SHRI JUSTICE S.K. RAY v. STATE OF ORISSA AND ORS

Citation: [2003] 1 S.C.R. 434

Court: Supreme Court of India

Bench: S. RAJENDRA BABU, P. VENKATARAMA REDDI

Judgment text

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· I · u 1. --~; · ' 'ii · _ 'l so repealed shall not be continued or enforced; the continuance of the office . 1 . • · •· '· r• ... · . . ,,, · ,.. _ -;. -.. •· · f_1 of Lokpal was wholly redundaot aod io. that view, the right, if any; of the appella11i"io ·holifi the office of the Lokpal'for a·term of five years is noi . ' ' - - . 1 ~- . - ' ' _, '· 1 - '• . ' - . preserved either in terms of Section 2 of the Repealing Ad or Section 5 of ··•· , · • I ·• . :· ' ,. , . r r · . ~ ; . . ,. . ,;1,. , .. 1,. . . ,. , , th_e ? ris~a qen~ra/ Claus;s ~~I;'. ~. ~ m~! l~r ~as ~~. e? . 10. ~,k. ed at from t~e angle . ; whether the office· of Lokpar ~ould contmue and, therefore, whether tn,e , , . , -,t• . If•;, ..... ;. ' r ·1·11. , _! •! JI . ~T_•·. ~·' , ''-. '• appellant would be ent1tled to any emoluments or compensation. But the eritir~ sch~riie ofthe enactment bas' QOt been tak;~ not~'dfby'th~ Hlgh (::~~rt.. ... ~,f· - . , ~ n;; L. '·: . ·,, ,d ],•,• ! : '"'I~. - r ··,·. •• ':. \' ? ,,•.

, • ,, ,. I 1. ' ... Under the scheme ofthe enactment under whiCh the appellant was appointed, he ·canil~1 . tioid a'hy 'orfice''o"r try~t ~r i\Vofi1"0~·1i~ Jluiii ndl'lk -~ ~eri;Ber 'M' ·-· · 1-_,,,. ·· -r ~. -·-1·1J·,-I~"· •,r·s•·. ·11••'·:"f"t•1•. ')'· the legis! ature, ·central or state, or any otlier position, which may come' in 1 con,flkt with the office ~f Lokpai. ' H~vin'g deprlxed himseif of·hold'i;{g ~ny ' other offic~ or position :. vhich may come in c~nfli~t with the 'office of J. ,okpai; '. ) 'I' . '·' ' , ,p I 'i,\ ,__ :t• . - ,J \Id j,l '. '. '"-l . r~ ,. 1•~1 ~,·_. _,.. , he cannot also hold any office even after he ceases to hold the office of the - ! '-- " ·"'·•" ,:. 'f ' Lokpal to which we have already adverted. Hence, what is to be' looked at in~ case of\his nature i~,tbat,. ev~!! ;~ft~r ceasil)g toholdth. e 1>fficepf_l,9kpal F·i whether. strings are . attached IQ hiqi by reason of his holdi9g the office earlier. · • - ;.. ' ' •.. t· - : - - ' .. '' . ' ·"'· • ,.

' . . _,,_ • I and thus. he has iucurred any dis(j11~1ification n\lt to h,old any office in. terms , 0 of Section 5{3) oflhe A~t. ~~t ~ea~s there. i~ ,a dlsabiii1y ~ttached t~ hlm ro~ all i. ime to come ti],e~~after. We specirically ~ske•(! he '1el! flled'cou~~i1'. appe";"ing,for t~e responden;s ~s to wheth~r the. s~i~ ~isability would disappear . on the repealing of the enactment and, of course,, he. sμ~mitted that it. would I ... - . ,. : ·-· '• '•'• _. ,,. . .. ' ... ,. ,. not. _ If that is the r. e_asonable approach, _then . the appellant is pu\_. to,. ~" disadvaqtage by reason of. holding the,office of Lokpal, which, w. a~ put to ~-. end abi;uptly by repealing enactn;i~! 't. In that event, he certainly becom,es entitled to compensation if not for loss of office but for carrying a burde,n of. . not holding any office or position thereafter. It thus becomes clear that such,, H . person must be adequately or appropriately compensated.

It cannot be said that the Government will control the activities of a person who will incur certain liabilities or obligations but he shall not be suitably compensated for the same. In a situation of this sort, we think that adequate compensation will be the loss of his salary for ~he remainder tenure for which he would have held the office of the Lokpal. We, therefore, direct the respondents to work out and pay the difference in salary that the appellant will become entitled to by this order on ceasing to hold the office of the Lokpal and pay the same to him. But this direction will not ·entitle the appellant to claim any other allowances or perks to be converted into cash.

There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant, One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The later view, iftaken, would lead to incongruous results because the incumbent in office of the Lokpal, having functioned as such at least for some time, would have dealt with many mattel'S and, therefore, to maintain the purity of that office, the restrictions imposed under the. Act should be maintained.

The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restrictions continue to be operative on abolition of the office the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter. The learned counsel for respondent contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not be entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the office of the Lokpal.

He is deprived of all other offices or business interest when he holds the office, of the Lokpal and the office, which he holds, is also denied to him by reason of the Repealing Act. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. May be in a given case, the reliefs set forth n\ay not clearly set out the reliefs arising out of the facts and circumstances of the case. • However, the courts always have the power to mould the reliefs and grant the same.

In the result, the appeal is, therefore, allowed and the judgment of the High Court st_ands partly modified in terms of the aforesaid directions. In the circumstances, there shall be no order as to costs. S. K. S. Appeal allowed.