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2024 DIGILAW 777 (GAU)

Nagaland Lokayukta v. Catherine Dzuvichu

2024-05-29

BUDI HABUNG, SANJAY KUMAR MEDHI

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JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The Nagaland Lokayukta has preferred this appeal against the judgment and order dated 15.01.2024 passed by the learned Single Judge in WP(C)/8/2023. By the aforesaid impugned judgment and order dated 15.01.2024, the writ petition filed by three writ petitioners, who are respondents in this appeal, was allowed. 2. The writ petition was instituted against an order dated 07.12.2022 by the Upa-Lokayukta, Nagaland, Kohima on behalf of the Nagaland Lokayukta whereby the prayer of the writ petitioners to invoke the provisions of Section 9 was rejected and the matter was decided to be proceeded further. 3. We have heard Shri T.B. Jamir, learned counsel for the appellant. We have also heard Shri C.T. Jamir, learned Senior Counsel assisted by Shri I Imchen, learned counsel for the respondent nos. 1, 2 and 3 as well as Shri E. Thiba Phom, learned State Counsel, Nagaland for the respondent no. 4. 4. Shri T.B. Jamir, learned counsel for the appellant has extensively referred to the Nagaland Lokayukta Act, 2017 (Act of 2017). Under Section 10, the provisions relating to complaints have been laid down. It provides that a complaint may be made in the form of an allegation by any person and in the form of grievance by the person aggrieved. Reference has also been made to the definition of “Grievance” given in Section 2(g) which states as follows: ‘Grievance’ means a claim by a person that he suffered injustice or hardship as a consequence of maladministration. 5. To emphasis on the distinction between a “grievance” and an “allegation” reference has also been made to Section 9 (3) of the Act of 2017 which pertains to limitation for an allegation and a grievance wherein the period of limitation are different. 6. Since the present case would revolve upon the provisions of Section 9, it would be convenient to extract the relevant provisions of Section 9 which are given as hereunder: “Section-9: Matters not subject to Investigation: (1) Except as hereinafter provided, the Lokayukta or Upa-Lokayukta shall not conduct any investigation under this Act in the cases of a complaint involving a grievance in respect of any action: (a) If such action relates to any matter specified in the Second Schedule.” 7. It is submitted that Section 9 (1) (a) refers to the Second Schedule of the Act of 2017 under which certain actions have been stipulated. It is submitted that Section 9 (1) (a) refers to the Second Schedule of the Act of 2017 under which certain actions have been stipulated. Under S. No. (d) of the Second Schedule, certain matters have been stipulated amongst which, superannuation is also one of the matters. For ready reference, S. No. (d) is extracted herein-below: “(d) Action taken in respect of appointments, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants but not including action relating to claims for pension, gratuity, provident fund or to any claim which arise on retirement, removal on termination of service and such other action involving allegation of corruption in respect of appointment not barred under provision of section-35 of the Act.” 8. It is submitted that in the instant case, a complaint was lodged by a 3rd party alleging that the writ petitioners were overstaying in service and that was the matter of inquiry by the authority. It is, in this context that the writ petitioners had made a submission that such complaint would be barred under Section 9 of the Act of 2017 and the said submission was rejected by the order dated 07.12.2022 which was the subject matter of challenge in the writ petition. 9. Shri T.B. Jamir, learned counsel for the appellant has submitted that the bar which is envisaged under Section 9 of the Act of 2017 has to be given a strict interpretation as the objective and scheme of the Act is to have a corruption free society. It is submitted on behalf of the appellant, firstly that the bar would be applicable only in a complaint involving a grievance and in the instant case, the complaint was not involving a grievance per se but an allegation of overstay by the three writ petitioners. It is submitted that the position would be even clear by a reading of the matters in S. No. (d) of the Second Schedule, as extracted above. The learned counsel, accordingly submits that in view of such clear purpose and objective of the Act of 2017, the view taken by the learned Single Judge may not be a correct view and accordingly, the impugned judgment and order is required to be interfered with. 10. The learned counsel, accordingly submits that in view of such clear purpose and objective of the Act of 2017, the view taken by the learned Single Judge may not be a correct view and accordingly, the impugned judgment and order is required to be interfered with. 10. The learned counsel for the appellant has, however, submitted that he will not have any dispute with the proposition of law pertaining to the case laws relating to the interpretation of statute. However, he submits that in the facts and circumstances of the present case, the bar of Section 9 of the Act of 2017 would not be applicable at all. It is also submitted that the function of the appellant in the present case was on a preliminary stage and in any case, the Lokayukta can only make a recommendation for the appropriate authority to take into consideration such recommendation in accordance with law. 11. Per contra, Shri C.T. Jamir, learned Senior Counsel for the respondents/writ petitioners has submitted that the issue relating to overstay cannot be a matter which can be related to any corrupt practice and therefore, the provisions of the Act of 2017 will not be applicable at all. It is submitted that the writ petitioners’ cases were duly considered by the Government and in fact, the writ petitioners would be retiring on superannuation within a span of next three days i.e. 31.05.2024. It is submitted that the allegation itself was made mala-fide and to harass the writ petitioners and only for cases of this nature, the Legislature in its wisdom has incorporated the provisions of Section 9 to prevent any misuse of the powers. 12. Defending the impugned judgment and order dated 15.01.2024, it is submitted by the learned Senior Counsel for the respondents/writ petitioners that the findings are made after duly considering the submissions of the learned counsel for the rival parties and by giving adequate reasons which are plausible and acceptable and therefore, those are not required to be substituted by this Court in any Intra-Court Appeal. The learned Senior Counsel has also submitted that the dates of superannuation of the writ petitioners were fixed by orders of the Government in which, the writ petitioners did not have any role. 13. The learned Senior Counsel has also submitted that the dates of superannuation of the writ petitioners were fixed by orders of the Government in which, the writ petitioners did not have any role. 13. The rival submissions made by the learned counsel for the parties have been duly considered and the materials available on records have also been carefully examined. 14. To examine the issue involved, it would be necessary to examine the relevant provisions which have been mentioned above. Section 10 of the Act of 2017 pertains to provisions relating to complaints. As observed above, complaints may be of two kinds, viz. one involving an allegation which can be raised by any person and the other pertaining to a grievance which is to be raised by a person aggrieved. The definition of grievance is already noted above and this Court has also been apprised of the different and distinct period of limitation prescribed for grievance as well as for allegation. It is seen that so far as the grievance is concerned, the limitation prescribed is 1 year as it relates to the person who is aggrieved whereas the limitation for an allegation is 5 years which can also be made by any person. 15. The aforesaid provision is in consonance with the objective of the Act of 2017 to have a corrupt free society and so that allegations can be made by any person within the broad period of limitation of 5 years which can be examined by the authority. 16. The bar of investigation is only a measure not to get the Lokayukta flooded with complaints involving grievance pertaining to those matters mentioned in Second Schedule. A bare reading of the matters under S. No. (d) of the Second Schedule read with Section 9 of the Act of 2017 would show that those matters are necessarily pertaining to the party involving, viz. anything to do with his appointment, removal, pay, superannuation etc. It is only when a party, who is aggrieved by any action pertaining to any of the matters mentioned above, that such a complaint is barred under Section 9. The said bar, however, cannot be extended to an allegation by a third party and in the instant case, it is not in dispute that the allegation is by a third party and not by the writ petitioners pertaining to do with their service conditions. 17. The said bar, however, cannot be extended to an allegation by a third party and in the instant case, it is not in dispute that the allegation is by a third party and not by the writ petitioners pertaining to do with their service conditions. 17. Prima-facie, we are of the opinion that the order dated 07.12.2022 whereby the submission of the writ petitioners to invoke Section 9 of the Act of 2017 was rejected does not suffer from any legal infirmity. Consequently, we are of the view that the impugned judgment and order dated 15.01.2024 of the learned Single Judge is not sustainable in law by which, the order of the learned Upa-Lokayukta dated 07.12.2022 was interfered with. 18. Having come to the aforesaid conclusion, this Court has also pondered on the issue that the writ petitioners are retiring within next 3 days i.e. 31.05.2024. Therefore, while the impugned judgment and order dated 15.01.2024 is interfered with by holding that the bar under Section 9 of the Act of 2017 would not be applicable in the instant case, considering the peculiar facts and circumstances, this Court is of the opinion that interest of justice would be served and the equities would be balanced if the complaint is closed by the Lokayukta taking into account that the writ petitioners would be retiring within 3 days from today. 19. With the aforesaid observations, the writ appeal is disposed of.