Orissa High Court
Subhas Chandra Mishra vs Lokpal And Anr. on 19 July, 2001
Equivalent citations: 2001(II)OLR248
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT R.K. Patra, J.
1. By this application under Articles 226 and 227 of the Constitution of India the petitioner seeks quashing of the order dated 19.4.2001 made by the Lokpal and the notice No. 211/SRC dated 19.5.2001 issued by the Special Relief Commissioner, Orissa to him.
2. The case of the petitioner is that at present he is the Engineer Member under the Bhubaneswar Development Authority (hereinafter referred to as 'B.D.A.') which is a statutory authority having been constituted under Sub-section (3) of the Section 3 of the Orissa Development Authorities Act, 1982. The B.D.A. consists of the following members :
(i) Chairman
(ii) Vice-chairman
(iii) An Engineer Member to be appointed by the State Government, Planning Member appointed by the State Government.
(iv) An architect member to be appointed by the State Government.
(v) The Secretary, Housing and Urban Development Department of the Government.
It takes up development works which are executed after inviting tenders. The tender committee consisting of the Vice-chairman, Finance Member, Engineer Member, Chief Engineer, Housing Board and Chief Engineer, Building, Ortssa finalises the tender subject to approval of the B.D.A. and the State Government. The Engineer Member has no power to take any decision on the tender as well as allotment of any work. The petitioner has averred that he was taken aback when he received letter No. 211/SRC dated 19.5.2001 from the Special Relief Commissioner, Orissa asking him to appear before him for inquiry on 13.6.2001.
3. Shri Mohanty submitted that the petitioner who has got unblemished service record is going to retire by the end of July, 2001. He has become the victim of circumstances and it is the handiwork of some disgruntled persons who submitted the so-called complaint petition before the Lokpal. By referring to the so-called complaint petition (which was enclosed to the notice- Annexure-1), Shri Mohanty submitted that all the 'charges' are baseless and mala fide. He pressed into service the averments made in the writ petition wherein the petitioner has emphatically denied all the allegations made in the so-called complaint petition.
4. Shri Mohanty seriously contended that the Lokpal having found that the so-called complaint petition was a pseudonymous one acted illegally in exercise of his jurisdiction in directing the Social Relief Commissioner to hold a 'secret inquiry.' It is the submission of Shri Mohanty that the Lokpal conducted preliminary investigation as is evident from his order dated 1,9.4.2001 by sending the so-called complaint petition to the Vice-chairman of the B.D.A. who after causing necessary inquiry submitted report that the complaint is a pseudonymous one which does not call for any further action. According to Shri Mohanty in the circumstances, the so-called complaint petition ought to have been rejected on the ground that it is frivolous, vexatious and mala fide. By entertaining such pseudonymous complaint on the basis of which 'secret inquiry' has been directed to be conducted, the Lokpal has encouraged frivolity which is not in the interest of justice.
5. Shri Sarangi appearing for the Lokpal on the other hand submitted that the action taken in the matter by the Lokpal is within his jurisdiction and is otherwise valid. He placed reliance on the counter affidavit filed by the Lokpal.
6. Perusal of the impugned order dated 19.4.2001 indicates that on receipt of the allegation petition against the petitioner said to have been made by Y. Patalasingh of Karmachari Sangha the Lokpal sent its copy to the Vice-chairman, B.D.A. to furnish report. The Vice-chairman got the allegations inquired into by the Member, Finance. In the inquiry held by the Member, Finance the aforesaid Y. Patalsingh appeared and stated that he had not submitted any such complaint. He denied to have signed it. He stated that someone by forging his signature submitted the petition to the Lokpal. The Member, Finance accordingly suggested that no further action is called for. The Vice-chairman sent the aforesaid report of the Member, Finance to the Lokpal. The Lokpal noticed that the complaint was a pseudonymous one. Instead of closing the matter, he observed that "I however considered that a secret inquiry may be made so that at least the bona fide and honesty of the officers against whom allegations have been made are proved."
7. We may state that the burden of proving a fact lies on the party who substantially asserts the affirmative of the issue (ei incumbit probatio qui dicit, non quit negat). Lord Maugham in Constantine Line v. I.S. Corporation, 1914 (2) A.E.R. 165 opined that the aforesaid "is an ancient rule founded on consideration of good sense." The Lokpal seems to have thrown this elementary rule to winds. He is the creature of the statute. He is to function within the limitations prescribed by the Orissa Lokpal and Lokayuktas Act, 1995. He is to decide a matter according to law. He is not the guardian angel to oversee the "bona fide and honesty" of the officers. Instead of asking the complainant to prove the allegations made in the petition, he has asked the petitioner to appear before the Special Relief Commissioner to prove his "bona fide and honesty" in the 'secret inquiry'. He has put the cart before the horse inasmuch as the proof cannot be shifted by putting an allegation in a negative form. It appears from the impugned order that the Lokpal has had "large number of allegations against some officers of the B.D.A.". This is clear from the first sentence of the impugned order. If that be so, he has not indicated in the order as to what action he has taken against others and why he has picked up the petitioner subjecting him to face a 'secret inquiry'.
8. We further find that in the counter affidavit the Lokpal has ascribed the following reasons which seem to have persuaded him to conduct a 'private inquiry' through the Special Relief Commissioner. (In the impugned order the Lokpal has used the word 'secret inquiry' not 'private inquiry now stated in the counter affidavit). To quote his own words "it is Found that allegations have been made against the public servant as a result it sustained injustice or undue hardship in consequence of maladministration by the public servants who are not discharging their duties and responsibilities in accordance with the provisions of law and by abusing their power and position causes undue harm and hardship to the general public which was actuated in discharge of its function. Therefore this opposite party No. 1 after carefully going through the report of the Member (Finance), B.D.A. passed appropriate order in Annexure-2 dated 19.4.2001 authorising Dr. H.K. Panda to conduct a private enquiry..." In paragraph 9 of the counter affidavit he has further averred.... "on the basis of the allegations made by Y. Paltasingh, General Secretary of the Karmachari Sangha of B.D.A. and on close scrutiny thereof, this opposite party No. 1 on preliminary enquiry having been satisfied has forwarded the copy of the complaint to conduct investigation setting out the grounds to the public servant concerned and afford them an opportunity to offer comments. Accordingly, the Investigating Officer, Dr. H.K. Panda had given notice in Annexure-1 to the petitioner."
On careful perusal of the impugned order and the averments made In the counter affidavit, we have no hesitation to hold that the reasons ascribed in counter affidavit do not find place in the impugned order. The only reason on the basis of which he directed 'secret inquiry' to be held was that the 'bona fide and honesty' of the officers against whom allegations have been made are to be proved. Law is well settled that an authority cannot substitute or supplement the reasons in support of the order which do not find mention in the order. For all the aforesaid reasons, the impugned order is vulnerable and is liable to be quashed.
8. Moreover in view of the fact that the author of the complaint petition is a pseudonymous one and there is no scope of any one coming to substantiate the allegation, the complaint ought to have been rejected Under Section 10 (4) (a) of the Act on the ground that it is frivolous/vexatious and is not made in good faith.
In the result, the entire proceedings relating to the petitioner before the Lokpal are hereby quashed. As a necessary corollary the noticed dated 10.5.2001 (Annexure-1) issued by the Special Relief Commissioner stands quashed.
The writ petition is allowed. No cost.
A.S. Naidu, J.
9. I agree.