Holding

The Lok Ayukta validly conducted the disciplinary inquiry and imposed dismissal; natural‑justice principles were excluded by necessity, and the quantum of punishment is not subject to judicial interference.

Summary

Sheo Shanker Lal Srivastava, a private secretary to the Uttar Pradesh Lok Ayukta, was charged with misconduct for refusing to hand over the key to his almirah containing public documents and for using indecent language. The Lok Ayukta, who was also the disciplinary authority, conducted the inquiry, appointed a retired director as inquiry officer despite the employee’s objection, and dismissed the employee, awarding compassionate allowance. The High Court modified the dismissal to compulsory retirement, which the State appealed. The Supreme Court held that the Lok Ayukta could validly act as both adjudicator and witness under the doctrine of necessity, that natural‑justice rules could be excluded, and that courts should not interfere with the quantum of punishment unless it is shocking. Consequently, the dismissal stood and the High Court’s modification was set aside.

Issues considered

The Lok Ayukta, as disciplinary authority, could act as both adjudicator and witness without violating natural justice.
Whether the appointment of a retired officer as inquiry officer, objected to by the employee, invalidated the disciplinary proceeding.
Whether the principles of natural justice can be excluded under the doctrine of necessity.
Whether the quantum of punishment (dismissal versus retirement) is amenable to judicial review.
Whether the High Court erred in modifying the dismissal to retirement.

Subjects

service lawdisciplinary proceedingsnatural justicedoctrine of necessityproportionalityquantum of punishmentjudicial reviewLok Ayuktamisconductdismissalretirement

Judgment

A STATE QF U.P.
v.
SHEO SHANKER LAL SRIVASTAVA AND ORS.

FEBRUARY 24, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Service law:

Misconduct--Disciplinary proceedings against a Public Relations
C Officer-Charge-sheet-Authority found the employee guilty of misconduct
and ordered his dismissal from service but awarded adequate compensation
to him-Challenge to---High Court modified the order directing his retirement
from service instead of his dismissal from the service-On appeal, held:
Employee refused to hand over keys of the Almirah containing public
D documents to the Authority-Recovery of documents from Almirah---Errant
employee uses indecent language against authority--He refased to cross
examine himself-Opposed appointment of a retired officer as an inquiry
officer -Disciplinary authority vested with the power to impose punishment-
Hence, in the peculiar facts and circumstances of the case, it cannot be said
that the order of the Authority in dismissing the errant employee suffered from
E any infirmity.

Administrative law:

Principles of natural justice-Scope of-Held: Principles of natural

F
justice could be excluded where doctrine of necessity applies.

Quantum ofpunishment vis-a-vis Judicial Review-Held: In exercise of
.•
the power of judicial review, Courts would not normally interfere with the
quantum of punishment.

Doctrines:
G
Doctrine of necessity and proportionality-Applicability of in the context
of service jurisprudence.

Appellant-employee was working as Private Secretary in the Office of the
-
Lok Ayukta, Uttar Pradesh. When the authority visited the office on a routine
H M6
~-

657
. ,. STATE OF U.P. v. SHEO SHANKER LAL SR IVASTAVA

- check for ascertaining pendency and asked the appellant to hand over the key of A
the Almirah wherein important public documents were kept, he refused to hand
over the key and also used indecent language. The Almirah was opened and
number of receipts pending for disposal were recovered therefrom. In the
departmental enquiry, though the appellant wanted to engage a lawyer, but the
authorities declined the request on the ground that the charges levelled against
him were simple in nature. The authority initiated disciplinary proceeding against B
him and found him guilty of mis-conduct and directed his dismissal from service.
y On appea~ High Court modified the order by converting dismissal of the appellant
to retirement from service. Hence the present appeal and the cross appeal.

The employee contended that since the Lok Ayukta/the authority himself
was a witness to the occurrence, he could not have taken over the disciplinary
c
proceeding himself; that it was obligatory on the part of the Lok Ayukta to get
the departmental proceedings conducted by some other officer; and that it would
be evident from the records of the case that the Lok Ayukta made up his mind to
punch him right from the beginning and in that view of the matter the order of

..,_ . punishment passed by him is not sustainable.

Allowing the appeal filed by the State, and existing that of the employee,
D

" the Court

HELD: I.I. Since, the Lok Ayukta is the disciplinary authority, the power
to impose punishment on the errant employee vested only in him. When the Lok E
Ayukta appointed a retired Director of Defence Estate as an inquiry officer, an
objection thereto was taken by the employee himself stating that no person from
outside should be appointed as the Inquiry Officer. In such a situation, the Lok
Ayukta had no other option but to take upon himself the burden of holding the
departmental proceedings. The employee, therefore, cannot be permitted to raise
_., F
any contention that the disciplinary proceeding should have been conducted by
1 some other officer, since he waived his right. (664-C-DJ

ManakLal v. Dr. Prem Chand, (1957) SCR 575, referred to.

1.2. It is true that the principle of natural justice is based on two pillars :
G
(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. (664-E-F)
H

I
658 SUPREME COURT REPORTS (2006] 2 S. C.R.

A 'MP. State Police Establishment v. State ofMP. and Ors., (2004) 8 SCC f
788, followed.

Doctrine of necessity' by Sir William Wade, referred to.

1.3. The errant employee did not deny or dispute the recovery of the
documents from the almirah. In that view of the matter, it was for him, who had
B 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
c 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 be 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. Later, he did not cross-examine the only witness to the incident
D Neither did he examine himself nor 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, it cannot be said that the order of punishment passed by the Lok Ayukta >-
suffered from any infirmity. 1665-F-G-H; 666-AI
2. It is now well-settled that principles of law that the High Court or the
E 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. This Court is not oblivious of the fact that the
F doctrine of unreasonableness is giving way to the doctrine of proportionality.
~

(666-DI •
V. Ramana v. S.P. SRTC and Ors.. 12005) 7 SCC 338; Hombe Gowda Edn.
Trust & Anr. v. State of Karnataka & Ors., (2005110 SCALE 307:2006 I SCC
430 and State ofRajasthan & Anr. v. Mohammed Ayub Naz, 1200611 SCALE 79:
G 12006) I SCC 589, referred to.

3. The Wednesbury principles may not now be held to be applicable in view ; ...
of the development in constitutional law in this behalf. 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
H yet more than Ex p. Daly requires on a judicial review where the court has to
~.
/

STATEOFU.P. v. SHEOSHANKERLALSRIVASTAVA[SINHA,J.] 659

decide a proportionality issue. [667-A-B) A
Huang and Ors. v. Secretary of State for the Home Department, (2005) 3
AIL ER 435 and R v. Secretary a/State ofthe Home Department, ex. P Da(y (2001)
3 All ER 433, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7358 of2003. B
From the Final Judgment and Order dated 20.03.2001 of the Allahabad
High Court in W.P. No. 96 (S.B.) of 1999.

Anuvrat Sharma, Garvesh Kabra, Dr. Indra Pratap Singh and Ravi Prakash
Mehrotra (N.P.) for the Appellant. C
Pramod Swarup, Ms. Pareena Swarup and Ameet Singh for the
Respondents.

The Judgment of the Court was delivered by
D
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 of2003,
was appointed as a Stenographer in the Office of the Consolidation E
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 F
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 almirah was sealed. He was served with an order
of suspension. The said seal on the almirah was broken at a later date i.e. G
15.01.1988 and it was opened with a duplicate key. A chargeshl)et containing
six charges was thereafter served upon him. r!'!<iJ
........ ~ ~' ~
J,. : ~ ,._~ft • :;,,.,
The Appellant in response to a show cause ~t ,. , 1 1. ••se.
Upon receiving his explanation, four out of six chari;
660 SUPREME COURT REPORTS [2006) 2 S.C.R.

A charges wherefor a departmental proceeding was initiated against him are as
under:

"Charge No. I

On 13.1. 98 Deputy Secretary accompanied by Hon 'hie Lok Ayukta
B 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
c 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
D
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- I and in regard to which your guilt has been shown in
the remarks column of enclosure. In this manner you are guilty of
E
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.

F 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
G the burden of conducting the disciplinary proceedings against the Appellant
himself as tht; 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
-
H Ayukta, at all material times, was examined on 14.10.1998. The Appellant did
STATEOFU.P. v. SHEOSHANKERLALSRIVASTAVA[SINHA,J.] 661
not cross-examine him as his request to adjourn the proceeding was declined. A
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 :
B
"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 the key to the Lok
Ayukta when he demanded the same from him and with great C
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 D
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 E
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)l6. Inquiry Officer
so that the applicant may be able to defend him,fby cross-examining
the witnesses concerned including. your ho9our without fear before
an impartial Inquiry Officer." F
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 ofC.S.R. 353. In his order, the Lok
Ayukta recorded :
G
"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 matter on which he would have been enraged. In all H
662 SUPREME COURT REPORTS [2006 I 2 S.C.R.

A 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 1-wn'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
B 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
c clarifications of the charged officer. If somebody would Ii ave 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."

D 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
E 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 ofremoval
passed against the petitioner, may be treated as an order of compulsory
F
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
G Lok Ayukta no doubt amounts to an unbecoming act, but the question
which calls for consideration is th::it 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
H
STATEOFU.P. v. SHEOSHANKERLALSRIVASTAVA[SINHA,J.] 663
the period, he remained under suspension." A

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 G
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 H
664 SUPREME COURT REPORTS (2006] 2 S.C.R.

A almirah or use of the indecent language. Only om: 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
B 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
C 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.
D 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.
E
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.
F
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
G 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
H statute empowers particular minister or official to act, he will usually
1·

~

STATE OF U.P. v. SHEO SHANKER LAL SRIVASTAVA [SINHA, J.] 665
y·. be the one and only person who can do so. There is then no way of A
escaping the responsibility, even ifhe 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."
B

In MP. State Police Establishment v. State of MP. and Ors., [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
c
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 D
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 E
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 dirl 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 F
knowledge about the documents and which had been kept by him in the
1 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
G
grievances. They require urgent enquiry. It is not difficult to presume that
only because such complaints were received, a practice developed that no
A
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. H
666 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 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.

B 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.

C 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
D with the quantum of punishment. Doctrine of proportionality can be invoked
only under certain situations. It is now well-settled rhat 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 Ors., (2005] 7 SCC 338, this Court upon
E 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
F defiance of logic or moral standards. In view of what has been stated
in the Wednesbury 's case (supra) the Coun: 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-
G making process and not the decision."

[See also Hombe Gowda Edn. Trust & Anr. v. State of Karnataka &
Ors., (2005) I0 SCALE 307 : (2006] I SCC 430 and State ofRajasthan & Anr. t,
v. Mohammed Ayub Naz, (2006) I SCALE 79 : (2006] l SCC 589].

H While saying so, we are not oblivious of the fact that the doctrine of
STATEOFU.P. v. SHEOSHANKERLALSRIVASTAVA[SINHA,J.] 667
unreasonableness is giving way to the doctrine of proportionality. A
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 Ors 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 i~ B
certain cases, the adjudicator may require to conduct a judicial e)(ercise 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.

S.K.S. Appeal allowed.

~·
\