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2001 DIGILAW 1709 (AP)

P. v. R. Bhaskar Rao VS A. P. Administrative Tribunal, Registrar

2001-12-31

G.ROHINI, MOTILAL B.NAIK

body2001
MOTILAL B. NAIK, J. ( 1 ) PETITIONER seeks a Writ of Certiorari calling for the records relating to order made in O. A. (SR) No. 8335 of 1996 dated 19-6-1997 by the A. P. Administrative tribunal, Hyderabad, and the records in judgment of the Lokayukta in C. M. P. No. 2 of 1990 dated 19-7-1990 and seek a further direction to the Lokayukta to drop all proceedings in respect of complaint Nos. 1864 and 2020 of 1988 and to pass such other order or orders in the circumstances of the case. ( 2 ) PETITIONER after obtaining MBDCdegree in the year 1958 joined A. P. Medical services in the year 1960. In the year 1965, he obtained Post Graduation Degree in M. S. (General Surgery) and was promoted as professor of Cardiothoracic Surgery in october, 1971. In December, 1974 he went to u. K. for training in open heart surgery and returned to Andhra Pradesh State Medical services in June, 1978. Thereafter, upto 1985, he worked in various Government hospitals in Hyderabad. ( 3 ) ACCORDING to the petitioner, in themonth of November, 1985, he was posted as professor of Cardiothoracic Surgery in chest and Tuberculosis Hospital, hyderabad and was also designated as superintendent of the said Hospital on 7-11-1985. Petitioner stated that at the time of his taking charge as Superintendent of the said Hospital, the condition of the said hospital was in a bad shape, sanitation was poor, its premises and facilities were being misused by employees and outsiders as well. Petitioner claimed he made all efforts to restore normalcy and also ensured discipline by plugging loopholes in the administration. In this process, according to the petitioner, he earned the wrath of his colleagues, employees and outsiders as well. ( 4 ) ACCORDING to the petitioner, hisdifficulties started in the year 1986 as some disgruntled elements started sending anonymous complaints against him to the government as well as to the Lokayukta. On such complaints, the Vigilance and enforcement Department also made necessary enquiries but no incriminating: evidence was found against him. Since there was no prima facie evidence against the petitioner, no action was initiated against him. Petitioner believed, his efforts to bring; about structural changes in the administrative set up of the Chest Hospital were appreciated as no further proceedings were initiated against him. Since there was no prima facie evidence against the petitioner, no action was initiated against him. Petitioner believed, his efforts to bring; about structural changes in the administrative set up of the Chest Hospital were appreciated as no further proceedings were initiated against him. ( 5 ) PETITIONER stated that in the year 1986, on the basis of some unsigned complaints said to have been sent by the staff of the hospital to the Lokayukta, the Lokayukta ordered preliminary verification on the basis of invalid complaints. After preliminary verification of the said complaints, the Lokayukta proposed to take up suo motu investigation into the anonymous complaints. Accordingly, the Lokayukta issued proceedings on 13-10-1988 in Form No. VII to the petitioner while enclosing a statement containing certain allegations. ( 6 ) ON receipt of the proceedings dated 13-10-1988 from the Lokayukta, petitioner appeared before the Lokayukta on 2-11-1988 along with an advocate and submitted his comments. However, the case was adjourned and thereafter, no further sitting was held. Petitioner honestly believed that the Lokayukta accepted his comments and dropped the enquiry against him. However, to the surprise of the petitioner, he received a notice dated 7/14-5-1990 from the lokayukta for his appearance before the lokayukta in connection with complaint nos. 1864 and 2020 of 1988 on 7-6-1990. Petitioner submits that on 7-6-1990, his advocate filed a petition in CM. P. No. 2/98 before the Lokayukta raising the following preliminary objections, viz. , (a) Whether the Honourable lokayukta can continue the investigation beyond one year from the date on which the statement was forwarded to the pubic servant? (b) Whether the Honourable lokayukta has jurisdiction to hold preliminary verification and investigation on the basis of an invalid complaint? in addition to filing C. M. P. No. 2/90 raising objections, written arguments were also submitted and the Hon ble Lokayukta was requested to decide the preliminary objections as first issue in view of the provisions under Section 10 (2) (b) of the "andhra Pradesh Lokayukta and upalokayukta Act, 1983 (for short "the Act"), which provides that the investigation should be completed within six months and at any rate it shall not exceed one year. According to the petitioner, the Lokayukta rejected the objections by an order dated 19-7-1990 holding that the office of the lokayukta was vacant from 14-11-1988 to 12-3-1990 and as such the said period should be excluded from being reckoned for fulfilment of the period of one year as required under Section 10 (2) (b) of the Act. ( 7 ) AGGRIEVED by the order dated 19-7-1990 made by the Lokayukta rejecting the preliminary objections raised by the petitioner, the petitioner filed W. P. No. 12226 of 1990 before this Court. The said Writ Petition was admitted and interim direction was issued to the Lokayukta not to deliver judgment regarding complaint nos. 1864 and 2020 of 1988. While so, during the pendency of the above Writ petition, petitioner retired from government Service on 31-1-1992 and therefore, he filed an additional affidavit before this Court in the said writ petition to permit him to raise the following additional ground, viz. ," as the petitioner retired from government Service on 31-1-1992 and ceased to be an officer or public servant, the Hon ble Lokayukta has no jurisdiction to continue investigation under Section 7 or any of the provision of the Act and Rules. " ( 8 ) HOWEVER, the said Writ Petition was disposed of by a Division Bench of this court by an order dated 26-6-1996 with the following observations, viz. ,"the proper forum to adjudicate the question which the present petitioner is seeking to raise is A. P. Administrative Tribunal. The Writ petition is, therefore, dismissed. The writ Petitioner can approach the administrative Tribunal for the redressal of his grievances. " ( 9 ) THEREAFTER, petitioner, filed an Original application before the A. P. Administrative tribunal questioning the order passed by the Lokayukta dated 19-7-1990 with a petition to condone delay. The petition to condone the delay was ordered by the tribunal but the office of the tribunal raised an objection about the maintainability of the o. P. before the Tribunal. The Tribunal, however, disposed of the said O. A. (SR) no. 8335 of 1996 by an order dated 19-6-1997 with the following observations, viz. ,"on a reading of the provisions of the act, Tribunals Act and APCS (CCA) rules referred to above, we are of the considered view that at present stage, this O. A. is not ripe warranting interference with the enquiry by the hon ble Lokayukta. 8335 of 1996 by an order dated 19-6-1997 with the following observations, viz. ,"on a reading of the provisions of the act, Tribunals Act and APCS (CCA) rules referred to above, we are of the considered view that at present stage, this O. A. is not ripe warranting interference with the enquiry by the hon ble Lokayukta. May be after the enquiry is concluded by the Hon ble lokayukta and in the event of the hon ble Lokayukta recommending awarding of punishment this Court can entertain an application if filed by the applicant for adjudication. In other words, the provisions of the APCS (CCA) Rules will come into play when once the recommendations of the hon ble Lokayukta are accepted by the government for imposition of punishment. Therefore, it is too early at this stage to interfere with this matter. The O. A. S. R is accordingly disposed of. " ( 10 ) QUESTIONING the said order of the tribunal dated 19-6-1997 made in 0,a. (SR)No. 8335 of 1996 and the order dated 19-7-1990 made in C. M. P. No. 2 of 1990 by the Lokayukta, petitioner filed this writ Petition seeking appropriate relief as indicated above. ( 11 ) IT is contended by Sri P. Krishna reddy, Counsel for the petitioner that for the first notice dated 13-10-1988 issued to the petitioner by the Lokayukta proposing to investigate into the allegations against him on the basis of the complaint Nos. 1864 and 2020 of 1988, petitioner offered his comments on 2-11-1988 and the case was adjourned to a later date. Thereafter nothing was heard by the petitioner and the petitioner believed that the Lokayukta was satisfied with the comments offered by the petitioner and in all probability, dropped the proceedings. However, according to the learned Counsel, to the shock and surprise of the petitioner, after a gap of nearly one and half years, he received a notice dated 7/14-5-90 from the Lokayukta requiring him to be present in the office of the lokayukta on 7-6-1990 for the purpose of proceeding with the investigation on the very same complaint Nos. 1864 and 2020 of 1988. 1864 and 2020 of 1988. Learned Counsel submitted, on 7-6-1990, a petition in C. M. P. No. 2/90 was filed before the Lokayukta on behalf of the petitioner raising preliminary objection as to the competency of the Lokayukta to proceed with the investigation after a lapse of nearly one and half years, though as per section 10 (2) (b) of the Act, the investigation has to be completed within an year from the date of forwarding the statement to the public servant. Counsel also stated that the jurisdiction of the Lokayukta to investigate into a matter on the basis of an invalid complaint was also raised, but the rokayukta rejected the CM. P. No. 2/90 on unsustainable grounds. Counsel also narrated the steps taken thereafter by the petitioner and pleaded for granting appropriate relief in this Writ Petition. ( 12 ) WE have also heard Sri M. V. S. Suresh kumar, learned Counsel for the 3rd respondent - Institution of Lokayukta and upa-Lokayukta, Hyderabad, who sustained the order dated 19-7-1990 made in c. M. P. No. 2/90 by the Lokayukta. ( 13 ) IN order to appreciate the contentions as set out in the foregoing paragraphs made on behalf of the writ petitioner, it is necessary for us to examine the object and relevant provisions of the "act". ( 14 ) THE Statement and Objects of the andhra Pradesh Lokayukta and Upa- lokayukta Act, 1983 provides that the said act is intended "to make proviaion for the appointment and functions of Lokayukta and Upa-Lokayukta for the investigation of administrative Action taken by or on behalf of the Government of Andhra Pradesh or certain Local and Public Authorities in the state of Andhra Pradesh (including any omission and commission in connection with or arising out of such action) in certain cases and for matters connected therewith. " ( 15 ) SECTION 2 (c) of the Act defines competent authority in relation to a pubic servant against whom investigation is made by the Lokayukta/upa-Lokayukta on receipt of complaints. Section 9 is the provision relating to filing of complaints. 9. " ( 15 ) SECTION 2 (c) of the Act defines competent authority in relation to a pubic servant against whom investigation is made by the Lokayukta/upa-Lokayukta on receipt of complaints. Section 9 is the provision relating to filing of complaints. 9. Provision relating to complaints: (1) Subject to the provisions of this Act, a complaint may be made by any person under this Act to the lokayukta or Upa-Lokayukta relating to an allegation in respect of any action: provided that where the person aggrieved is dead or is for any reason unable to act for himself, the complaint may be made by any person who in law represents his estate, or as the case may be, by any person who is authorised by him in this behalf. (2) Every complaint shall be made in such form and shall be accompanied by such affidavits as may be prescribed. (3) Notwithstanding anything in any other law for the time being in force, any letter written to the Lokayukta or upa-Lokayukta by a person in police custody or in a goal or in any asylum, or other place for insane persons shall be forwarded to the addressee unopened and without delay by the police officer or other person in-charge of such goal, asylum or other place and the Lokayukta or Upa-Lokayukta, as the case may be, may treat such letter as a complaint made in accordance with the provisions of sub-section (2 ). ( 16 ) SECTION 10 of the Act which is relevant for the purpose of deciding the issue involved in this writ petition, provides the procedure in respect of investigations. 10. Procedure in respect of investigations: (1) Where the lokayukta or Upa-Lokayukta after making such preliminary verification as he deems fit, proposes to conduct any investigation under this Act, he (a) shall forward a copy of the complaint, or in the case of any investigation which he proposes to conduct on his own motion, a statement setting out the grounds therefore, to the public servant concerned and the competent authority concerned; (b) shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement; and (c) may make such orders as to the safe custody of documents relevant to the investigation as he deems fit. (2) (a) Every preliminary verification referred to in sub-section (1) shall be conducted in private and in particular, the identity of the complainant and of the public servant affected by the said preliminary verification shall not be disclosed to the public or the press, whether before or during the preliminary verification, but every investigation referred to in sub-section (1) shall be conducted in public: provided that the Lokayukta or Upa-Lokayukta may conduct any such investigation in private, if he, for reasons to be recorded in writing thinks fit to do so. (b) Every such investigation shall be completed within a period of six months, unless there is sufficient cause for not completing the investigation within that period, so however, that the total period for completing such investigation shall not exceed one year. (3) xxx xxx xxx (4) xxx xxx xxx ( 17 ) SECTION 12 speaks about the Reports submitted by the Lokayukta or Upa- lokayukta, which reads thus: 12. Reports of Lokayukta or Upa- lokayukta: (1) If, after investigation of any allegation in respect of any action under this Act, the Lokayukta or Upa-Lokayukta is satisfied mat such allegation is substantiated either wholly or partly, he shall by a report in writing, communicate his findings and recommendations along with the relevant documents, materials or other evidence to the competent authority. (2) The competent authority shall examine the report forwarded to it under sub-section (1) and without any further inquiry take action on the basis of the recommendation and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Upa-Lokayukta, the action taken or proposed to be taken on the basis of the report. (3) Xxx xxx xxx (4) Xxx xxx xxx (5) Xxx xxx xxx ( 18 ) A reading of the powers and procedure contemplated under the Scheme of the "act" would invariably show that the institution of Lokayukta and Upa-Lokayukta is only an investigating authority. (3) Xxx xxx xxx (4) Xxx xxx xxx (5) Xxx xxx xxx ( 18 ) A reading of the powers and procedure contemplated under the Scheme of the "act" would invariably show that the institution of Lokayukta and Upa-Lokayukta is only an investigating authority. After completing the necessary investigation within the period prescribed under Section 10 (2) (b), they have to submit a report to the competent authority as defined under clause (c) of Section 2 of the act and such competent authority shall take action on the basis of such report within a particular period against such public servant and intimate the action so taken to the Lokayukta/upa-Lokayukta within certain period, ( 19 ) IN the instant case, admittedly, the lokayukta registered complaint Nos. 1864 and 2020 of 1988 against the petitioner proposing to conduct investigations into them and issued Form No. VII to the petitioner on 13-10-1988 requiring him to appear on 2-11-1988. The petitioner accordingly made his appearance pursuant to the said notice and submitted his comments and the cases were adjourned to some other date. Thereafter, a fresh notice dated 7/14-5-1990 was issued to the petitioner calling upon him to appear before the Lokayukta on 7-6-1990. On the said date, on behalf of the petitioner, his advocate filed c. M. P. No. 2 of 1990 raising preliminary objections as to the competency of the lokayukta in continuing investigation into the allegations even after the expiry of the statutory period of one year as provided under Section 10 (2) (b) of the Act. However, by order dated 19-7-1990, the Lokayukta rejected the objections raised on behalf of the petitioner, with the following observations:"even assuming for a moment that the contention is taken to be correct that the provision will have to be deemed as mandatory, yet during the period of vaccum, viz. , between 15-11-1988 and 11-3-1990, it became impossibility of performance as no one functioning as lokayukta. , between 15-11-1988 and 11-3-1990, it became impossibility of performance as no one functioning as lokayukta. If that be so, it must be taken to be a case where during the said period, none was performing the obligatory duty, and so resulted in the very frustration of the object, it must be equated to a situation where the time which was allowed to start running must be deemed to have stopped on the day when the incumbent s term came to an end on 14-11-1988, deemed to have been revived on the day when the post was filled i. e. , on 12-3-1990 and therefore, the time between 14-11-1988 and 12-3-1990 must be excluded from being reckoned for the fulfilment of the period of one year within the meaning of Section 10 (2) (b ). It may in fact, be analogous to a case where a court of Judicature intervenes and issues an order of stay or injunction thereby restraining either executive authority or the lower Court from proceeding further with the matter which was otherwise obligatory either on the executive authority or the lower court, as the case may be, to complete the process within a particular period, and the said stay would operate as cessation of time running for the purpose of period of limitation until either the stay is vacated or the Court which granted stay, disposes of the matter or clarifies further than the authority or the Court, as the case may be, to complete the process within a particular period. There is no dispute so far as this case is concerned that if the period between 14-11-1988 and 11-3-1990 is excluded it will be within limitation in process within a particular period. There is no dispute so far as this case is concerned that if the period between 14-11-1988 and 11-3-1990 is excluded it will be within limitation in terms of Section 10 (2) (b ). Any other interpretation under the peculiar circumstances of this case. would run counter to the case of harmonious construction. Hence, I have no hesitation to hold that the contention of the learned Counsel for the public servant is devoid of substance. Any other interpretation under the peculiar circumstances of this case. would run counter to the case of harmonious construction. Hence, I have no hesitation to hold that the contention of the learned Counsel for the public servant is devoid of substance. " (Emphasis supplied by us) ( 20 ) IN Mohan Kumar Singhania v. Union of india, the Supreme Court laid down the parameters for interpreting a Statute, as under:"however, it is suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, we are bound to construe them in their ordinary sense with reference to other clauses of the act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/rules/regulations relating to the subject-matter. Added to this, in construing a statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intendment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation. " ( 21 ) AS seen from the order dated 19-7-1990 made by the Lokayukta, extracted above, it would appear that the Lokayukta drawing analogy between a Court of judicature and the Lokayukta, held that when a Court grants an order of injunction/ stay, the period covered under such injunction/stay is saved by limitation, similarly, when the office of the Lokayukta is vacant for a particular period during which period the investigation could not be proceeded, such period shall be exempt from limitation, without regard to the stipulation of the period under Sec. 10 (2) (b) of the Act. The Lokayukta further held, when the new incumbent assumes office of the Lokayukta from a particular day, the limitation revives and the Lokayukta is justified in proceeding to complete investigation against the petitioner. ( 22 ) IN Chambers 21st- Century dictionary, 1996 edition, meaning assigned to the word "adjudicate" is "to act as judge in a Court" and "to give decision". Likewise, the meanings given to the word "judicature" is "administration of justice by legal trial" and "a Court or system of courts. ( 22 ) IN Chambers 21st- Century dictionary, 1996 edition, meaning assigned to the word "adjudicate" is "to act as judge in a Court" and "to give decision". Likewise, the meanings given to the word "judicature" is "administration of justice by legal trial" and "a Court or system of courts. " As provided under the Statement and Objects of the Act and the provisions enumerated as above, the Institution of lokayukta and Upa-Lokayukta is created only for the purpose of investigation of administrative action taken by or on behalf of the Government of A. P. or certain local and public authorities, including commissions and omissions in certain cases. If the Lokayukta or Upa-Lokayukta after such preliminary verification deems fit to conduct any investigation, it can do so within a period of six months, in terms of section 10 (2) (b) and in any event not later than one year from the date of taking cognizance. Thus, under the Scheme of the act, the Institution of Lokayukta and upalokayukta is neither an adjudicatory body nor it is conferred with the power of a judicature to equate itself with a Court, but is only an investigating agency. Therefore, the analogy and reasoning assigned by the lokayukta in the order dated 19-7-1990 that the period between 15-11-1988 and 11-3-1990 during which the office of the lokayukta was vacant, is saved by limitation and the limitation revives from the date on which the new incumbent assumed office, is untenable and cannot be sustained in the absence of Legislative sanction in this regard. As held by the supreme Court in the decision cited (1 supra) when the language is clear and explicit and the words used are plain and unambiguous, we are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules. ( 23 ) WHEN there is no legislative sanction which authorises the Lokayukta to complete the investigation beyond the period prescribed under Section 10 (2) (b) of the Act, the interpretation given by the Lokayukta in its order dated 19-7-1990, that the lokayukta without regard to the time prescribed under Section 10 (2) (b) of the Act can still proceed to investigate into the allegations, would tantamount to assumption of power by the Lokayukta on a fallacious analogy which is beyond the legislative sanction and scope of the Act. The Lokayukta cannot give teeth to his own action by drawing analogy between the court of Judicature and the Institution of lokayukta and Upa-Lokayukta justifying his action to continue the investigation beyond the period of one year as provided under Section 10 (2) (b) of the Act. ( 24 ) HAVING regard to the nature of investigation and the person involved, the legislature has fixed the outer limit of one year for completing the investigation. The lokayukta under such circumstances could not have assumed certain things and proceeded to investigate into the allegations against the petitioner beyond the period stipulated when the Legislature has not clothed the Lokayukta with such powers. ( 25 ) IN the light of our discussion in the foregoing paragraphs, we hold that the lokayukta has no jurisdiction to investigate into the allegations against the petitioner in complaint Nos. 1864 and 2020 of 1988 beyond the period stipulated under section 10 (2) (b) of the Act and the reasons assigned by the Lokayukta justifying his action are unsustainable. ( 26 ) THE writ petitioner aggrieved by the order made by the Lokayukta dated 19-7-1990 has moved initially this Court by filing W. P. No. 12226 of 1990. The said W. P. was disposed of directing the petitioner to approach the A. P. Administrative Tribunal. The petitioner accordingly moved the tribunal by filing Original Application and the same was disposed of at the admission stage holding that it is too early to interfere with the case of the petitioner as no punishment was awarded to him at that time. Petitioner then filed this Writ petition seeking certain relief. Though the petitioner has raised an objection before this Court under Article 226 of the Constitution of india as to whether the Lokayukta is competent to investigate into the allegations against a retired pubic servant and whether a retired public servant would fall within the definition of public servant , we do not wish to go into these aspects as we have declared that the Lokayukta has no jurisdiction and authority to proceed against the petitioner to investigate into the complaints which are registered in the year 1988 beyond the period stipulated under section 10 (2) (b) of the Act. ( 27 ) FOR the above reasons, the order dated 19-7-1990 made in C. M. P. No. 2 of 1990 by the Lokayukta is quashed. ( 27 ) FOR the above reasons, the order dated 19-7-1990 made in C. M. P. No. 2 of 1990 by the Lokayukta is quashed. Consequently, the 3rd respondent-Institution of Lokayukta and Upa-Lokayukta, hyderabad is directed to drop all proceedings in respect of complaint nos. 1864 and 2020 of 1988 against the petitioner. ( 28 ) DURING the course of hearing the writ petition, counsel for the petitioner had drawn our attention that the petitioner though retired on 31-1-1992, till date, his full retirement benefits have not been granted to him. If that be so, we direct the second respondent to grant all the retirement benefits to the petitioner to which he is entitled to according to law, within a period of three months from the date of receipt of a copy of this order. ( 29 ) THE Writ Petition is allowed in the above terms. No costs.