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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.