Andhra HC (Pre-Telangana)
Sri S. Santhanam, I.A.S. And Anr. vs State Of Andhra Pradesh Rep. By Chief ... on 15 October, 1993
Equivalent citations: 1993(3)ALT666
JUDGMENT Y. Bhaskar Rao, J.
1. These two writ petitions give rise to the far-reaching question, whether the Lokayukta has jurisdiction to conduct preliminary verification into matters touching the All India Service officers. By virtue of Andhra Pradesh Lokayukta & Upa-Lokayukta Act, 1983 (for short 'the Act 11/83'), the Institution of Lokayukta is established in the State with the prime object of meeting the of expressed public outcry against the prevalence of corruption, the existence of wide spread inefficiency and the unresponsiveness of the administration to the popular needs and to provide a machinery in order to examine public complaints and shift the genuine from the false or the untenable so that the administrative failures and achievements could be publicly viewed in their correct perspective.
2. It is not disputed that the term 'preliminary verification' as used in the Act 11/83 is similar to the expression 'investigation' in the code of Criminal Procedure and the term 'investigation' in the Act 11/83 means the expression 'trial' as used in the Code of Criminal Procedure. The State as also the registry of Lokayukta i.e., respondents 1 and 2 have conceded that the Lokayukta has no power or jurisdiction to conduct 'investigation' into matters relating to All India Service Officers. However, the main stress on the issue is that the Lokayukta as per the provisions in Act 11/83 has jurisdiction and is competent to conduct preliminary verification into matters touching All India Service Officers.
3. To appreciate the main contentions of the respective parties, it is necessary, at the outset, to have a look at the relevant provisions of Act 11/83.
4. The preamble of the Act postulates the intention of legislation to make provision for appointments of Lokayukta and Upa-Lokayukta for investigation into administrative and allied actions of public authorities in the State of Andhra Pradesh. The definitions provision, viz., Section 2, while defining 'officer' in Section 2(i), 'public servant' in Section 2(k) and 'Secretary' in Section 2(1) comprehends within its ambit the Principal Secretary, Second Secretary, Special Secretary, Joint Secretary to the Government Section 7 of the Act enables the Lokayukta to investigate into any action taken by, approved of or at the behest of a Secretary. Section 9 provides for the procedure for making complaints to the Lokayukta. Section 10 prescribes the procedure for investigation, while Section 13 comprehends prosecution for false complaints.
5. We come across the definition to the term "preliminary verification' in the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 framed in exercise of the powers conferred under Section 20 of the Act 11/83. 'Preliminary Verification', according to Rule 2 (viii), means any inquiry or other proceedings conducted by the Lokayukta or Upa-Lokayukta in connection with a complaint or on his own motion for the purpose of satisfying himself as to whether there are any grounds for conducting investigation into such complaint. Rule 5 deals with preliminary verification. After registering the complaint, the Lokayukta may make such preliminary verification, as he deems fit, in regard to the allegations made in the complaint and after affording the concerned officer to meet the allegations and then shall decide whether or not there are sufficient grounds for ordering investigation, and in case prima facie case for conducting investigation into allegations is established, he may issue necessary direction in this regard to the concerned officers of the Institution to take necessary steps in that, behalf.
6. The petitioners against whom the preliminary verification was conducted by the Lokayukta pursuant to the complaint made by one Madhava Reddy that culminated in the report dated 5-11-1992 of the Lokayukta, are members of All India Service, being I.A.S. Officers and they are firstly aggrieved by the leakage of the verification report to a substantial extent to the press stigmatizing their character and diminuting their reputation, while at the same time denying or delaying in furnishing of copy of the said report to the petitioners in spite of their request. The press, while styling that they are findings of the Lokayukta, reports, the two petitioners have used public power for private benefit by bureaucratic corruption and that stern action was recommended against them so as to serve as a lesson to others of this type and they are responsible for trying to grab huge extent of government land by mis-using official position in favour of their wives and four others.
7. In the Deccan Chronicle dated 16-12-1992 it is published in bold letters, in box, as follows:-
"The report, dated November 5, 1992, of which Mr. Santhanam is yet to receive a copy, has literally damned the Chief Secretary hopeful. The Lokayukta, Mr. Justice A. Seetharama Reddy, has said in the report: "I have no hesitation whatsoever in coming to the firm conclusion that the two IAS Officers (Mr. Santhanam and Mr. Valliappan) used public power for private benefit and I also feel that this is bureaucratic corruption, which is eating into the vitals of the State, if not checked immediately with stern action, would cause lot of incalculable damage to the State and its citizens. The action taken should act as a lesson to others of this type."
Similar are the allegations made against the petitioners in the press reports of Eenadu, Indian Express, Andhra Jyothi, etc., as filed before this Court. Referring to these press reports, the contention of the learned Counsel Mr. Raghuram is that the leakage of the report of the Lokayukta to the press has resulted in infringement of the fundamental right of the petitioners under Articles 14, 21 and 19(1) of the Constitution of India.
8. In the counter filed by the Registrar of Lokayukta on behalf of the second respondent, it is no doubt categorically averred that the second respondent is in no way responsible for publication of news items in the press, that they maintained strict secrecy and that they are not responsible for any kind of leakage of the report to the press. The fact, however, remains as noticed by this Court, substantial portions of the report went into the press resulting in its publication.
9. Now, the question that is to be decided is whether the right to reputation is a fundamental right as guaranteed under Article 21 of the Constitution.
10. After having extracted the press report in the Deccan Chronicle and having gone through the other reports in other papers and having had myself satisfied that substantial portions of the report of the Lokayukta, made available to this Court by the learned Advocate General, are reflected by the press reports, I am of the clear opinion that it cannot be said that the reputation of the petitioners is not impaired by virtue of the said publications in the view of those that have gone through the said press reports.
11. Whether this sufferance of the reputation would have the effect of infringing fundamental right guaranteed by Articles 14, 21 and 19 (1) (g) of the Constitution is the real question that is involved. The oldest American decision on this question is reported in Anti-Fascist Refugee Com. v. Mograth, 341 U.S. 123. There, the attorney General included three charitable organizations in a list calling them 'communist' and that list had a very wide circulation among the Government departments and agencies. Aggrieved by the above inclusion, the three organisations brought-in a suit for declaratory and injunctory reliefs seeking deletion of their names from the list. A five Judges Bench of the Supreme Court consisting of Burton, Douglas, Black, Frankfurter and Jackson found that the action brought-in presented a justiciable controversy.
12. Mr. Burton and Mr. Douglas, JJ., held:
"The acts of the Attorney General.......have seriously and inreperably impaired, and will continue to so impair, the reputation of the organization and the moral support and good will of the American people necessary for the continuance of its charitable activities. Upon information and belief, these acts have caused many contributors, especially present and prospective civil servants, to reduce or discontinue their contributions to the organization; members and participants in its activities have been 'filfiled and subjected to public shame, disgrace, ridicule and obloquy....' thereby inflicting upon it economic injury and discouraging participation in its activities."
13. Referring to the assailed inclusion without notice to or hearing of the affected organisations, Frankfurter, J., held:
"The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practise fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.....
The plea that evidence of guilt must be secret is abnorrent to free men, because it provides a cloak for the malevolent the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.....Appearance in the dark are apt to look different in the light of day....Secrecy is not congenial to truth-seeking and self-righteousness given too slender an assurance of Tightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss, notice of the case against him and opportunity to meet it.....
The attorney General is certainly not immune from the historic requirements of fairness merely because he acts, however, conscientiously, in the name of security. Nor does he obtain immunity on the ground that designation is not an 'adjudication' or a 'regulation' in the conventional use of those terms.....Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances.
14. Mr. Justice Douglas held:
".....An organisation branded as 'subversive' by the Attorney General is maimed and crippled. The rudiments of justice as we know it, call for notice and hearing-an opportunity to appear and to rebut the charge. The case of Dorothy Bailey is an excellent illustration of how dangerous a departure from our constitutional standards can be. She was charged with being a Communist 'front organization'. The Review Board Stated that the case against her was based on reports, some of which came from informants certified to us by the Federal Bureau of Investigation as experienced and entirely reliable.....The accused has no opportunity to show that the witness lied or was prejudiced or venal. Without knowing who her accusers are she has no way of defending. She has nothing to offer except her own word and the character testimony of her friends.....
But she was on trial for reputation, her job, her professional standing....If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without meticulous regard for the decencies of a fair trial is abhorrent to fundamental justice."
15. Mr. Justice Black agreeing with Mr. Justice Burton held:
"The petitioners have standing to sue for the reason among others that they have a right to conduct their admittedly legitimate political, charitable and business operations free from unjustified governmental defamation.....I agree with Mr. Justice Frankfurter that the Due Process Clause of the Fifth Amendment would bar such condemnation without notice and a fair hearing."
16. Therefore, the publication of the substantial portions of the report of Lokayukta in the press, without a copy of the same being furnished to the petitioners in spite of their request, will result in violation of the principles of fair justice. Yet another decision in this regard is the one in Wisconsin v. Constantineau, 400 U.S. 433, 27 LEd. 515. There, a Police Chief in pursuance of Wisconsin Statute caused a notice being exhibited forbidding sales or gifts of liquor to the appellee without giving any notice or opportunity of being heard. On appeal against the injunctive relief obtained by the appellee, the U.S. Supreme Court while affirming the decision of the District Court held:
"Where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. 'Posting' under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The table is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victing of an official's caprice. Only when the whole proceedings leading to the prinning of an unsavory label on a person are aired can oppressive results be prevented".
17. 1n Corpus Juris Secundum, Vol. 77 at page 268, the statement of law on the subject, as extracted by the Supreme Court in Kiran Bedi & Jinder Singh v. Committee of Inquiry, reads as under:-
"............a man' reputation is a part of himself, as his body and limbs are, and reputation is a sort of right to enjoy the good opinion of others, and it is capable of growth and real existence, as an arm or leg. Reputation is, therefore, a personal right, and the right to reputation is put among those absolute personal rights equal in dignity and importance to security from violence.....
The right to the enjoyment of a good reputation is a valuable privilege, of ancient origin, and necessary to human society, as stated in Libel and Slander S. 4, and this right is within the constitutional guaranty of personal security as stated in Constitutional Law S. 205, and a person may not be deprived of this right through false-hood and violence without liability for the injury as stated in Libel and Slander S.4.
Detraction from a man's reputation is an injury to his personality, and thus an injury to reputation is a personal injury, that is, an injury to an absolute personal right".
18. The Supreme Court while considering the scope and applicability of Section 8-B of Commissions of Inquiry Act, 1952 to the petitioners therein, also, referred to the caution uttered by the Lord to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation, which is as under:-
"Akirtinchapi Bhutani Kathaishyantite-a-vyayam, Sambhavitasya Chakirtir Marandatirichyate" (2.34) (Men will recount thy perpetual dishonour, and to one highly esteemed, dishonour exceedeth death").
19. There is also reference to the Blackstone's Commentary of the Laws of England, Vol.-I, IV Edition at page 101, to high-light that the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.
20. The brief facts involved in that case are: A Lawyer was apprehended by the students of a College in Delhi University and handed-over to the police for commission of an offence and that lawyer was produced before the Metropolitan Magistrate by the police in hand-cuffs. Bringing him in hand-cuffs had led to a protest by the lawyers. Smt. Kiran Bedi, the D.S.P. gave a press-statement justifying the action of the police, leading to the lawyers approching her and her refusal to see them culminated in a lathi-charge on the lawyers. The lawyers went into indefinite strike and agitation demanding judicial probe into the incident of lathi-charge and for suspension of Smt. Kiran Bedi. - A mob supporting the action of Smt. Kiran Bedi formed and there was brick-batting. The lawyers retorted this by storming into the office of Smt. Kiran Bedi and by making violent gestures against her. Ultimately, a committee was constituted to inquire into the incident. The committee during the course of proceedings through its interim report dated 9-4-1988 expressed the need to examine Smt. Kiran Bedi and Jinder Singh and others besides recommending transfer of the former two. In pursuance of its intent to examine the petitioners when Smt. Kiran Bedi was asked to enter into witness box, she refused to take oath while Jinder Singh absented himself in spite of a direction in this behalf and this has led to the proposal to prosecute both the petitioners under Section 178 I.P.C. Challenging this, the petitioners moved the Supreme Court under Article 32 to quash the said proceedings.
21. In that background of facts after referring to Section 8-B of the Act, to the effect that in cases where the Commission thinks it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard and to produce evidence in his defence; the Supreme Court held that inasmuch as no opportunity was afforded to the petitioners while it was so afforded to others similarly situate, it is firstly a clear case of discrimination under Article 14 and that the Committee was not justified in calling upon the two petitioners to stand in the witness box for cross-examination at the very initial stage of the inquiry.
22. Referring to the safeguarding of reputation embraced by Section 8-B(b), the Supreme Court held that the reason for the importance attached in this behalf, namely, safeguarding of reputation of a person, is not far to seek. It is in that context that extracts from Bhagwad Gita, Blackstone's Commentary on Laws of England and Corpus Juris Secundum were referred to by the Supreme Court. Finally, the Supreme Court held in para 48 that the action of the committee in holding that the petitioners were not covered by Section 8-B of the Act and compelling them to enter the witness box was discriminatory and the orders directing complaint being filed against the petitioners were illegal and that it was a case involving infringement of Articles 14 and 21 of the Constitution of India.
23. From the foregoing, it is clear that the right to reputation is one in the nature of fundamental right under the Constitution and that the right to live as a dignified man carries with it the right to reputation. Therefore, in cases where the reputation is impaired by whatsoever action either of the State or its instrumentality, infringement of Articles 14 and 21 of the Constitution do involve in.
24. Now, turning to the crucial issue as regards the vires of the concerned provisions in Act 11 of 1983, the Learned Advocate General firstly raised a preliminary objection that this court exercising powers under Article 226 cannot normally examine the vires of a statute unless there is absolute necessity and that such a necessity is not involved in these proceedings inasmuch as no action, whatsoever, has been taken against the petitioners and further there is alternative remedy available to them by moving the competent forum after conclusion of the enquiry by the State Government. He also contended that Section 17 of Act 11 of 1983 clothes the report dated 5-11-1992 with the immunity from being called in question for the purposes of judicil review.
25. In support of the first facet of the preliminary objection, the learned Advocate General sought to place reliance upon the decision of the Supreme Court in Union of India v. C. Damani & Co., . There is absolutely no dispute with the proposition laid down therein, but each case needs to be considered as per its own facts. In the present case, substantial portions of the report of the Lokayukta happened to appear in the press and by virtue of this publication, it cannot be said that their reputation is not impaired, attracting thereby infringement of the right guaranteed by Article 21of the Constitution. Further, the petitioners assail the very competence of the State Legislature to incorporate the provisions empowering the Lokayukta to conduct preliminary verification and investigation into their conduct. In those circumstances, it cannot be said that consideration of the constitutional validity of Act 11 of 1983 is not an absolute necessity.
26. The Supreme Court in Kihota Hollohon v. Zachihu, laid down that no ordinary legislation containing any provision, whatsoever amplitude, can have the effect of undermining the jurisdiction of the High Court under Article 226 of the Constitution. It is only by way of bringing-in an amendment as provided under Article 368(1) and (2) of the Constitution that the Parliament can curtail the powers under Article 226 of the Constitution.
27. As regards the availability of the alternative remedy after conclusion of the enquiry, it looks to be too far-fetched inasmuch as any action that has sprung up from the provision, ultra vires the Constitution, inheres the invalidity in its womb and that can be aborted without waiting for the culmination of its effect, viz., normal delivery. For an analytical purpose in this behalf is the decision in Hari Vishnu v. Ahmad Ishaque, where the scope and ambit of a writ of prohibition is analysed as against a writ of Certiorari. The distinction as brought out by the Supreme Court can usefully be quoted hereunder:
"When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior Court for a writ of prohibition, and on that, an order will issue forbidding the inferior Court from continuing the proceedings.......On the other hand, if the Court hears that cause or matter and gives a decision, the party aggrieved would to move the superior Court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction".
28. Therefore, availability of Certiorari to quash the action is no ground to refuse issue of writ of Prohibition. Similarly, the later remedy, termed as 'alternative remedy', is of no avail to refuse scrutinising the vires of the provisions.
29. In Bengal Immunity Co. v. State of Bihar, the Supreme Court has laid down:
"The remedy under an Act cannot be said to be adequate and is, indeed, nugatory or useless if the Act which provides for such remedy is itself ultra vires and void and the principle of another remedy can, therefore, have no application where a party comes to Court with an allegation that his right has been or being threatened to be infringed by a law which is ultra vires the powers of the Legislature which enacted it and as such void and prays for appropriate relief under Article 226.
30. In Act 11 of 1983, there is no provision to challenge the power of Lokayukta to conduct preliminary verification. At the stage of the preliminary verification, admittedly, no notice or opportunity is afforded to the petitioners and the report was given behind the back of the petitioners. Further, the petitioners are challenging the constitutional validity of the crucial provisions of the Act, including the power of the Lokayukta to conduct preliminary verification. Therefore, it cannot be said that alternative remedy that is provided to the petitioners in Act 61 of 1951 or the rules made thereunder, after conclusion of regular enquiry and imposition of penalty, by means of an appeal to the regular forum as envisaged by the rules is no bar to examine the vires of the enactment, particularly, when the case of the Government is that the preliminary verification report is not made the basis for issuance of memos to the petitioners calling for explanations. Therefore, it is to be held that when the constitutional validity of the provisions of the enactment is challenged on the ground that the action taken under the said enactment infringes the fundamental right of the citizen, alternative remedy is no bar and the High Court in exercise of its powers under Article 226 of the Constitution can consider the constitutional validity of the relevant provisions in the enactment.
31. Power of judicial review has in recent times is reaching far extents and the decision in R v. Secretary of State, EX P EOC, 1992 (1) All.E.R. 545 the Queen's Bench Division is a notable one in the present context.
32. There, two applications were filed seeking judicial review of a decision said to have been given by the Secretary of State for Employment on 23-4-1990 declining to accept that the United Kingdom is in breach of its obligations under European Economic Community law by providing less favourable treatment to part-time workers as against full time workers.
33. The question fell for consideration before the Queen's Bench was, whether the Secretary of State has made any decisions which are susceptible to judicial review. Considering the said question it was held:
"The Secretary of State's view communicated in correspondence with the commission that he was not in breach of any Community law obligations amounted to a decision or decisions susceptible to judicial review on ordinary principles, since, as a person with authority to introduce legislation and as the minister designated for the purpose of Section 2(2) of the European Communities Act, 1972 with responsibility for measures to prevent discrimination as regards terms and conditions of employment, he was considering representations by the body with statutory authority to make representations to him on the subject of discrimination and was expressing his considered conclusion that the commission's complaints about the alleged discriminatory effect of United Kingdom legislation were wrong and that steps leading to the amendment of the qualifying thresholds with respect to unfair dismissal and redundance would not be taken. Moreover, he had expressed that conclusion not on the ground that he was not obliged to accept the recommendations of the commission but because in his view the statutory arrangements in the United Kingdom were not inconsistent with binding Community law. Even if that did not technically amount to a 'decision', it clearly amounted to a refusal on the part of the Secretary of State to carry out what the applicants contended to be his lawful duty, and as such, could provide a sufficient basis for an order of mandamus, and even if his conclusions were treated as being no more than an expression of his views there was no reason in principle why they should not be susceptible to judicial review if they were wrong in law".
34. Thus, the action of Secretary of State refusing to carry out what the applicants contend to be his lawful duty is susceptible to judicial review.
35. In the present case, the preliminary verification report submitted by the Lokayukta, according to the respondents, is in pursuance of the statutory obligation imposed under Act 11 of 1983. Therefore, when the report is sent by Lokayukta exercising his powers under a statute, the same is amenable to judicial review.
36. Now delving into the substantial controversy in these proceedings, namely, vires of certain provisions in Act 11 of 1983, it is, at the outset, necessary to refer to the crucial provisions that need to be tested in the light of Act 61 of 1951, viz., the All India Services Act, 1951.
37. The All India Services Act, 1951 was brought-in by the Parliament under Article 312(1) of the Constitution of India and this enactment is referable to Entry 70 of List I of the VII Schedule to the Constitution. While recognising the preexisting Indian Administrative Service and the Indian Police Service as All India Services within the meaning of this Act, it has conferred power under Section 3 thereof on the Central Government to make rules for the regulation of recruitment and the conditions of services of persons appointed to All India Services. Accordingly, the All India Services (Conduct) Rules, 1968, the All India Services (Discipline and Appeal) Rules, 1969 and the Indian Administrative Services (Cadre) Rules, 1954 were framed. The Act 61 of 1951 regulates the recruitment and conditions of Service of the persons appointed to All India Services common to the Union as well States. Rule 6 of 1969 Rules sets out the penalties - minor and major - that may be imposed on a member of the Service. While the State Government is empowered to impose minor penalties, the Central Government is authorised to impose major penalties; both, of course, after consultation with the Union Public Service Commission. Thus, the entire field of disciplinary control of members of All India Services including substantive and procedural aspects thereof is occupied by 1969 Rules.
38. Article 309 of the Constitution deals with recruitment and conditions of service of persons serving the Union or a State. It says that for the persons appointed to public service and posted in connection with the affairs of Union, the President will be the competent authority and for the persons appointed to public service and posted in connection with the affairs of the State the Governor will be the competent authority to make regulations and rules in connection with the services of persons so appointed. Article 311 provides that only the appointing authority has to take disciplinary action for the dismissal, removal or reduction in rank of the persons employed under the civil capacities under the Union i.e., action by the Federal Government as per the provisions of the Act and rules framed by that Government. Article 312 provides that Parliament may by law provide for the creation of one or more All India Services common to the Union and the States and subject to the other provisions of the Chapter regulate the recruitment and the conditions of service of persons appointed to any such service. Article 320 provides for the functions of Public Service Commissions.
39. Thus, by reading Articles 309, 312 and 320 together it is clear that the federal services and the provincial services are made separately and the entire administration of federal services i.e., All India Services is under the control of the Federal Government. The Act and the Rules framed are in pursuance of the above power conferred by the constitution on the Central Government and the Parliament. Except the power delegated to the State, i.e., concerning disciplinary matters with regard to minor punishments, the entire control and administration is with the Central Government.
40. While Act 61 of 1951 and the rules thereunder are in vogue governing entirely the field of All India Services, in the year 1983 the Andhra Pradesh Legislature has brought in Act 11 of 1983, as already noted supra, with the1 main object of meeting the out-cry of corruption, dishonesty, inaction, etc., of the public servants and officers. Section 2 thereof defines 'Officer' in Clause (i) as a person appointed to a public service or post in connection with the affairs of the State of Andhra Pradesh, but does not include a person holding a post carrying a minimum scale of pay of rupees one thousand one hundred and fifty and ' below, 'public servant' in Clause (k) is defined as including every officer referred to in Clause (i), and 'secretary' in Clause (1) is defined as meaning a Secretary to the Government, including the Principal Secretary, a Second Secretary, a Special Secretary, an Additional Secretary and a Joint Secretary. These clauses in the definition provision, take in, thus the officers of All India Services also within their fold. There is yet another provision, namely, Section 7 of the Act 11 of 1983 that takes within its sweep 'Secretary' referable to All India Service Cadre. These provisions are the main target of attack on the ground of vires in these proceedings.
41. By virtue of the powers under Section 20, the State Government has framed the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984. Rule 2(viii) defines 'Preliminary Verification' as any inquiry or other proceedings conducted by the Lokayukta or Upa-Lokayukta in connection with a complaint or on his own motion for the purpose of satisfying himself as to whether there are any grounds for conducting an investigation into such complaint.
42. The legislative power to pass Act 11 of 1983 is traceable to Entry 45 of List III and according to the learned Advocate General the Act does not deal with the conditions of service of of All India Service Officers and therefore there is absolutely no conflict or repugnancy between Act 61 of 1951 and Act 11 of 1983. The submission of the learned Advocate General is that the Lokayukta simply conducts preliminary verification in order to see whether a prirm facie case exists to institute an enquiry under Rule 8 of 1969 Rules. Further, 1969 Rules do not prescribe any procedure to find out a prima facie case in order to lay an enquiry and that the Lokayukta is simply a fact finding agency like Anti-Corruption Bureau and Vigilance and Enforcement Department.
43. Mr. Raghuram appearing for the petitioners, on the other hand, contended that by virtue of Articles 246(1), 254(1), 309,312 and 320 and Entries 70 and 94 of List I, it is the exclusive competence of the Parliament to legislate on matters governing All India Services and that the State Legislatures have absolutely no power to trench into the field of All India Services by means of any enactment. The State Legislatures in the light of Entry 41 of List II can bring in enactments touching the State Services and therefore Act 11 of 1983 to the extent it deals with All India Service Officers is manifestly beyond the legislative competence of the State and consequently the Lokayukta has no jurisdiction to conduct preliminary verification against officers like the petitioners. Further, the learned Counsel submitted that when there is admittedly no power to conduct investigation into matters relating to All India Service Officers, the question of conducting preliminary verification, which is primarily aimed at getting into investigation, is a futility simpliciter.
44. Mr. C.N. Babu appearing for the second respondent submitted that the main object of Act 11 of 1983 is to redress the grievance of the citizen keeping in view the highest standards of efficiency and integrity in the public service and also making public administration responsible to the people to enquire into complaints alleging corruption or injustice arising out of the mal-administration as per the objects of the Act and it is in this back-ground that the Lokayukta is provided with the power to investigate after conducting preliminary verification. In so far as the power to conduct preliminary verification is concerned, according to the learned Counsel, even if it is held to be encroachment into the field of Parliament, still the same is incidental or tangential and therefore the statute is sustainable not being hit by the vires.
45. The learned Counsel, Mr. Raghuram, assailed the power of the Lokayukta to conduct preliminary verification, also, on the ground that the power of the State Government to impose minor penalties delegated by 1969 Rules cannot, on the settled principles of law, be further delegated to the Lokayukta since a delegatee is prohibited from making further delegation. Therefore, whenever disciplinary action is contemplated against All India Service Officers, the procedure envisaged by 1969 Rules alone has got to be followed. Therefore, the present preliminary verification conducted in a disciplinary action by the Lokayukta under the provisions of Act 11 of 1983 is hitby the vice of repugnancy thereby rendering the State enactment, to that extent, unconstitutional.
46. An important aspect note-worthy at this juncture is that though the State Government as well as the second respondent-Lokayukta sought to concede that the Lokayukta has no jurisdiction to conduct investigation into matters relating to All India Service Officers, but has only the power to conduct preliminary verification, still it is to be seen that Section 21 of Act 11 of 1983 while excluding officers not covered by the legislation has not referred to the officers like the petitioners and therefore as the Act stands the Lokayukta has jurisdiction to conduct not only preliminary verification but also investigation into matters relating to All India Service Officers. A departure from this position, in order to meet the challenge of repugnancy in the light of Act 61 of 1951 and the rules framed thereunder through present admission that the Lokayukta has no power to investigate into matters involving cases of instant nature do not deserve appreciation and the reading down the provisions of Act 11 of 1983 and the rules as sought for in this behalf so as to exclude from investigative jurisdiction cannot be acceded to.
47. Act 11 of 1983 and G.O.Ms.No. 158 dated 13-3-1984 issued under the Act empower the Lokayukta to conduct investigation and preliminary verification as per the provisions of the Act. Section 21 does not exclude the All India Service Officers from the purview of the Act. The contention of the learned Counsel for the respondents is that the Lokayukta can conduct only preliminary verification in regard to matters concerning the members of All India Service and not investigation. To appreciate this contention, it is relevant to know as to what is meant by preliminary verification.
48. Rule 2(viiii) of A.P. Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 defines 'preliminary verification' as any inquiry of other proceedings conducted by the Lokayukta or Upa-Lokayukta in connection with a complaint or on his own motion for the purpose of satisfying himself as to whether there are any grounds for conducting an investigation into such complaint. As per the above definition, it is clear that the preliminary verification is conducted to enable the Lokayukta or Upa-Lokayukta to satisfy whether there is a case for investigation or not. Where there is no power to Lokayukta to conduct investigation, the question of conducting preliminary verification does not arise, as the sole purpose of the preliminary verification is to find out whether there exists a case for investigation or not to the satisfaction of the Lokayukta. Therefore, on this ground itself, the contention of the learned Counsel for the respondent is not tenable. Apart from it, by reading Sections 2, 7, 9 and 10 together, it is evident that the Lokayukta has got power to investigate into matters relating to members of AH India Service also. Therefore, when such power is provided under the Act, it is not open to the respondent to contend that the Lokayukta has no power to conduct investigation in order to suit their present stand. It is well settled principle of law that a creature of statute cannot challenge the vires of the enactment under which it came into existence as held by the Supreme Court in Alpea Chem v. State of U.P., 1991 Supp. (1) SCC 518. Therefore, it is to be concluded that Act 11 of 1983, as it reads, empowers the Lokayukta to conduct investigation also in respect of All India Service Officers, more particularly, when G.O.Ms.No. 158 dated 13-3-1984 is issued vesting power of investigative jurisdiction in the Lokayukta and Upa-Lokayukta in regard to All India Service Officers.
49. Now, turning to the respective competence of the Parliament and the State Legislatures to bring in the enactments governing the services, it is to be seen that Article 246(1) provides that notwithstanding anything in Clauses (2) and (3), the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the VII Schedule, which is referred to as the Union List. Clause (2) of Article 246 says that notwithstanding anything in Clause (3) the Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in List III in the VII Schedule, which is referred to as the Concurrent List. Clause (3) of Article 246 says that subject to Clause (1) and (2) the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the VII Schedule, which is referred to as State List. Thus, by reading Article 246(1) to (3), it is clear that regarding the matters enumerated in List I the Parliament has got exclusive power to make laws and with regard to matters enumerated in List III the Parliament and States have got concurrent power to make laws. If the Parliament has made a legislation, even though there is an enactment of the State, the legislation of Parliament prevails. Where the State Legislature enacts under the Concurrent List, on which there is already a legislation of Parliament and the President has given his assent, then the State enactment will prevail to that extent. But again if Parliament enacts on the same subject, then the enactment of Parliament will prevail. However, regarding the matters enumerated in List II, the State has got exclusive power to make laws with respect to any of the matters enumerated in it. Article 248 of the Constitution provides for the residuary powers of legislation to the Parliament regarding the matters not enumerated in State List or Concurrent List.
50. The learned Advocate General contended that Act 11 of 1983 is referable to Entry 41 of List II and therefore the State has got exclusive power to make laws as the I.A.S. Officers serving in the State are deemed to be public servants in the State, that further Entry 45 of List III deals with Inquiries and statistics for purposes of any of the matters specified in List II or List III and that therefore if Entry 45 of List III and Entry 41 of List II are read together, it can be said that the State has got ample power to enact the Act 11 of 1983.
51. It is relevant to refer the decision of the Supreme Court in State of Orissa v. M.A. Tulloch & Co., wherein the question was whether the Orissa Mining Areas-Development Fund Act, 1952 became repugnant and unenforceable with the enactment of Mines and Minerals (Regulation & Development) Act, 1957. The Orissa Act was enacted by virtue of the legislative powers conferred upon the State Legislature under Entry 23 of List II (Regulation of Mines and Minerals Development Subject to the provisions of List I with reference to Regulation & Development under the control of the Union), whereas the Central Act was enacted under Entry 54 of List I (Regulation of Mines and Mineral Development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest). The main question was, whether the Central Act provides for the very same matters and covers the very same field as was occupied by the Orissa Act?
52. On examination of the provisions of both the enactments, it was held that the Central enactment covers the same field as is covered by the Orissa Act and became in operative. Indeed, it was found that the Central enactment was preceded by Act 54 of 1984, which provided for the very same matters as are provided by 1957 Act. and that the very question has been decided by the Supreme Court earlier in Hinger Rampur Coal Co. Ltd. v. State of Orissa, . In the said earlier case, it was found that the Orissa Act was void, because the entire range of mineral development was taken under Central control by the Mines and Minerals (Regulation and Development) Act, 1948 which Act also contains a declaration in terms of Entry 36 of the Federal List in the Government of India Act, 1935. In the course of discussion the Court discussed the role of repugnancy and stated the law in the following terms:
"Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature, whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provision of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of Section 18(1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no super session, of the State Act".
53. The test evolved in this case is not merely whether the two legislations contain contradictory provisions, but whether the Parliament has expressly or impliedly evinced, by its legislation, its intention to cover the whole field, and if it has done so, the State enactment whether enacted previously, or subsequent to the Central enactment would be overborne on the ground of repugnancy.
54. It will be useful to notice the latest decision on the subject in Osmania University Teachers Association v. State of Andhra Pradesh, . In that case, the Supreme Court reconsidered the question whether the A.P. Commissionerate of Higher Education Act. 1986 is void for being repugnant to the University Grants Commission Act, 1956. The Central enactment was made with reference to Entry 66 of List I (Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions), while the State enactment was made with reference to Entry 25 of List III (Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour). After the comparative examination of the material provisions of both the enactments, it was held that the State Act has been drawn, by and large, in the same terms as those of the Central enactment. It was observed:
"Both the enactments deal with the same subject matter. Both deal with the co-ordination and determination of excellence in the standards of teaching and examination in the Universities. Here and there some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless they convey the same meaning. It is just like referring to the same persons with (sic. by) different descriptions and names. The intention of the Legislature has to be gathered by reading the statute as a whole. That is a rule which is now firmly established the purpose of Construction of statutes......"
The Supreme Court declared the State Act to be void and in operative.
55. In Gujrat University v. Krishna Ramnanath Mudholkar, 1963 (1) SCR 112 the constitutional validity of the Gujrat University Act, 1949 was called in question before the Supreme Court. Sinha C.J., speaking for five Judges out of the Bench of six observed:
"Item II of List II and item 66 of List I must be hormoniously construed and where they overlap the power conferred by item 66 the Parliament must prevail over the power conferred on the State legislatures by item 11. The test of the validity of the State legislation... would be whether such legislation impinges on the field reserved for the Union.......... and prejudicially affects co-ordination and determination of standards and not the existence of some definite Union Legislation to that end. If there be one, that would prevail over the State legislation under Article 254(1) of the Constitution. Even if there is no such legislation, State law trenching upon the Union field must still be invalid".
From the above, it is clear that even in the absence of any legislation by the Parliament if the State law invade substantially into the field reserved for the Union Parliament by List I of the VII Schedule, the State law is liable to be declared invalid.
56. The learned Advocate General and Sri C.N. Babu contended that All India Services Officers working in the State are amenable to Act 11 of 1983 as officers in the State for the purpose of preliminary verification into any administrative action done by them as the procedures laid down under 1969 Rules and the Act 11 of 1983 are quite different.
57. It is relevant to refer to the decision of the Supreme Court in State of J & K v. M.S. Farooqi, . In that case, the respondent is a member of the Indian Police Service which is an All India Service and was born on the Jammu & Kashmir cadre. An anonymous complaint was received by the Commission, which was set up under the Commissions Act and the Commission asked the report of the Dy. Inspector of General of Police. The Dy. Inspector General of Police (Anti-Corruption Organisation) raised the question of jurisdiction of the Commission. The commission, however, held that the Commission Act was applicable in its entirety to Government servants belonging to J & K State cadre of the All India Services and the objection of the investigating agency was over-ruled. The investigating agency was directed to continue the investigation of the case and submit a report. Thereupon, the officer i.e., the respondent filed writ petition in the High Court challenging the jurisdiction of the Commission. The High Court held that the members of All India Services serving in the State are governed by Act of 1951 and rules made thereunder and the Commission Act was not applicable to them. The High Court further held that the Commission Act was hit by Article 14 of the Constitution as there is clear discrimination between the members of All India Service posted elsewhere and members of the same service posted in the State inasmuch as enquiry against the former for the acts of corruption is to be held under the Central Act and the rules made thereunder while against the latter for the same acts of corruption enquiry is to be held under the Commission Act, the provisions of which are far more drastic than the Central Act and the rules made thereunder.
58. Against the decision of the High Court, the State filed an appeal before the Supreme Court. The Supreme Court after examining the provisions of the Commission Act and the rules framed under the Central Act of 1951 held as under:
"In so far as the impugned Act deals with the infliction of disciplinary punishments it is repugnant to the (Discipline and Appeal) Rules. Parliament has occupied the field and given clear indication as to the only manner in which any disciplinary action should be taken against the members of All India Service. Though the provisions of the State Act dealing with investigation for possible criminal prosecution are not repugnant to the Discipline and Appeal Rules, they are inextricably interwined with the provisions dealing with infliction of disciplinary punishment and as such the whole Act must be read as to leave the members of the All India Services outside its purview."
59. The proposition laid down by the Supreme Court in the above judgment squarely applies to the facts of the present case. In the present case, the petitioners are the members of All India Services and preliminary verification is conducted against them, whereas the enquiry has to be conducted under Act 61 of 1951 and the rules. Therefore, the provisions of Act 11 of 1983 dealing with the conducting of preliminary verification and investigation against All India Service Officers is repugnant to the procedure provided under the Central Rules framed under Section 3(1) of the All India Services Act, 1951. Thus, they are repugnant and directly in conflict. The proposition laid down by the Supreme Court in State of J & K v. M.S. Farooqi (14 supra) has been approved by the Supreme Court in K.S.E. Board v. Indian Aluminium Company, .
60. It is apposite to have a look into the entries relied upon by the learned Advocate General at this stage. Entry 41 List II relates to State Public Services and State Public Service Commission. The members of All India Service like the petitioners, though work in the State on allotment under I.A.S. Cadre Rules, 1954, cannot be said to be servants of the State, and they are part and parcel of Federal service of the Center. Now turning to Entry 45 of List III, namely, 'enquiries and statistics for the purpose of any of the matters specified in List II and List III'. When we examine the subjects in List II and List III, none of them relate to All India Services. On the other hand, Entry 70 in List I deals with Union Public Service, All India Service and Union Public Service Commission, while Entry 94 of List I relates to enquiries, surveys and statistics for the purpose of any of the matters in List I. In the face of Entries 70 and 94 of List I, I am unable to accede to the contention of the learned Advocate General that the impugned provisions in Act 11 of 1983 relate to Entry 41 of List II or Entry 45 of List III. Therefore, the Act 11 of 1983 to the extent of its application to All India Service Officers intrudes into the field already occupied by Act 61 of 1951 and the rules framed thereunder. Thus, it is repugnant to the Central Act and the rules to the extent as stated above. In this regard, it would be relevant to note some observations of the Privy Council in A.G. Alberta v. A.G. Canada, AIR (30) 1943 P.C. 76 which reads as follows:
"The legislation coming in pith and substance within one of the classes specially enumerated in Section 91 is beyond the legislative competence of the Provincial legislatures under Section 92. In such a case, it is immaterial whether the Dominion has or has not dealt with the subject by legislation, or to use other well-known words, whether that legislative field has or has not been occupied by the legislation of the Dominion Parliament. The Dominion has been given exclusive legislative authority as to 'all matters coming within the classes of subjects enumerated under 29 heads, and the contention that unless and until the Dominion Parliament Legislates on any such matters the Provinces are competent to legislate, is therefore sound....Since the year 1894, it has been a settled proposition that if a subject of legislation by the province is only incidental or ancillary to one of the classes of subjects enumerated in Section 91 and is properly within one of the subjects enumerated in Section 92, then legislation by the Province is competent unless and until the Dominion Parliament chooses to occupy the field by legislation".
61. In the above judgment, the Privy Council has laid down that where the field is exclusive provided for the Parliament, and even if that field is not occupied by the Parliament, still the Provincial legislature has no power to make any law on the subject so provided for the Parliament. Further, where the Provincial legislature makes any legislation on the subject available to it, but entrenches into subjects, provided the entrenchment is only incidental or ancillary. In the present case, the subject, viz., service matters relating to members of All India Service is exclusively provided in Entries 70 and 94 of List I, which is within the exclusive power of the Parliament. Further, Act 61 of 1951 deals with the service conditions of members of All India Service and Rules are framed under that Act. Therefore, the Parliament has occupied the field under which the concerned authorities will conduct enquiries as and when called for. Therefore, the power of the Lokayukta to conduct preliminary verification in regard to matters relating to the members of All India Service is directly repugnant to the power given in the Control Act. It can neither be said to be incidental nor tangential as contended by the Learned Advocate General. Therefore, State Legislature is incompetent to legislate empowering Lokayukta to conduct preliminary verification and investigation into matters relating to All India Service Officers.
62. The Advocate General contended that when the Act 11 of 1983 was sent for the assent of President, the Central Government took objection that Air India Service Officers; may be excluded from the purview of the Act, that the State Government explained its view, which was considered by the Central Government, that the President gave his assent to the Act 11 of 1983 and that therefore the legislative competence of the State in enacting the Act 11 of 1983 cannot, now, be questioned.
63. The question arises for consideration is whether the State legislature is competent to enact the provisions of Act 11 of 1983 providing for conducting preliminary verification and investigation in regard to All India Service Officers.
64. In case the subject is found to be in Concurrent List and the State Legislature passes legislation and President gives his assent, the same would be valid and it cannot be said that the provisions of the said enactment dealing with I.A.S. Officers are unconstitutional. But, it has been found that the subject is in Entry 70 of List I, which is within the legislative competence of Parliament. Therefore, the State legislature is not competent to pass any legislation and even if the President gives his assent, the same cannot cure the defect of the Act being unconstitutional on the ground of legislative competence (sic. incompetence). Therefore, I am unable to accept the said contention.
65. Sri C.N. Babu appearing for the second respondent contended that Act 11 of 1983 can be related to any one of the subjects enumerated in List II of VII Schedule for which the State has got exclusive power to legislate. He contended that this can be related to Entry 1 of List II of the VII Schedule, namely, 'public order'. As the Act 11 of 1983 is passed to remedy the grievance of the public in the State against mal-administration, corruption, etc., it relates to 'public order'. To appreciate this contention, it is relevant to refer to the decision of the Supreme Court in The Supdt. Central Prison v. Dr. Lohia, .
66. The Supreme Court observed that 'public order' is synonymous with 'public peace, safety and tranquility' and it is something which is demarcated from other. In view of the above judgment of the Supreme Court, remedying the grievances of the public of the State against ma-administration officials cannot be said to be connected in any (way) with 'public order' in order to bring in legislation under Entry 1 of List II. Even if the contention of the learned Counsel is accepted for the sake of argument that the enactment is relatable to Entry 1 of List II, the State is empowered to make any legislation in regard to officers who are within the purview of the State administration. But the All India Services officers, according to Entries 70 and 94 of List I, are within the purview of the Central Government. Therefore, I see no force in the contention.
67. Therefore, the provisions of Act 11 of 1983 to the extent they empower the Lokayukta to conduct preliminary verification and investigation into the conduct of members of All India Service are repugnant to Act 61 of 1951 and the rules framed thereunder rendering them thereby ultra vires of the Constitution calling for their striking down.
68. It is next contended by the learned Advocate General that 1969 Rules empowers the State to take action against the members of All India Service working in the State, that by virtue of that power, the State can empower any agency of the State like, C.B.C.I.D., A.C.B., etc., including the Lokayukta to make preliminary verification in order to find out whether there lies prima facie case for proceeding with the enquiry under the Rules.
69. To consider this contention, it is relevant to refer to the provisions of Act 11 of 1983. Admittedly, the Lokayukta is not a servant of the State. Merely because the State Legislature has brought in an enactment empowering the Lokayukta to conduct investigation as well preliminary verification, it cannot be said that the Lokayukta is a servant of the State. The Lokayukta is appointed by the Governor with the consultation of the Chief Justice of the High Court and removal of Lokayukta is only by resorting to the process provided in Section 6 thereof. Therefore, it cannot be said that Lokayukta is an agency like, A.C.B., and C.B.C.I.D. It is an independent instrumentality of the State discharging its functions under the provisions of the Act and the rules made thereunder. Further, when the power is given under 1969 Rules to take disciplinary action against members of All India Service, by virtue of that power no legislation can be brought in since rules are amenable to change. The authority in this regard is the decision of the Supreme Court in Hotel Balaji v. State of Andhra Pradesh, . Further, a delegatee cannot further delegate the powers, is a settled principle of law. Therefore, I see no force in this contention of the learned Advocate General.
70. The next question is as to what are the provisions in Act 11 of 1983 that are liable to be struck down being ultra virus of the Constitution. Section 2(i) defines 'Officer'. According to that definition, the All India Service officers are taken within its fold. Therefore, wherever 'officer' occurs in the Act, it is to be applied by resorting to judicial technique of reading down, as not to include All India Service Officers. Section 2 (k) should be understood with the read down effect of Section 2(i). Section 2(1) defines 'Secretary', meaning thereby a Secretary to Government and includes the Principal Secretary, a Second Secretary, a Special Secretary, an Additional Secretary and a Joint Secretary. They are all I.A.S. Officers except the Law Secretary, who is a District Judge. Further, I.A.S. Officers (Fixation of Cadre Strength) Regulation, 1955 is made under Rule 4(1) of the I.A.S. Cadre Rules, 1954 and according to that, the posts of Secretaries and Principal Secretary, Second Secretary are identified as posts to be filled up by I.A.S. Officers. Therefore, until the regulation goes no other officer except I.A.S. Officer can be posted to the post of Secretary. In so far as Law Secretary is concerned, he has already been excluded from the purview of the Act by Section 21 thereof. So, Section 2(1), in as such, is struck down. Consequently, in Sub-section (i) of Section 7, the word 'Secretary' has to bestruck down as being unconstitutional. If the above provisions as stated supra are read down and struck down, the rest of Act 11 of 1983 will be within the legislative competence of the Andhra Pradesh Legislature. Further, the preliminary verification report is also quashed as invalid being the result of the provisions of the Act read down or struck down above. Consequently, G.O.Ms. No. 158, dated 13-3-1984 is bad in law.
71. Before parting with this, it is to be noted that though mala fides are sought to be attributed against some of the respondents, they are not ultimately pursued and therefore it is not necessary to delve into this aspect.
72. The writ petitions are accordingly allowed. There will be no order as to costs.