Case: S.K. Ray Vs. State Of Orissa

held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of Section 2 of the Repealing Act or section 5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continued and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or state, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all time to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment an, of course, he submitted that it would not. If that is the reasonable approach, the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying a burden of not holding any office or position thereafter. It thus becomes clear that such 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 suitable compensated for the same; In a situation of this sort, we think that adequate compensation will be the loss of his salary for the 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 allowance or perks to be converted into cash.9. 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 could 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 latter 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 matters 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 restriction 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. 10. The learned counsel for respondents 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 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. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic. 11. 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 file 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 may 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The High Court, on examining these two provision, held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of Section 2 of the Repealing Act or section 5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continued and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or state, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all time to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment an, of course, he submitted that it would not. If that is the reasonable approach, the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying a burden of not holding any office or position thereafter. It thus becomes clear that such 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 suitable compensated for the same; In a situation of this sort, we think that adequate compensation will be the loss of his salary for the 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 allowance or perks to be converted into cash.9. 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 could 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 latter 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 matters 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 restriction 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.