Important Points1. Principles of natural justice in service matter can be excluded by a statute or can be waived.2. High Court or Tribunal in exercise of the powers of judicial review would not normally interfere with quantum of punishment unless it is found to be shocking to one’s conscience.

Headnote:(i) Service Law—Disciplinary Enquiry—Punishment of removal from service after charges of misconduct found proved—Enquiry was conducted by Disciplinary Authority itself—Violation of Principles of natural justice—Principle of natural justice was based on two pillars (i) no body shall be condemned unheard and (ii) nobody shall be a judge in his own cause—Principles of natural justice however could be excluded by statute or could be waived—Lok Ayukta, Disciplinary Authority, had appointed a retired Director of Defence Estate to hold inquiry—Appellant himself raised objection thereagainst stating that no outsider should be appointed as inquiry officer—He thus waived his right.
       Held : 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. 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]. (Paras 14 to 20)
       (ii) Service Law—Power of judicial review to interfere with quantum of punishment—High Court or Tribunal would not normally interfere with punishment—Doctrine of proportionality could be invoked only under certain situation.
       Held : 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. (Paras 12 & 13)
       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. (Para 24)

Judgment

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.

2. 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/- to Rs. 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.

3. 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.

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."

4. As regard Charge No. 3, although the explanation of the Appellant was not accepted, the Lok Ayukta did not intend to proceed therewith.

5. 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 enquiry, 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 hol

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2006 Supreme(SC) 167

Important Points1. Principles of natural justice in service matter can be excluded by a statute or can be waived.2. High Court or Tribunal in exercise of the powers of judicial review would not normally interfere with quantum of punishment unless it is found to be shocking to one’s conscience.

Cases Referred (5)