Supreme Court of India
SHRI JUSTICE S.K. RAYversusSTATE OF ORISSA AND ORS.
- Citation
- 2003 INSC 22
- Decided
- 20 January 2003
- Disposal
- Appeal(s) allowed
- Bench
- S RAJENDRA BABU
Holding
The appellant is entitled to compensation equal to the loss of salary for the remainder of his Lokpal tenure due to the repeal, but not to other allowances or pension.
Summary
Justice S.K. Ray, a former Chief Justice of the Orissa High Court, was appointed Lokpal under the Orissa Lokpal and Lokayukta Act, 1970 for a five‑year term. The Act was repealed by the Orissa Lokpal and Lokayukta (Repeal) Ordinance, 1992 (later replaced by the 1995 Act), causing him to cease office before the term expired. He filed a writ petition under Article 226 seeking compensation for loss of salary for the remaining tenure, pension, refund of deducted pension, and leave encashment. The High Court granted relief on leave encashment and pension refund but denied salary compensation and pension. On appeal, the Supreme Court held that the repeal imposed a continuing disqualification under Section 5(3) of the Act, depriving him of any future employment, and therefore he is entitled to compensation for the loss of salary for the remainder of his Lokpal tenure, but not to other allowances or pension. The Court directed the State to pay the salary difference and affirmed the High Court’s power to mould reliefs under Article 226.
Issues considered
- The repeal of the Orissa Lokpal and Lokayukta Act, 1970 and consequent cessation of the Lokpal office entitles the incumbent to compensation for loss of salary for the unserved portion of the term.
- Whether the disqualification under Section 5(3) of the Act continues after the repeal, rendering the incumbent ineligible for any other employment and justifying compensation.
- Whether a High Court, under Article 226 of the Constitution, can grant such compensation and mould reliefs.
- Interpretation of the repeal provisions (Section 2 of the Repealing Act) concerning rights, liabilities and obligations of persons affected by the repeal.
Legislation cited
- Constitution of Indias. Article 226
Subjects
LokpalRepealCompensationTenure appointmentDisqualificationArticle 226Civil appealEmployment restrictionSalary loss
Judgment
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RAJE~DRABA~lJ AND P. VENKATARAMA REDDI JJ.)
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Jr .1l '.;r>ib11,.n/.. b'.:niclcut -.:d ionn-;, 1·Jb1n U'l<r 11qm1 .,,; ,
Orissa lokpal and lokayukta Act, 1970/0rissctJL'ofipaf'ahd lokafukta
(Repeal) Act, 1985:
n~,·uollG l&~qq/' . _.., .rl ?
Appointment of Lokpal for 5 years-Act repealed-Incumbent ceased to
hold office before expiry of term-Ineligible for further employment as per
terms of appointment-On Writ Petition claiming for compensation and other
D reliefs, High Court allowed certC'in reliefs but denied compensation-On appeal,
Held, since the incumbent was put to disadvantage by repeal of the enactment,
he is entitled to compensation for carrying a burden ofnot holding any office/
position after he ceased to hold office of Lokpal, but not for loss of office-
State Government to ass?SS relieffor payment to incumbent-Direction issued
E Constitution of India, 1950; Article 226:
Writ Petition-Power of High Court to grant relief-Held, High Courts
have power to mould relief and grant the same.
Appellant, Ex-Chief Justice of the Orissa High Court, was appointed
p as Lokpal under the provisions of the Orissa Lokpal and Lokayukta Act,
1970 for a period .of S years. Pursuant to repeal of the Act, appellant
ceased to hold office of Lokpal before completion of tenure. Appellant ._.
file~. a: writ petition claiming for compensation and relief. High Court
ord~red certain relief; however, it denied compensation for loss of salary
for the remainder period of tenure of service and for payment of pension
G for the same period. Hence this appeal.
It ~as contended for the State that since right to abolish the post
was available with the Government, the appellant was not entitled to claim
salary for the remainder tenure of service; and that appellant claimed
H compensation for loss for the present term but not for loss of future
434
JUSTICE S.K. RAY v. STATE OF ORISSA . 435
·'employment, as such not entitled for any relief. A
Allowing the appeal, the Court
,. . HELD: ).I. The crux of the matter in the instant case is the effect
, of the disqualification of not holding any office after ceasing to hold., the
...office of the Lokpal. Appellant is deprived of all other offices or busin,ess B
interest when he hold the office of the Lokpal and the office, Which he
hold, is a_lso denied to him by reason of the Repealing Act. (440-G) ,,
,·~"· .-· •• ·' '"' ', '-, ! • ..;, " ' ' • •1 :
1.2. Under the scheme of the enactment appellant cannofhold any
office of trust 'or profit or he shall. not be a memb~r of the i~gislature,
c;:e_ntral 11r State, or any o_ther positio!', which may ~ome,in conflict with C
the office of Lokpal.. Having deprived. himself of holding any other 9ffice
,9r :position ~hjcb may co~e in conHici wi_th the office of Lokpal,, h~.·~~n~ot
,.,also hold any office even after ~e c_eases to bold. the_office of the Lokpal.
Appellant by reason of holding the office of Lokpal earli~r ~as. incur.red
disqualification not to hold any office in terms of Section 5(3) of the Act., .D
That means .there is a disability attached to him .for all time .to come
thereafter. The said disability would not disappear on the repeal of the
enactment, the appellant is put to a disadvantage by reason of holding the
office of Lokpal, which was putto 'an end ·abruptly by repealing enactment.
In such event, he certainly becomes entitled to compensation if not for loss
of office but for carrying a burden of not holding a.'!Y office or position E
thereafter. It thus becomes clear that such person must be adequately or
appropriately compensated. (439-E, F, G, HJ
1.3. There are two ways of understanding the effect of abolition of
the office of Lokpal, which resulted in curtailm~nt of the ten~re of the
office of the appellant. One is that the appella11t having held th~ office at F
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 could_ be that
on the abolition ofthe post the restrictions as to holding of office o.n the
. appellant ceasing to be the Lokpal will not be attached to hhn. The latter. ,G
vjew, if taken, would lead to incongruous results because th.e incumbent
in office of the Lokpal, having functioned as such at least for some time,
would have dealt with many matters and, therefore, to maintain the purity
of that office, the restrictions imposed under the Act should be maintai"ed.
The only other reasonable way, therefore, is to interpret the provisions to
· the effect that even when such restri~tions continue to be operative on · H
436 SUPREME COURT REPORTS (2003) I S.C.R.
A 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. 1440-C, D, El
2.1. Under the facts and circumstances of the instant case, the
adequate compensation will be the loss of his salary for the remainder
B tenure for which he would have held the office of the Lokpal. Respondents
are directed 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. But this direction will not entitle the appellant to claim any other
allowances or perks to be converted into cash. [440-A, Bl
c 3. A writ petition filed under Artide 226 of the Constitution, sets
out the facts and the claims arising thereto. The reliefs set forth may not
clearly set out the reliefs arising out of the facts and circumstances of the At
case. However, Courts always have the power to mould the reliefs and
grant the same. 1441-A, BJ
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2421 of
2001.
From the Judgment and Order dated 5.4.2000 of the High Court in
_,_
Orissa in OJC. 10896/98.
E
Raj Kumar Mehta for the Appellant.
Janarilnjan Das and Swetakesh Mishra with him for the Respondent.
The Judgment of the Court was delivered by
F RAJENDRA BABU, J. The appellant was Chief Justice of the Orissa
High Court and retired on 5.11.1980. He was appointed as Lokpal on 17.8.1989 -t
under Section 3 of the Orissa Lokpal and Lokayukta Act, 1970 [hereinafter
referred to as 'the Act']. Prior to his appointment as Lokpal, he had also
functioned as the Chairman of the Commission ofEnquiry into certain disputes
G involving the States of Tamil Nadu, Kerala and some of their Ministers.
Pursuant to the repeal of the Act by the Orissa Lokpal and Lokayuktas
[Repeal] Ordinance, 1992, which came into· effect on 16.7.1992, he ceased
y
to hold the office of Lokpal. The said Ordinance was subsequently replaced
by the Orissa Lokpal and Lokayuktas [Repeal] Act, 1995.
H The appellant field a writ petition before the High Court contending
JUSTICE S.K. RAY v. STATE OF ORISSA [S. RAJENDRA BABU. J.) 437
that he had incurred certain liabilities in ceasing to hold the office being A
ineligible further employment under the State Government or for any other
employment under an office in any such local authority, corporation,
Government Company or society registered under the Societies Registration
Act, 1860, which is subject to the control of the State Government and which
is notified by the Government in that behalf. He claimed for-
B
(i) Compensation for loss of salary for the remainder period of his
tenure as Lokpal.
(ii) pension with effect from 16.7.1992 as per Rule 7 of the Orissa
Lokpal [Conditions of Service] Rules, 1984.
c
(iii) refund of the amount of pension deducted from his salary during
the period 17.8.1989 to 16.7.1992, and
(iv) payment of encashment value of unutilised leave which accrued
to him during the period 17.8.1989 to 16.7.1992.
Of the four claims made by the appellant, the High Court held that the
D
appellant was not entitled to compensation for loss of salary for the remainder
period of his tenure as Lokpal as well as for payment of pension with effect
from 16.7.1992. However, insofar as the encashment of value of unutilised
leave and the deduction ofamount of pension during the period from 17.8.1989
to 16. 7.1992 were concerned, appropriate reliefs were given. In this appeal, E
the said order is in challenge.
Shri Raj Kumar Mehta, learned counsel appearing for the appellant,
submitted that the view taken by the High Court insofar as refund of the
amount of pension deducted from the salary of the appellant for the period
from 17.8.1989 to 16.7.1992 as well as payment ofencashment of value of F
unutilised leave accrued to him during the said period is in order and that part
of the order is to in challenge. The State also has not filed any appeal in
respect of that part of the order.
Thus the sole question that has to be considered in this case is whether
the appellant is entitled to any compensation for loss of salary for the remainder G
period of his tenure as Lokpal which stood curtailed by reason of the later
enactment. The appellant was appointed as Lokpal in terms of Section 5 of
the Act. The said section provides that every person appointed as the Lokpal
shall hold office for a term of five years from the date on which he enters
upon his office but shall not be eligible for reappointment. The proviso to H
438 l l • 1: ' ! · ·.'SUPREME COURT REPORTS .I [2003)' Ii S.C.R.
. A 1\Section;5c.enables theLokpal to resign.his office or..he may be remo\/ed from:i1
office.dn1the·.tilanner specified in .. Section ·,6::Sub=section•(3) .of1.Section~iSr1
makes i it.clear that on ceasing to hold o_ffice,. the. Lokpal· shall ,be iineligibte ;~
for,~further .employment under the State Government :or for. anyi.other )
emplOyment under or office in such·local:authority: corporation, .Government/
BPCompany or society~asiis referred tci in Clause '(k) of·.Section!2 ~f the ·Act. i
tSecrion 4 of the Act provides that when the Lokpal enters the office, he .shall
noftto1d any·~ffice' Of frusfor profit and if he is connected with ahy political
party, he should sever his connection with it arid" he should afsb sever his +
co.nnection ~ith t~e conduct. an~ !11anage"1ent o~~ht:: busi!less if ~e. is ,carrying
.;,.r't'.F)\/Jll··jl.,t ..,.-l,.· 1.-.P• . l l•.) Jv:J•f.,lt!f, ..t, dlJ 1
.hPr'J1:;tt~
on any business. Sec~~~ .Pr?~~~.~ to ~ub~~e~_t}~n.. ~?)..?.f, ~~~~R~. 1~1 of the Act
C )provides that the allowances and .other conditions of service of the Lokpal
shall not 9e1varied to.'his disadvantage.after·his.appointment:bi ""'
V• ., _, u;;, , i (J•f.-.;q -.-d7
!· ,'. 1
· i '·"'
The High Court examined the question as to the effect' of abolition of
a post and.whether an incumbent in office :s entitled.to compensation therefor.
The law is well :settled th~t ·eveh 'in the case of tenure appointments, if the
n·1post
',~:i
itself is abolished, entitlement to compensation would not arise at all.
zir:-.·.f.•i•:-.·~,' . ·-.·· ,,,.-_;• . . . ~1·_{_~, ...., . ~-·? 11t_t, ..J~i1:t)
Therefore, the view taken by the High Court to the extent that the appellant
wc>'ui~--ilcit'be ~ntit1eci'to any~t:om·p~risation'on'the term"6fiiis' 1 4
0'ffice goJHng.
td ii'~ end '(>h' ;e'peai 'oftlie 'en'actlit'ent uncfol"which ;~e'w<kappbillted: ti~ 're~soh'fi
or .cui1¥HJng~ his· ieriute» 'th-ough · rrlay 'l)e 'corrJt:t;''may ·
1
~or i)g exaMine<f have 1 1
frQhl, ahoth~t· p~rsp~ctive~;; ·r "· : '·' ·,·,r; i;' · 'u' .w., '"
1
ni.!1".ml,;b ~ 1 '. 1 Urn !i m.-l
E. ; . ·t.~.y.~· ; 11.· r f ~,/ :J ·,. 1' r.. ·:·'~t :; :'",··! j1,.'.~ ,.,:,t;,~~ . . ·1~<1.,. _;· ... ·•• ';·,,ii\ (.\J 1;;
Section 2 of the Repealing Act provides as follows: ,, :;,, m L.o '•- •J
r• ;;. 1 ;.;~,ec~i_qn 2(1) ne Orissa .Lokpal ~nd_ ,l.,okayykta .~ct,) 978, is1 nereby
._ •· 1 .,rep_e~led: . ,.. , .. " .. 1,_ 1 ;- : • • , ": .,,. ,_, ·1 1" ... 1.: r,·,.:•rpr!u-
Fi
1"1' • .mc2)on such repe~1, no ihvestfgatiOri, 't>i-B~~~dl~g ·o~·remedf iri.' r~l~tl<ln1~'
!•_1 -·· 1'to ~hf ·rigttt, J)Hv:ilege;''btiligatioh~ :·liability: ·peh'a1ey,"ror'rlithrenor' 1
'1:. ! :i,punishmbrii pending linder the' Act' so. re'pealed 'shalf
1
be co~tinue~''6'ru +
' f .. ~ I·;·~ • ·~. - ·.~ ••• ~. ' . ~ I ~JL' lJi
·,·iJ '··
(•
. "" .. enforced:
,...... ' .•
. " , . I
, .. ' , •
. ' . . -
(3) Save as otherwise provided in sub-section (2) the provisions of
1,rJ,._ 1Section·5 of.the brissa General ,Clauses Act, 193 7 shall apply •fo'. such
..... t ....... .:' . - . , ~ ''. . .. . .: .
1..,.~_,.,_th-TeJ)C8l.t ~~ zt1.1.~
j .'.· ~-· : ').i: ·,~- 1 i"'•_1j 1:~. t~1 iY•L.~ •. :·.# ?. t~t: Lr!f.P• ~'.~'
1'JJ5j :J.d! .d. · i;''J,· ' .•,.,·, · ... L·'1in;, ~ • ,,., .. -t • :·ni '.j '_·'j«•., : h · ..... -.. "i{ •-J L-·J· ~'·:q
. Under the. Orissa
~q:·_111:11J'-'..-P....it..I~- •
General
•• t'.
Clauses
J.' '
·.1. ..
Act,I 1937,.
.11'•.
the effect of repeal is It~~,.~ :11,t.~J
considered-and .is to the following effect:
ti_\.j.r._i_, ~ -.. ;; G.:· .1.,.·1J1~1r_,.1 'e~ ~-,, '1 I ~
·
I)-). l .- .. -~ l
f, 1{.
•• . ' ''
~·1 .1,.,~, "Sectioh' 5~'Effect of 'rep'eal-'-Whe·r~ any 'Orissa Act· r'epeals 1 any~
Hi 0 v<'• ·enactriient ·hitherto made,-· or· hereaftef to' be 'made,' then;· urilessi a·
JUSTICE S'.K. RAY v. STAT& OF ORI SSA [S. RAJENDRA BABU, J.) 439
... different Intention ·appears; lhe··repeahliall not'.,.· · At
'. " ;) ., • I •. ,•;
(a),xxx ·~X I
' (b) £xx ' xxx·· xxx ·'
· (c) _affect any right privilege, obligation or liability acquirecl, accrued. '
or mcurred under any enactment so repealed; or · ~ . ,
11
, '"" .... B
ri1 ,. ' ;;
xxx
" ll'1 • ·' ..
xxx ,,., j·, ,lJ ., ,, xxx., • 1
The High Court, on examining these' two provisions, held iliat inasrilucn.'
as an investigation, proceeding or remedy pending with the Lokpal on
16.7.11)92, the d'ate of2Jn\ing'into fbrce <if the R~pealiilg Act, urlder the Act
f! . i "• l·· ·• _ -,, ('"-; 1.--~; ·
c'
so repealed shall not be continued enforced; the continuance of the office
or
11 · > l ' • ·' - I · , ,''. · I · u ' 'ii · _ 'l
. 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
. ' ' - - .1 ~- . - ' ' _, '· 1 -
noi
'• . '
is -.
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 . D ;
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 of the enactment
... ~,f· - ., ~ n;; L. '·: .·,, ,d ],•,•
bas' QOt been tak;~ not~'dfby'th~ Hlgh (::~~rt..
! : '"'I~.- r ··,·. • • ?
':.\' ,, •., • ,, ,. I 1. ' ...
Under the scheme of the 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 E
con,flkt with the office ~f Lokpai.' H~vin'g deprlxed himseif ·hold'i;{g ~ny ' of 1
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 ' 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' •..t·
IQ- hiqi:
by reason
- - ' .. ''
of his
. '
holdi9g
·"'· • ,.
the office'
earlier.·
. ._,,_ • I
and thus.he has iucurred any dis(j11~1ification n\lt to h,old any office in.terms ,
of Section 5{3) of lhe A~t. ~~t ~ea~s there.i~ ,a dlsabiii1y ~ttached t~ hlm
0
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 G 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 .
440 SUPREME COURT REPORTS [2003] 1 S.C.R.
A 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
B 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.
C 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
D restrictions as to holding of office on the appellant ceasing to be the Lokpal
will not be attached to him. The later view, if taken, 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
E 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.
F 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
G 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
H incongruity and would baffle all logic.
JUSTICE S.K. RAY v. STATE OF ORISSA [S. RAJENDRA BABU, J.] 44\
The learned counsel for the respondents further submitted that the A
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 B
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 C
circumstances, there shall be no order as to costs.
S.K.S. Appeal allowed.
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