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2023 DIGILAW 732 (MP)

Asha Joshi v. State of M. P.

2023-08-29

SANJAY DWIVEDI

body2023
ORDER 1. By the instant petition filed under Article 226 of the Constitution of India, the petitioners are claiming following relief : (i) The Hon’ble Court may kindly be pleased to issued a writ in the nature of certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the impugned enquiry case ‘Jaa.Pra. 0067/E/2022’ initiated by the Office of Lokayukt, M.P. (Respondent No.4), and may also be pleased to quash and set aside impugned order dated 8.8.2022 (Annexure P/3), for being void and illegal; (ii) The Hon’ble Court may kindly be pleased to issue a writ in the nature of certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the respondent No.3’s impugned notice cum order dated 16.5.2023 (Annexure P/4) and respondent No.2’s impugned notice cum order dated 8.6.2023 (Annexure P/7) for being void and illegal. (iii) The Hon’ble Court may kindly be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction thereby directing the Respondent Authorities to not to conduct any illegal enquiry or coerce the Petitioner No.4 Society to produce documents or conduct search and seizure of the Petitioner No.4 Society, as threatened by the respondent authorities. (iv) Any other relief which this Hon’be Court may deem just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner along with cost of the petition. 2. From the relief claimed and the averments made in the petition, it reveals that the petitioners are mainly aggrieved with the action of respondent No.4 whereby the respondent No.1 has been asked to make a fact finding enquiry in respect of the complaint made against the petitioners and that was attached with the letter which is impugned in this petition and to submit the report in that regard till 13.10.2023. 3. Shri Ajay Gupta, learned senior counsel appearing for the petitioners has contended that the petitioners are not the government employees and they do not come within the purview of ‘public servant’ and as such, respondent No.4 has no jurisdiction to register any case against the petitioners. He has further contended that any enquiry and action by respondent No.4 with regard to ascertaining any complaint made against the petitioners is without jurisdiction. He has further contended that any enquiry and action by respondent No.4 with regard to ascertaining any complaint made against the petitioners is without jurisdiction. He has contended that respondent No.4 cannot entertain the said complaint nor register any case for making an enquiry in respect thereof and as such, the action taken by respondent No.4 asking any information of the petitioners on account of letter dated 8.8.2022 (Annexure-P/3) is required to be quashed. Shri Gupta has also contended that as per section 7 of the M.P. Lokayukt Evam Up-lokayukt Adhiniyam, 1981 (hereinafter referred to as the ‘Adhiniyam, 1981’), respondent No.4/organization has been confined and bound to make an enquiry only against public servant and according to him, the public servant has been defined in a definition clause of the Adhiniyam, 1981 under section 2(g), and the petitioners according to him do not fall under the said definition, therefore, the action of respondent No.4 in entertaining the complaint made to them is liable to be set aside. 4. Per contra, Shri Abhijeet Awasthy, learned counsel appearing for respondent No.4 has urged that the petition is pre-mature. He has submitted that no offence has been registered against the petitioners so far by the Lokayukt Organization. He has contended that the impugned letter is nothing but forwarding the complaint made to the concerning department asking them to conduct a fact finding enquiry to ascertain the correctness of allegation made in the complaint. Although, he has filed the reply in which he has tried to substantiate that the petitioners do fall within the definition of ‘Public Servant’. According to him, they are the employees of a society and the said society works under the supervision and control of the State Government. The Society was allotted 12 acres of land on a very low cost and facilitated the establishment of cancer hospital which is receiving yearly grant/aid from the State Government and as such, in a society of the petitioners some of the patients are getting treatment free of cost that too at the cost of State Government and as such, the employees of that society are considered to be the public servant as per definition provided under section 2(a) read with section 2(g) of the Adhiniyam, 1981. However, Shri Awasthy during the course of arguments has assured this Court that no offence has been registered against the petitioners, but respondent No.4 has issued a letter to the concerning department i.e. Medical Education to make a fact finding enquiry as complaint has been made to the Lokayukt with regard to misappropriation of government fund in the society. He has contended that the petitioners have not been informed nor asked by respondent No.4 to appear before them. No letter was directly issued to the petitioners, therefore, this petition is not maintainable and it can be dismissed on the ground that it is pre-maturely filed under apprehension that in future action could be taken against them. 5. Considering the submissions made by the counsel for the parties and perusal of record, especially the reply submitted by respondent No.4 and submission made by their counsel that no offence has been registered against the petitioners and till now respondent No.4 has not decided to take any action against them, I find substance in the submission made by the counsel for respondent No.4 that merely because in a letter there is a reference of a complaint case, does not mean that the respondent/organization has decided to take any action against the petitioners. At this stage, interference in my opinion is not permissible for the reason that the complaint made against the petitioners and basically against the society which is running State Government aided cancer hospital. If any complaint is made to respondent No.4, instead of throwing it out at threshold, respondent No.4 has forwarded the same to the concerning department asking them to make a fact finding enquiry and the report of the same be also communicated to them. Ergo, I am of the opinion that the apprehension of the petitioners is without any foundation. Although, I am disposing of the petition directing respondent No.4, if any action is required to be taken against the petitioners, then they may be given an opportunity to submit their stand as to whether they fall within the ambit of ‘Public Servant’ and respondent No.4 has no jurisdiction to entertain the said complaint or taking any action against the petitioners. It is further directed that respondent No.4, before initiating any action first ascertain about the status of the petitioners in consonance with section 2(a) read with section 2(g) and then proceed under section 7 of the Adhiniyam, 1981. It is also directed that unless it is ascertained, no action shall be taken against the petitioners by respondent No.4 as it has been assured by respondent No.4 in its reply and during the course of arguments by their counsel. 6. With the aforesaid observation, this petition is disposed of.