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TMI Blog2006 (2) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that the order of punishment passed by the Lok Ayukta suffered from any infirmity. - CIVIL APPEAL NO.7359 OF 2003 - - - Dated:- 24-2-2006 - S.B. Sinha and P.P. Naolekar, JJ. JUDGMENT 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. 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 charge sheet 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 Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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