Gauhati High Court - Kohima
Smti. Thungdeno Mozhui vs The State Of Nagaland And 4 Ors on 18 May, 2026
Page No.# 1/36
GAHC020005122021 2026:GAU-NL:274
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KOHIMA BENCH
Case No. : WP(C)/253/2021
SMTI. THUNGDENO MOZHUI
W/O DR.ROBIN LOTHA, R/O H/NO.561, AGRI FARM COLONY,
DISTRICT - KOHIMA, NAGALAND
VERSUS
THE STATE OF NAGALAND AND 4 ORS
REPRESENTED BY THE CHIEF SECRETARY, GOVT. OF NAGALAND,
KOHIMA, NAGALAND
2:THE COMMISSIONER AND SECRETARY/SECRETARY
DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS
GOVT. OF NAGALAND
KOHIMA
NAGALAND
3:THE COMMISSIONER AND SECRETARY/SECRETARY
DEPARTMENT OF JUSTICE AND LAW
GOVT. OF NAGALAND
KOHIMA
NAGALAND
4:MRS. ASANGLA T. AIER
W/O ER. P. LANU AIER
R/O AGRI FARM COLONY
DISTRICT - KOHIMA
KOHIMA
NAGALAND
Page No.# 2/36
5:THE NAGALAND LOKAYUKTA
KOHIMA
NAGALAN
Advocate for the Petitioner : A. ZHIMOMI, ESTHER,IMTI LONGJEM,LHOUSINO
Advocate for the Respondent : GOVT ADV NL,
-BEFORE-
HON'BLE MR. JUSTICE PRANJAL DAS Advocate for the petitioner : Mr. A. Zhimomi, Adv Advocate for the respondent nos. 1, 2, 3 and 6 : Ms. S. Mere, Govt. Adv Advocate for the respondent no. 4 : Mr. A. Zho, Adv Advocate for the respondent no. 5 : Mr. T.B. Jamir, Adv Date on which judgment is reserved : 21.04.2026 Date of pronouncement of judgment : 18.05.2026 Whether the pronouncement is of the operative part of the judgment ? : N/A Whether the full judgment has been : Yes pronounced?
JUDGMENT & ORDER (CAV) Heard Mr. A. Zhimomi, learned counsel appearing for the petitioner. Also heard Ms. S. Mere, learned Government Advocate for the respondent nos. 1, 2, 3 and 6, Mr. A. Zho, learned counsel for the respondent no. 4 and Mr. T. B. Jamir, learned counsel for the respondent no. 5.
2. Invoking the provisions of Article 226 of the Constitution of Page No.# 3/36 India, the petitioner, Smti. Thungdeno Mozhui, has preferred this writ petition, aggrieved by Order dated 08.10.2020, passed by the learned Lokayukta Nagaland, in Case number A.NLP-07/2019, whereby a finding was recorded that the Order dated 01.03.1986, regularizing the Adhoc service of the petitioner, on successfully qualifying in the interview, is an illegal order and not tenable in law.
3. The case of the petitioner is that, vide Order dated SRDA/IV/11-1/77, (Pt-11), dated 28.11.1984, the petitioner was appointed as Assistant Project Officer, (hereinafter APO) in the State Rural Development Agency, (hereinafter SRDA). It is stated that the appointment was on an Adhoc basis and for a period of 4 months. It is further stated by the petitioner in the writ petition that the respondent No. 4 was appointed as an APO by Order dated SRDA/IV/11-1/77, (Pt-1), dated 20.07.1984, and her appointment was also on an Adhoc basis for a period of 4 months.
4. It is stated that the appointments of the petitioner and respondent No. 4 were extended from time to time. It is stated that in 1985, an advertisement dated 16.08.1985 was issued for 6 posts of APO, and the petitioner and the respondent No. 4 were issued calling letters for appearing in the selection process and that the calling letter issued to the petitioner bears number SRDA/IV/11- 1/77, (Pt-2) and dated 13.11.1985. It is stated that the petitioner and the respondent No. 4 both participated in the selection process during which they were called for the oral interview and by Order dated 13.02.1986, bearing No SRDA-1/1/86, the respondent No. 4 was appointed as APO on a regular basis.
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5. However, with regard to the petitioner, for reasons best known to the State respondents as stated by the petitioner, two orders of even number and date were issued, being Order No. SRDA-1/1/86 dated 01.03.1986. It is stated that by one Order dated 01.03.1986, her service was regularized, and by the other order of the same date, i.e. 01.03.1986, her appointment was extended till further orders. It is stated that after issuance of the respective appointment orders, the petitioner and the respondent No. 4 started working in the office of SRDA in Kohima as APOs, and that the existence of two orders in case of the petitioner was known to all in the Office and her regularization was never questioned. Subsequently, vide order dated 09.11.1992, the petitioner was promoted to the post of District Project Officer (DPO).
6. In 1997, the SRDA was absorbed into the Department of Rural Development vide notification dated 24.07.1997, whereupon 200 posts were created for absorbing the SRDA-DRDA employees and subsequently, vide notification dated 25.07.1997, the date of absorption was mentioned as 01.06.1997. And that, from 01.06.1997, the petitioner became an employee serving under the Government of Nagaland in the Department of Rural Development.
7. It is also stated by the petitioner in the writ petition that the respondent No. 4 was appointed on Adhoc basis, vide order dated 20.07.1984 and she began serving from 21.07.1984. It is stated that the respondent No. 4, claiming that she was appointed through a selection process in 1982, sought for calculating her date of regular service from 21.07.1984 and for that purpose, she filed a Page No.# 5/36 writ petition numbered as WP(C)/49(K)/2000, which, however was dismissed vide order dated 02.08.2002. It is further stated by the writ petitioner that subsequently, the respondent No. 4, claiming that she was appointed pursuant to a selection process conducted in 1985, wanted her date of appointment on a regular basis to be taken as 01.03.1986, and the State respondents accepted her date of entry into regular service as 01.03.1986. The petitioner at this stage, along with some other colleagues, submitted representations contesting the said claim of the respondent No. 4 and in the process, the respondent No. 4 filed a complaint alleging that the order regularizing the service of the petitioner is false.
8. Pursuant to the said complaint, a departmental proceeding was initiated against the petitioner and vide memorandum dated 17.07.2019, Articles of Charges were framed whereupon she submitted her written statement denying the charges. During the proceedings, she was summoned to appear on 30.08.2019, during which the petitioner was only questioned on the charges by the Inquiry Officer and no other persons were present. It is stated that thereafter, the petitioner did not receive any further summons with regard to the disciplinary proceeding.
9. On 30.11.2019, the petitioner was released from service with effect from the said date, having reached the age of superannuation. Until that time, she did not receive any information regarding the disciplinary proceedings. The petitioner and several others had earlier filed a writ petition registered as WP(C) No. 55(K)/2019 challenging the date of entry into the service of Page No.# 6/36 respondent No. 4 as 01.03.1986. The said writ petition was allowed setting aside the impugned action of the State respondents, with regard to respondent No. 4. It is stated that though respondent No. 4 preferred a writ appeal being WA/198/2019 against the said judgment of the Single bench, the writ appeal came to be dismissed and that the matter is presently pending before the Hon'ble Supreme Court. It is further stated by the writ petitioner that the respondent No. 4 has been submitting complaints against the petitioner maliciously, and one of the complaints was filed before the Lokayukta, Nagaland, whereupon she was summoned by a Police Officer in the Office of the Lokayukta stated to be the IO of the case.
10. It is stated that she was asked to appear on 03.02.2020 and 24.02.2020, and in compliance with the same, she appeared, whereupon the Officer questioned her and directed her to submit her personal files and Service book in original, and also explained how there were two orders with regard to her service by way of extension, as well as regularization. It is stated that the petitioner submitted all the original documents and answered the questions put to her and in the course of such proceeding, asked for a copy of the complaint submitted by respondent No. 4, but it was denied on the ground of the complaint being confidential. It is stated that subsequently, the petitioner received no further summons from the Nagaland Lokayukta or the Police official conducting the enquiry.
11. It is stated that during the pendency of the writ appeal, the respondent No. 4 enclosed an Order dated 08.10.2020 passed by Page No.# 7/36 the learned Nagaland Lokayukta in case number A.NLP-07/2019, contending that the appointment of the petitioner was illegal. Upon receiving the copy of the order passed by the learned Nagaland Lokayukta mentioned above, in the writ appeal, the petitioner requested for a copy of the complaint but it was again refused on the ground of confidentiality. Subsequently, she filed an RTI application for copy of the complaint filed before the learned Nagaland Lokayukta by the respondent No. 4, but it was again rejected.
12. It is contended and stated by the petitioner that as the Order dated 08.10.2020 dealt with the subject matter of appointment in service and therefore, the same was not within the jurisdiction of the Lokayukta. Further, it is contended that the subject matter of the Order dated 08.10.2020 pertains to the year 1986, which is 33 years prior to the registration of case number A.NLP-07/2019 and that it is hit by the provisions of Section 9 (3) (b) of the Nagaland Lokayukta Act, 2017 which states that - the Lokayukta shall not investigate any complaint involving an investigation made after expiry of 5 years from the date on which the action or conduct complained against is alleged to have taken place. It is stated that from the Order dated 08.10.2020, it appears that a preliminary inquiry report was submitted by the Officer investigating the matter on behalf of the learned Nagaland Lokayukta and the said report is the basis of the Order dated 08.10.2020 passed by the learned Lokayukta.
13. It is also contended that before passing that order, the petitioner was not subjected to any process before the Lokayukta Page No.# 8/36 apart from her examination by the IO. It is stated that apart from the procedure of Lokayukta being illegal and erroneous, the petitioner also has no knowledge about the outcome of the disciplinary proceedings which was initiated against her. It is stated and contended that the order dated 08.10.2020, passed by the learned Nagaland Lokayukta is in violation of the Nagaland Lokayukta Act, 2017.
14. The respondent Nos. 1, 2 and 6 filed an affidavit-in- opposition in which the said respondents stated that as per the available records, the name of the petitioner featured in the list of 25 candidates selected for interview and the selection board in its meeting dated 26.11.1985, recommended 5 (five) candidates to be appointed as APO, but the name of the petitioner did not figure in the list of the said 5 (five) candidates. It is further stated by the respondents that initially, both the petitioner and respondent No. 4 were given appointment as APO on Adhoc basis and later, the name of respondent No. 4 was recommended for appointment as APO on regular basis, but only service extension was given to the petitioner. It is further stated in the affidavit that with regard to the petitioner having two simultaneous orders of the same time regarding regularization and extension, a departmental proceeding was initiated against her vide order dated 17.07.2019, on Articles of Charge pertaining to forgery and violation of the relevant provisions of the Nagaland Government Servants Conduct Rules, 1968. But, during the process of inquiry the petitioner reached the age of superannuation and accordingly, she was released from Page No.# 9/36 service on 30.11.2019. It is stated that the departmental proceeding is still pending disposal in view of the order of this Court dated 25.10.2021 with regard to the Order dated 08.10.2020 of the Nagaland Lokayukta.
15. The petitioner filed an affidavit-in-reply to the affidavit-in- opposition filed by the respondent No. 1, 2 and 6 as narrated above. It is stated therein that in the advertisement dated 16.08.1985, applications were invited for filling up 6 (six) posts of APOs but the Selection board recommended only 5 (five) names and subsequently, the petitioner was informed that on the basis of the selection process, her services were also regularized. It is stated that in the service book of the petitioner, the entry regarding regularization of her service on the basis of selection tests conducted by the Selection Board has been recorded w.e.f. 01.03.1986. It is further stated that in July, 1992, a draft seniority list was published in which the names of the respondent No. 4 and the petitioner appear at serial Nos. 9 and 10 respectively, and it was stated in the seniority list that the petitioner was appointed on 01.03.1986 as APO on regular basis.
16. It is further stated that in 1994, a final seniority list was issued on 15.03.1994 and in the same also, the petitioner's name appeared at serial No. 7 showing her appointment on regular basis w.e.f. 01.03.1986. It is further stated that a tentative seniority list of the Officers under the Rural Development Department was issued on 01.10.2015, in which the respondent No. 4 and the petitioner's names were listed at serial Nos. 7 and 8 Page No.# 10/36 respectively, and remarks were made that they were both absorbed into the Rural Development from SRDA/DRDA. It is further stated that in the seniority list issued dated 11.03.2019, the respondent No. 4 and the petitioner's names appear at serial No. 1 and 2 respectively and they have been shown as merged and absorbed into the Rural Development from SRD/DRD w.e.f. 01.06.1997.
17. It is stated that vide notification dated 25.07.1997, the employees of DRDA were absorbed against the post created vide the notification dated 24.07.1997 and in this list, the name of the petitioner was at serial No. 9 and the name of the respondent No. 4 was at serial No. 7. It is stated that accordingly, all the employees of DRDA became regular employees in the Rural Development Service pursuant to the notification dated 25.07.1997, and that many employees on temporary and Adhoc basis were also absorbed in this manner, into government service by virtue of this action of the State respondents. It is stated and contended by the petitioner in the aforesaid affidavit-in-reply that the issue of regularization of the services of the petitioner and respondent No. 4 in DRD has become irrelevant in view of the notification dated 25.07.1997, absorbing the employees of DRDA en masse into government service.
18. The respondent No.4 filed an affidavit-in-opposition, in which it is stated that the petitioner and the said private respondent were appointed as APO on 28.11.1984 and 20.07.1984 respectively on Adhoc basis for a period of four months, which was extended from Page No.# 11/36 time to time. Subsequently, a proposal for their regularization was turned down by the department and which was followed by an advertisement dated 16.08.1985 for 6 (six) posts of APO. It is further stated that pursuant to the advertisement, the petitioner and the private respondent participated in the selection process, wherein the private respondent qualified for the post of APO, but the petitioner failed to qualify.
19. It is stated that after the declaration of the result, since the posts were filled up by direct recruitment, the State respondents decided to terminate the services of the employees serving on Adhoc basis, including the post held by the petitioner. It is stated that, however, the private respondent was appointed on 01.03.1986 as APO DWCRA (vide order No. SRDA-1/1/1986). It is further stated by the private respondent in her affidavit that, though the State respondents terminated the services of the other employees serving on Adhoc basis, but the service of the petitioner was extended with effect from 01-03-1983 as APO Veterinary until further orders for reasons best known to the State respondents.
20. That subsequently, the petitioner submitted a representation on 31.07.2018 claiming seniority over the private respondent and also claiming that her service had been regularized on 01.03.1986 vide order No. SRDA-01-01/86 dated 01.03.1986. It is stated by the private respondent in her affidavit that the service extension order and regularization order of the petitioner was of the same date, i.e. 01.03.1986 and vide the same order. It is stated that though the extension order was found in the records, but the Page No.# 12/36 regularization order of the petitioner could not be traced anywhere in the records.
21. In this backdrop, the private respondent submitted a representation dated 17.04.2019 seeking an investigation into the authenticity of the petitioner's regularization order and on the basis of the representation, the matter was referred to the P&AR department, whereupon disciplinary proceedings were initiated against the petitioner. Subsequently, a complaint was also filed before the learned Lokayukta, Nagaland and after investigation and enquiry, order dated 08.10.2020 was passed by the learned Nagaland Lokayukta, which is the subject matter of challenge in the instant writ petition. The petitioner filed an affidavit-in-reply to the affidavit-in-opposition filed by the respondent No.4.
22. In the said affidavit-in-reply, the petitioner stated that out of the 6 (six) posts of APO advertised, only 5 (five) posts were filled up and petitioner was appointed to the remaining post and that this fact was also entered into her service book. The petitioner denied that she had submitted a representation dated 31.07.2018 claiming seniority over the respondent. The petitioner stated that the petitioner's service book categorically records that her service has been regularized with effect from 01.03.1986.
23. It is stated that the attempt of the private respondent to get her service calculated with effect from the date of 21.07.1984, had failed. The petitioner stated that the subsequent request of the private respondent not to count her Adhoc service from 21.07.1984 to 01.03.1986 was accepted by the respondents, but it Page No.# 13/36 was challenged by the petitioners and seven others by filing a writ petition, which was allowed setting aside the said order of the private respondent. The writ appeal filed against the same was also dismissed and now the matter is pending before the Hon'ble Supreme Court.
24. The petitioner has contended that due to the filing of this writ petition, the private respondent submitted a representation dated 17.04.2019 seeking inquiry into the authenticity of the petitioner's regularisation order. The petitioner in the affidavit-in-reply denied that there was any thorough investigation and inquiry by the learned Lokayukta as claimed by the private respondents and that the petitioner was only summoned by the S.I of police under Nagaland Lokayukta. The petitioner reiterated in her affidavit that by virtue of Notification No. RD/DRDA-7/95-96 dated 25.07.1997, the petitioner as well as the private respondent became employees in the Rural Development service under the Government of Nagaland and therefore, due to the aforesaid action of the government, the service of the petitioner and the private respondent in SRDA and DRDA prior to the aforesaid notification dated 25.07.1997 i.e. the date of absorption becomes irrelevant.
25. The petitioner further stated in her affidavit that in the seniority list published in July 1992, it has been clearly stated that the petitioner was appointed on 01.03.1986 as APO on regular basis. She also stated that in the seniority list dated 11.03.2019, both the petitioner and respondent No.4 has been shown as merged and absorbed into Rural Development Department Page No.# 14/36 from SRDA and DRDA with effect from 01.06.1997. The petitioner denied that she produced any fake manufactured regularization order to claim any seniority over respondent No.4.
26. The respondent No. 5 is the Nagaland Lokayukta and the Secretary of the Lokayukta filed an affidavit-in-opposition on behalf of the Lokayukta in which it is stated that vide the impugned order dated 08.10.2020, the Lokayukta has only expressed its view after consideration of the status report of the preliminary inquiry submitted by the Inquiry Officer and that the same cannot be said to be influencing the rights of the petitioner in any manner under Part III of the Constitution of India, as well as Article 300A of the Constitution of India. It is stated in the affidavit that a complaint letter dated 24.10.2019 was lodged by the respondent No. 4 before the Lokayukta, against the petitioner, alleging fabrication and forgery of the order of regularization of her service to the post of APO, and that, in support, the complainant submitted two contradictory appointment orders issued by the same authority. It is stated that upon receipt of the complaint, a preliminary inquiry was conducted under the provisions of the Nagaland Lokayukta Act, 2017.
27. It is stated that as per the available materials, it was found that SRDA Nagaland, Kohima issued an advertisement dated 16.08.1985 for filling a post of APO, and subsequently, vide letter dated 13.11.1985 issued by Project Director, SRDA, the petitioner was requested to appear in written test on 24.11.1985 followed by interview on 26.11.1985. It is stated that no record was found to Page No.# 15/36 establish selection of the petitioner by the Interview board of the interview held on 26.11.1985. It is stated that there is a noting dated 12.02.1986 of the Minister of Rural Development, directing the authority to regularize the appointment of petitioner only in case of reversion of one Hilosemp, who was posted on deputation as APO worker.
28. However, vide Order dated 14.10.1986, the deputation service of the said Hilosemp was absorbed into SRDA, Nagaland. It is stated that the petitioner was never selected by the Selection board for regularization of her service as APO, and that the regularization as revealed by the noting of the Minister also could not happen, as it was conditional on the reversion of Hilosemp, who however was absorbed into the department. It is stated that the Department of Rural Development initiated disciplinary proceedings against the petitioner. It is reiterated and stated in the affidavit that vide order dated 08.10.2020, the Lokayukta has only expressed his view and there is no justification for challenging the same.
29. The petitioner has filed an affidavit-in-reply to the aforesaid affidavit-in-opposition filed by the Secretary of the Nagaland Lokayukta (respondent no. 5). The petitioner in the reply has stated that the learned Lokayukta in the guise of a preliminary inquiry has arrived at findings against the petitioner by following a procedure unknown to law. It is stated that the order dated 08.10.2020 is an order which visits the petitioner with consequences, and therefore, it should be amenable to writ jurisdiction of this Court. The petitioner reiterated about her appointment and subsequent absorption in the Page No.# 16/36 Department of Rural Development and assails the order dated 08.10.2020 passed by the Lokayukta. The petitioner also stated about the complaint being barred by limitation in terms of the Lokayukta Act.
30. Mr. Zhimomi, the learned counsel for the petitioner submits that the Lokayukta cannot make an order like the way in which it has been done, and can only make a recommendation. That, the preliminary inquiry was done by the Vigilance police; that, the Police Officer participated in the said inquiry. It is stated that at the relevant time when the alleged anomalies were stated to have happened, the petitioner was not even a Government servant and that in this context, any events which had taken place prior to 1997 when they were absorbed into the Rural Development department are of no consequences.
31. It is submitted by the learned counsel that the Lokayukta has in fact passed a judicial order, rather than making a recommendation. It is also submitted that the complaint lies outside the time frame stipulated in the Act. It is submitted that there has been no compliance with the principles of natural justice and that the petitioner has not even been given a copy of the complaint. The learned counsel submits that a positive finding recorded by the Lokayukta is in fact a positive direction, and the Lokayukta has proceeded as if a case is being fully heard.
In support of his contentions, the learned counsel for the petitioner relies upon the following decisions.
(i) Ragho Singh vs. Mohan Singh & Ors., reported in (2001) 9 SCC 717.
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(ii) Additional Tahsildar & Anr. vs. Urmila G. & Ors., reported in 2023 INSC 1044.
(iii) Amit Sarkar & Anr. vs. The State of Nagaland & Ors., in WP(C)/74/2018.
32. The learned Senior Government Advocate, Ms. Mere, appearing on behalf of the respondent Nos. 1, 2, 3 and 6 supports the impugned order passed by the Lokayukta and further submits that sufficient materials have been found by the Lokayukta upon its inquiry that, the petitioner committed manipulation with regard to her regularization order. It is submitted that there is no infirmity in the order passed by the Lokayukta.
33. Mr. A. Zho, learned counsel for the respondent no. 4 (private respondent) submits that during the process of regular selection, while the private respondent was successful, the petitioner was not successful and that subsequently, the Adhoc appointees came to be terminated and therefore, it is very surprising that the petitioner came up with a Regularization Order dated 01.03.1986. The learned counsel for the private respondent submits that the private respondent came to know about the anomalies committed by the petitioner only in 2018, and thereafter, she filed a complaint in 2019. It is submitted that the acts of the petitioner involves forgery and misrepresentation, and that the matter was rightly referred to the Lokayukta, and there is no infirmity in the order passed by the Lokayukta.
34. Mr. T.B. Jamir, learned counsel for the respondent No. 5, Nagaland Lokayukta, submits that under the Act it is permissible for the Lokayukta to have an investigation and there was no illegality Page No.# 18/36 committed in undertaking the investigation. It is submitted that the writ petitioner has suppressed material facts and misrepresented it and that, the writ petition should be dismissed only on that ground. It is submitted that the Lokayukta upon conducting the inquiry has only recorded a prima facie satisfaction. It is submitted that the IO had called the petitioner as part of the inquiry, and that, there is no violation of the principles of natural justice. It is submitted that the Lokayukta has only expressed its view and that no legal or constitutional rights of the petitioner have been violated.
On the other hand, in support of his contentions, the learned counsel for respondent No. 5 relies upon the following decisions -
(i) K.D. Sharma vs. Steel Authority of India Ltd. & Ors., reported in (2008) 12 SCC 481.
(ii) Meghmala & Ors. G. Narasimha Reddy & Ors., reported in (2010) 8 SCC
383.
(iii) Rt.Rev.B.P. Sugandhar Bishop in Medak vs. D. Dorothy Dayasheela- beneser, reported in (1996) 4 SCC 406.
(iv) Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Ors., reported in (2013) 4 SCC 465.
(v) Ch. Rama Rao vs. Lokayukta & Ors., reported in (1996) 5 SCC 304.
(vi) The Nagaland Lokayukta vs. Smti. Catherine Dzuvichu & Ors., in WA/1/2024.
(vii) Shri Chepe Wetsa & Ors. Vs. State of Nagaland & Ors., reported in 2023:GAU-NL:156-DB.
35. In reply to the submissions of the learned counsel for the respondents as narrated above, the learned counsel for Page No.# 19/36 the petitioner submits that the respondent authorities had illegally allowed the private respondent to change her date of joining from 1984 to 1986. It is submitted that the Lokayukta made an illegal order. It is submitted that the petitioner was regularly appointed. The learned counsel for the petitioner reiterated that the report of the Lokayukta was a one-sided report, and violative of the principles of natural justice and that the petitioner has not even seen the complaint. It is submitted that the order passed by the Lokayukta goes beyond its jurisdiction.
36. I have perused the pleadings of the parties; the annexed documents; impugned order and considered the submissions of the learned counsels for the respective parties on both the sides. I have also considered and perused the decisions cited by the learned counsels at the Bar.
DISCUSSI0N
37. One of the contentions of the petitioner side is that the principles of natural justice have been violated in the proceedings of the Lokayukta.
38. Before proceeding further, some provisions of the Nagaland Lokayukta Act, 2017 may be looked at. Section 2 is the definitional provision and it enumerates different definitions which are used in the body of the Act. Section 2(f) defines complaint as any complaint made in such form as may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act, 1988. Section 2(g) defines grievance as a claim made by a person that he has suffered injustice or hardship as a Page No.# 20/36 consequence of maladministration. Section 2(h) defines investigation as an investigation defined under Section 2(h) of the Criminal Procedure Code, 1973. Section 2(n) defines preliminary inquiry as an inquiry conducted under this Act. Section 10 lays down the provision relating to complaints. Section 11 lays down the provisions for holding preliminary inquiry and Section 12 lays down the procedure in case of investigation. Section 12 lays down that the Lokayukta shall decide the procedure for making the inquiry and in doing so ensure that the principles of natural justice are satisfied.
39. The aforesaid statutory provision may be reproduced here and below -
"Section 12: Procedure in respect of Investigation.
(1) The Lokayukta or Upa-Lokayukta shall, in each case before it, decide the procedure to be followed for making the enquiry and in so doing ensure that the principles of natural justice are satisfied. (2) The Lokayukta or Upa-Lokayukta may in his discretion, at any stage, refuse to inquire or cease to inquire into any complaint involving a grievance or allegation, if in his opinion -
(a) The complaint is frivolous or vexatious, or is not made in good faith; or
(b) There are no sufficient grounds for investigating, or as the case may be, for continuing the investigation; or
(c) Other remedies are available to the complainant an in the circumstances of the case, it would be more appropriate for the complainant to avail of such remedies.
Provided that the Lokayukta or Upa-Lokayukta shall record his reasons thereof and communicate the gist of the order to the complainant and the public functionary concerned. (3) The Lokayukta or Upa-Lokayukta, as the case may be, shall have Page No.# 21/36 power to review his order or decision to restore any matter closed at any stage, and to grant or refuse permission to the complainant to withdraw the complaint;
Provided that the Lokayukta or Upa-Lokayukta shall record his reasons in writing therefore."
40. Thus, I find that while the Lokayukta has been given the flexibility to determine the procedure for making inquiry, but it is stipulated that the procedure has to comply with the principles of natural justice. Section 11 pertains to provisions for holding preliminary inquiry, while Section 12 lays down procedure in respect of investigation. However, in the body of Section 12 (1) it is provided that principle of natural justice have to be satisfied for making the enquiry. Therefore, I am of the considered view that though the words natural justice find mentioned in Section 12 under the heading procedure in respect of investigation - there is no reason as to why principle of natural justice should not be read into the procedure for holding a preliminary enquiry as well - inasmuch as, the person proceeded against can be given a copy of the complaint and an opportunity to provide his response to the same.
41. Upon perusing the order dated 08-10-2020 passed by the Lokayukta, which is assailed in this writ petition, I find that the complaint received from the private respondent, which was the basis of the inquiry and subsequent order passed by the Lokayukta does not indicate the date of the complaint. However, in the affidavit in opposition filed on behalf of the Lokayukta by its Secretary (respondent No. 5), it is revealed that the complaint was dated 24- 10-2019. In this context, the learned counsel appearing on behalf of Page No.# 22/36 the private respondent had submitted that she came to know about the anomalies made by the petitioner regarding her regularization only in 2018, leading the private respondent to file the complaint in 2019 and that therefore, her complaint before the Lokayukta was not barred by time. The aspect of limitation contended by the learned counsel for the petitioner shall be gone into a little later.
42. Staying with the aspect of natural justice, it is revealed from the materials, including the impugned order that during the proceeding, the petitioner was called by the IO who was conducting the investigation/inquiry on behalf of the Lokayukta and the statement of the petitioner was also recorded. Her statement was recorded by the IO and in her statement, she had stated that she was not given appointment order after interview as her name did not figure in the list of candidates. She further stated that she, however, received the extension order as APO veterinary after interview was conducted as she was selected. She also stated that she was not aware of the regularization order earlier and that it might have been issued retrospectively by the competent authority as to the date of her extension order as she was selected. It is stated in the impugned order that the IO had called the petitioner to give her an opportunity to produce the evidence and other documents, to prove that her service was regularized after successfully passing an interview.
43. It is revealed from the pleadings of the petitioner side that despite her repeated request for a copy of the complaint, she was not furnished a copy of the same on the ground of confidentiality.
Page No.# 23/36 Even her RTI application seeking a copy of the complaint was also rejected. Now, the question is whether such act on the part of the learned Lokayukta constituted any violation of the principles of natural justice and whether the learned Lokayukta was justified in holding back the complaint on the ground of confidentiality.
44. Section 19 of the Act lays down the provision regarding secrecy of preliminary inquiry or investigation. The said provision may be reproduced herein below -
Section - 19: Secrecy of preliminary inquiry or investigation. Every preliminary inquiry or investigation under this Act shall be conducted in private and, in particular, the identity of the complainant and the public functionary affected by the preliminary inquiry or investigation shall not disclosed to the public or the press or published in any manner before or during the preliminary inquiry or investigation. Provided that the Lokayukta or Upa-Lokayukta may in his discretion, for the reasons to be recorded in writing, allow the publication or proceeding of his investigation or a part thereof at any stage of the proceedings. Every preliminary inquiry or investigation under this Act shall be conduced in private and, in particular, the identity of the complainant and the public functionary affected by the preliminary inquiry or investigation shall not disclosed to the public or the press or published in any manner before or during the preliminary inquiry or investigation. Provided that the Lokayukta or Upa-Lokayukta may in his discretion, for the reasons to be recorded in writing, allow the publication or proceeding of his investigation or a part thereof at any stage of the proceedings. Thus, it follows from this provision that the identity of the complainant and the public functionary shall not be disclosed to the public or press or published in any manner.
45. In my considered opinion, the said provision is geared towards Page No.# 24/36 the protecting the privacy and dignity of the public servant as well as the complainant. However, there will be no bar on the part of the learned Lokayukta to provide a copy of the complaint to the public functionary facing inquiry or investigation. Such a document can always be redacted to hide the name of the complainant or any other matter considered sensitive/confidential.
46. In the instant case, the said aspect about the identity of the complaint becomes somewhat secondary as the petitioner was well aware of the complaint lodged by the private respondent before the learned Lokayukta. When a person is required to defend an inquiry on the basis of a complaint, he or she is required to peruse the said complaint so as to make a meaningful and effective reply or defence to the same during the inquiry or investigation. Such a process is also essential from the point of view of compliance with the principles of natural justice.
47. In the instant case, it cannot be said that the principles of natural justice were not followed altogether - as the inquiry officer/IO called the petitioner to appear along with documents to defend her case and her statement was also recorded. However, the non-furnishing of the complaint, even in a redacted form, to the petitioner, despite repeated requests, would in my view be violative of the principles of natural justice and the provisions in this regard stipulated in section 12 of the Act.
48. Another contention of the petitioner side is that the complaint against the petitioner was time barred. In this regard, the provision pertaining to limitation provided in the Act may be looked at. Section Page No.# 25/36 9(3)(b) of the Act provides that - any complaint involving an allegation made after the expiry of five years from the date on which action or conduct complained against is alleged to have taken place cannot be investigated by the Lokayukta.
49. Thus, to investigate an allegation, the complaint has to be made within five years from the date of the alleged action or conduct giving rise to the complaint. The relevant section 9(3)(b) may be reproduced herein below -
(b) Any complaint involving an allegation made after the expiry of five years from the date on which the action or conduct complained against is alleged to have taken place.
Provided that the Lokayukta or Upa-Lokayukta in respect of grievance or allegation, as the case may be, may entertain a complaint made after the expiry of the said period if the complainant shows sufficient cause for not making the complaint within the said period.
50. There is also a provision for entertaining the complaint after the stipulated limitation period upon the complainant showing sufficient cause for not making the complaint within the said period.
51. In the instant case, the petitioner claims about regularization/regular appointment with effect from 01-03-1986. The order of regularization which is forged as per the respondents is also dated 01-03-1986. As already stated above, from the affidavit-in- opposition filed on behalf of the Lokayukta, the complaint of the private respondent is dated 24-10-2019, which is on the face of it much beyond the period of five years stipulated in section 9(3)(b) of the Act.
52. From the materials, I have not found anything that the Page No.# 26/36 complainant indicated sufficient cause for not preferring the complaint, long after the stipulated time. From the impugned order dated 08-10-2020 also, I have not found any discussion regarding condonation of the delay upon showing sufficient cause by the complainant. Thus, there is no option but to come to the opinion that the complaint lodged by the private respondent before the Lokayukta was time-barred in terms of section 9(3)(b) of the Act.
53. Yet another contention of the petitioner side is that as the complaint pertained to a service matter regarding regularization, the Lokayukta did not have jurisdiction to investigate the same. To adjudicate this contention, section 9(1) of the Lokayukta Act may be reproduced herein below -
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; or
(b) If the complainant has or had any remedy by way of a proceeding before any forum or other authority;
Provided that nothing in clause (b) shall prevent the Lokayukta or Upa- Lokayukta from conducting an investigation, if the Lokayukta or, as the case may be, the Upa-Lokayukta, is satisfied that such person could not or cannot, for sufficient cause, have recourse to such remedy.
54. Thus, I find that in a complaint pertaining to any of the matters specified in the Second Schedule of the Act, no investigation can be conducted. The second schedule may be reproduced herein below -
Page No.# 27/36 Second Schedule [See Section 9(1)(a)]
(a) Action taken for the purpose of investigating crimes or relating to the security of the State.
(b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a Court of not.
(c) Action taken in matters which arise out of the terms of a contact governing purely commercial relations of the administration with customers of supplier, except whose or the complaint alleges harassment gross delay in meeting contractual obligation.
(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.
(e) Grant of honours and award.
55. It follows from this provision that the Lokayukta cannot investigate with regard to a complaint pertaining to the - action taken in respect of appointments, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants, except any action involving allegation of corruption in respect of appointment etc. Investigations are also not barred with regard to actions relating to claims for pension, gratuity, provident fund or any claims arising on retirement, removal or termination of service.
56. Thus, I find that any action taken in respect of appointments etc. cannot be a subject of investigation by the Lokayukta, unless an allegation of corruption is made. In the instant case, the complaint Page No.# 28/36 alleged that the petitioner had forged and manufactured a fake regularization order dated 01-03-1986. Though such allegations can constitute an offence under the Penal Law, but these may not come strictly within the ambit of the Prevention of Corruption Act, 1988 - which primarily criminalized bribery and its abetment/attempt.
57. Another aspect which is noticed is that though the Lokayukta processed a complaint filed by the private respondent, but Section 2(f) of the Act defines - complaint as an allegation about a public servant having committed an offence punishable under the Prevention of Corruption Act 1988.
58. The petitioner has also contended that prior to 1997, when they were absorbed into the Rural Development Department, she was not even a public servant.
59. In the backdrop of the aforesaid, this Court is of the considered opinion that - the complaint filed by the petitioner private respondent was not regarding an offence under the Prevention of Corruption Act 1988 and though it pertained to alleged forgery (penal offence) - it cannot also be said to be a matter pertaining to corruption in her own appointment within the meaning of the term corruption under the Prevention of Corruption Act 1988.
60. Thus, the investigation and enquiry conducted by the Lokayukta into the complaint filed by the private respondent alleging forgery in the regularization order of the petitioner can be said to be suffering from a jurisdictional error also in terms of section 10(1) of the Lokayukta Act.
61. Another aspect may also be discussed. The impugned order of Page No.# 29/36 the learned Lokayukta made a finding that the regularization order dated 01-03-1986 of the petitioner was fake and manufactured.
62. However, the learned Lokayukta stopped at that finding and did not make any recommendation as it is required to make. In this regard, section 25(3) 3 may be reproduced here below -
If, after investigation of any action involving an allegation, the Lokayukta or Opa-Lokayukta, as the case may be, is satisfied that such allegation is substantiated either wholly or partly, he shall by a report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority concerned.
63. Thus, the learned Lokayukta after investigation shall have to submit a report in writing communicating the findings and recommendations.
64. In the instant case as stated above, learned Lokayukta stopped at the finding and did not make any recommendation as was required to do so under section 25(3) of the Act. However, only for that said reason, the order of the learned Lokayukta may not fail the test of judicial review.
65. In Amit Sarkar (supra), a coordinate bench of this Court discussing the provisions of the Nagaland Lokayukta Act 2017, observed that the powers conferred on the said quasi-judicial authority are purely recommendatory in nature and on the basis of such recommendations, obligations are cast upon the public functionary or the competent authority to take appropriate actions. The Court also held that the provisions of the Act do not show that the Lokayukta or the Upa-Lokayukta has the power to act as police Page No.# 30/36 station or officer-in-charge of the police station. The relevant para 12 may be reproduced herein below -
"12. From a perusal of the above quoted Section 25 and more particularly sub-section (1)&(3) would categorically show that the report to be submitted by the Lokayukta or the Upa-Lokayukta after an Investigation are recommendatory in nature and it is on the basis of the said report the competent authority shall examine the said report and without any further Inquiry take action on the basis of the recommendation and within 90 (ninety) days from the date of receipt of the report intimate or cause to be intimate to the Lokayukta or the Upa- Lokayukta as the case may be, the actions taken or to be taken on the basis of the report. Sub-clause (b)&(c) of sub-clause (4) of sub-Section 25 is not relevant for the purpose of the proceedings in as much as the matter does not relate to the Chief Minister or the Member of the State Legislature, Sub-section (5) of Section 25 empowers the Lokayukta or the Upa-Lokayukta as the case may be to close the case if satisfied with the action taken or proposed to be taken on the recommendation made, by the public functionary and the competent authority concerned, however, if the Lokayukta or the Upa-Lokayukta as the case may be is not so satisfied and considers that the case deserves further actions, the Lokayukta or the Upa-Lokayukta may make a special report of the case to the Governor and also inform the competent authority concerned and the complainant. It is however relevant to take note of that the provisions of the Act of 2018 do not show that the Lokayukta or the Upa- Lokayukta in terms with the Act of 2018 has the power to act as the Police Station or the Officer-in-Charge of the Police Station. The powers which has been conferred are purely recommendatory in nature on the basis of the said recommendation(s), obligation(s) are cast upon the public functionary or the competent authority to take appropriate actions."
Page No.# 31/36
66. Thus, I find that this decision lends support to the prosecution that the primary function of the Lokayukta is to make recommendations on the basis of its proceedings, which in this case was not made and the Lokayukta stopped at recording its findings pursuant to the process proceeding. More than that aspect, in the instant case, the impugned order suffered from infirmities on the question of limitation and also violation of the principles of natural justice. Ragho Sing (supra) is relied upon by the petitioner side to contend that there can be no condonation of delay without an application for the same. The relevant para 6 may be reproduced herein below -
"We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitzed was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs."
67. As already discussed in the instant case, the records do not indicate a delay condonation application nor adjudication or discussion of that aspect of the matter. And the aforesaid decision lends support to the contentions of the petitioner side.
68. In Urmila G (supra), the Hon'ble Apex Court in the context of Page No.# 32/36 the Kerala Lokayukta Act held that the powers are only pertaining to recommendatory jurisdiction. The decision in K. D. Sharma (supra) relied upon by the respondent No. 5 pertained to misrepresentation and fraud played upon the court in a writ petition, thereby disentitling the petitioners to relief.
69. However, in view of the discussion in the preceding paragraphs, this decision would not be of help to the respondent No.
5. Similarly, the decision in Meghmala (supra) is also on similar lines and would not be of help to the respondent side due to the discussion in the preceding paragraphs.
70. In D. Dorothy (supra), the Hon'ble Apex Court was dealing with a case of enquiry by a commission of enquiry and in the facts of that case, it was held that as a preliminary enquiry was conducted, therefore, it was not necessary to hear the respondent, unlike an investigation where it would be necessary to do so. Ayaaubkhan Noorkhan Pathan (supra) pertains to the issue of locus standing jurisdiction and that a stranger cannot be permitted to meddle in a proceeding unless he satisfies the court that he is falls in the category of an aggrieved person.
71. In an instant case, this Court has not found any issue of the petitioner lacking locus standing to challenge the proceeding.
72. In Ch. Rama Rao (supra), the Hon'ble Apex Court in the context of the Andhra Pradesh Lokayukta Act held that affording opportunity to the public servant is necessary at the stage of investigation, but not at the stage of preliminary verification.
73. With regard to the present matter, Section 12 of the Nagaland Page No.# 33/36 Lokayukta Act 2017, specifically provides for compliance with the principles of natural justice with regard to investigation and also uses the work 'enquiry' in the body of the provision. In any case, discussion in an earlier part of the judgment, has already held that compliance with principles of natural justice has to be read into such Lokayukta proceedings having adverse consequences for the petitioner.
74. In the instant case, the Lokayukta has recorded a finding adverse to the petitioner and during the course of the proceeding, the investigating officer of the Lokayukta also conducted proceedings and examined the petitioner. Therefore, in my considered view, excluding the principles of natural justice would be detrimental to the petitioner and violative of the principle underlying Article 14 of the Constitution of India. No decision of the Hon'ble Apex Court with regard to the Nagaland Lokayukta Act has been placed before this court to indicate that with regard to the proceeding of the nature conducted by the learned Nagaland Lokayukta, the principles of natural justice are not required to be complied with.
75. In the case of Shri Chepe Wetsa ( supra) relied upon by the learned counsel for respondent No. 5, the matter pertained to the Nagaland Act itself, it has been held that when it relates to allegations of corruption in respect of appointment, vis-a-vis the Schedule of the Act, the bar contained in section 9 (1) (a) of the Act of 2017 would not apply. As has already been discussed, the allegations herein pertain to appointment and regularization of the Page No.# 34/36 petitioner and though the allegations made therein of forgery might amount to a penal offence, but will not necessarily invite the provisions of the Prevention of Corruption Act 1988 so as to remove the bar under section 9 (1)(a) of the Act. Therefore, in my opinion, this decision does not help the respondent side in defeating the writ petition. The decision in Catherine Dzuvichu (supra) relied upon by the learned counsel for respondent No. 5 is also on similar lines. In that decision, it was held that it is only when a party who is aggrieved by any action pertaining to the matters mentioned in the Schedule of the Act that such a complaint is barred under section 9 and that when the allegations are by a third party, the bar would not apply.
76. This decision was cited in support of the contention that the complaint of the respondent No. 5 was not barred under the provisions of section 9. In terms of the discussion in the preceding paragraphs, this Court has not found that the respondent No. 5 was barred in term of locus standi in preferring the complaint. It has only found that the complaint though pertains to subject matters listed in the Schedule - but that, the allegations pertain to alleged offences under the Penal Code, rather than that under the Prevention of Corruption Act.
77. Accordingly, in the given facts and circumstances and upon perusing the materials on record - this Court comes to the considered opinion that the impugned order dated 08-10-2020 passed by the learned Lokayukta, Nagaland in Case No. A.NLP- 07/2019 against the petitioner suffers from the following infirmities -
Page No.# 35/36 "(i) The proceeding by refusing to give the petitioner a copy of the complaint - even in redacted form - was violative of the principles of natural justice stipulated under section 12(1) of the Act.
(ii) The order of the learned Lokayukta passed after investigating the complaint dated 24-10-2019 with regard to an alleged forged regularization order dated 1-03-1986 was barred by the limitation period of five years stipulated in section 9(3)(b) and there was no condonation of the same upon showing sufficient cause by the complainant. Thus, the complaint was time barred and by entertaining the same in violation of section 9(3)(b) of the Act, the impugned order suffered from a jurisdictional error.
(iii) The complaint against the petitioner by the private respondent had alleged forgery of the regularization order and did not come within the definition of complaint stipulated in section 2(f) as it did not pertain to an allegation under the Prevention of Corruption Act, 1988.
(iv) In terms of section 9(1), read with the Second Schedule of the Act, an investigation into a matter pertaining to appointment is barred, unless it involves an allegation of corruption in respect of the said appointment. In the instant case, the allegation was of the petitioner forging and manufacturing a fake regularization order in her favour and as already stated, the allegation could be a penal offence but may not be within the ambit of corruption by a public servant under the Prevention of Corruption Act."
78. In view of the aforesaid infirmities in the impugned order passed by the learned Lokayukta, including jurisdictional errors - the same is required to be interfered with in exercise of judicial review under Article 226 of the Constitution of India.
79. Thus, the impugned order dated 08-10-2020 fails the test of judicial review due to the infirmities noted above, including the Page No.# 36/36 question of limitation and violation of the principles of natural justice. Therefore, the order is also violative of Article 14 of the Constitution of India.
80. Accordingly, the impugned order dated 08.10.2020 passed by the learned Lokayukta Nagaland in Case No. A.NLP-07/2019 is hereby set aside.
81. Despite the setting aside of the impugned order for the reasons stated in this judgment, it is hereby made clear that it would be open to the departmental respondents to proceed against the petitioner in accordance with law and fairness.
82. The writ petition stands allowed and disposed of.
JUDGE Comparing Assistant