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Madhya Pradesh High Court · body

2011 DIGILAW 619 (MP)

Guman Singh v. State of M. P.

2011-05-19

SHANTANU KEMKAR

body2011
ORDER 1. All these writ petitions involve common questions of law and as such with the consent of the parties they are heard together and are being decided by this common order. For the sake of convenience, the facts are taken from Writ Petition No.7748 of 2008 (S). 2. Briefly stated, the petitioner, who is presently holding the post of Chief Engineer in the Public Health Engineering (for short, PHE) Department of the State Government and is posted at Indore Circle; was at the relevant time, holding the post of Executive Engineer and was posted in PHE Division, Khargone. 3. On receiving complaint against the petitioner, levelling "allegations" against him as defined under the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (for short,the Adhiniyam) the second respondent Lokayukt directed to register the complaint and to hold enquiry under the Adhiniyam vide order dated 5.7.2002. As directed by the Lokayukt an enquiry of the said complaint was conducted by a Chief Engineer posted in the Lokayukt organization. After issuance of a show cause notice dated 8.8.2008 (Annexure P-1) and after considering reply to the said show cause notice the enquiry officer submitted the enquiry report dated 10.12.2008 (Annexure P-4) before the Up-Lokayukt. The Up-Lokayukt on being satisfied that the allegation levelled against the petitioner is duly established, communicated his recommendation to the first respondent State Government. Feeling aggrieved by the enquiry report dated 10.12.2008 (Annexure P-4), the recommendatory note of the Up-Lokayukt dated 15.12.2008 (Annexure P-5) as also the letter/direction dated 16.12.2008 (Annexure P-6) issued by the Secretary of the second respondents- Lokayukt the petitioner has filed this writ petition under Article 226 of the Constitution of India. 4. Heard Shri A.M. Mathur, Shri A.S. Garg and Shri S.K. Sethi, learned senior counsel appearing for their respective parties in these writ petitions. Also heard Shri Vivek Patwa, learned Deputy Government Advocate for the respondent No.1 and Shri Anand Soni, learned counsel for the respondent No.2-Lokayukt organization and Shri N.S. Johri, Superintending Engineer of the Lokayukt organization, who appeared in person and produced the relevant records from the office of the Lokayukt. 5. It has been contended by learned senior counsel appearing for the petitioner that while conducting the enquiry against the petitioner principles of natural justice have not been followed by the second respondent. 5. It has been contended by learned senior counsel appearing for the petitioner that while conducting the enquiry against the petitioner principles of natural justice have not been followed by the second respondent. It has been argued that no opportunity was ever given to the petitioner to cross examine the witnesses the statements of whom were recorded by the enquiry officer of the Lokayukt and as such, the recommendation (Annexure P-5) made by the Up-Lokayukt on the basis of such enquiry report (Annexure P-4) cannot be acted upon. In support reliance has been placed upon the order passed by this Court in Guruji Seva Nyas Indore v. State of M.P. and others [ 2009(4) MPLJ 363 ]. It has also been argued that the enquiry was conducted against the petitioner while he was holding the post of Chief Engineer and therefore, Shri B.K. Nayak, a Chief Engineer, who is junior to him could not have conducted the enquiry against the petitioner. According to the petitioner holding of enquiry by a junior to him in the seniority list is contrary to the circulars issued by the Government from time to time. It has been next contended that on the basis of the recommendatory note dated 15.12.2008 (Annexure P-5) sent by the Up-Lokayukt the Secretary of the Lokayukt has issued direction vide letter dated 16.12.2008 (Annexure P-5) to the State Government to conduct departmental enquiry against the petitioner, which is violative of provisions contained in section 12 of the Adhiniyam, as no mandatory direction to initiate the departmental inquiry could have been issued to the State Government. 6. Shri Vivek Patwa and Shri Anand Soni, learned counsel appearing respectively for the respondent 1 and 2 on the other hand argued that a complaint was received against the petitioner that when he was posted as Executive Engineer in PHE Division Khargone he had committed irregularities in purchase of certain articles. While doing so he avoided the procedure of calling tenders so that he can place the orders to the respective parties for purchase of material to the extent of Rs.25,000/which was within his limit. A complaint was made that he splited the requirements in a bunch of Rs.25,000/- so as to bring it within his limit so that he can sanction the same without calling tenders. A complaint was made that he splited the requirements in a bunch of Rs.25,000/- so as to bring it within his limit so that he can sanction the same without calling tenders. He ordered for purchasing the material from the firms of his choice and that too on the rates which were more than the rates prescribed by the M.P. Laghu Udyog Nigam. It was also an allegation that he committed irregularities and misused his powers. On receiving the said complaint the Lokayukt ordered to register it and hold enquiry of the same under the provisions of the Adhiniyam. After investigating the complaint by holding enquiry a show cause notice was issued to him. The reply submitted by the petitioner was considered by the enquiry officer and the enquiry report was prepared. The said enquiry report was submitted before the Up-Lokayukt. The Up-Lokayukt considered it and after recording his satisfaction that the allegation is established, communicated his recommendation to the competent authority of the State Government along with the relevant documents and material. It has been stated by learned counsel appearing for the respondents that the said report of Up-Lokayukt is recommendatory in nature and as such even though the letter dated 16.12.2008 (Annexure P-6) issued by the Secretary of Lokayukt is directory in nature, but since the recommendatory note (Annexure P-5) being merely a recommenddtion for conducting departmental enquiry, the competent authority of the State Government will examine the same and on examination and consideration of it, shall take appropriate decision on it in Gonfirmity with the provisions contained in section 12 of the Adhiniyam. Shri Vivek Patwa, learned Deputy Government Advocate made a categorical statement that the said recommendation and the letter shall not be treated as directory but shall be acted upon only as commendatory as provided under section 12 of the Adhiniyam. 7. Heard learned counsel for the parties and considered the documents filed with the petition and the return and also the record of the enquiry produced from the office of Lokayukt at the time of the hearing. 8. Before dealing with the contentions raised by the petitioner it would be useful to refer and extract relevant provisions of the Adhiniyam. Section 2(b) of the Adhiniyam defines "allegation". 8. Before dealing with the contentions raised by the petitioner it would be useful to refer and extract relevant provisions of the Adhiniyam. Section 2(b) of the Adhiniyam defines "allegation". It reads as under: (b) "allegation in relation to a public servant" means any affirmation that such public servant, -(i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm to any person; (ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motives; (iii) is guilty of corruption; or (iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary recources or property is held by the public servant personally or by any member of his family or by some other person on his behalf. 9. Section 9 deals with complaint involving allegation. Section 7 gives powers to the Lokayukt or Up-Lokayukt as the case may be to proceed to enquire into an allegation. 10. Section 10 prescribes procedure in respect of making the enquiry. It reads thus: "The Lokayukt or Up-Lokayukt shall in each case before it, decide the procedure to be followed for making enquiry and in so doing ensure that the principles of natural justice is satisfied." 11. Section 12 provides for report of Lokayukt and Up-Lokayukt after enquiry, which reads thus: "12(1) Reports of Lokayukt and Up-Lokayukt. -- (1) If after enquiry into the allegations the Lokayukt or an Up-Lokayukt is satisfied that such allegation is established, he shall by report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority. (2) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate, within three months of the. date of receipt of the report, the Lokayukt or, as the case may be, the Up-Lokayukt, the action taken or proposed to be taken on the basis of the report. (3) If the Lokayukt or the Up-Lokayukt is satisfied with the action or proposed to be taken on his recommendations, he shall close the case under information of the complaint, the public servant and the competent authority concerned. (3) If the Lokayukt or the Up-Lokayukt is satisfied with the action or proposed to be taken on his recommendations, he shall close the case under information of the complaint, the public servant and the competent authority concerned. In any other case, if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complaint concerned. (4) The Lokayukt and the Up-Lokayukt shall present arynually a consolidated report on the performance of their functions under this Act, to the Governor. (5) If any special report under sub-section (3) or the annual report under sub-section (4) any adverse comment is made against any public servant, such report shall also contain the substance of the defence adduced by such public servant and the comment made thereon by or on behalf of the State Government or department concerned of the State Government or the public authority concerned, and the case may be. (6) On receipt of a special order under sub-section (3), or the annual report under sub-section (4), the Governor shall cause a copy thereof together with an exaplanation memorandum to be laid before the State Legislative Assembly. (7) Subject to the provisions of section 10, the Lokayukt may at his discretion make available from time to time, the substance of cases closed or otherwise disposed of by him or by an Up-Lokayukt, which may appear to him to be a general public academic or professional interest, in such manner and to persons as he may deem appropriate." 12. Section 13 deals with the Staff of Lokayukt and Up-Lokayukt, which reads thus: (1) The Lokayukt may appoint, or authorise an Up-Lokayukt or any officer subordinate to the Lokayukt or an Up-Lokayukt to appoint, officers and other employees to assist the Lokayukt and the Up-Lokayukt in the discharge of their functions under this Act. (2) The categories of officers and employees who may be appointed under sub-section (1), their salaries, allowances and their conditions of service and the administrative powers of the Lokayukt and Up-Lokayukt shall be such as may be prescribed, after consultation with the Lokayukt. (3) Without prejudice to the provisions of sub-section (1), the Lokayukt or an Up-Lokayukt may be purpose of conducting enqhiries under this Act, utilize the services of -[(i) [Divisional Vigilance Committee] constituted under section 13A]. (3) Without prejudice to the provisions of sub-section (1), the Lokayukt or an Up-Lokayukt may be purpose of conducting enqhiries under this Act, utilize the services of -[(i) [Divisional Vigilance Committee] constituted under section 13A]. (ii) any officer investigation or agency of the State or Central Government with the concurrence of that Government; or (iii) any other person or agency. (4) The services of officers and employees, other than those appointed by the Lokayukt under sub-section (1) shall not be taken back before the expiry of the period of deputation by the concerned department without prior concurrence of the Lokayukt." 13. On going through the scheme of the Adhiniyam it is revealed that on receiving a complaint under section 7 of the Adhiniyam involving an allegation, the Lokayukt or Up-Lokayukt may proceed to enquire into the allegation. The procedure in respect of such enquiry has to be decided by the Lokayukt or Up-Lokayukt as the case may be and in deciding the procedure the satisfaction of compliance of principle of natural justice is to be ensured. After the enquiry into the allegation, the Lokayukt or the Up-Lokayukt if is satisfied that such allegation is established, shall submit a report in writing communicating his findings and recommendations alongwith the relevant documents, materials and other evidence to the competent authority. The competent authority in terms of section 12(2) of the Adhiniyam is required to examine the report forwarded to him and intimate within three months of the date of receipt of the report, the Lokayukt or, as the case may be, the Up-Lokayukt, the action taken or proposed to be taken on the basis of the report. 14. Having regard to the aforesaid provisions, I find that none of the points urged on behalf of the petitioner has any merit except the point that the Secretary of the second respondent-Lokayukt organisation could not have directed the State Government to hold the departmental enquiry against the petitioner. 15. The petitioner's contention that the enquiry, could not have been conducted by the Chief Engineer who is junior to him, is wholly misconceived in view of the fact that the Chief Engineer who has conducted the enquiry against the petitioner has been appointed on deputation under the provision contained in section 13 of the Adhiniyam by the Lokayukt so as to assist the Lokayukt and Up-Lokayukt in discharge of their function under the Adhiniyam. The enquiry which has been conducted against the petitioner is an enquiry held under the Adhiniyam and is not a departmental enquiry under the relevant Service Rules. In the circumstances, the petitioner's contention that the said enquiry could not have been conducted by the Chief Engineer who is junior to him is wholly misconceived and is liable to be and is hereby rejected. 16. The petitioner's other contention that the enquiry officer did not afford him opportunity to cross-examine the witnesses whose statement, were recorded behind his back, is also wholly misconceived in view o' the fact that under section 10 of the Adhiniyam while holding the enquiry contemplated under the Adhiniyam the Lokayukt or Up-Lokayukt are empowered to decide the procedure to be followed for making such enquiry. Admittedly after holding of the enquiry, a show cause notice as to why the recommendation for taking appropriate legal action against him under section 12(1) of the Adhiniyam be not sent to the competent authority was issued to him. After receiving his reply to the said show cause notice, the same was considered by enquiry officer and an enquiry report was submitted to the Up-Lokayukt. The Up-Lokayukt after considering and satisfying that the allegation is established submitted the report in writing communicating his findings and recommendations alongwith relevant documents and materials to the competent authority as provided under section 12(1) of the Adhiniyam. Thus, in my considered view, in the entire action taken by the second respondent the procedure prescribed under the Adhiniyam has been duly followed and there is absolutely no violation of principles of natural justice. 17. At this juncture, I deem it appropriate to refer the view expressed by Former Lokayukt Hon' ble Shri G.P. Singh, Chief Justice (retired) in his order/opinion dated 13.10.1992. His Lordship had clarified the position by opining that the practice to be followed for recommendations for departmental action in cases where cases are not found fit for prosecution. His Lordship had opined that it will be proper before report under section 12(1) is finalized to issue a notice to the public servant concerned to show cause why departmental action be not recommended. His Lordship had opined that it will be proper before report under section 12(1) is finalized to issue a notice to the public servant concerned to show cause why departmental action be not recommended. Again while elaborating the said order/opinion dated 13.10.1992 his Lordship vide order dated 15.7.1993 opined that: "A reading of section 12 will show that a report under that provision can be made only when after an enquiry into the allegations the Lokayukt is satisfied that such allegations are established. The procedure for enquiry is laid down in section 10 and the Lokayukt has to "ensure that the principles of natural justice are satisfied". The only method by which these principles can be satisfied is by issuing a show cause notice to the public servant for obtaining his explanation. Unless the public servant is given an opportunity to explain the conduct complained of, no report can be made u/s 12 of the Adhiniyam. It is true that the public servant concerned will get another opportunity when a departmental enquiry is held against him on the recommendation of the Lokayukt. But that cannot dilute the requirement prescribed by section 10 of the Adhiniyam. Thus, the public servant has two opportunities of explaining his conduct -- one before the Lokayukt and another before the departmental authority." 18. Thus, in view of the opinion of Hon' ble Shri Justice G.P.,3ingh which can be a guiding factor and to which I fully agree in my considered view, the Lokayukt organization has not committed any violation of principle of natural justice while conducting the enquiry and submitting the recommendatory note to the competent authority of the State Government. On the other hand, the required procedure of giving show cause notice before making the report under section 12( 1) of the Adhiniyam is found to have been duly complied with. 19. In Guruji Seva Nyas, Indore v. State of M.P. and others (supra), on which strong reliance has been placed by learned counsel for the petitioner the facts are different. In that case on receiving a complaint against allotment of plots by the Indore Development Authority (for short IDA) to the Guruji Seva Nyas, Indore the Lokayukt sought some explanation from IDA. In that case on receiving a complaint against allotment of plots by the Indore Development Authority (for short IDA) to the Guruji Seva Nyas, Indore the Lokayukt sought some explanation from IDA. Thereafter without issuing show cause notice to the Guruji Seva Nyas, in whose favour the allotment of plots was made, vide order dated 7.5.2008 the Lokayukt directed the IDA to cancel the allotment of plots made in favour of Guruji Seva Nyas. In such circumstances, the learned Single Judge had quashed the said order dated 7.5.2008 and requested the Lokayukt to look into the complaint once again if so desired and after holding an appropriate enquiry into the matter and after affording an opportunity to all the affected parties submit a report as per section 12(1) of the Adhiniyam. Whereas in this case, the show cause notice was issued to the petitioner himself and after considering his reply of the said show cause notice the enquiry report was prepared and submitted before the Up-Lokayukt who after satisfying that the allegation is established, by making report in writing communicated his finding and recommendation to the competent authority of the State Government as per section 12(1) of the Adhiniyam. In the circumstances, the reliance of the petitioner on Guruji Seva Nyas, Indore v. State of M.P. and others (supra), is wholly misplaced. 20. In view of the aforesaid, recording the stand taken by the learned counsel appearing for the second respondent that the letter dated 16.12.2008 (Annexure P-6) issued by the Secretary of the Lokayukt organization is not directory in nature and also the stand of the learned Deputy Government Advocate that the same shall not be acted upon by the competent authority of the State Government mechanically and it shall be considered by the competent authority and appropriate decision shall be taken on it in confirmation with the provisions contained in section 12 of the Adhiniyam, in my considered view, the petition deserves to be and is hereby dismissed, with no orders as to costs.