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. [S. RAJE~DRABAlJ AND P. VENKATARAMA REDDI JJ.) •)1 :,, Ji•h ... iUf' JI.JI! (./Ill 1.011 ;11..:;;:Jh()1, r.11 Ihf\J ti()J"'.lJi'JHV',1 L t.:Jl~..Jb'JI r,'Jlf1 ltf'.l!J r.I H

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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Appointment of Lokpal for 5 years-Act repealed-Incumbent ceased to hold office before expiry of term-Ineligible for further employment as per terms of appointment-On Writ Petition claiming for compensation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 of not holding any office/ position after he ceased to hold office of Lokpal, but not for loss of office- State Government to ass?SS relief for 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

ordred 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.

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 membr of the igislature, 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 coe in conHici wi_th the office of Lokpal,, h~.·~not ,., 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 earlir 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 curtailmnt of the tenre 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 restritions continue to be operative on H

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

B adequate compensation will be the loss of his salary for the remainder 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 to hold the office of Lokpal. The said Ordinance was subsequently replaced y

by the Orissa Lokpal and Lokayuktas [Repeal] Act, 1995.

H The appellant field a writ petition before the High Court contending

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-

(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.

(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 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

. 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.SectioniSr1

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 suchlocal:authority: corporation, .Government/ BP Company or societyasiis 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 anyffice' 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 te conduct. an~ !11anage"1ent o~ht:: busi!less if e. is , carrying .;,.r't'.F)\/Jlljl., t ..,.-l,.· 1.-.P• . ..t, l l•.) 1 Jv:J•f., lt!f, .hPr'J1:; tt~ dlJ 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.afterhis.appointment:bi ""'

, !· ,'.

1 V• ., _, u;;, i '"' i (J•f.-.; q -.-d7 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 tht eveh 'in the case of tenure appointments, if the n 1 post itself is abolished, entitlement to compensation would not arise at all.

',~:i zir:-.·.f.•i•:-.·~,' . ·-.·· ,,,.-_;• ... ~1_{_~, .... ,. ~-·? 11t_t, .. Ji1:t) Therefore, the view taken by the High Court to the extent that the appellant

wc>'ui~--ilcit'be ntit1eci'to anyt:omprisation'on'the term"6fiiis'10'ffice goJHng. 4 td ii'~ end '(>h' ; e'peai 'oftlie 'en'actlit'ent uncfol"which ; e'w<kappbillted: ti~ 'resoh'fi or .cui1¥HJng~ his ieriute" 'th-ough rrlay 'l)e 'corrJt:t;''may have1 or i)g 1exaMine<f1 frQhl,

1ahotht prspctive~;; r "· : '' ,·, r; i;' 'u' .w., '" 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;.;~, eci_qn 2(1) ne Orissa .Lok pal nd_ , l., okayykta .ct,) 978, is1nereby

._ •· 1 ., rep_eled: . , .. , .. " .. 1,_ 1 ;- : •• , ": .,,. ,_, 11" ... 1.: r,·,.:•rpr!u-

1"1' • .mc2)on such repe~1, no ihvestfgatiOri, 't>i-B~~dlg oremedf iri.' rltl<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 1be cotinue~''6'ru

(• ,...... 'f .. ~

' .• I;·~ • ·~. - ·.~ ••• ~. ' .

I • I ~JL' lJi ·, iJ '· . "" .. enforced: . " , . , .. ' , . ' . . -

(3) Save as otherwise provided in sub-section (2) the provisions of 1, rJ,._ 1Section5 of.the brissa General , Clauses Act, 193 7 shall apply •fo'. such

..... t ....... . :' . - . , ''. . .. . .: . ' 1..,.~_,.,_th-TeJ)C8l.t ~~ j zt1.1.~ .'.· ~-· : ').i: ·,~- 1 i"'•_1j 1:~. t~1 iY•L.~ •. :·.# ?. tt: 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 General Clauses Act, 1937,. the effect of repeal is q:_111:11J'-'..-P....it..I~- • •• ·.1. t'.

J.' ' ..

I .11'•.

It~~,.~ :11, t.~J considered-and .is to the following effect: ti_\.j.r._i_,

~ -.. ;; G.:· .1.,.1J1~1r_,.1 'e~ ~-,, '1 f, •• .' '' I I)-). l .- .. -~ l 1{.

~1 .1,.,~, "Sectioh' 5~'Effect of 'rep'eal-'-Wher~ any 'Orissa Act r'epeals1 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; lherepeahliall not'.,.· ·

(a), xxx

' (b) £xx '

'. "

~X I

xxx·

., •I •. ,•;

xxx '

 (c) _affect any right privilege, obligation or liability acquirecl, accrued. ' 11 or mcurred under any enactment so repealed; or . ,

, '"" .... B

ri1 ,. ' ;; xxx xxx xxx " ll'1 • ' .. ,,., j, , lJ ., ,, ., • 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 Rpealiilg Act, urlder the Act c '

f! . i "• l· ·• _ -,, ('"-; 11 > l' •

' - I , ,''. 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 ?risa qenra/ Claus; s ~~I;'.~.~ m~!lr as ~~.e? .10.~, k.ed at from te 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~ schriie of the enactment bas' QOt been tak;~ not~'dfby'th~ Hlgh (::~rt ..

... ~, f - ., n;; L. ': .·,, , d ],•,• ! :

'"'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 tryt r i\Vofi1"0~1i~ Jluiii ndl'lk -~ eri; Ber 'M'

-· 1-_,,,. ·· -r ~.

-·-1·1J,-I~"· •, rs•·.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.' Hvin'g deprlxed himseif of hold'i;{g ny

1 ' other offic~ or position :.vhich may come in cnflit 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~!!; ftr ceasil)g toholdth.e 1>fficepf_l,9kpal Fi 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 , of Section 5{3) of lhe At. ~t eas there.i~ , a

0 dlsabiii1y ttached t~ hlm

ro~ all i.ime to come ti], e~after. We specirically ske•(!he '1el!flled'cou~i1'. appe";"ing, for te responden; s s to whethr the.si~ isability would disappear . on the repealing of the enactment and, of course,, he .sµmitted 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 .

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.

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.