was a predecessor of shri venkata rao for the purpose of rule 7 (6) which does not contemplate and cover only the immediate predecessor of shri n. Venkata rao. Each and every one of the various predecessors of shri n. Venkata rao, who had held enquiry as member, had been prevented from concluding the enquiry or sending report by causes like transfer of the person (predecessor) from the office of the member or transfer of the case from his file to the other officer (member). Shri kuppuswami contends that the chairman could not delegate enquiry to a series of members but could delegate to only one and that, in this particular case, the enquiry is not valid as it was held by a series of officers one after another. When an officer went on transfer and was succeeded by another as member, automatically the latter got jurisdiction to continue the enquiry. Section 6 does not restrict the right of chairman to make a direction only once as to enquiry being held by a single member. This contention is not tenable. We also find that, in view of the proviso to section 7, the contention that report must be by both members of the tribunal is not tenable.

(11) Shri kuppuswami contends that the report is not valid because the entire evidence was not recorded by one officer (individual) and the officer who sent the report did not hear or record the evidence of any of the numerous witnesses. For this purpose, he relies on the decision of the supreme court in pyare lal v. State of punjab, (1962) 2 s. C. J. 492 : (1962) m. L. J. (crl.) 690. 625 : (1962) 3 s. C. R. 328 : a. I. R. 1962 s. C. In that case, the relevant facts were as follows : -

"the trial commenced before s. Narinder singh, the special judge, patiala. He heard the evidence ; but before he could deliver a judgment, he was transferred and was succeeded by s. Jagit singh. S. Jagit singh did not recall the witnesses and hear the evidence over again, but proceeded, without any objection from either side, with the trial from the stage at which his predecessor had left it and having heard the arguments of the advocates for the parties, delivered his judgment convicting both the accused of the offences with which they had been charged and passed certain sentences on them."

(12) The validity of these convictions and sentences was considered by their lordships of the supreme court and they held as follows (at page 693) :

"we think that under the act (criminal procedure code) as is stood before its amendment as aforesaid, section 350 of the code was not available when one spec ial judge succeeded another. We hold that s. Jagit singh had no authority under the law to proceed with the trial or the case from the stage at which s. Narinder singh left it. The conviction by s. Jagit singh of the appellant cannot be supported as he had not heard the evidence in the case himself. The proceedings before him were clearly incompetent."

(13) Their lordships clearly indicated that their decision was due to the fact that section 350, criminal procedure code, was not applicable to the case. Their lordships also observed earlier as follows (at page 693) : "it is true that section 350 of the code is a provision applying to all magistrates and, therefore, also to a magistrate trying a warrant case. That however does not in our opinion decide the question. We think it relevant to observe that it is a right of an accused person that his case should be decided by a judge who has heard the whole of it and we agree with the view expressed in fernandez's case, (1958) 2 m. L. J. 294 : (1958) m. Lj. (crl.) 665: a. I. R. 1958 mad. 571 (f. B.). That very clear words would be necessary to take away such an important and well - established right. We find no such clear words here. Later in the judgment, their lordships stated as follows (at page 649) : "lastly, we have to say a few words on the amendment of the act expressly making section 350 of the code applicable to the proceedings before a special judge. That amendment came long after the decision of the case by s. Jagit singh and had not expressly been made retrospective. "

(14) Applying the principle stated above, the right of the charged officer, which would ordinarily exist, was taken away by the very clear wording of rule 7 (6) which is a statutory rule. This sub - rule (6) of rule 7 expressly lays down that a succeeding officer 'may deal with any evidence taken down by his predecessor' and that he ' may proceed with the enquiry' from the stage at which his predecessor had left it. Rule 7, sub - rule (6) is substantially similar in material particulars to section 350, criminal procedure cpde, which runs as follows : - " (1) whenever any magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may act on the evidence so recorded by his predecessor, partly recorded by his predecessor, and partly recorded by himself (2) * * * * (3) when a case is transferred under the provisions of this code from one magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub - section (1). " the words of rule 7 (sub - rule (6)) , and section 6, sub - section (1) are sufficient to take away from a charged officer the ordinary right i. E. , that his case should be decided by a judge who has heard the whole of it. In fernandez, in re, (1958) 2 m. L. J. 294: (1958) m. L. J. (crl.) 665: a. I. R. 1958 mad. 371 (f. B.). A full bench of the madras high court answered in the negative the following question : - "is section 350, criminal procedure code, part of the procedural law applicable to the trial of an accused person by a special judge appointed under the provisions of (central act xlvi of 1952) (criminal law amendment act) ?. " the learned judges observed regarding section 350, criminal procedure code, as follows (at page 298) : - "the basic reasons for section 350, criminal procedure code, appears in the decision in tarada baladu v. The queen, (1881) i. L. R. 3 mad. 112. The desire to achieve a just balance between the interests of the accused, an expeditious trial and the frequency of charges in the personnel of the courts of magistrates, which itself was linked up with the needs of executive and administration led to the enactment of section 350, criminal procedure code and its continuance thereafter. What we emphasise is that without such an express provision in the code the normal rule would have applied even in the courts of magistrates, that the entire evidence should have been heard by the judicial officer before he could pronounce judgment in a criminal case. "

(15) As would be seen from the history of the present case, charge was framed on 22nd august, 1962 and final report was sent on 31st july, 1964 and between these two dates during the course of the enquiry there were many changes in the personnel of the tribunal. There appeared to be need for framing sub - rule 6 of rule 7 just as there was need for enactment of section 350, criminal procedure code. In brijlal mehra v. The state of andhra pradesh, w. P. No. 974 of 1962 (a - p. High court) decided on 8th october, 1963 (unreported). The same contention was raised and repelled by a division bench of this court. The learned judges referred to the contentions as follows : - "the next argument of the learned counsel is that the tribunal which recorded the evidence in this case is not the tribunal which submitted the report. That fact is not disputed since there was a change in the personnel of the tribunal, but the question for consideration of the proceedings or the order finally passed. " after considering various decisions of the supreme court, the learned judges held as follows : "the foregoing discussion makes it manifest that the objection raised by the petitioner that the entire evidence was not recorded by the tribunal which submitted the finding is without any substance. It necessarily follows that what all the law requires is that the administrative agency making the findings must address itself to the evidence, and on the evidence before it conscientiously reach a conclusion which it deems to be just. " in that case the learned judges earlier observed as follows : - "we may at the outset state that this objection was not raised before the tribunal even though the officer was represented by a counsel; we therefore hold that even if there be any irregularity in that procedure, the officer was not in the least prejudiced by it. " in the present case the petitioner raised objection before shri c. Jagannatha - charyulu and also by a petition before the government that shri c. Ramayya choudary and not shri c. Jagannathacharyulu should send report to the government. But the stand taken by the petitioner even in those objections was not that only an officer who had heard the entire evidence should send the report. For even shri g. Ramayya choudary, whom the petitioner wanted to send the report, had not heard the entire evidence or hold the entire enquiry up to that stage. He had examined a large number of witnesses but not all the witnesses in the enquiry. He had examined five p. Ws. And thirteen d. Ws. Out of a total of thirty - eight p. Ws. Plus thirteen d. Ws we find that in view of the decision of this court in brijlal mehra v. The state of. Andhra pradesh, w. P. No. 974 of 1962, decided on 8th october, 1963. Also, the contention of shri kuppuswami is not tenable. Shri kuppuswami has also referred to the decision of the madras high court in guruswami thevar, in re, (1951) 1 m. L. J. 549. The relevant facts in that case, as stated in that decision, are as follows (at page 550) : ". The evidence in the case was heard by mr. H. A. Ayyar who also appears to have actually written the judgment in the case. He handed over charge of his office as sessions judge on the forenoon of the 14th december, 1950 and the judgment which he wrote was pronounced by his successor - in - office, mr. Sankaran nambiar. This procedure, mr. Rajaraman contends is illegal because what mr. H. A. Ayyar wrote cannot be called a judgment ; in law it can only be regarded as an expression of his opinion on the merits of the case. " one of us (h. A. A. J.) was the sessions judge who wrote the judgment in that case. In fact he, mr. H. A. Ayyar pronounced the judgment in the forenoon of 14th december, 1950 formally in open court duly observing the prescribed formalities and handed over charge only long afterwards in the afternoon and mr. Sankaran nambiar did not pronounce the judgment and did not become sessions judge, ram - nad district till after the judgment was pronounced. But, the form in which the certified copy of the judgment was issued under the signature of mr. Sankaran nambiar was defective. The defect, which it contained, gave room for the contention being urged by the advocate for the accused in the high court that the judgment had been pronounced by mr. Sankaran nambiar on behalf of mr. H. A. Ayyar for that contention to go unchallenged by the public prosecutor and being accepted by the court.

(16) The learned judges of the madras high court laid down a principle that section 350 (1) , criminal procedure code, did not apply to sessions trial and that pronouncement by one judge of a judgment which had been written not by himself but by another judge was a nullity. The principle of that decision does not apply to the present case in view of the provision in Rule 7, sub - rule (6) which expressly authorise the procedure by which shri n. Venkata rao sent report by dealing with the evidence which had been taken down by his predecessor - in - omce and also in view of the unreported decision in brijlal mehra v. The state of andhra pradesh by this court. The contention of shri kuppuswami is not tenable. Shri kuppuswami, the learned advocate for the petitioner, contends that the show cause notice of the government dated 15th september, 1964 is defective as it does not mention that the government came only to a provisional conclusion. The very fact that this order calls for an explanation and gives an opportunity to the charged officer to explain why he should not be dismissed from service is sufficient to indicate that the government came to only a provisional conclusion, though the word 'provisional' is not expressly mentioned in the government memo. No. 3906 - aa/641 dated 15th september, 1964. Final order of dismissal, namely, g. O. No. 3674 (health) , dated 3rd december, 1964 clearly mentions as follows : -

"the government after considering the report of the tribunal concurred with its findings and came to the provisional conclusion that the penalty of dismissal recommended by the tribunal may be imposed on dr. M. N. Dasanna."

(17) In dr. G. V. Pantulu v. Government of andhra, a. I. R. 1958 a. P. 240 a similar contention was rejected by a division bench of this court with the following observation (at page 250) : - "it is true that, in this notice, it is not specifically stated that government has arrived at any provisional conclusion in regard to the penalty to be imposed. Nor does it state specifically the reasons for the proposed punishment. But, a fair reading of the notice clearly indicates that the government has come to a tentative conclusion as regards the punishment to be imposed on the petitioner and its reasons for it. " the notice, though it could have been more explicit, leaves no doubt that the government on the basis of the report has come to a provisional conclusion to impose the penalty of dismissal on the petitioner and therefore has called upon him to show cause why he should not be so dismissed. We are, therefore, satisfied that the notice complies with the requirements of law. " the contention of shri kuppuswami is not tenable. Shri kuppuswami contends that the entire proceedings are vitiated by the fact that the investigation was not made by an officer not below the rank of deputy superintendent of police. For this purpose, he relies on section 5 - a of the prevention of corruption act. It would appear that the officer, who investigated the charges was one inspector maheshwara rao. But the proceedings before the tribunal were different from trial by a criminal court of an offence under the prevention of corruption act and are not governed by the provisions of the latter act though in Rule 2 (b) ' corruption ' is defined as having the same meaning as ' criminal misconduct' under section 5 (1) of the prevention of corruption act. So, we find that the proceedings were not vitiated in the manner alleged and that the contention of shri kuppuswami is not tenable.

(18) Shri kuppuswami next contends that the entire proceedings are vitiated by the fact that the charges dated 22nd august, 1962 were framed and signed by the chairman alone. He says that, as per the law and the rules, the charges ought to have been framed and signed by the tribunal that is, both the members. For this purpose, he relies on the provision in rule 7 (1) (i) , already extracted earlier in this judgment, that the tribunal shall frame appropriate charges and communicate them to the charged officer. He also places reliance on various portions in the passages and the rules wherein the words ' framing of charges ' are mentioned as distinct from enquiry and he contends that section 6 (1) authorises only enquiry to be made by a single member, if directed by the chairman but does not authorise charges being framed by a single member. The act itself finds no mention of the process of framing charges or about charges at all. It mentions only enquiry. The learned government pleader contends that enquiry includes framing of charges and, therefore, a single member has a right to frame charges and consequently, the chairman, as a single member, acted with competence when he framed charges. The first sentence in rule 7 (1) (i) of course mentions the framing of appropriate charges and also refers to place of inquiry. But, all. The sub - rules (i) , etc. , in rule 7 (1) come after the opening sentence of rule 7 (1) which says 'the following procedure shall be followed by the tribunal in conducting inquiries. ' this indicates that framing of charges which is mentioned in the first sentence of paragraph (i) of sub - rule (1) of rule 7, is also a step in the conducting of enquiry and forms part of enquiry. So, we find that this. Contention of shri kuppuswami is not acceptable.

(19) Regarding charge no. 1 some special argument have been urged before us. No special arguments had been urged regarding any of the other charges of which the charged officer has been found guilty, namely, charges nos. 2, 3, 8, 10, 11, 12, 13, 18 and 22 by the government concurring with the report of the tribunal. In state of orissa v. Bidyabhushan, (1963) 1 s. C. R. (supp.) 648 : a. I. R. 1963 s. C. 779. Their lordships of the supreme court observed as follows (at page 785) : -

"the recommendation of the tribunal was undoubtedly founded on its findings on charges 1 (a) , 1 (e) , 1 (c) , (d) and charge 2, the high court was of the opinion that the findings on two of the heads under charge 1 could not be sustained, because in arriving at the findings the tribunal had violated rules of natural justice. If the order of dismissal was based on the findings on charges 1 (a) and 1 (e) alone the court would have jurisdiction to declare the order of dismissal illegal but, when the findings of the tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the high court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view, the high court had no power to direct the governor of orissa to reconsider trie order of dismissal."

in the present case besides charge no. 1 there are numerous serious charges of corruption involving grave delinquency of which the charged officer had been found guilty and for which punishment has been imposed by the government.

(20) Therefore, even assuming for argument's sake, without admitting that the finding on charge no. 1 is vitiated, this court has no jurisdiction to interfere with the order of the government so far as punishment is concerned. In girdharilal bansidhar v. Union of india, (1965) 1 s. C. J. 225 at p. 228 : (1964) s. C. R. 62 : a. I. R. 1964 s. C. 519 it was held as follows : "this apart, we must emphasise that a court dealing with a petition under article 226 is not sitting in appeal over the decision of the customs authorities and therefore the correctness of the conclusion reached by those authorities on the appreciation of the several items in the hand - book or in the indian tariff act which is referred to in these items, is not a matter which falls within the writ jurisdiction of the high court. There is, here no complaint of any procedural irregularity of the kind which would invalidate the order. " in state of madras v. Sundaram, (1965) 2 s. C. J. 662 at p. 665 : (1965) 2 m. L. J. (s. C.) 140 : (1965) 2 an. W. R. (s. C.) 140 : a. I. R. 1965 s. C. 1103. Their lordships of the supreme court observed as follows : - "it is therefore clear that the high court was not competent to consider the question whether the evidence before the tribunal and the government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the high court when exercising its jurisdiction under article 226 of the constitution. It is therefore clear that the high court was in error in reappreciating the evidence before the tribunal and recording the conclusion that evidence did not establish the charges against the respondent. "

(21) Regarding the charges which were held by the tribunal and the government to have been proved, other than charge no. 1 the findings are supported by evidence which has been discussed by the tribunal and it is not shown and it cannot be said that those findings are based on no evidence. Therefore, we cannot interfere with the tribunal on all the charges which are held to have been proved other than charge no. 1 and those findings are on charges of corruption involving grave delinquency. Therefore, this court cannot ask the government to reconsider its decision on the punishment, irrespective of the question of our finding on charge no. 1. All the same, we proceed to consider the various contentions regarding charge no. 1.

(22) Shri kuppuswami contends that, according to the rules, the trap would not be valid unless there was prior sanction of the chief secretary. The learned government pleader admits that prior sanction was necessary but points out that there is oral evidence of witnesses that there was prior sanction by the chief secretary. He has also produced before us what purported to be a document which is sanction (permission) by the chief secretary, dated 29th september, 1961, which was earlier than the incident of trap which took place on 14th october, 1961. Shri kuppuswami disputes the genuineness of this written permission and contends that this is filed too late to be of any value and that it ought to have been filed earlier so that the charged officer might have had an opportunity of challenging its genuineness and correctness. In this matter there is some evidence, namely, the oral evidence of witnesses that there was prior permission of the chief secretary. In view of the decisions which we have already mentioned above, we cannot go into the question of the adequacy of the evidence or the correctness of the finding based on the evidence. The tribunal chose to believe the oral evidence that there was prior permission and we do not consider that we can go into the question of its correctness in so believing.

(23) Shri kuppuswami points out that yeladri and jampana nageswara rao were not examined as witnesses. He contends that the tribunal and the government were wrong in holding the charge to be proved on the basis of oral evidence of other witnesses. Yeladri is the person who is said to have entered into an arrangement with the charged officer for payment of the bribe concerned in the charge and jampana nageswara rao is alleged to have gone and complained to the deputy superintendent of police, anti - corruption (p. W. 5) in the morning on 14th january, 1961. P. W. 5 has deposed that yeladri and jampana nageswara rao were dead by the time of the enquiry. Shri kuppuswami contends that the death of those persons could and should have been proved by better and stronger evidence like extract from death register. There was oral evidence before the tribunal that yeladri and jampana nageswara rao were dead and could not be examined at the enquiry as witnesses. This was some evidence as distinct from no evidence and the tribunal chose to believe it. This again is a question of adequacy of evidence into which this court cannot go in these writ proceedings.

(24) Shri kuppuswami contends that the evidence of witnesses on record was not sufficient to prove charge no. 1. This is also a question of adequacy of evidence into which this court will not go. We are not satisfied that there was no evidence in support of charge no. 1. Regarding charge no. 1 in the report of the tribunal, there is an elaborate discussion of the evidence, oral and documentary, namely, of witnesses p. Ws. 1, 2, 5 and exhibits p - 1 to p - 4, exhibit p - 72 to exhibit p - 77 on the side of the prosecution and the evidence of d. Ws. 1 to 6, 10 and d. W. 13 who was charged officer himself, and exhibit d - 2, exhibit d - 13, exhibit d - 14, exhibit d - 15, exhibit d - 24, exhibit d - 30, exhibit d - 44 and exhibit d - 45. The tribunal chose to believe the prosecution evidence in preference to the defence evidence. In effect the tribunal believed that the incident that took place in the morning of 14th october, 1961, namely, that jampana nageswara rao handed over packet of currency notes to the charged officer and that the latter received it from jampana nageswara rao shortly afterwards and put it in his trousers pocket and that, later on when the police and others came, the charged officer removed the currency notes from his trousers pocket and threw them into a corner of the room and that they were found to be currency notes which had been noted in the f. I. R. And had been handed over to jampana nageswara rao. We do not find sufficient reason to hold that the tribunal considered the charged officer guilty on no evidence, as distinct from some evidence. We find no room or need to interfere in any manner with the findings of the tribunal and the orders of the government based on such findings. In the result, we dismiss the writ petition with costs. Advocate's fee rs. 150. Writ petition dismissed.