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CASE NO.:

Appeal (civil) 7358 of 2003

PETITIONER:

State of U.P.

RESPONDENT:

Sheo Shanker Lal Srivastava & Ors

DATE OF JUDGMENT: 24/02/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

J U D G M E N T

W I T H

CIVIL APPEAL NO.7359 OF 2003

S.B. SINHA , J :

These two appeals involving common questions of law and fact and

arising out of the same judgment were taken up for hearing together and are

being disposed of by this common judgment.

Sheo Shanker Lal Srivastava, Appellant in Civil Appeal No.7539 of

2003, was appointed as a Stenographer in the Office of the Consolidation

Commissioner, U.P. in the year 1963. He was deputed to work with the Lok

Ayukta in the year 1978. One Arvind Kumar Singhal, Respondent No.3,

was appointed as a Typist in the said office in the year 1980. Since 1988 he

has been working as a Public Relations Officer. The post of Personal

Assistant, which the Appellant was holding was redesignated as Private

Secretary. He was later on given a higher scale of pay of Rs.3,000-4,500/-

by way of promotion with effect from 21.07.1995. Owing to certain acts of

misconduct, the Appellant had been censured and warned. The Appellant

was asked to hand over the key of his almirah but he refused to do so. He

also used indecent language. The said alimirah was sealed. He was served

with an order of suspension. The said seal on the almirah was broken at a

later date i.e. 15.01.1988 and it was opened with a duplicate key. A

chargesheet containing six charges was thereafter served upon him.

The Appellant in response to a show cause notice, filed show cause.

Upon receiving his explanation, four out of six charges were dropped. The

charges wherefor a departmental proceeding was initiated against him are as

under :

"Charge No. 1

On 13.1.98 Deputy Secretary accompanied by

Hon'ble Lok Ayukta went on round to your room at

10.30 A.M. and he wanted to see if there was any

undisposed of matters and documents lying with you and

found that in violation of his orders, you had locked your

almirah. On making request, you did not open the

almirah yourself and when you were asked to give its

key, you got enraged and using a very indecent and

vulgar language, you refused to hand over the key and in

a fit of anger crying at the pitch of your voice you said

that you may be suspended but you will not give the key

and you did not give the key. Therefore, you are guilty

of committing indiscipline and misconduct.

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Charge No. 2

When you did not give the key of your almirah

then your almirah was opened on 15.1.1998 by making

alternative arrangements. The material which was

recovered from your almirah has been mentioned in

enclosure-1 and in regard to which your guilt has been

shown in the remarks column of enclosure. In this

manner you are guilty of neglecting and suppressing

work.."

As regard Charge No. 3, although the explanation of the Appellant

was not accepted, the Lok Ayukta did not intend to proceed therewith.

The Appellant filed his show cause to the charges on or about

17.08.1998. He was asked to disclose the name of his witness and the

documents upon which he intends to rely upon. In the said departmental

inquiry, the Appellant intended to engage a lawyer, which was declined,

inter alia, on the ground that the department did not engage any lawyer and

the charges levelled against him were simple in nature. The Lok Ayukta

took over upon himself the burden of conducting the disciplinary

proceedings against the Appellant himself as the Appellant contended that

no outsider should be appointed as an Inquiry Officer. The Inquiry Officer

noticed the dilatory tactics adopted by the Appellant. He had been raising

new contentions from time to time. One Shri J.C. Upreti, who was the

Deputy Secretary of the Office of the Lok Ayukta, at all material times, was

examined on 14.10.1998. The Appellant did not cross-examine him as his

request to adjourn the proceeding was declined. The Appellant did not

examine himself despite several opportunities given to him. The Appellant

had raised a contention of bias against the Lok Ayukta himself. The said

contention as also the other contentions raised by the Appellant was dealt

with by the Lok Ayukta in his report dated 13.11.1998 holding him guilty of

both the charges :

"29. In the above circumstances, both the charges

stand fully proved that the documents mentioned in

Annexure 1 to the chargesheet were recovered from the

almirah of Shri Sheo Shanker Lal Srivastava, Shri Sheo

Shanker Lal Srivastava did not give thekey to the Lok

Ayukta when he demanded the same from him and with

great annoyance, using indecent language said in a fit of

anger that he will not give the keys and that he should be

suspended."

He was served with a second show cause in regard to quantum of

punishment. In his second show cause notice, the Appellant again raised the

question of non-compliance of the principles of natural justice including bias

on the part of the Lok Ayukta, stating :

"Therefore, it is very humbly requested that your

honour may be kind enough to set aside the

implementation of the proposed punishment and in this

connection, if your honour is still willing to take further

steps in the matter then it is humbly prayed that you may

set aside the whole inquiry proceedings and may frame

the chargesheet afresh and then may, kindly, refer the

matter to His Excellency the Governor or to the State

Government for appointing an Inquiry Officer so that the

applicant may be able to defend himself by cross-

examining the witnesses concerned including your

honour without fear before an impartial Inquiry Officer."

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By reason of an order dated 03.12.1998, the Appellant was directed to

be removed from service but taking a compassionate view, he was awarded

maximum compassionate allowance in terms of C.S.R. 353. In his order, the

Lok Ayukta recorded :

"Documents pending disposal for years were found

in his almirah. It means that he does not want to work by

nature. In the same manner, he did not misbehave in the

heat of the moment, but because it is his nature. Desiring

to look in his almirah or requesting him to give its keys

was not a mater on which he would have been enraged.

In all his clarifications, he has stated that the Lokayukta

is biased against him and favours another officer while

no other officer has any role to play in this connection.

He has particularly reiterated in his petition before

Hon'ble High Court that an inquiry should be launched

against the Lokayukta for his misbehaviour and

incapacity and that the Lokayukta starts proceedings on

the asking of a particular officer. In his reply also while

showing cause against the punishment, he has said

nothing new and has again stated that because of the

personal bias against the delinquent and the liking for

another officer, the Lokayukta is unfairly trying to scuttle

the defence of the delinquent in such a manner as if he is

preparing his own affidavit against the clarifications of

the charged officer. If somebody would have committed

such an act in the heat of the moment then he would

raised this point in order to get the punishment reduced

and would not have persisted on leveling unnecessary

charges like this, while the act of leveling of these had no

special impact on the charges against the delinquent."

On or about 05.02.1999, the Appellant filed a writ petition before the

High Court. In its judgment and order dated 20.03.2001, the High Court

opined :

"We are of the view, that the Lok Ayukta instead

of removing the petitioner from service should have

passed an order retiring the petitioner from service. No

doubt Lok Ayukta has taken very compassionate view of

the matter in relation to the petitioner by directing that

the petitioner will be paid the maximum compassionate

allowance as admissible under Rule 353. But

considering the facts and circumstances of the case, we

are of the view that the order of removal passed against

the petitioner, may be treated as an order of compulsory

retirement from service from the date of the removal of

the petitioner. We have taken this view only for the

reason that the order of punishment imposed upon the

petitioner, does not commensurate with the gravity of the

charges. The charge against the petitioner for keeping

the necessary files in his almirah and misbehaving

against the Lok Ayukta no doubt amounts to an

unbecoming act, but the question which calls for

consideration is that against such an act of misconduct,

whether a persons should be removed from service. We

are of the view that justice would have met, if the

petitioner retired from service compassionately from the

date the order of removal was passed against the

petitioner, and he may be given the salary and allowance,

during the period, he remained under suspension."

These appeals have been preferred by the Appellant as also by the

State.

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Mr. Pramod Swarup, the learned counsel appearing on behalf of the

Appellant, in support of Civil Appeal No.7359 of 2003, would submit that

the Lok Ayukta himself being a witness to the occurrence could not have

taken over the disciplinary proceeding himself. Mr. Swarup urged that it

would be evident from the records of the case that the Lok Ayukta made up

his mind from the very beginning and in that view of the matter the order of

punishment passed by him is not sustainable. Our attention was further

drawn to the fact that in the show cause notice dated 13.11.1998, the Lok

Ayukta had directed the Appellant to show cause as to why on account of his

conduct narrated in the charges, he should not be dismissed from services. It

was further submitted that as the principles of natural justice were required

to be complied with, it was obligatory on the part of the Lok Ayukta to get

the departmental proceedings conducted by some other officer.

The learned counsel appearing on behalf of the State, on the other

hand, submitted that as the charges against the Appellant were proved, the

High Court committed an illegality in interfering with the quantum of

punishment.

The Lok Ayukta was running a small office. The Appellant was the

Private Secretary of the organization. Inspection of the files of the almirah

kept in the Appellant's office became necessary as letters had been received

from different departments as also reminders thereof, but he instead of bring

the same to the notice of Lok Ayukta, was keeping them in the almirah.

Upon inspection, 124 old letters of other departments were found in the

almirah of an Assistant and 107 letters relating to other Assistant were found

in torn condition from heap of waste papers outside the office.

A practice was started in the office of the Lok Ayukta that no almirah

should be kept under lock and key so as to enable the Lok Ayukta to check

up the pending files. Despite having been requested to open his almirah, the

Appellant not only refused to do so but also used indecent language. He

even refused to hand over the keys and shouted at the top of his voice that he

might be suspended but he would not give the keys. In his show cause, the

Appellant did not deny recovery of the documents from the almirah. He,

however, denied the charge relating to not handing over the keys of the

almirah or use of the indecent language. Only one witness viz. Shri Upreti,

who witnessed the entire incident, was examined. He, as noticed

hereinbefore, was not cross-examined by the Appellant. He merely

requested that he should be given a few days time to cross-examine the said

witness. His said request was rightly rejected, as he did not assign any

reason therefore. The statements of the said witness, therefore, having not

been controverted would be deemed to be admitted.

It is not in dispute that the Lok Ayukta was the disciplinary authority.

The power to impose punishment on the Appellant vested only in him.

When the Lok Ayukta appointed one Shri S.K. Arora, a retired Director of

Defence Estate, an objection thereto was taken by the Appellant himself

stating that no person from outside should be appointed as the Inquiry

Officer. In the aforementioned situation, the Lok Ayukta had no other

option but to take upon himself the burden of holding the departmental

proceedings. The appellant, therefore, cannot be permitted to raise any

contention that the disciplinary proceeding should have been conducted by

some other officer. It has not been contended that any other officer working

in the office of Lok Ayukta was available for conducting such enquiry.

It is true that the principle of natural justice is based on two pillars : (i)

nobody shall be condemned without hearing; and (ii) nobody shall be a

judge in his own cause.

It is, however, well known that the principles of natural justice can be

excluded by a statute. It can also be waived.

In a case where doctrine of necessity is applicable compliance of the

principles of natural justice would be excluded.

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Referring to the doctrine of necessity, Sir William Wade in his

Administrative Law stated :

"But there are many cases where no substitution is

possible, since no one else is empowered to act. Natural

justice then has to give way to necessity, for otherwise

there is no means of deciding and the machinery of

justice or administration will break down,."

It was further stated :

"In administrative cases the same exigency may

arise. Where statute empowers particular minister or

official to act, he will usually be the one and only person

who can do so. There is then no way of escaping the

responsibility, even if he is personally interested.

Transfer of responsibility is, indeed, a recognized type of

ultra vires. In one case it was unsuccessfully argued that

only minister competent to confirm a compulsory

purchase order for land for an airport had disqualified

himself by showing bias and that the local authority

could only apply for a local Act of Parliament."

In M.P. State Police Establishment v. State of M.P. and Others

[(2004) 8 SCC 788], a Constitution Bench of this Court observed that the as

office of the Lok Ayukta is held by a former Judge of this Court, it would be

difficult to assume that such authority would give a report without any

material whatsoever. Although no law was laid down in this behalf, but,

evidently those observations are pointers to show that normally a report from

such a high officer should not be disbelieved.

It is not that the Lok Ayukta was not inclined to get the matter

inquired into by an outsider. He appointed one Shri S.K. Arora. It is the

Appellant himself who raised an objection thereagainst. He categorically

stated that no outsider should be appointed as an Inquiry Officer although he

took a different stand in his first show cause. He, therefore, waived his

right. [See Manak Lal v. Dr. Prem Chand [(1957) SCR 575 at 581]

In the aforementioned situation, the Lok Ayukta had no other option

but to proceed with the inquiry. Despite the fact that he was the disciplinary

authority himself, as well as a witness, he had no other option but to inquire

into the charges against the Appellant. Furthermore the Appellant did not

deny or dispute, as noticed hereinbefore, the recovery of the documents from

the almirah. In that view of the matter, it was for the Appellant, who had

knowledge about the documents and which had been kept by him in the

almirah, to show that as to how he had dealt with the same. He being the

Private Secretary was a man of confidence. He was bound to follow the

prevailing practice. It was his duty to place all the complaints and letters

received from other departments before the Lok Ayukta. The office of a

Lok Ayukta is of great importance. People approach Lok Ayukta with

various grievances. They require urgent enquiry. It is not difficult to

presume that only because such complaints were received, a practice

developed that no almirah should kept under lock and key. The Appellant

must be presumed to have knowledge thereabout. Despite the same he had

put his almirah under lock and key. He refused to hand over the key when

called upon to do so. He did not cross-examine the only witness who was

available. He also did not examine himself. He did not examine any

defence witness. He did not show any remorse and in that view of the

matter, in the peculiar facts and circumstances of the case, we are of the

opinion that it cannot be said that the order of punishment passed by the Lok

Ayukta suffered from any infirmity.

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Presumably in this view of the matter alone, the High Court did not go

into the questions in details. In fact from the impugned judgment it does not

appear that the arguments which have been advanced before us were in fact

pressed.

The High Court while accepting that the appellant was rightly held to

be guilty of the charges of misconduct, therefore, committed a manifest error

in interfering with the quantum of punishment.

It is now well-settled that principles of law that the High Court or the

Tribunal in exercise of its power of judicial review would not normally

interfere with the quantum of punishment. Doctrine of proportionality can

be invoked only under certain situations. It is now well-settled that the High

Court shall be very slow in interfering with the quantum of punishment,

unless it is found to be shocking to one's conscience.

In V. Ramana v. S.P. SRTC and Others [(2005) 7 SCC 338], this

Court upon referring to a large number of decisions held :

"The common thread running through in all these

decisions is that the Court should not interfere with the

administrator's decision unless it was illogical or suffers

from procedural impropriety or was shocking to the

conscience of the Court, in the sense that it was in

defiance of logic or moral standards. In view of what has

been stated in the Wednesbury's case (supra) the Court

would not go into the correctness of the choice made by

the administrator open to him and the Court should not

substitute its decision to that of the administrator. The

scope of judicial review is limited to the deficiency in

decision-making process and not the decision."

[See also Hombe Gowda Edn. Trust & Anr. v. State of Karnataka &

Ors. 2005 (10) SCALE 307] : 2006 (1) SCC 430] & State of Rajasthan &

Anr. Vs. Mohammed Ayub Naz [ 2006 (1) SCALE 79 : (2006) 1 SCC 589].

While saying so, we are not oblivious of the fact that the doctrine of

unreasonableness is giving way to the doctrine of proportionality.

It is interesting to note that the Wednesbury principles may not now

be held to be applicable in view of the development in constitutional law in

this behalf. [See e.g. Huang and Others v. Secretary of State for the Home

Department [(2005) 3 All. ER 435], wherein referring to R. v. Secretary of

State of the Home Department, ex. P Daly [(2001) 3 All ER 433], it was

held that in certain cases, the adjudicator may require to conduct a judicial

exercise which is not merely more intrusive than Wednesbury, but involves

a full-blown merits judgment, which is yet more than Ex p. Daly requires on

a judicial review where the court has to decide a proportionality issue.

For the reasons aforementioned, we are of the opinion that there is no

merit in Civil Appeal No.7359 of 2003, which is dismissed and Civil Appeal

No.7358 is allowed. No costs.