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2019 DIGILAW 809 (JHR)

Sandeep Kumar Agrawal v. State of Jharkhand

2019-04-04

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is filed under Article 226 of the Constitution of India wherein the order dated 13.08.2018 passed by the Hon’ble Lokayukta in Complaint Case No.01/Lok (Police) 03/2008 is under challenge whereby and where under the recommendation has been made by him for taking panel action against the petitioner with a direction to communicate the action taken before him. 2. The brief fact of the case of the petitioner as per the pleading made in the writ petition is that a complaint has been made by respondent No.7- Ravi Gupta inter alia stating therein that he has contacted with Dr. S.K. Agrawal/petitioner in Agrawal Nursing Home, Medical Hall, Lohardaga and on his advice it has been detected that the mother of the complainant suffers from stone in gall bladder and therefore she advised to undergo surgery in RIMS where the petitioner is posted. The petitioner has not been advised to admit his mother to RIMS rather at Ashirwad Hospital and Research Centre, Bariatu, where she remained there for 27 days under treatment and thereafter, mother of the complainant was discharged on 30.08.2014 but immediately thereafter returned to Lohardaga, his mother has complained about some physical trouble by which he has approached one local doctor namely Dr. Shailesh, who referred her to the Gurunanak Hospital, Ranchi. After remaining there for 15 days under the treatment of doctor of Gurunanak Hospital, she ultimately died. Thereafter he got information under the provision of Right to Information Act, 2005, that Dr. S.K. Agrawal is posted in RIMS and as such as per the report given the said doctor was practicing as private practitioner. Thereafter a complaint has been made before the Lokayukta by which notice was issued to the petitioner whereupon he has filed a show cause reply denying the allegation. The direction has been passed conducting an enquiry with respect to legality of doing private practice, however, the enquiry report has been submitted wherein the allegation of private practice has been found to be untrue but the said report has been accepted and the Hon’ble Lokayukta has recommended by recording the finding in the impugned order before the competent authority to take appropriate penal action and apprise about the action taken by the court. The said order is under challenge mainly on the ground of Section 8(b) which contains a provision that if any grievance has been ventilated by the aggrieved before any other forum, the Lokayukta will be precluded from exercising the jurisdiction as conferred under the provision of Lokayukta Act, 2001. 3. Mr. Rajesh Kumar, learned counsel appearing for the Lokayukta, Dr. A.K. Singh, learned counsel appearing for the RIMS, and Mr. Abhay Prakash, A.C. to A.G. learned counsel appearing for the State respondent have put their appearance. Mr. Rajesh Kumar, learned counsel appearing for the Lokayukta has further submitted that the restrainment put under the provision of Section 8(b) of the Act, 2001 will not be applicable, since the case has been made out by the petitioner that a complaint has been made before the District Consumer Redressal Forum under the provision of Consumer Protection Act, 1986 but the scope and spirit of the Act, 1986 is quite different to that of the spirit and intent of the Lokayukta Act, as because the Consumer Protection Act, 1986 has been enacted to provide speedy remedy to the consumers in case of the deficiency in providing service by the service provider, while under the provision of Lokayukta Act, the grievance or the malpractices are to be inquired into and as such both are distinct in fields. It has further been submitted that the Hon’ble Lokayukta has acted in pursuance to the provision as contained under Section 12 of the Act, 2001 and therefore on the finding of fact no interference is warranted by this Court. 4. Having heard learned counsel for the parties and on appreciation of their rival submissions this Court deems it fit and proper before entering into the claim of the issues involved in this case to deal with the provision of Consumer Protection Act, 1986. 5. The Lokayukta Act, 1986 has been enacted initially by the State of Bihar in the year 1973 and after coming of the Bihar Reorganization Act, 2000 the provision of Bihar Lokayukta Act, 1973 has been adopted known as Jharkhand Lokyukta Act, 2001. 6. 5. The Lokayukta Act, 1986 has been enacted initially by the State of Bihar in the year 1973 and after coming of the Bihar Reorganization Act, 2000 the provision of Bihar Lokayukta Act, 1973 has been adopted known as Jharkhand Lokyukta Act, 2001. 6. The scope and intent of the Act of the Lokayukta is to deal with the issues of malpractices and grievance due to the action of the public servant, Section 8 stipulates the matter not subject to investigation, this provision needs to be referred since the petitioner is emphasizing upon the applicability of the provision of Section 8 (1)(b) which reads as follows:- “(b) if the complaint has or had any remedy by way of proceedings before any Tribunal or Court of Law: Provided that the Lokayukta may conduct an investigation notwithstanding that the complainant had or has such a remedy if he is satisfied that such person could not or cannot for sufficient cause have recourse to such remedy.” It is evident from the provision of Section 8(1)(b) which is the subject matter of issue that the complaint has been made before the Lokayukta, will not be applicable if the complainant has or had any remedy by way of proceedings before any Tribunal of court of law. Section 8 deals with the Matters not subject to investigation, which is quoted herein-below:- “(1) Except as hereinafter provided, the Lokayukta shall not conduct any investigation under this Act in the case of complaint involving a grievance in respect of any action--- (a) If such action relate to any matter specified in the Third Schedule; or (b) If the complaint has or had any remedy by way of proceedings before any Tribunal or Court of law: Provided that the Lokayukta may conduct an investigation notwithstanding that the complaint had or has such a remedy if he is satisfied that such person could not or cannot for sufficient cause have recourse to such remedy. (2) The Lokayukta shall not investigate any action--- (a) In respect of which a formal and public inquiry has been ordered under the Public Servant Inquiries Act, 1850 (Act 37 of 1850): or (b) In respect of a matter which has been referred for enquiry under the Commissions of Inquiry Act, 1952 (Act 60 of 1952). (2) The Lokayukta shall not investigate any action--- (a) In respect of which a formal and public inquiry has been ordered under the Public Servant Inquiries Act, 1850 (Act 37 of 1850): or (b) In respect of a matter which has been referred for enquiry under the Commissions of Inquiry Act, 1952 (Act 60 of 1952). (3) The Lokayukta shall not investigate any complaint which is excluded from his jurisdiction by virtue of a notification issued under Section 18. (4) The Lokayukta shall not investigate any complaint-(a) Involving a grievance, if the complaint is made after the expiry of twelve months from the date on which the action complained against becomes known to the complainant; (b) Involving an allegation, if the complaint is made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that the Lokayukta may entertain a complaint referred to in Clause (a) the complainant satisfies him that he had sufficient cause for not making the complaint within the period specified in that clause. (5) In the case of any complaint involving a grievance nothing in this Act shall be construed as empowering the Lokayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion cannot be regarded as having been properly exercised.” It is evident that the investigation would be initiated by the Lokayukta and before recording the finding, an opportunity of hearing is given to the public servant concerned, as would be evident from the provision of Section 10(1)(b). Section 11 deals with the Evidence which is referred hereunder as:- “(1) Subject to the provisions of this section for the purpose of any investigation (including the preliminary inquiry, if any, before such investigation) under this Act, the Lokayukta may require any public servant or any other person who in his opinion is able to furnish information or produce documents relevant to the investigation, to furnish any such information, or produce any such documents. (2) For the purpose of any such investigation (including the preliminary inquiry), the Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Act 5 of 1908), in respect of the following matters namely:-- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office: (e) issuing commissions for the examination of witnesses or documents; (f) such other matters as may be prescribed. (3) Any proceeding before the Lokayukta shall be deemed to be judicial proceeding before the Lokayukta shall be deemed to be judicial proceeding within the meaning of Section 193 of the Indian Penal Code (Act No. 45 of 1860). (4) Subject to the provisions of sub-section (5) no obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to Government or any public servant, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purposes of any investigation under this Act and the Government or any public servant shall not be entitled in relation to any such investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by any enactment or be any rule of law in legal of proceedings. (5) No person shall be required or authorized by virtue of the Act to furnish any such information or answer any such question or produce so much of any documents--- (a) as might prejudice the security of the State or the investigation or detection of crime; or (b) as might involve the disclosure of proceedings of the Cabinet of the State Government, and for the purposes of this sub-section, a certificate issued by a Secretary certifying that any information, answer or portion of a document is of the nature specified in Clause (a) or Clause (b) shall be binding and conclusive. (6) Subject to the provisions of sub-section (4), no person shall be compelled for the purpose of investigation under this Act to give any evidence or produce any document which he could not be compelled to give or produce in a proceeding before a Court. (6) Subject to the provisions of sub-section (4), no person shall be compelled for the purpose of investigation under this Act to give any evidence or produce any document which he could not be compelled to give or produce in a proceeding before a Court. Section 11, evidence to be produced before the Lokayukta and while exercising the aforesaid power, the statute confers power upon the Lokayukta to exercise the power conferred under the Code of Civil Procedure, Section 12 deals with the Reports of Lokayukta, it needs to be referred herein below as:- “12. Reports of Lokayukta—(1) If, after investigation of any action in respect of which a complaint involving a grievance has been or can be or could have been made, the Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, the Lokayukta shall by a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. (2) The competent authority to whom a report is sent upon sub-section (1) shall, within one month of the expiry of the term specified in the report, intimate or cause to be intimated to the Lokayukta, the action taken for compliance with the report. (3) If after investigation of any action in respect of which a complaint involving and allegation has been or can be or could have been made, the Lokayukta is satisfied that such allegation can be substantiated either wholly or partly, he shall by a report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority. (4) 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 Lokayukta, the action taken or proposed to be taken on the basis of the report. (4) 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 Lokayukta, the action taken or proposed to be taken on the basis of the report. (5) If the Lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned; but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complainant concerned. (5A) Where in a report forwarded by the Lokayukta any recommendation imposing the penalty of removal from the office of a public servant, falling within sub-clause(iv) of Clause (j) of Section 2 of the Act, had been made, it shall be lawful for the Government without any further enquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making his ineligible for being elected to any office, specified by the Government in this behalf notwithstanding anything contained in any law for time being in force. (6) The Lokayukta shall present annually a consolidated report on the performance of his functions under this Act to the Governor. (7) On receipt of a special report under sub- section (5), or the annual report under sub-section (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature. (7) On receipt of a special report under sub- section (5), or the annual report under sub-section (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature. (8) Subject to the provisions of sub-section (2) of Section 10, the Lokayukta may, at his discretion, make available from time to time, the substance of cases closed or otherwise disposed of by him which may appear to him to be of general public, academic or professional interest in such manner and to such persons as he may deem appropriate.” It is evident from the provision of Section 12 that there are two parts first part is to deal with the grievance which contained under Section 12(1) i.e., if the Lokayukta is satisfied that due to the action which resulted in justice or undue hardship to the complainant or any other person, the Lokayukta shall prepare a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. Sub-section 2 of Section 12 stipulates that the competent authority to whom a report is sent upon sub-section (1) shall, within one month of the expiry of the term specified in the report, intimate or cause to be intimated to the Lokayukta, the action taken for compliance with the report, meaning thereby Section 12(1) and (2) is for the remedial measure, Sub-section (3) pertains to the allegation and allegation as has been defined under Section 2(b) as per if, anybody (I) has abused his as such to obtain any gain or favour to himself or to any other person to cause undue harm or hardship to any other person. (II) was actuated in the discharge of the functions as such public servant by personal interest or improper, corrupt motives or (III) is guilty of corruption or lack of integrity his capacity as such public servant. (II) was actuated in the discharge of the functions as such public servant by personal interest or improper, corrupt motives or (III) is guilty of corruption or lack of integrity his capacity as such public servant. Upon such complaint of allegation the Lokayukta will record finding along with the recommendation to be sent before the competent authority and the provision of Section 12(4) provides that 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 Lokayukta, the action or proposed to be taken on the basis of report. Sub-section (5) stipulates about the satisfaction of the Lokayukta on the basis of action taken or proposed to be taken by the competent authority in the light of the provision of sub-section (5) and in that circumstances if he is satisfied he will close the proceeding and if he is not satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complainant concerned. The original statute only contains the provision up to subsection (5) but by virtue of Bihar Act, 13 of 1988, a provision has been inserted as sub Section 5(A) which stipulates that where in a report forwarded by the Lokayukta any recommendation imposing the penalty of removal from the office of a public servant, falling within sub-clause(iv) of Clause (j) of Section 2 of the Act, had been made, it shall be lawful for the Government without any further enquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making his ineligible to any office. The provision stipulates that the Lokayukta will investigate and by recording the finding he will recommend before the competent authority for action, therefore the action of the Lokayukta is of the investigator. 7. This issue has elaborately been discussed in the judgment rendered by the Hon’ble Apex Court in the case of Ram Kishan Fauji Vrs. State of Haryana & Ors. reported in (2017) 5 SCC 533 , wherein after taking the aid of the judgment rendered in the case of Associate Cement Companies Ltd. Vrs. P.N. Sharma reported in AIR 1965 SCC 1595, at paragraph 12, it has been held hereunder:- “12. State of Haryana & Ors. reported in (2017) 5 SCC 533 , wherein after taking the aid of the judgment rendered in the case of Associate Cement Companies Ltd. Vrs. P.N. Sharma reported in AIR 1965 SCC 1595, at paragraph 12, it has been held hereunder:- “12. After so stating, the learned Judge referred to the opinion of Kania, C.J. and Das, J. in Associated Cement Companies Ltd. V. P.N. Sharma and arrived at the following conclusion: (Chandrashekharaiah case, SCC pp 167-68, para 112) “112. As mentioned above, an Upa-Lokayukta does function as an adjudicating authority but the Act places him short of a judicial authority. He is much more “judicial” than an investigator or an inquisitorial authority largely exercising administrative or executive functions and powers. Under the circumstances, taking an overall view of the provision of the Act and the law laid down, my conclusion is that the Upa-Lokayukta is a quasijudicial authority or in any even an opportunity exercising functions, powers, duties and responsibilities conferred by the Act as a suit generis quasi-judicial authority.” The Hon’ble Apex Court had arrived at the formal conclusion as also the judgment rendered in the case of Justice Chandra Shekharaiah (Retired)-Vs.-Janekere C. Krishna and Others reported in (2013) 3 SCC 117 , the aforesaid pronouncement in the case of Justice Chandra Shekharaiah (Retired) (Supra) was challenged on the ground that one of the constitutional functionaries was not consulted and emphasis was on the nature of the post held by the Hon’ble Lokayukta or Hon’ble Upa-Lokayukta, since the plea was taken that when the posting of a public servant is quasi-judicial in nature, their functioning has to be given the same character and once was closed with such functioning and cannot taken by them, is subject to challenge before the High Court under Article 226 of the Constitution of India seeking a writ of certiorari for quashment of the order and in that event, the adjudication has to be recorded as civil in nature at para 16 of the aforesaid judgment, it has been observed that consideration was the nature for the post of Hon’ble Lokayukta or Hon’ble Upa-Lokayukta and it has been held that neither the Hon’ble Lokayukta nor the Hon’ble Upa-Lokayukta can direct for implementation of his report, but, it investigates and after investigation, if it is found that a public servant has committed criminal offence, prosecution can be initiated. 8. 8. The Consumer Protection Act, also needs to be discussed since the ground has been taken by the petitioner regarding not maintaining the complaint before the Lokayukta. 9. It is not in dispute that the Consumer Protection Act, 1986 has been enacted in order to provide speedy remedy of redressal of dispute of the consumers in case of deficiency in service and if the forum would find deficiency in service, the adequate compensation will be ordered to be paid in favour of the complainant. Thus the scope of Lokayukta Act is in the nature of investigation of grievance or malpractices while the scope of Consumer Protection Act is of resolving the dispute by passing an appropriate order of compensation. 10. The petitioner has taken the plea that a complaint has been made before the District Consumer Redressal Forum under the provision of Section 14 of the Act, 1986 and therefore, the complaint entertained by the Lokayukta is barred in view of the provision of Section 8-1(b). 11. This Court after discussing the scope of provision of Jharkhand Lokayukta Act, 2001 the Consumer Protection Act, is not in agreement with the submission and ground urged by the petitioner in this regard. 12. Learned counsel for the petitioner has submitted that in pursuance to the order passed by the Hon’ble Lokayukta departmental proceeding has been initiated against the petitioner upon which the learned counsel appearing for the Lokayukta by putting reliance upon the judgment rendered by the Hon’ble Apex Court in the case of Rang Nath Mishra Vrs. State of Uttar Pradesh & Ors., reported in (2015) 8 SCC 117 , this Court after examining judgment rendered by the Hon’ble Apex Court in the case of Rang Nath Mishra (supra) that the factual aspect pertaining to consequence on the basis of finding recorded by the Lokayukta and in consequence thereof, the FIR was instituted under the provision of Prevention of Corruption Act, and in view thereof, declined to interfere with the said FIR on the ground that since the FIR has already been instituted it will come take its logical end and therefore applying the same ratio on facts herein since departmental proceeding has already been initiated on the basis of recommendation made by the Hon’ble Lokayukta it will not be proper for this Court to interfere with the order passed by Hon’ble Lokayukta. 13. 13. In view thereof, the writ petition lacks merit, and is dismissed. 14. Needless to say the department proceeding has since been initiated, the same will proceed strictly in terms of the provisions of applicable appeal and discipline rules without being prejudiced by any observance made by this Court.