Delhi High Court
Office Of Lokayukta vs Govt. Of Nct Of Delhi & Anr. on 14 May, 2009
Equivalent citations: AIR 2010 (NOC) 537 (DEL.), 2010 AIR SCW 2290, 2010 AIHC (NOC) 708 (DEL.)
Author: Neeraj Kishan Kaul
Bench: Chief Justice, Neeraj Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ L.P.A. No. 160/2009 & C.M. No. 5293/2009
Decided on: 14th May, 2009
OFFICE OF LOKAYUKTA ..... Appellant
Through: Ms. Priya Kumar, Advocate.
versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Najmi Waziri, Mr. Rajiv
Nanda, Mr. Anjum Zaved and
Mr. Akash Pratap, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
1.Whether reporters of the local papers be allowed to see the
judgment ? Yes
2.To be referred to the Reporter or not ? Yes
3.Whether the judgment should be reported in the Digest ? Yes
AJIT PRAKASH SHAH, CJ (Oral)
1. The present appeal arises from the order passed by the
learned single Judge in Writ Petition (Civil) No. 699 of 2009 dated
13th March, 2009. By the order under appeal, the learned single
Judge held that the Lokayukta is debarred from calling the records
of any matter or case from the Government and its departments
prior to issuance of notice to the public functionaries or what has
been referred to as the pre-inquiry stage. The Lokayukta was
directed that he shall first decide on the question of maintainability
of the complaint and in case he decides to proceed with the matter,
a formal notice shall be issued.
LPA No. 160/2009 Page 1 of 21
2. The facts necessary to decide the controversy in this case are
set out as follows. A complaint was filed in the office of the
Lokayukta on 8th October, 2008, under Section 9 of The Delhi
Lokayukta and Upalokayukta Act, 1995 ('Act' for short), inter alia,
with regard to purchase of Low-Floor buses by the Government of
Delhi. On 17th November, 2008, the complaint was taken up by the
Lokayukta and directions were issued to the complainant. The
Government was also directed to produce the records relating to
the process of issuance of tenders for purchase of 625 Non-AC Low
Floor CNG buses including the record containing the decision
making process. The matter was taken up by the Lokayukta on 17th
December, 2008, 9th January, 2009 and 15th January, 2009. On 17th
December, 2008 and 15th January, 2009, the direction in respect of
production of records was reiterated.
3. On 22nd January, 2009, the complainant who had not
appeared on two dates moved a formal application for permission
to join in the proceedings. The Government, on the other hand,
moved an application praying for dismissal of the complaint.
Notice was issued in both the applications and the complainant as
well as the Government were called upon to file their respective
replies. The Government, however, objected to notice being issued
on its own application on the ground that the application of the
complainant to join the proceedings had not been decided and that
the complainant had no locus to accept notice in the application of
the Government. This objection was rejected by the Lokayukta as
he was required to hear the complainant before deciding the issue
of maintainability and the plea for dismissal of the complaint.
LPA No. 160/2009 Page 2 of 21
4. During the proceedings of 22nd January, 2009, the
Government took a categorical stand that it would have no
objection in producing records in a suo moto proceeding. By an
order dated 28th January, 2009, the Lokayukta directed as under:-
"12. Secretary, Department of transport or
the Officer holding charge of the said
Department personally to produce the above
relevant records on 02.02.2009 at 2.00 PM
failing which proceedings under Section 175
IPC shall be initiated against the persons
committing the offence."
5. The Government claiming to be aggrieved, filed the writ
petition inter-alia praying for quashing of the directions for
production of records in the order dated 28th January, 2009, as is
extracted above.
6. The findings of the learned single Judge are summarized in
paragraph 34 of the order, which read as under:-
"34. To summarize the discussion, it is held
that:
(a) The Lokayukta and Upalokayukta have the
power to inquire into complaints, and if
necessary, use the services of investigative
agencies deputed for the purpose. During the
course of such inquiry, investigation is
possible; so also, the power to call for
documents, have evidence recorded through
commission, etc, is exercisable. However, the
power of inquiry does not include a preliminary
inquiry.
(b) In a complaint procedure, the Lokayukta or
Upalokayukta has to, after satisfying itself
about the compliance with procedural
formalities, prescribed by the statute, issue
notice to the respective parties. The inquiry
begins thereafter and the powers under
LPA No. 160/2009 Page 3 of 21
Section 11 are available, to aid the process of
inquiry. At the "pre-inquiry" stage, or
processing of the complaint, there is no
question of the Lokayukta calling for the
records from an authority. The power to do so
is available after issuance of notice; the
Lokayukta may, in a given case, issue notice
and also call for the records, having regard to
the circumstances, and the need to ensure that
the documents are preserved or secured.
(c) In a suo motu proceeding, the Lokayukta
does not have to satisfy itself about
compliance regarding the complaint -it can
straightaway proceed to issue notice, and
exercise powers under Section 11;
(d) Section 10 enacts procedural flexibility, in
regard to holding of inquiries. Yet, it sets out
the standard of fairness, i.e. compliance with
principles of natural justice. This provision
underlines that the Lokayukta, though a
judicial or quasi judicial body, is not really a
court. It can evolve a fair procedure, having
regard to the peculiar needs of a given case, or
given class of cases which may present a
common feature or peculiarity."
7. Mr. Maninder Singh, learned senior counsel appearing on
behalf of the appellant, contended that ordinarily, a statutory
authority would not question any direction issued by the Court,
however, in the present case the Office of Lokayukta is constrained
to file the present appeal as the impugned order has far reaching
consequences affecting the exercise of jurisdiction by the
Lokayukta and would seriously impede its functioning as an
independent authority. He contended that the conclusion of the
learned single Judge that the inquiry commences upon issuance of
notice and that Section 11 of the Act will be applicable only on such
notice being issued and existence of an inquiry is completely
erroneous. From the plain reading of the Act, it is evident that
LPA No. 160/2009 Page 4 of 21
there is no such requirement in the Act. On the contrary, the
Lokayukta has been given flexibility in deciding matters relating to
procedure including holding of any preliminary inquiry or
verification prior to issuance of notice. He contended that the
words "inquiry" and "investigation" are not used synonymously.
The Delhi Lokayukta and Upalokayukta (Investigation) Rules only
relate to the "investigation" as the heading of the Rules itself
makes it clear and the stage for investigation is necessarily after
the issuance of notice to the public functionaries. However, the Act
used the broader term 'inquiry' instead of investigation. The
explanation to Section 7 clarifies that the term 'enquiry' includes
'investigation'. The Lokayukta cannot decide whether further
investigation was warranted without the relevant records. The
production and examination of record is a sine qua-non for any
inquiry, which cannot be conducted in vacuum. He contended that
the learned single Judge has concluded that even in suo moto
proceedings the Lokayukta would need to first issue notice to the
public functionaries whereas the submission of the Government
was that they would produce the records in suo moto proceedings.
It is further submission of the learned counsel that the Government
of Delhi is not a party to the proceeding/complaint and has, thus,
no locus to raise such issues. It was issued notice only to produce
records as a custodian thereof. According to him in the present
regime of Right to Information; it is incongruous for any
Government committed to transparency to deny production of
records and that too before a statutory authority created for
eliminating corruption. He pointed out that there is no claim of
LPA No. 160/2009 Page 5 of 21
privilege in respect of the records. Moreover, confidentiality of
record produced before the Lokayukta is protected under Section
14 of the Act.
8. On the other hand, Mr. Vikas Singh, learned senior counsel
appearing on behalf of Government of Delhi urged that the Act
mandated; by Section 9, that the complaint, in case it alleges
wrongdoing or misconduct of the Chief Minister, had to be in the
prescribed form; the complaint, in the present case, was not in that
form; besides, the court fee prescribed too had not been filed. It
was urged that the Lokayukta should have, in all fairness first
decided the question of maintainability, since the complainant
had without cause, absented himself, and his request to join
proceedings had not been granted. Instead, the Lokayukta
persisted in demanding the production of file. According to
learned counsel, the question of exercise of powers under Section
11 of the Act would arise only upon issuing notice on the complaint.
In the absence of the formal notice, the Lokayukta is not
entitled to call for the records of the State Government. He
contended that the Lokayukta exercises powers either suo
motu, or further to a complaint or information. If the proceedings
are not suo motu, and if the Lokayukta proposes an inquiry,
based on an inquiry itself or a complaint, he must formally take
cognizance of the matter, and issue notice. The proceedings
commence after the issuance of such notice and the Lokayukta
derives his power to summon records and documents, under
Section 11 of the Act to aid such inquiry or proceedings. Mr. Vikas
Singh further contended that the basis of the complaint was the
LPA No. 160/2009 Page 6 of 21
information provided to the complainant by the Metropolitan
Transport Corporation, Chennai regarding the purchase price of
semi-low floor buses. The clarification dated 20th October, 2008
issued by the said Corporation clearly states that the information
supplied earlier by them pertained to semi-low floor buses and not
low floor buses. This letter took away the very substratum of the
complaint, therefore, the complaint ought to have been dismissed
and the proceedings could not be continued any further as there
was no basis to do so whether suo moto or otherwise.
9. In order to appreciate the role and functions of Lokayukta, it
would be necessary to refer to the brief historical background and
origin of Lokayukta. The concept of Ombudsman evolved out of a
necessity to protect the common man from the administrative
faults, arising out of proliferating administrative agencies,
adversely affecting the life of a citizen. So far India is concerned
the starting point of such legislation is the Interim Report of the
Administrative Reforms Commission on "Problems of Redress of
Citizens' Grievances". The Commission recommended that the
person authorized to discharge the functions of the Ombudsman at
the Centre should be called as 'Lokpal' and his counterpart in the
States was to be called as 'Lokayukta'. In para 25 of its Report, the
Commission catalogued the main features of the two functionaries
viz. Lokpal and Lokayukta, in the following terms:-
"(a) They should be demonstrably independent
and impartial.
(b) Their investigations and proceedings should
be conducted in private and should be informal
in character.
LPA No. 160/2009 Page 7 of 21
(c) Their appointment should, as far as
possible, be non-political.
(d) Their status should compare with the
highest judicial functionaries in the country.
(e) They should deal with matters in the
discretionary field involving acts of injustice,
corruption or favouritism.
(f) Their proceedings should not be subject to
judicial interference and they should have the
maximum latitude & powers in obtaining
information relevant to their duties.
(g) They should not look forward to any benefit
or pecuniary advantage from the executive
Government."
10. After the receipt of this Report, the Central Government
introduced a Bill, called the Lokpal and Ayukta Bill, 1968. This Bill
lapsed. A second attempt was made in the year 1971 by
introducing another Bill 3 of 1971. This Bill also met with the same
fate. Thereafter a third Bill was introduced in Parliament but the
said Bill never became the law. So far as the Government of NCT of
Delhi is concerned, it enacted The Delhi Lokayukta and Upa-
Lokayuktas Act, 1995 (Delhi Act No. 1 of 1996) which is more or
less on the pattern of the Bills introduced in the Central legislation.
The object of the Act is to ensure an independent investigation of
administrative action. If after inquiry into the allegations, Lokayukta
is satisfied that such allegation is established, he makes a report
under Section 12(1) of the Act. After the report is submitted, the
competent authority has to examine the report and intimate the
action taken or proposed to be taken on the basis of the report
within the time prescribed. If the Lokayukta or the Upa-Lokayukta is
satisfied with the action taken or proposed to be taken on the
LPA No. 160/2009 Page 8 of 21
recommendations or findings contained in the report, he shall close
the case under information to the complainant, the public servant
and the competent authority concerned. But when he is not so
satisfied and if he considers that the case so deserves, he may
make a special report upon the case to the Lieutenant Governor
and also inform the complainant concerned. The Lokayukta and the
Upa-Lokayukta under sub-section (4) have to present annually a
consolidated report on the performance of their functions under the
Act to the Lieutenant Governor. On receipt of a special report under
sub-section (3), or the annual report under sub-section (4), the
Lieutenant Governor shall cause a copy thereof together with an
explanatory memorandum to be laid before the Legislative
Assembly.
11. Section 7 of the Act enumerates the matters which may be
inquired into by the Lokayukta or Upalokayukta and the same reads
as under:-
"7. Matter which may be inquired into
by Lokayukta or Uplokayukta- Subject to
the provisions of this Act, on receiving
complaint or other information or suo moto -
(a) The Lokayukta may proceed to inquire into
an allegation made against a public functionary
in relation to whom either the President or
Lieutenant Governor is the competent
authority;
(b) The Upalokayukta may proceed to inquire
into an allegation made against any public
functionary other than that referred to in
clause (a);
Provided that the Lokayukta may inquire into
an allegation made against any public
functionary referred to in clause (b).
LPA No. 160/2009 Page 9 of 21
Explanation:- For the purposes of this section
the expressions "may proceed to inquire" and
"may inquire" include investigation by any
person or agency put at the disposal of the
Lokayukta and Upalokayukta in pursuance of
sub-section (2) of Section 13."
12. Section 8 of the Act states the matters which are not subject
to inquiry by the Lokayukta and Uplokayukta. Section 9 provides a
procedure relating to complaints. It says that every complaint
involving an allegation shall be made in such form as may be
prescribed and shall be accompanied by a deposit of Rs.500/-(Five
hundred rupees). The complainant shall also swear an affidavit in
such form as may be prescribed before any officer authorized by
the Lokayukta in this behalf. Under sub-section (2) of Section 9 of
the Act, every person who willfully or maliciously makes any false
complaint under the Act, shall be punishable with rigorous
imprisonment which may extend to three years or with fine which
may extend to five thousand rupees or with both.
13. For investigation of the complaints wide powers have been
conferred on the Lokayukta under the Act. Sections 10, 11 and 13
of the Act, which are material for our purpose are reproduced
below:-
"10. Procedure in respect of inquiry- The
Lokayukta or Upalokayukta shall, in each case
before it, decide the procedure to be followed
for making the inquiry and in so doing ensure
that the principles of natural justice are
satisfied.
11. Applicability of Evidence Act and Code
of Criminal Procedure- (1) The provisions of
the Evidence Act, 1872 (1 of 1872), and the
LPA No. 160/2009 Page 10 of 21
code of Criminal Procedure, 1973 (2 of 1974),
shall as nearly as may be, apply to the
procedure of inquiry before Lokayukta or
Upalokayukta in the matter of -
(i) summoning and enforcing the
attendance of any person and his
examination on oath;
(ii) requiring the discovery and
production of documents and proof
thereof;
(iii) receiving evidence on affidavits;
(iv) requisitioning any public record or
copy thereof from any court or office;
(v) issuing commissions for
examination of witnesses or documents;
and such other matters as may be
prescribed;
Provided that no proceeding before the
Lokayukta or Upalokayukta shall be invalidated
only on account of want of formal proof if the
principles of natural justice are satisfied.
(2) Any proceeding before the Lokayukta or
Upalokayukta shall be deemed to be a judicial
proceeding within the meaning of section 193
and section 228 of the Indian Penal Code, 1960
(45 of 1960).
(3) The Lokayukta and Upalokayukta shall be
deemed to be a Civil Court for the purpose of
section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).
XXX XXX XXX
13. Staff of Lokayukta and Upalokayukta-
(1) The Government shall in consultation with
the Lokayukta, provide officers and other
employees to assist the Lokayukta and
Upalokayukta in the discharge of their
functions under this Act.
(2) Without prejudice to the provisions of sub-
section (1), the Lokayukta or an Upalokayukta
LPA No. 160/2009 Page 11 of 21
may, for the purpose of conducting inquiries
under this Act, utilize the services of -
(i) any officer of investigation agency
of the Government or the Central
Government, with the concurrence of
that Government, or
(ii) any other person or agency."
14. Section 16 of the Act provides that if the Lokayukta, in
discharge of its functions under the Act, notices a practice or
procedure which in his opinion afforded an opportunity for
corruption or maladministration, he may bring it to the notice of the
Government and may suggest such improvement in the said
practice or procedure as he may deem fit.
15. The Delhi Lokayukta and Upalokayukta (Investigation) Rules,
1998, are framed under the provisions of the Act. Rule 2 contains
definitions. Sub-rule (iv) of Rule 2, which is relevant reads as
under:-
"Rule 2 (iv) "Investigation" means any
enquiry or other proceedings in connection
with the complaint but does not include a
preliminary enquiry."
16. Rule 6 deals with complaints, it stipulates that a complaint
against the Chief Minister or a Minister or a Member of Legislative
Assembly shall be in Form-I accompanied by an affidavit in Form-III
in support of its contents. The complaint against other functionaries
shall be in Form-II accompanied by an affidavit in Form-III in
support of its contents. Rule 7 prescribes that a fee of five hundred
rupees shall be paid in Judicial stamps.
17. Rules 15 and 16 stipulate as under:-
LPA No. 160/2009 Page 12 of 21
"15. Powers to regulate proceedings and
investigations - The Lokayukta or the
Upalokayukta shall have the powers, subject to
the provisions of the Act, to regulate the
conduct of proceedings, investigations and
enquiries in all matters not provided for in
these rules.
16. Procedure to be adopted at the
investigation - When the Lokayukta or the
Upalokayukta conducts an investigation under
the Act, he shall after a copy of the complaint
or the statement of the grounds of the
investigation has been served on the public
functionary concerned, afford reasonable
opportunity to him or his authorized
representative to inspect or copy the affidavit
of the complaint and other documents which
may have been filed in support of such
complaint, affidavit or a statement.
Explanation -
"Copy" includes preparation of a copy in
manuscript or typewriting machine."
18. The question that falls for our consideration is whether the
Act requires the Lokayukta to issue notice to the public
functionaries and only thereafter a direction can be given for
requesting/calling for the records. Incidental question is whether
the Lokayukta is precluded from conducting a preliminary inquiry
prior to issuance of notice to public functionaries.
19. At the outset it must be mentioned that notice in this case
has not been issued to the public functionaries under the Act
against whom complaint has been filed. Notice was issued only to
Government of Delhi to produce the records to enable the
Lokayukta to proceed further in the matter. The State is resisting
this direction by raising technical pleas like complaint not having
been accompanied by affidavit and delayed filing of the judicial
stamp to make up the deficiency etc. Prosecution of the
LPA No. 160/2009 Page 13 of 21
complainant under Section 9(2) of the Act is sought for filing a false
and vexatious complaint. Curiously, before the Lokayukta it was
urged on behalf of the State that they would produce the records
not in the complaint but in the suo motu proceedings, if initiated by
the Lokayukta. On merits, the State sought to argue that the buses
acquired by Chennai Corporation were not low floor buses and were
semi-low floor buses. There is no provision in the Act which says
that the provisions of Section 11 of the Act, empowering the
Lokayukta to summon any record, would be applicable only after
issuance of notice to the parties. The Act does not require issuance
of notice to the public functionary before summoning the records
so as to satisfy himself that there is sufficient material to proceed
against the public functionary. The Government of Delhi being the
custodian of records was issued notice to produce the same. The
proceedings before the Lokayukta are inherently informal and not
technical in nature and as long as there is no violation of principles
of natural justice, the interference by the High Court in writ
jurisdiction under Article 226 of the Constitution would not be
appropriate.
20. We are also unable to agree with the view of the learned
single Judge that the term "enquiry" and "investigation" are used
synonymously in the Act and the Rules. The explanation to Section
7 of the Act provides that the expressions "may proceed to inquire"
and "may inquire" include investigation by any person or agency at
the disposal of the Lokayukta and Upalokayukta in pursuance of
sub-section (2) of Section 13 of the Act. Rule 2(iv) of the Rules on
LPA No. 160/2009 Page 14 of 21
which the learned single Judge has placed reliance deals with
investigation, which would be a post notice stage and in case the
Lokayukta decides after the preliminary inquiry to proceed against
the public functionaries then he would certainly issue notice and
'proceed to investigate' the matter in terms of the procedure as
laid down by the Rules. Rule 2(iv) thus applies only to post notice
stage and, therefore, it excludes the preliminary inquiry. The
provisions authorizing the Lokayukta to decide his procedure and
power to summon the record, does not require issuance of notice to
the public functionaries before summoning the records so as to
satisfy himself that there is sufficient material to proceed against
the public functionaries.
21. The power of the Lokayukta to hold a preliminary inquiry,
before issuing a formal notice, has been considered by the
Supreme Court in the case of Chaudhary Rama Rao vs.
Lokayukta & Ors., (1996) 5 SCC 304. In that case, an
anonymous complaint was received before the Lokayukta under
Section 3 of the A.P. Lokayukta & Up-Lokayukta Act, 1983. After
conducting preliminary investigation, the Lokayukta submitted his
interim report prohibiting purchase of the generator sets and also
by interim report directed the Government either to suspend the
petitioner or to transfer him and to take similar action against the
Superintending Engineer as well. In the writ petition, the petitioner
challenged the constitutionality of certain provisions of the A.P. Act
which was given up before the Supreme Court but objection was
raised to the procedure adopted by the Lokayukta in submitting the
LPA No. 160/2009 Page 15 of 21
report for taking action against the petitioner, for his suspension or
to transfer him to any other place. It was contended that the
petitioner has not been given any opportunity before submitting
the report to the Government and the action is contrary to Section
10 read with Section 12 of the Act. Repelling the objections, the
Court held:-
"4. The Lokayukta is empowered under the Act
to conduct such preliminary verification as he
deems fit or proposes to conduct any
investigation under the Act to find whether the
allegation in the complaint prima facie justify
for conducting regular investigation. Sub-
section (2)(a) of Section 10 postulates that
every preliminary verification referred to in
Sub-section (1) shall be conducted in private
and in particular, the identity of the
complainant and of the public servant affected
by the said preliminary verification shall not be
disclosed to the public or the press whether
before or during the preliminary verification,
but every investigation referred to in Sub-
section (1) shall be conducted in public. In
other words, the statutory provision
contemplates that while conducting
preliminary verification of the complaint under
Sub-section (1) of Section 12, the investigation
is required to be made in confidentiality and on
satisfying from the investigation of the alleged
misconduct, etc. He is empowered to take
further action under the Act. He is also
empowered under Section 11 to collect
evidence or have the investigation done as a
Civil Court by operation of Sub-section (2) of
Section 11 of the Act only when he satisfies
that there is an evidence to proceed further
under Section 10(1)(b). At that stage, he shall
afford an opportunity to the aggrieved person
to comment on such complaint or the
statement and conduct the investigation or
inquiry. He is enjoined to give reasonable
opportunity to the public servant. After
conducting the said inquiry, if he finds that the
public servant or the person referred
committed misconduct, then he is required to
submit the report to the Government as
enjoined under Section 12 of the Act. On
receipt thereof, under Sub-section (3), it shall
LPA No. 160/2009 Page 16 of 21
be lawful for the Government to take action as
recommended by the Lokayukta.
5. Considered from the operational conspectus
of the above provisions, it would not be
necessary to issue any notice or give
opportunity to a public servant at preliminary
verification or investigation. When the
Lokayukta or Up-lokayukta, as the case may
be, conducts a regular investigation into the
complaint, it would be necessary to give prior
opportunity to the public servant etc. By
implication, such an opportunity stands
excluded when preliminary verification or
investigation is conducted. The object appears
to be that the preliminary investigation or
verification is required to be done in
confidentiality to get a prima facie evidence so
that the needed evidence or material may not
be got suppressed or destroyed........................
...."
22. Our attention was drawn to the decision of the Supreme
Court in Shashikant vs. Central Bureau of Investigation,
(2007) 1 SCC 630, in which CBI had initiated a preliminary inquiry
upon receipt of the complaint. The question which had arisen for
consideration was as to whether it was obligatory on the part of the
CBI to lodge a first information report and carry out a full-fledged
investigation about the truthfulness or otherwise of the allegations
made in the said anonymous complaint. The Court observed that
although ordinarily in terms of Section 154 of the Code, when a
report is received relating to the cognizable offence, a first
information report should be lodged, to carry out a preliminary
inquiry even under the Code is not unknown. When an anonymous
complaint is received, no Investigating Officer would initiate
investigative process immediately thereupon. It may for good
reasons carry out a preliminary inquiry to find out the truth or
LPA No. 160/2009 Page 17 of 21
otherwise of the allegations contained therein. The Court referred
to the view expressed by Mitter, J. in P. Sirajuddin v. State of
Madras, (1970) 1 SCC 595, in the following words:
" Before a public servant, whatever be his
status, is publicly charged with acts of
dishonesty which amount to serious
misdemeanour or misconduct of the type
alleged in this case and a first information is
lodged against him, there must be some
suitable preliminary inquiry into the allegations
by a responsible officer. The lodging of such a
report against a person specially one who like
the appellant occupied the top position in a
department, even if baseless, would do
incalculable harm not only to the officer in
particular but to the department he belonged
to, in general .... The means adopted no less
than the end to be achieved must be
impeccable."
23. The Court also referred to the observations of Mudholkar, J. in
a separate judgment in State of Uttar Pradesh v. Bhagwant
Kishore Joshi, AIR 1964 SC 221 which read as follows:-
" In the absence of any prohibition in the
Code, express or implied, I am of opinion that it
is open to a police officer to make preliminary
enquiries before registering an offence and
making a full scale investigation into it."
24. The Supreme Court in the matter of Champaklal Chimanlal
Shah vs. Union of India, (1964) SCR 190, has drawn a
distinction between the departmental inquiry and the preliminary
inquiry as follows:-
".....But even where it is intended to take
action by way of punishment what usually
happens is that something in the nature of
what may be called a preliminary inquiry is first
held in connection with the alleged misconduct
or unsatisfactory work. In this preliminary
inquiry the explanation of the government
servant may be taken and documentary and
even oral evidence may be considered. It is
LPA No. 160/2009 Page 18 of 21
usual when such a preliminary inquiry makes
out a prima facie case against the servant
concerned that charges are then framed
against him and he is asked to show cause why
disciplinary action be not taken against him.....
"
25. In the light of the settled legal position, it is not possible to
accede to the submission that the Lokayukta has no power to call
for records in a preliminary inquiry. The exercise of calling for the
records was to satisfy that there was a prima facie case to proceed
with. The objections raised by the State regarding the
maintainability of the complaint are purely technical. Even
otherwise, it may not be open to the Government to raise any such
objection as it was issued notice only to produce records in its
possession. Under the provisions of the Act, Lieutenant Governor,
NCT of Delhi is required to take decision on the recommendations
made by the Lokayukta following an inquiry with respect to all
public functionaries. Therefore, entertaining a plea by the State
Government questioning the inquiry proceedings or exercise of
jurisdiction by the Lokayukta might seriously impede the statutory
and independent functioning of the Lokayukta under the Act. The
nature of proceedings conducted by the Lokayukta are altogether
different from a civil or criminal lis. Unlike civil or criminal
proceedings, a citizen making allegations against a public
functionary may not be in possession of complete facts or
documents, unless the allegation arises out of his personal
transaction with any public functionary. The powers conferred on
the Lokayukta are advisedly very wide. These powers are wider
than of any court of law. Notwithstanding remedies to be found in
LPA No. 160/2009 Page 19 of 21
courts of law and in statutory appeals against administrative
decisions, there still remains a gap in the machinery for the
redressal of grievances of the individuals against administrative
acts or omissions. The need to create an authority to deal with
such cases was felt by Conference of Jurists representing Asia and
Pacific Regions in following words:-
"This gap should be filled by an authority which
is able to act more speedily, informally and
with a greater regard to the individual justice
of a case than is possible by ordinary legal
process of the Courts, it should not be
regarded as a substitute for, or rival to, the
legislature or to the Courts but as a necessary
supplement to their work, using weapons of
persuasion, recommendation and publicity
rather than compulsion".
The fight between an individual citizen and the
State is unequal in nature. Therefore, the very
existence of such an institution will act as a
check and will be helpful in checking the
canker of corruption and maladministration.
More so when it has been repeatedly asserted
that the canker of corruption, in the
proportions it is said to have attained, may well
dig into the vitals of our democratic State, and
eventually destroy it (See Corruption - Control
of Maladministration by John B. Monteiro)."
26. The provisions of such an enactment, which is enacted for
the eradication of the evil of corruption and maladministration must
be construed liberally so as to advance the remedy. In our opinion,
there is absolutely no merit in any of the objections raised by the
State Government. The records in question under the Right to
Information Act, 2005, would be available even to a private person
and we see no reason why the State should deny the production of
these documents before the Lokayukta. In the result, the appeal is
LPA No. 160/2009 Page 20 of 21
allowed. The order of the learned single Judge is set aside. The
pending application stands disposed of as well.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J.
MAY 14, 2009 sb LPA No. 160/2009 Page 21 of 21