ORDER : 1. This writ petition is under Article 226 of the Constitution of India questioning the order dated 06.11.2013 passed by the Hon’ble Lokayukta in Complaint Case No. 01/Lok (Sikcha) 03/2011 wherein in exercise of power conferred under Section 12(3) and 10(1)(ka) of the Lokayukta Act, 2001, recommendation has been made for instituting criminal case as also for initiating departmental proceeding against the petitioner. 2. The brief facts of the case, as per the pleading made by the writ petitioner in the writ petition, which is required to be enumerated, reads hereunder as: The petitioner has joined to the post of District Superintendent of Education, Palamu on 16.04.2008 and was subsequently transferred on 04.11.2011 presently the petitioner is posted as District Superintendent of Education at Dumka. A complaint has been lodged in the office of the Hon’ble Lokayukta by the respondent no. 3 alleging therein that new primary school, Koriadih, Khurd has been established in the year 2003 against the norms as the same is situated at a distance of less than 01 Km from Koriadih, Middle School. It has been further alleged by the complainant that by making an establishment of fictitious school, misappropriation of government fund has been done towards mid-day meal, salary of teachers and construction of said school. It has been also alleged that para teachers namely Harihar Mahato and Balgobind Mahato were appointed in said school in derogation of rules and suitable legal action is required to be taken. Upon filing of complaint by the respondent no. 3, departmental enquiry was made and, thereafter, Director Primary Education, Human Resource Department, Government of Jharkhand submitted its report on 19.09.2011. The following charges have been alleged against the petitioner: (a) Despite being aware about the fact of appointment of over aged community teachers, the same was suppressed. (b) Despite the order of stoppage of honorarium, it was continuously paid. (c) Despite the reason being aware about the selection of over aged teachers the petitioner did not choose to act and by continuing payment of mid-day meal scheme and honorarium assisted embezzlement of government fund. The petitioner filed its reply vide its letter dated 14.12.2012 to the Under Secretary, Office of Lokayukta, Ranchi annexing supporting documents to his contention. The petitioner has replied all the three charges levelled against him. The petitioner filed its reply vide its letter dated 14.12.2012 to the Under Secretary, Office of Lokayukta, Ranchi annexing supporting documents to his contention. The petitioner has replied all the three charges levelled against him. So far as first charge is concerned it is stated by the petitioner that he has joined as District Superintendent of Education, Palamu on 09.04.2008 and has taken dual charge of District Programme Officer, Sarva Sikcha Abhiyan, Palamu w.e.f. 16.04.2008 whereas selection and recommendation of the para teacher/community teachers of new primary education, Koriadih was done prior to his date of joining. It has been further stated that the selection of community/para teacheris done through Aam Sabha in which the petitioner has no role to play. So far as second charge is concerned, the petitioner has submitted that it was the petitioner who vide its letter no. 169 dated 04.02.2009 passed order of stoppage of honorarium and, thereafter two reports dated 11.07.2009 and 03.07.2009 were submitted on the basis of which the petitioner has issued order of release of honorarium. So far as third charge is concerned it has been submitted by the petitioner that the petitioner has got no role in selection of community/para teachers as the same is routed through Aaam Sabha. It has also been stated that on the basis of both enquiry reports dated 10.06.2009 and 11.07.2009 the petitioner has acted upon and thus the petitioner is not involved in misappropriation of Government fund. After hearing the parties, vide order dated 06.11.2013, passed by learned Lokayukt in complaint case no. 01/Lok (Sikcha) 03/2011, direction has been made to the Secretary, Human Resource Department Government of Jharkhand for lodging a First Information Report as well as for initiating departmental proceeding against the petitioner. The grievance of the petitioner that after issuance of notice and service of complaint, it is required to be served under the provision of Section 8 of the Lokayukta Act, 2001 (hereinafter to be referred to as the Act, 2001). Due reply was furnished for the purpose of investigation to be conducted by the Hon’ble Lokayukta but without taking into consideration the reply furnished by the petitioner which has been submitted in defence to the allegations levelled against him, the recommendation was made in exercise of power conferred under Section 12(3) of the Act, 2001. Counter affidavit has been filed wherein the issue of non-consideration has not been rebutted. Counter affidavit has been filed wherein the issue of non-consideration has not been rebutted. However, the stand inter-alia has been taken in the counter affidavit by corroborating the allegation levelled against the writ petitioner and the stand has been taken that the writ petitioner, being the public servant, has been found involved in commission of financial irregularities. The Hon’ble Lokayukta, after taking into consideration the nature of allegation and its reply, has passed order on 06.11.2013 by making recommendation to institute F.I.R. as also to initiate departmental proceeding against the writ petitioner, which is the subject matter of the instant writ petition. 3. Learned counsel for the petitioner has submitted that once the public servant has been called upon to give his defence reply as required under the statutory provision as contained under the Act, 2001, it was incumbent upon the Hon’ble Lokayukta to consider, either accepting or discarding the same, but from perusal of the impugned order it would be evident that there is no consideration save and except the reiteration of the reply which has been submitted by the writ petitioner before the learned Lokayukta and, therefore, due to want of consideration of the defence since the recommendation to institute F.I.R. is there, therefore, the order needs interference by this Court in exercise of power conferred under Article 226 of the Constitution of India. 4. Per contra, Mr. Rajesh Kumar, learned counsel appearing for the concerned respondent, has defended the order passed by Hon’ble Lokayukta by taking the stand that when the defence reply has been reiterated in the order making recommendation to institute F.I.R. that does suggest that there is consideration and in that view of the matter, if the power has been exercised as conferred under Section 12(3) of the Act, 2001, the same cannot be said to have been passed without taking into consideration the reply furnished by the writ petitioner and, therefore, submission has been made that the order impugned needs no interference since it is the question of financial irregularities by one or the other public servants. 5. This Court has heard the learned counsel for the parties, perused the material available on record including the impugned order. 6. 5. This Court has heard the learned counsel for the parties, perused the material available on record including the impugned order. 6. The fact which is not in dispute in this case is that the writ petition has been noticed in the capacity of discharge of public duty in different capacity on the basis of the complaint made by the complainant, namely, Shri Raj Mohan Tiwari. The writ petitioner appeared and furnished his reply and, thereafter, the order impugned has been passed making recommendation for instituting F.I.R. as well as for initiating departmental proceeding in exercise of power conferred under Section 12(3) of the Act, 2001. The legality and propriety of the order passed under Section 12(3) of the Act, 2001 is the subject matter of the present writ petition. 7. This Court, before entering into legality and propriety of the impugned order, deems it fit and proper to deal with the scope for which the Act, 2001 has been enacted. The purpose of enactment of the Act, 2001 is for conducting an investigation with respect to allegation if levelled against one or the other public servant and to make proper recommendation before the disciplinary authority for initiating departmental proceeding or for instituting criminal proceeding. The process of filing complaint is made available under the provision of Section 8 by which the Lokayukta has been conferred with the power to investigate and the procedure to investigate has been provided under Section 10 of the Act, 2001. The Act further empowers the authority concerned to take evidence, as would appear from Section 11 of the Act, 2001. Section 12 confers power upon the Lokayukta to forward the report on conclusion of investigation by making recommendation either to institute F.I.R. or to initiate departmental proceeding or both. The Act further empowers the authority concerned to take evidence, as would appear from Section 11 of the Act, 2001. Section 12 confers power upon the Lokayukta to forward the report on conclusion of investigation by making recommendation either to institute F.I.R. or to initiate departmental proceeding or both. The consideration required to be given so far as the statutory mandate is concerned, i.e. with respect to the power conferred upon the Lokayukta by which the procedure in respect of investigation has been provided under Section 10 by which the Lokayukta, if proposing to conduct any investigation under the Act, 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; shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement; and may make such orders as to the safe custody of documents relevant to the investigation. Every such investigation shall be conducted in private and in particular, the identity of the complaint and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation; For ready reference, the provision as contained under Section 10 of the Act, 2001 is being quoted and referred hereunder as: “(10) Procedure in respect of investigation: (1) Where the Lokayukta proposes (after making such preliminary inquiry, as he deems fit) 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. (c) May make such orders as to the safe custody of documents relevant to the investigation, as he deems, fit. (b) Shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement. (c) May make such orders as to the safe custody of documents relevant to the investigation, as he deems, fit. (2) Every such investigation shall be conducted in private and in particular, the identity of the complaint and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation; Provided that the Lokayukta may conduct any investigation relating to a matter of definite public importance in public if he, for reasons to be recorded in writing, thinks fit to do so. (3) Save as aforesaid the procedure for conduction any such investigation shall be such as the Lokayukta considers appropriate in the circumstances of the case. (4) The Lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation is in his opinion: (a) The complaint is frivolous or vexatious or is not made in good faith. (b) There are no sufficient grounds for investigation or, as the case may be for continuing the investigation. (c) Other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complaint to avail of such remedies. (4-A) The Lokayukta shall not proceed with any investigation under this Act where the Supreme Court or the High Court issues any director, order or writ under Article 32 of Article 226 of the Constitution of India in respect of the matter mentioned in the complaint under investigation. (5) In any case whether the Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons there for and communicate the same to the complaint and the public servant concerned. (6) The conduct of an investigation under this Act in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation.” Further, Section 11 provides the Lokayukta to exercise the power of Civil Court while trying a suit under the Code of Civil Procedure under Section 11(2) of the Act, 2001. The provision of Section 11 reads hereunder as: “11. The provision of Section 11 reads hereunder as: “11. Evidence: (1) Subject to the provisions of this action 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 examination 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 1863). (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 direction of crime. (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 direction of crime. (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 produce in proceeding before a Court.” The purpose of referring either the provision of Section 10 or Section 11 is to reflect the requirement of the statutory mandate by which the Lokayukta, before making recommendation either to institute criminal case or to initiate departmental proceeding, must be satisfied with respect to the veracity of the complaint and only if the Lokayukta comes to the conclusion that any irregularity has been committed then there can be recommendation either to institute F.I.R. or to initiate departmental proceeding, as per the provision contained under Section 12(3) of the Act, 2001. The provision as contained under Section 10(1)(b) specifically stipulates there that the public servant concerned shall be provided an opportunity to offer his comments on such complaint or statement. The requirement of law, therefore, is that before such recommendation to be made by the Lokayukta on the basis of the complaint, he is required to provide an opportunity to the public servant and in order to test the veracity of the received complaint even the Lokayukta can exercise the power of Civil Court even by summoning and enforcing the attendance of any person and examination him on oath etc., meaning thereby that a mechanism has been carved out under the Act, 2001 to reach to the conclusion about the allegation levelled against the public servant on the basis of the complaint made by the complainant. 8. 8. When an opportunity is required to be provided under the mandate to the public servant, the same cannot be said to be mere formality, rather, the requirement with the competent authority to delve upon the reply by exercising active application of mind for its consideration. “Consideration” means proper application of mind, as has been held by Hon’ble Apex Court in the case of Chairman, Life Insurance Corporation of India and Others vs. A. Masilamani, (2013) 6 SCC 530 at paragraph 19, which reads hereunder as :- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over” and “to regard as” or “deem to be.” Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.” From the interpretation made by the Hon’ble Apex Court with respect to meaning of “consideration” it would be evident that consideration can only be said to be proper consideration if there is active application of mind by the concerned authority who is considering the reply of defence furnished by the persons against whom the allegations have been levelled. 9. Now coming to the facts of the given case that a complaint was received. The copy of the complaint was furnished to the public servant, the petitioner herein. The petitioner has submitted his defence refuting the allegations levelled against him. Thereafter, the Hon’ble Lokayukta has passed the impugned order making recommendation for instituting criminal case as well as for initiating departmental proceeding against the petitioner. The copy of the complaint was furnished to the public servant, the petitioner herein. The petitioner has submitted his defence refuting the allegations levelled against him. Thereafter, the Hon’ble Lokayukta has passed the impugned order making recommendation for instituting criminal case as well as for initiating departmental proceeding against the petitioner. The issue has been raised on behalf of the petitioner that when the writ petitioner, in the capacity of public servant, based upon the allegation levelled in the complaint, has been called upon to defend and the response has been filed but there is no consideration, as would appear from the order impugned by which the recommendation to institute criminal proceeding as well as departmental proceeding has been made by the Hon’ble Lokayukta in exercise of power conferred by Section 12(3) of the Act, 2001. 10. This Court, in order to verify as to whether the defence which has been furnished by the petitioner before the Hon’ble Lokayukta has ever been considered or not, has scrutinized the order passed by the Hon’ble Lokayukta, the impugned order herein. There is no dispute that whatever has been stated in defence by the writ petitioner, has been taken note in the impugned order and thereafter the Hon’ble Lokayukta has come to the conclusion and recommended for instituting criminal proceeding as also departmental proceeding against the writ petitioner. The impugned order, therefore, according to the considered view of this Court, lacking “consideration” of evidence since “consideration” means active application of mind. When there will be active application of mind in the case of consideration of defence, the competent authority is having two recourse either to accept or discard. In case of both the situation, the reason is to be assigned, in case of acceptance the reason of its acceptance or in case of non-acceptance, the reason for non-acceptance is to be assigned which is to be reflected from the bare perusal of the orders then only it will be said to be consideration in the eyes of law, as has been held in Chairman, Life Insurance Corporation of India and Others vs. A. Masilamani (Supra). Herein, the defence has only been reiterated. The reiteration of defence has also not been disputed by the learned counsel appearing for the Hon’ble Lokayukta and the same has rightly not been disputed since the order impugned itself speaks the same. 11. Herein, the defence has only been reiterated. The reiteration of defence has also not been disputed by the learned counsel appearing for the Hon’ble Lokayukta and the same has rightly not been disputed since the order impugned itself speaks the same. 11. This Court is well conscious of the settled position of law regarding the issuance of writ of certiorari which is having limited scope, as has been held by Hon'ble Apex Court in the case of Syed Yakoob vs. Radhakrishnan, AIR 1964 SC 477 wherein at paragraph no. 7 their Lordships have held as follows: “The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.” Reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Hari Vishnu vs. Ahmad Ishaque and Others, 1955 Supreme Court 233 wherein at Paragraph-21, which is quoted herein-below: “With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari.” Depending upon the facts and circumstances of the case, the power conferred under Article 226 of the Constitution of India, is required to be exercised if in a case where the order is non-speaking, suffers from jurisdictional error or miscarriage of justice. The other settled position is of law is that if any order has been passed without assigning any reason, the same will hit the principle of natural justice. It is thus, evident from the settled position of law as would appear from the judgments of Hon'ble Apex Court referred hereinabove, that due to lack of reason, the order cannot be said to be order in the eyes of law. 12. This Court, making the principle laid down by Hon'ble Apex Court applicable in the facts of the given case by taking into consideration the fact that even though the writ petitioner has submitted his reply, but there is no consideration then the question is that why the petitioner has been called upon and why the defence reply when there is well founded mandate under the statute that the Hon’ble Lokayukta has been conferred with the power to even lead evidence in order to reach to the conclusion about the veracity of the complaint? 13. This Court, in the entirety of the fact, therefore, is of the view that the order needs interference. 14. Accordingly, the order impugned dated 06.11.2013 passed by the Hon’ble Lokayukta in Complaint Case No. 01/Lok (Sikcha) 03/2011 is quashed and set aside. 15. In the result, the writ petition stands allowed. 16. 13. This Court, in the entirety of the fact, therefore, is of the view that the order needs interference. 14. Accordingly, the order impugned dated 06.11.2013 passed by the Hon’ble Lokayukta in Complaint Case No. 01/Lok (Sikcha) 03/2011 is quashed and set aside. 15. In the result, the writ petition stands allowed. 16. It is equally settled that on technicality no benefit can be given to anyone as conclusion is required to be arrived at by the competent authority by taking into consideration the complaint and the reply, if any. 17. This Court, considering the aforesaid position, is of the view that since the order impugned has been interfered with only for want of non-consideration of reply, therefore, the matter is required to be remitted before the Hon’ble Lokayukta for passing order afresh, after taking into consideration the defence reply already available on record. 18. With this observation and direction, the instant writ petition stands disposed of. 19. Pending Interlocutory Applications, if any, also stands disposed of. 20. The interim order dated 11.02.2014 stands vacated.