Case brief: Daya Shankar vs High Court Of Allahabad And Ors

Daya Shankar vs High Court Of Allahabad And Ors. Equivalent citations: AIR 1987 SC 1469 

Bench: O C Reddy, K J Shetty 

FACTS OF THE CASE: 

The petitioner was a member of the U.P. State Judicial Service where he was appointed as  Munsif and later on posted at Aligarh. While he was working at Aligarh he sought  permission of the High Court to study L.L.M. course at the prestigious Aligarh University.  When he was appearing for his 1st semester examination he was caught using unfair means  during the examination.  

The Registrar informed the District Judge at Aligarh that the petitioner was found copying  from the manuscript. The District Judge thereupon communicated all the information to the  High Court. After the receipt of this information, the High Court referred the matter to  Vigilance Cell and directed to conduct necessary inquiry in the matter. 

The Cell submitted its report to the Administrative Committee. Committee initiated  disciplinary proceedings against the petitioner and during the tenure he was placed under  suspension. The Disciplinary inquiry was entrusted to Hon'ble Mr. Justice H.N. Seth. 

ISSUES BEOFRE THE COURT? 

Whether the disciplinary actions initiated against the petitioner were correct?

JUDGEMENT: 

After considering the facts and circumstances and the witness presented by both the parties  the High Court recommended to the State Government to remove the petitioner from service. 

The petitioner filed a suit in the Court of Munsif Koil for declaring that he did not use any  unfair means during the L.L. M examination. The petitioner failed to refer the disciplinary  proceeding initiated by the High Court for the malpractices committed by him during the  examination on June 7, 1983.  

Then the petitioner moved the Supreme Court by filing a Writ Petition under Article 32 of the  Constitution directed against the order by which the petitioner was dismissed from the  service. 

The Counsel for the petitioner raised two important contentions before the court. Firstly, he  contended that the order of removal of the petitioner was plainly illegal since this Court had  stayed the inquiry proceedings on June 7, 1983. 

Counsel urged that the stay order was transmitted by post from Aligarh to the High Court on  June 11, 1983 besides the petitioner personally giving a copy to the Registrar on June 30,  1983.  

He also stated that the Registrar of the Supreme Court had sent the stay order on June 8, 1983. Thereafter neither the High Court nor the Government had any jurisdiction to proceed  with the inquiry or make final order.

Later the Governor made an order removing the petitioner with the knowledge. After the  enquiry against the petitioner and the full court resolved to recommend to the Government to  remove the petitioner. Afterwards the matter was referred to the State Government by the High  Court. Only after that the petitioner filed a suit in the Court of Munsif, Koil. After the transfer  of case to Supreme court it cannot be contended that the petitioner was removed from service  in disobedience of the stay order. But the contention was rejected by the Hon’ble court. 

The counsel further urged that there was no evidence to support the conclusion. That the  petitioner used unfair means during the L.L.M. examination. And the documents produced by  the prosecution in support of the charge are not worthy of acceptance in the court of law.  

The Inquiry Officer found on comparison of answer written for question No. 8 with contents  of manuscript (E.P. 9) that the petitioner did make use of the manuscript in answering  question No. 8. We have also perused the answer papers written by the petitioner. 

But in the opinion the court reached a conclusion by the Inquiry Officer that the petitioner  used unfair means. No amount of denial could take him away from the hard facts revealed. So  the Writ Petition was dismissed.  

PROVISION OF LAW INVOLVED 

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme  Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex  court is given the authority to issue directions or orders for the execution of any of the rights  bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental  Rights’. 

Under Article 32, the parliament can also entrust any other court to exercise the power of the  Supreme Court, provided that it is within its Jurisdiction. And unless there is some  Constitutional amendment, the rights guaranteed by this Article cannot be suspended. 

Therefore, we can say that an assured right is guaranteed to individuals for enforcement of  fundamental rights by this article as the law provides the right to an individual to directly  approach the Supreme Court without following a lengthier process of moving to the lower  courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of  Fundamental Rights. 

Dr Ambedkar stated that: 

“If I was asked to name any particular article in this Constitution as the most  important- an article without which this Constitution would be a nullity— I could not  refer to any other article except this one. It is the very soul of the Constitution and the  very heart of it and I am glad that the House has realized its importance.” 

Under Article 32 of the Indian Constitution, Apex Court has the power to issue directions,  orders or writs for the enforcement of the Fundamental Rights while under Article 226 of the  Indian Constitution, the High Courts have the power to issue directions, orders or writs for  the enforcement of the Constitutional Rights. An Indian citizen can seek justice through five 

prerogative writs as provided by the Indian Constitution under Article 32 and Article 226.  These are as follows: 

1-Habeas Corpus 

2- Certiorari 

3- Mandamus 

4- Quo-Warranto 

5- Prohibition 

Habeas Corpus: 

1- Literal meaning: 'to have the body of'.  

2- This writ protects an individual from unlawful detention. 

3- Under this writ, an order is issued by the court to a public official to produce the detained  person before the court. 

4- The court then examines the grounds on which the individual has been detained. 5- If the detention has no legal justification, the detained person is set free. 

6- It is to be noted that the writ cannot be issued in the cases where (a) the detention is lawful  (b) the proceeding is for contempt of a legislature or a court (c) an individual is detained by a  competent court, and (d) the detention falls outside the jurisdiction of a particular High  Court. 

7- This writ is ineffective if the detainee is produced before the judicial magistrate. 8- An individual can seek compensation from the state against the arbitrary detention.  

9- The petition under this writ can be filed by the detainee, prisoner or by any person on  behalf of the detainee/prisoner. 

10- The writ of Habeas Corpus cannot be suspended even during the emergency under Article  359. 

Certiorari: 

1- Literal meaning: 'to be certified' or 'to be informed'. 

2- It is issued by the Supreme Court and High Courts to a lower court, tribunal or Quasi judicial body usually to overrule the judgement of the latter. 

3- It can be issued under the following grounds (a) to correct errors of the jurisdiction (excess  or lack of jurisdiction) (b) in case of error of law. 

4- It can also be issued against administrative authorities affecting the rights of individuals. 

5- This writ is unavailable against the equal or higher court and is only available against the  lower courts.

6- It is also unavailable against legislative bodies and private individuals or bodies. 7- The writ is both preventive and curative in nature. 

Mandamus: 

1- Literal meaning: 'we command'. 

2- It is issued by a court commanding a lower court or public authority to perform his official  duties correctly. 

3- The writ of Mandamus can be issued against any public body, a corporation, an inferior  court, a tribunal or government itself. 

4- It cannot be issued against a private individual/ body and to enforce contractual  obligation/departmental instruction that does not possess statutory force. 

5- This writ cannot be issued against the President of India or the State Governors; Chief  Justice of a High Court acting in a judicial capacity. 

6- This writ can also be issued by the High Courts for violation of ordinary rights. 

7- It can also be issued to direct a public official not to implement a law which is  unconstitutional. 

8- The writ is both ways: Positive as well as Negative. 

9- It is to be noted that this writ is a discretionary remedy and the High Courts may refuse to  grant it where some alternate remedy is available. 

Quo-Warranto: 

1- Literal meaning: 'by what authority or warrant'. 

2- It is issued by the court against the person who usurps a public office. 3- It enquires the legality of usurpation of public office by a person. 

4- The grounds on which this writ is issued (a) public office created by a statute or by the  Constitution of India (b) person to be appointed by a statute. 

5- The writ cannot be issued against a ministerial office or private office. 

Prohibition: 

1- Literal meaning: 'to forbid' or 'Stay order'. 

2- It is issued by a higher court to a lower court to enforce inactivity in the jurisdiction (in  case of excess or absence of jurisdiction). 

3- It can only be issued against judicial and quasi-judicial authorities.

4- The writ is preventive in nature. 

5- It is not available against administrative authorities, legislative bodies, and private  individuals or bodies.

https://indiankanoon.org/doc/1809756/