Andhra HC (Pre-Telangana)
Government Of Andhra Pradesh And Ors. vs G. Kesavulu on 7 March, 2002
Equivalent citations: 2003(2)ALD1, 2003(1)ALT636
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Motilal B. Naik, J.
1. The issues involved in these two Writ Petitions are inter-related and are heard and disposed off together by the following common order.
2. Writ Petition No. 239 of 2000 is filed by the Government of Andhra Pradesh, represented by its Principal Secretary to Government, Revenue (Endts.I) Department, Hyderabad, (2) Commissioner, Endowments Department, Government of Andhra Pradesh, Tilak Road, Hyderabad and (3) The Assistant Commissioner, Sri Bramarambika Mallikarjuna Swamy Devasthanam, Srisailam, Kurnool District assailing the judgment of the Andhra Pradesh Administrative Tribunal passed in O.A. No. 7137 of 1999 dated 27-12-1999. Whereas Writ Petition No. 602 of 2000 is filed by Sri G. Kesavulu, Executive Officer (under transfer), Srisailam Devasthanam questioning the competency of the Upa-Lokayukta of Andhra Pradesh, Hyderabad, sole respondent in the said Writ Petition, in issuing the interim order on 15-11-1999 and final order on 15-12-1999 in complaint No. 792/99/B2. A consequential direction is also sought by the petitioner to set aside the said orders dated 15-114999 and 15-12-1999 on various grounds.
Before we proceed to examine the contentions raised on behalf of the writ petitioners in these two writ petitions, few facts are necessary which are traced as under:
3. Petitioner in Writ Petition No. 602 of 2000 is the Executive Officer of Srisailam Devasthanam, Srisailam, Kurnool District, Andhra Pradesh who is in the rank of the Joint Commissioner of Endowments, Government of Andhra Pradesh. He claims to possess M.A., LL.B. qualifications and belong to Scheduled Caste community. According to him, he was initially appointed as Assistant Commissioner of Endowments in the year 1985 and was later promoted as Deputy Commissioner of Endowments in the year 1993. He was posted as in-charge Executive Officer of Srisailam Devasthanam, Srisailam, Kurnool District on 31-3-1998. Later he was promoted as Joint Commissioner of Endowments and posted as regular Executive Officer of Srisailam Devasthanam, Srisailam with effect from 1-1-1999 and since then he has been discharging his duties in that capacity.
4. According to this writ petitioner, as Executive Officer of Srisailam Devasthanam, he has taken much pains and introduced several innovative changes in the day-to-day functioning of the temple with the sole object to improve the facilities available to the piligrims and also to increase the revenue of the temple. He had earlier worked in Tirumala Tirupati Devasthanams, Tirupati as well as Hathiramji Baba Mutt of Tirupati as Deputy Executive Officer and acquired substantial experience. With that experience, he claimed, he introduced some innovative measures in the administrative functioning of the Srisailam Devasthanam.
5. In order to improve the facilities available to the piligrims, he provided several bathrooms, toilets, improved the supply of drinking water and medical facilities. He also introduced Special Sevas and major programmes like Brahmotsavams and also rationalized the rates of tickets for special Darshans and Poojas. As authorised by the Trust Board of Srisailam Devasthanam by its various resolutions, he took up new constructions, purchased electrical items and undertook other works to meet the exigency arising out of the Brahmotsavam on the eve of Sivaratri Festival on 14-2-1999. Petitioner claims to have worked hard, took up several works including that of constructing about 100 Choultries, toilets etc., and all his acts were subsequently approved by the Commissioner of Endowments, Government of Andhra Pradesh, Hyderabad. According to the petitioner in view of his efforts, the income of the temple has been increased from Rs. 10 crores to 20 crores per annum. He further claimed that he also took steps to curb the malpractices which were prevalent in the Devasthanam and came down heavily on the staff members who were indulging in such malpractices by taking drastic action against them even by initiating disciplinary action against few Archakas of the Devasthanam who were found to be in collusion with private contractors and knocking away the income of the temple.
6. Petitioner complained that various activities undertaken by him in the Srisailam Devasthanam have become an eye-sore to few staff connected with the Devasthanam and they in connivance with some private coconut contractors have sent anonymous complaints to various authorities against him. Petitioner stated that several such complaints sent against him were also got enquired into by the Director General of Vigilance and Enforcement, Hyderabad through the Regional Vigilance and Enforcement Officer, Kurnool who submitted a report on 16-9-1999 appreciating the efforts made by the writ petitioner in improving the facilities to the pilgrims and improving the revenue of the temple by his innovative measures. The Report of the Regional Vigilance and Enforcement Director dated 16-9-1999 also reveal the manner in which the efforts made by the petitioner have resulted in increased revenue to the Temple. The report further revealed that one Gangadharaiah, an Archaka who was acting like de facto Executive Officer of Srisailam Devasthanam is instrumental in sending false and frivolous complaints against the petitioner.
7. In the background of these allegations made against the petitioner which were found to be false and frivolous by the Regional Vigilance and Enforcement Officer, Kurnool, the petitioner was sought to be transferred from the post of the Executive Officer, Srisailam Devasthanam as per the order dated 25-11-1999 issued by the Commissioner of Endowments, Hyderabad vide Proceedings Rc.E1/59849/993 and was directed to handover the charge of the said post immediately to his P.A. and get himself relieved from the said post and approach the Commissioner of Endowments for further posting. This order of transfer dated 25-11-1999 is, pursuant to an order of the Government in G.O. Rt. No. 1801 Revenue (Endowments-1) Department, dated 25-11-1999. Petitioner states that the Government issued the said transfer order in pursuance of the interim direction issued by the Upa-Lokayukta of Andhra Pradesh on 15-11-1999 directing the Government to transfer him from the post of Executive Officer of Srisailam Devasthanam on the basis of a complaint filed by one M. Venkateswarlu.
8. Petitioner stated that the order of transfer dated 25-11-1999 was challenged by him before the A.P. Administrative Tribunal in O.A. No. 7137 of 1999 on various grounds. The Administrative Tribunal initially made the following interim order pending passing of the final order in the said O.A., which reads as under :
"In the circumstances, pending further consideration of the O.A., the orders impugned in this O.A. i.e., G.O. Rt. No. 1801, Revenue (Endowments-I) Department dated 25-11-1999 and the consequential order of the Commissioner of Endowments dated 25-11-1999 itself, directing the applicant to relieve himself on 25-11-1999 itself handing over the charge to his own P.A. (Assistant Commissioner cadre) are suspended, directing the respondents to re-admit and continue the applicant as Executive Officer in Sri Brahmarambika Mallikarjunaswamy Devasthanam, Srisailam".
9. The respondents in the said O.A. No. 7137 of 1999 contested the matter by filing Vacate Miscellaneous Application No. 521 of 1999 before the Administrative Tribunal. The Administrative Tribunal having considered the entire gamut of the contentions raised on behalf of the applicant (Petitioner in W.P.No.602 of 2000), Government of Andhra Pradesh as well as the Commissioner of Endowments, held that since the Upa-Lokayukta has entrusted the allegations made against the petitioner for comprehensive probe and necessary action to the Director General, ACB and that the records relating to the allegations are already transferred to the Director General, ACB and that the petitioner may not hamper the investigation that would be conducted by ACB as directed by the Upa-Lokayukta, and as such, directed the respondents to re-post and continue the petitioner as Executive Officer/Joint Commissioner of Sri Brahmarambika Mallikarjunaswamy Temple, Srisailam till such time as the enquiry is completed by the ACB authorities. While holding so, the Tribunal disposed of the said O.A. No. 7137 of 1999 on 27-12-1999.
10. This order dated 27-12-1999 passed by the Administrative Tribunal is challenged by the Government of Andhra Pradesh represented by its Principal Secretary to Government, Revenue (Endts.I) Department, Hyderabad and others in Writ Petition No. 239 of 2000 before this Court. A Division Bench of this Court during Sankranti Vacation of the year 2000, by an order dated 11-1-2000 suspended the order of the Administrative Tribunal dated 27-12-1999 in O.A. No. 7137 of 1999. A separate Writ Petition No. 602 of 2000 is also filed by Sri G. Kesavulu, Executive Officer (under transfer) of Srisailam Devasthanam questioning the competency of the Upa-Lokayukta in passing the orders dated 15-11-1999 and 15-12-1999 and thus, these two writ petitions are taken up together for consideration and disposal.
11. On behalf of the petitioner in Writ Petition No. 602 of 2000, Sri P. Gangaiah Naidu, learned Counsel submitted that the Upa-Lokayukta of Andhra Pradesh has no power either to direct the Government to transfer the petitioner or to direct an A.C.B. enquiry into the allegations made against the petitioner. According to the learned Counsel, as provided under Rule 16 of the A.P. Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984, the Upa-Lokayukta is entitled to forward an interim report to the appropriate competent authority recommending grant of interim relief to the complainant if he is satisfied, at the stage of preliminary verification or investigation, that the complainant has sustained injustice or undue hardship in consequence of any act of a public servant. Counsel stated, the Upa-Lokayukta has directed the Government of Andhra Pradesh by an interim order dated 15-11-1999 to transfer the petitioner from the post of Executive Officer of Srisailam Devasthanam to another non-focal post on certain assumptions and presumptions even though he is not competent either under the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 or under the Rules made thereto to issue such direction. It is therefore, urged that the interim direction issued by the Upa-Lokayukta on 15-11-1999 has to be declared as void and without authority.
12. Turning to the Final Order dated 15-12-1999 passed by the Upa-Lokayukta, learned Counsel for the petitioner in Writ Petition No. 602 of 2000 stated that through the final order, the Upa-Lokayukta directed the Director General of ACB, Hyderabad to register a case against the petitioner on the basis of a complaint and further directed to cause investigation in detail with respect to all the allegations including those which have already been investigated by the Director (Investigation) of the Institution of Lokayukta. This final order dated 15-12-1999 of the Upa-Lokayukta, according to the learned Counsel, is also without authority and beyond the Scheme of the Act itself and therefore, the same has to be quashed as ultra vires the Statute. Learned Counsel further stated that as required under Section 10(1)(a) & (b) of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983, when the Lokayukta or the Upa-Lokayukta, as the ease may be, after making such preliminary verification, proposes to conduct any investigation into the complaint made against the public servant, he shall afford the public servant concerned an opportunity to offer his comments on such complaint. Even without affording any opportunity, the Upa-Lokayukta has entrusted the enquiry to be held by the Director General of ACB, which action, according to the learned Counsel is without competence. Counsel, therefore, submitted that on this ground alone, the orders passed by the Upa-Lokayukta dated 15-11-1999 and 15-12-1999 are liable to be quashed.
13. It is also relevant at this juncture to record the submissions made on behalf of G. Kesavulu, Executive Officer (under transfer) of Srisailam Devasthanam who is the respondent in Writ Petition No. 239 of 2000, which is filed by the Government of Andhra Pradesh represented by its Principal Secretary, Revenue (Endts.I) Department and two others assailing the order in O.A. No. 7137 of 1999 dated 27-12-1999 passed by the A.P. Administrative Tribunal, Hyderabad.
14. Sri M. Surender Rao, learned Counsel appearing for the public servant/ respondent in Writ Petition No. 239 of 2000 while supporting the contentions made on behalf of the public servant/Executive Officer (under transfer) by Sri P. Gangaiah Naidu, took us to various provisions of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 and the Rules framed thereunder. Drawing our attention to the order of transfers dated 25-11-1999 issued by the petitioners 1 and 2 in Writ Petition No. 239 of 2000, learned Counsel stated that in the counter filed on behalf of the Government in OA. No. 7137 of 1999 before the A.P. Administrative Tribunal, it is categorically averred that the transfer of Sri G. Kesavulu, Executive Officer from Srisailam Devasthanam has been made on the basis of the direction issued by the Upa-Lokayukta on 15-11-1999 to the Government. Counsel stated that the Upa-Lokayukta has issued interim direction on 15-11-1999 directing the Government of Andhra Pradesh to transfer the Executive Officer of Srisailam Devasthanam immediately and it is in pursuance of the said direction only, the public servant-respondent in W.P. No. 239 of 2000 has been transferred by petitioners 1 and 2 in the said writ petition, by proceedings on 25-11-1999 itself. Counsel stated, the manner in which the first and second petitioners in Writ Petition No. 239 of 2000 had acted upon the interim direction issued by the Upa-Lokayukta on 15-11-1999, even though he has no authority to do so, would only go to show how prejudiced are the petitioners 1 and 2 against the respondent in Writ Petition No. 239 of 2000 as he being a member of Scheduled Caste community. Learned Counsel further submitted that the Upa-Lokayukta issued the interim direction dated 15-11-1999 to the Government to transfer the respondent-public servant from the post of the Executive Officer, Srisailam Devasthanam solely relying on the decision of the Supreme Court in Ch. Rama Rao v. Lokayukta and Ors., , though in fact, the Supreme Court has not conferred such powers on the Institution of Lokayukta or Upa-Lokayukta. Counsel contended that neither the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 nor the Rules made thereunder vested such power on the Upa-Lokayukta, but the Upa-Lokayukta on an erroneous understanding of the decision of the Supreme Court in Ch. Rama Rao's case (supra) has deduced such power from the said decision, which according to the learned Counsel, is impermissible. Under these circumstances, Counsel pleaded, that the orders dated 15-11-1999 and 15-12-1999 issued by the Upa-Lokayukta be declared as ultra vires the Statute itself.
15. Incidentally, learned Counsel has also taken us to Rule 16 of the A.P. Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 which authorizes the Lokayukta or Upa-Lokayukta, as the case may be, to forward an interim report to the competent authority recommending grant of an interim relief to the complainant if he is satisfied that the complainant has sustained injustice due to the acts of the public servant. While drawing our attention to this Rule 16, learned Counsel stated when this Rule only envisages to grant relief to the complainant and nothing else and except this Rule no provision in the Act or the Rule has empowered the Lokayukta or Upa-Lokayukta to issue such directions and assumption of such power by the Upa-Lokayukta relying on the decision of the Supreme Court in Ch. Rama Rao 's case (supra) is per se illegal and would tantamount to overstepping his jurisdiction. Counsel also argued that the decision of the Supreme Court in Ch. Rama Rao's case (supra) has to be treated as per incurium in the light of the specific Rule 16 provided in the Rules which enabled the Upa-Lokayukta to submit an interim report only when relief is to be granted to the complainant if he suffered any loss on account of the acts of the public servant. In support of his arguments, learned Counsel has taken us to the following decisions reported in Young v. Bristol Aeroplane Co. Ltd., 1944 (2) All ER; in Penny v. Nicholas, 1950 (2) All ER; in A.R. Antulay v. R.S. Nayak and Anr., and in Gasket Radiators Pvt., Limited v. State Insurance Corporation and Anr., . Learned Counsel further submitted that the Administrative Tribunal before whom the respondent in this Writ Petition No. 239 of 2000 questioned his arbitrary transfer, has rightly held that the transfer order is uncalled for and was justified in setting aside the same. Counsel also submitted that the Upa-Lokayukta as provided under Section 10(1)(a) and (b) of the Act is bound to afford an opportunity to the respondent/public servant seeking his comments. Since the transfer of the public servant is on account of the directives issued by the Upa-Lokayukta, such transfer is one of punitive in nature and therefore, it is a clear case of violation of the principles of natural justice and liable to be set aside. Counsel, therefore, submitted that the Administrative Tribunal was justified in setting aside the order of transfer and pleaded that the Writ Petition No. 239 of 2000 filed against the order of the Tribunal has to be dismissed.
16. On behalf of the petitioners in Writ Petition No. 239 of 2000, learned Additional Advocate General has made efforts to convince us that the order passed by the A.P. Administrative Tribunal in O.A.No. 7137 of 1999 dated 27-12-1999 is unsustainable inasmuch as it is the prerogative of the Government to transfer any of its employees on administrative grounds. According to the learned Additional Advocate General, the Administrative Tribunal without appreciating this aspect of the matter, has erroneously set aside the transfer of the respondent/ public servant. Learned Additional Advocate General tried to convince us that when transfer of a public servant is made on administrative grounds, in the absence of any mala fides alleged against the transferring authority, High Court exercising jurisdiction under Article 226 of the Constitution of India would normally show reluctance to interfere with such transfer orders. Learned Additional Advocate General apart from justifying the transfer order passed by petitioners 1 and 2 in Writ Petition No. 239 of 2000, disturbing the respondent/public servant from the post of the Executive Officer, Srisailam Devasthanam, also justified the action of the Upa-Lokayukta in issuing the interim order to the Government on 15-11-1999 and final order on 15-12-1999.
17. While drawing our attention to the decision of the Supreme Court in Ch. Rama Rao's case (supra), learned Additional Advocate General submitted that the Supreme Court in the said decision has held that the Lokayukta or Upa-Lokayukta, as the case may be, has the power to submit final report with recommendation to take punitive or penal action and such power also includes the power to submit interim report with recommendation to suspend or transfer a public servant pending further investigation or the preliminary verification itself. Learned Additional Advocate General submitted that the Upa-Lokayukta on the basis of the material placed before him came to the conclusion that the respondent/public servant has to be transferred immediately from the post of Executive Officer, Srisailam Devasthanam, in view of the seriousness of the allegations made against him and to facilitate smooth enquiry or investigation without being hampered by him or to tamper with the evidence by him and as such sent an interim report on 15-11-1999 in this regard to the Government and the Government has acted on the direction and issued transfer order of the respondent/public servant. It is nextly submitted by the learned Additional Advocate General that the Administrative Tribunal fell in error on an erroneous assumption of the facts of the case by directing the Government to retain the respondent/public servant in the same post of the Executive Officer, Srisailam Devasthanam, which is uncalled for. Learned Additional Advocate General, therefore, pleaded that the order dated 27-12-1999 passed by the A.P. Administrative Tribunal in O.A.No. 7137 of 1999 is liable to be set aside.
18. Sri M.V.S. Suresh Kumar, learned Counsel appearing on behalf of the sole respondent - Upa-Lokayukta of Andhra Pradesh in Writ Petition No. 602 of 2000 made herculean efforts to convince us that the action of the Upa-Lokayukta in issuing orders dated 15-11-1999 directing transfer of the petitioner in W.P. No. 602 of 2000 from the post of Executive Officer, Srisailam Devasthanam, and the order dated 15-12-1999 directing ACB enquiry against the petitioner/ public servant are justifiable and are well within the competency of the Lokayukta and Upa-Lokayukta Act, 1983. Strongly placing reliance on the decision of the Supreme Court in Ch. Rama Rao 's case (supra), learned Counsel submitted that the Supreme Court has held that the Lokayukta or the Upa-Lokayukta, as the case may be, with the power to issue appropriate direction meeting the situation, including the power to submit interim report to the appropriate authority recommending suspension or transfer of the public servant. Counsel submitted that when the Supreme Court has held that the Lokayukta or the Upa-Lokayukta are entitled to issue such directions, the submission advanced on behalf of the petitioner/public servant are not tenable. Counsel nextly submitted that the Lokayukta or the Upa-Lokayukta, are entitled to seek assistance from various authorities in the process of making preliminary investigation and in that process, issuing notice to the public servant as required under Section 10(1)(a) and (b) of the Act does not arise at all. Counsel submitted that the final order passed by the Upa-Lokayukta on 15-12-1999 directing the ACB to register a case against the petitioner/public servant is only in the nature of collecting further material in the course of preliminary verification and therefore, such an order passed by the Upa-Lokayukta cannot be said to be without authority. Under these circumstances, learned Counsel submitted that the orders dated 15-11-1999 and 15-12-1999 passed by the Upa-Lokayukta are in accordance with the Act and as per the decision of the Supreme Court in Ch, Rama Rao's case and pleaded for dismissal of W.P. No. 602 of 2000.
19. In the wake of these divergent submissions, we now propose to examine the principal contention raised on behalf of the petitioner/public servant in Writ Petition No. 602 of 2000 that the Upa-Lokayukta has no authority to entrust the investigation on the allegations made against him to the Director General of Anti Corruption Bureau and that the Upa-Lokayukta has also no authority to direct the State Government to effect the transfer of the public servant.
20. The center of controversy seems to be the assumption of power by the Upa-Lokayukta directing the Government and Director General of ACB to transfer the public servant and to register a case and proceed to make thorough investigation and take action accordingly. For understanding the implications, we now refer to few relevant provisions of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 (for short "the Act").
21. The object of this Act, as could be discernible from the preamble is to make provision for the appointment and functions of Lokayukta and Upa-Lokayukta for the investigation of Administrative action taken by or on behalf of the Government of Andhra Pradesh or certain Local and Public Authorities in the State of Andhra Pradesh (including any omission and commission in connection with or arising out of such action) in certain cases and for matters connected therewith.
22. Section 7 of the Act provides matters which may be investigated by Lokayukta or Upa-Lokayukta. Section 9 deals with the provision relating to complaints. Section 10 of the Act provide the procedure in respect of investigations which reads thus:
10. Procedure in respect of investigations :--(1) Where the Lokayukta or Upa-Lokayukta after making such preliminary verification as he deems fit, proposes to conduct any investigation under this Act, he,--
(a) shall forward a copy of the complaint or, in the case of any investigation which he proposes to conduct on his own motion, a statement setting out the grounds therefor, to the public servant concerned and the competent authority concerned;
(b) shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement; and
(c) may make such orders as to the safe custody of documents relevant to the investigation as he deems fit.
(2) (a) 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:
Provided that the Lokayukta or Upa-Lokayukta may conduct any such investigation in private, if he, for reasons to be recorded in writing thinks fit to do so,
(b) Every such investigation shall be completed within a period of six months, unless there is sufficient cause for not completing the investigation within that period, so however, that the total period for completing such investigation shall not exceed one year.
(3) Save as aforesaid, the procedure for conducting any investigation shall be such as the Lokayukta or, as the case may be, the Upa-Lokayukta considers appropriate in the circumstances of each case.
(4) The Lokayukta or Upa-Lokayukto may, in his discretion, refuse to investigate or discontinue the investigation of any complaint involving any 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 investigation or, as the case may be, for continuing the investigation; or
(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.
(5) In any case where the Lokayukta or Upa-Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of the complaint, he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned.
Section 11 of the Act provides for recording of evidence by the Lokayukta or the Upa-Lokayukta and it reads thus:
11. Evidence :--(1) Subject to the other provisions of this Section, for the purpose of any investigation (including preliminary verification if any, before such investigation) made under this Act, the Lokayukta or Upa-Lokayukta may require any public servant or any other person, who in his opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.
(2) For the purpose of any such investigation (including the preliminary verification) the Lokayukta or Upa-Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office,
(e) issuing commissions for the examination of witnesses or documents;
(f) such other matters as may he prescribed.
Section 12 of the Act envisages submission of reports by Lokayukta or Upa-Lokayukta and it reads thus:
12. Reports of Lokayukta or Upa-Lokayukta :--(1) If, after investigation of any allegation in respect of any action under this Act, the Lokayukta or Upa-Lokayukta 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 or other evidence to the competent authority.
(2) The competent authority shall examine the report forwarded to it under Sub-section (1) and without any further inquiry take action on the basis of the recommendation and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Upa-Lokayukta, the action taken or proposed to be taken on the basis of the report.
(3) Where, in a report forwarded by the Lokayukta or Upa-Lokayukta, any recommendation imposing the penalty of removal from the office of a public servant falling within Sub-clause (iv) or Sub-clause (v) of Clause (k) of Section 2 has been made, it shall be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making him ineligible for being elected to any office specified by the Government in this behalf, notwithstanding anything contained in any law for the time being in force.
(4) If the Lokayukta or Upa-Lokayukta is satisfied with the action taken or proposed to be taken on his findings and recommendations referred to in Sub-section (I), he shall close the case under intimation to the complainant, the public servant and the competent authority concerned; but where 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 Governor and also inform the complainant.
(5) The Lokayukta and the Upa-Lokayukta shall present annually a consolidated report on the work done under this Act to the Governor.
(6) On receipt of the special report under Sub-section (4) or the annual report under Sub-section (5), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature.
(7) Subject to the provisions of Sub-section (2) of Section 10, the Lokayukta may, at his discretion make available, from time to time, the substance of cases closed or otherwise disposed of by him or by the Upa-Lokayukta, which may appear to him to be of a general, public, academic or professional interest, in such manner and to such persons as he may deem appropriate.
Section 13 of the Act provides for prosecution for false complaints. Section 18 provides for conferment of additional functions on Lokayukta and Upa-Lokayukta. Section 19 provides the powers to delegate and Section 20 provides power to make Rules.
23. Relevant Rules have been provided to the Act which are known as the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984.
Rule 2 Sub-rule (viii) defines what is meant by preliminary verification and it reads thus:
"Preliminary verification" means any inquiry or other proceedings conducted by the Lokayukta or Upa-Lokayukta in connection with a complaint or on his own motion for the purpose of satisfying himself as to whether there are any grounds for conducting an investigation into such complaint.
Chapter II of the Rules provides for Complaints, their Scrutiny and Verification. Rule 3 provides how a complaint shall be filed. Rule 4 provides for scrutiny of the complaint. Chapter III of the Rules provides for Preliminary Verification and Investigation. Rule 5 provides for Preliminary Verification and it reads thus :
5. Preliminary verification :--(1) After the registration of the complaint, the Lokayukta or Upa-Lokayukta, as the case may be, shall inform the complainant in Form V and may make such preliminary verification as he deems fit in regard to the allegation in the complaint and the action complained of on the basis of the information furnished through the complaint and the affidavits, documents and copies thereof, if any, enclosed to the complaint and also on his own motion before he proposes to conduct any investigation.
(2) The Lokayukta or Upa-Lokayukta may utilise the services of such Law Officers or other legally trained persons as may be attached to his establishment in the course of the preliminary verification.
Rule 6 provides how to commence investigation, Rule 7 provides the procedure for conducting the investigation.
24. The pith and substance of the submissions advanced on behalf of the petitioner/public servant in Writ Petition No. 602 of 2000 who is also the respondent in Writ Petition No. 239 of 2000 by Sri P. Gangaiah Naidu and Sri M. Surender Rao, learned Counsel are categorised as under :
(a) The Upa-Lokayukta has exercised jurisdiction which is not vested in him by issuing the interim order on 15-11-1999 directing the Government of Andhra Pradesh to transfer the public servant from the post of the Executive Officer., Srisailam Devasthanam;
(b) The Upa-Lokayukta has no power or authority to direct the Director General of ACB, Hyderabad by his final order dated 15-12-1999 to register a case against the public servant on the basis of a complaint and cause investigation to be made in detail in respect of the allegations while collecting relevant records relating to the allegations pertaining to construction work which has already been enquired into by the Regional Vigilance and Enforcement Officer, Kurnool;
(c) On an earlier occasion, at the instance of the Director General of Vigilance and Enforcement, Hyderabad, the Regional Officer of Vigilance and Enforcement has conducted an enquiry into the allegations made by one Gopalakrishna Murthy on behalf of the employees of the Srisailam Devasthanam against the public servant and by his report dated 16-9-1999 exonerated the public servant and that the action of the Upa-Lokayukta, directing the Director General of ACB, Hyderabad by his final order dated 15-12-1999 on the basis of the complaint filed before him by one M. Venkateswarulu to conduct enquiry into some of the allegations, is improper and would amount to double jeopardy;
(d) The Upa-Lokayukta is not competent to direct the Principal Secretary to Government (Endts.I) Department to issue necessary instructions to stall the domestic enquiry proposed by the public servant/respondent in W.P. No. 239 of 2000 against public servants 2 and 3.
25. Learned Additional Advocate General appearing on behalf of the petitioners in Writ Petition No. 239 of 2000 and Sri M.V.S. Suresh Kumar, learned Counsel appearing on behalf of the Upa-Lokayukta/ respondent in Writ Petition No. 602 of 2000, on the other hand, contended that the power of the Upa-Lokayukta to issue necessary interim directions has been well recognized by the Supreme Court in Ch. Rama Rao 's case (supra). It is submitted by them that without regard to Rule 16 of the Rules which provides for submitting an interim report to the appropriate authority in a particular contingency, the Supreme Court in the said decision has held that the Lokayukta or the Upa-Lokayukta, as the case may be, is entitled to submit interim report. It is further submitted that the Supreme Court has considered the provisions of the Act and the Rules made thereunder and held as above. When once the Supreme Court has laid down a law, it is not open to the respondent/public servant to say that the decision of the Supreme Court is per incurium.
26. In order to examine the above contentions, we now proceed to refer to the decision of the Supreme Court in Ch. Rama Rao v. Lokayukta and Ors., .
27. A reading of the above cited decision, particularly paragraphs 2 and 3, it is evident that the constitutional validity of the provisions of Sections 3, 4, 7 and 12 of the A.P. Lokayukta and Upa-Lokayukta Act, 1983 though questioned, has not been agitated before the Supreme Court. However, before the Supreme Court, it was seriously objected to the procedure adopted by the Lokayukta in submitting a report for taking action against the petitioner in that case for his suspension or transfer to any other place in the context of the jurisdiction to take such an action, being vested in Upa-Lokayukta. Para-2 of the said decision of the Supreme Court makes this clear and it traced as under:
"As regards the constitutionality of the above provisions, in fairness, Mr. A. Subba Rao, the learned Counsel appearing for the petitioner, had not pressed the same in these SLPs stating that the matters are pending adjudication in another appeal. But he seriously objected to the procedure adopted by the Lokayukta in submitting the report for taking action against the petitioner for suspension of him or to transfer him to any other place. According to the learned Counsel, the Lokayukta has no jurisdiction to take action and (sic when) Upa-Lokayukta came to be appointed under the Act. We find no force in the contention."
Coming to paragraph-3 of the said decision, the Supreme Court was considering the power of Lokayukta even though the Upa-Lokayukta is being appointed. While referring to Sub-section 3 of Section 7 of the Act, the Supreme Court held that the Lokayukta, notwithstanding the power conferred under Sub-section (2) thereof on the Upa-Lokayuka can take suo motu action in respect of any action contemplated under the Act but by recording reasons in writing. Thus, it is clear from a reading of paragraphs 2 and 3 of the said decision, the issue before the Supreme Court in the said case was about the Lokayukta exercising Jurisdiction on a particular matter which Jurisdiction is vested with the Upa-Lokayukta. In para-4 of the said decision, the Supreme Court held that when the Lokayukta or Upa-Lokayukta is conducting preliminary verification or investigation under the Act to find out whether the allegations in the complaint prima facie justifies for conducting regular investigation, at that stage, no notice need be given to the affected public servant. This is because the Act itself provides that the identity of the complainant and the affected public servant shall not be disclosed to the public or to the press.
28. It is in this background, the Supreme Court held that at the stage of preliminary verification or preliminary investigation, no opportunity need be given to the affected public servant. It is only after conducting such preliminary investigation if the Lokayukta or the Upa-Lokayukta, as the case may be, finds that the public servant or the person referred to in the complaint committed misconduct, then he is required to submit a report to the Government as required under Section 12 of the Act. If the Lokayukta or the Upa-Lokayukta is satisfied that there is sufficient evidence to proceed further under Section 10(1)(b) of the Act, it is at that stage only, the public servant shall be afforded an opportunity for his comments.
29. A combined reading of paragraphs 2, 3 and 4 of the said decision of the Supreme Court, in the light of the facts emanating from the said decision, the issue before the Supreme Court was the Lokayukta exercising the power which is conferred on the Upa-Lokayukta and the requirement of affording an opportunity to the affected public servant. Para-5 of the said decision which is more relevant, is extracted as under;
"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 Upa-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 verification or investigation is required to be done in confidentiality to get prima facie evidence so that the needed evidence or material may not be got suppressed or destroyed. It is seen from the report submitted by the Lokayukta, that he has prima facie found that there are some allegations against the petitioner. We are not dealing with the nature of the allegations since the matters are yet to be investigated. Suffice it to state that the Lokayukta has power to submit a preliminary report to take further action so as to enable the Lokayukta to conduct further investigation. The power to submit final report with recommendation to lake punitive or penal action includes power to submit interim report with recommendation to suspend an officer or to transfer him pending further investigation or the preliminary verification itself. The object of the recommendation is only to enable smooth enquiry or the investigation conducted without being hampered with by the persons concerned or to prevent an opportunity to tamper with the record or to destroy the record. Under these circumstances, we think that the Lokayukta was well justified in not issuing any notice or giving any opportunity to the petitioner at preliminary verification."
30. We must, without hesitation, say that the plea of the learned Counsel appearing on behalf of the Upa-Lokayukta of Andhra Pradesh, sole respondent in Writ Petition No. 602 of 2000 that the Supreme Court has clothed the Upa-Lokayukta all the powers to do and undo though, which power is not vested in him either under the Act or the Rules framed thereunder, is unacceptable to us.
31. The object of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 is to make provisions for the appointment and functions of Lokayukta and Upa-Lokayukta for the investigation of administrative action taken by or on behalf of the Government of Andhra Pradesh or certain Local and Public Authorities in the State of Andhra Pradesh. The primary duty of the Institution of Lokayukta and Upa-Lokayukta is to investigate the administrative action taken by certain public authorities. As provided under Section 12 of the Act, the Lokayukta or Upa-Lokayukta has to submit a report to the appropriate authority if after investigation of all allegations in respect of any action under this Act, the Lokayukta or Upa-Lokayukta is satisfied that such allegations are substantiated either wholly or partly, recommend appropriate action with relevant documents along with evidence if any. Therefore, the primary and principal function of the Lokayukta or the Upa-Lokayukta is to conduct investigation and submit a report along with his recommendations to the appropriate competent authority for taking action.
32. No where in the Act or Rules the Lokayukta or the Upa-Lokayukta is empowered to direct a particular authority to do a particular act nor the Lokayukta or the Upa-Lokayukta is empowered to issue a direction to the Government or to such authority to act in a particular manner. Section 12 of the Act has to be read along with the preamble of the Act which only provides two contingencies as indicated above by us.
33. It is no doubt true, while enquiring into the allegations against a public authority under this Act, as provided under Section 11, the Lokayukta or the Upa-Lokayukta is entitled to record evidence and seek assistance of such authority, but, however, seeking assistance from such authority would not mean that the Lokayukta or the Upa-Lokayukta can issue a mandate to a particular authority to do a particular act in a particular fashion. The Supreme Court, in our view, in the decision in Ch. Rama Rao 's case (supra) has not clothed the Lokayukta or the Upa-Lokayukta with such power which is not available to the Lokayukta or the Upa-Lokayukta either under the Act or under the Rules, What all the Supreme Court said in para-5 of the said decision is that when the Lokayukta or the Upa-Lokayukta has the power to submit a final report with recommendation to take punitive or penal action and such power would necessarily include the power to submit an interim report with recommendation. We are unable to read the decision of the Supreme Court to say that the Supreme Court has clothed such powers in the Institution of Lokayukta or Upa-Lokayukta to do and undo an act and issue directions to any authority.
34. In the light of the discussion on the object and scope of the Act, we now proceed to refer to the interim report of the Upa-Lokayukta dated 15-11-1999 and final report dated 15-12-1999 in complaint No. 792/99/B2, to find out whether these reports are recommendatory in nature or directory.
35. In the interim order passed by the Upa-Lokayukta in complaint No. 792/99/B2 is dated 15-11-1999, the Upa-Lokayukta mentions the name of the complainant and traces the allegations made against the public servant. Page-2 of the said order reads thus :
"In view of the serious allegations made in the complaint, the file was referred to the Director (Investigation) for discreet probe and submission of preliminary verification report, whereupon the Director (Investigation) submitted his scrutiny report along with the preliminary verification report of the Investigating Officer of this Institution, from which it appears that the transaction of purchasing the wireless communication system by PS-1 was found prima facie true through the acts of criminal conspiracy, cheating, fraud by way of fabrication of documents, criminal misconduct by way of obtaining pecuniary advantage without any public interest by abusing their official position by PS-1 i.e., G. Kesavulu and T. Naga Mallaiah, Executive Engineer (Electrical) in the Office of the Joint Commissioner and Executive Officer....."
In page-3 of the said order, the names of the officers are indicated. The interim order dated 15-11-1999 further touches upon the allegation about the purchase of VHF sets, purchase of electrical items, amount spent for illumination at the time of Mahasivaratri, and about civil works undertaken by the public servant At page-7 of the said order, it is indicated thus :
"In recent decision of the Apex Court reported in 1998 (4) ALT at page 8 in Ch. Rama Rao v. Lokayukta and Ors., while dealing with the powers of the provisions relating to Sections 10(1) 2(a) and 12 of the A.P. Lokayukta and Upa-Lokayukta Act 11 of 1983 their Lordships of the Apex Court after considering the operational conspectus of the said provisions, have held that 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 Upa-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."
36. On the basis of this decision of the Supreme Court, the Upa-Lokayukta further observed at page-7 of his interim order, thus :
"A perusal of the scrutiny report and the investigation report in this compliant shows that I have prima facie found that there are some allegations against the Executive Officer and others which require further probe/investigation into the matter. Their Lordships of the Apex Court have categorically observed that suffice it to state that the Lokayukta has power to submit a preliminary report to take further action so as to enable the Lokayuykta to conduct further investigation. The power to submit final report with recommendation to take punitive or penal action includes power to submit interim report with recommendation to suspend an officer or to transfer him pending further investigation..."
The Lokayukta on the basis of this judgment of the Supreme Court justifies exercise of such power saying that their Lordships of the Supreme Court had approved the acts of the Lokayukta in not issuing any notice or giving an opportunity to the public servant at preliminary verification stage and further says that the decision of the Supreme Court squarely applies to the facts of the case and defends that no notice need be given to the public servant. The last paragraph of the interim order dated 15-11-1999 reads thus :
"In the facts and circumstances of the case, the Principal Secretary to Government, Revenue Department is directed immediately to transfer the above three persons to different non-focal posts or post them to far away place, so that they will not tamper with the records or hamper further progress in the matter. The Principal Secretary is directed to submit compliance report on this interim report."
37. It is, manifestly clear from the language of the interim order dated 15-11-1999 issued by the Upa-Lokayukta that the said order, undoubtedly, is directory in nature and not at all recommendatory,
38. Applying the ratio laid down by the Supreme Court in Ch. Rama Rao's case, to the facts of this case, we must say, since the Upa-Lokayukta had crossed the stage of preliminary verification/preliminary investigation by utilising the services of his investigating wing as is evident from the report itself, the Upa-Lokayukta ought to have issued a notice to the public servant seeking his comments. However, we are ofthe view, in this case, that contingency may not arise in view of the final order passed by the Upa-Lokayukta on 15-12-1999 entrusting the matter to the Director General, ACB, Hyderabad for registering a case and causing investigation and taking further action pursuant to such investigation.
39. We shall now propose to examine the final order dated 15-12-1999 passed by the Upa-Lokayukta in complaint No. 792/99/ B2. From page Nos. 1 to 3 of the said order, various allegations have been referred to by the Upa-Lokayukta as was referred in his interim order dated 15-11-1999. Para-3 of page 3 of the order reads thus:
"By order dated 7-7-1999 the file was referred to the Director (Investigation) of this Institution for discreet probe and for submission of preliminary verification report. Whereupon the Investigatng Officer of this Institution submitted the preliminary verification report dated 25-10-1999 and the Director (Investigation) has submitted the scrutiny report dated 25-10-1999. The file was referred to the Deputy Director (Legal) for submission of written comments who accordingly submitted the same. That is how the matter is coming up for consideration.
Efforts made by the Investigating Officer of this Institution to contact the complainant at his residence or at his work place did not fructify as the complainant remained elusive for the reasons best known to him."
At Page-6, the final report dated 15-12-1999 reads thus:
"It is evident from the preliminary verification report that out of 12 allegations, the Investigating Officer has investigated mainly into the allegations relating to the purchase of VHF sets and also at illumination crackers etc. In respect of the allegations relating to the construction works, it is to be noted that the Investigation Wing of this Institution does not have the technical wing of the Engineering Section to probe into the said allegations.
It is suffice to say that a perusal of the preliminary verification report revels that there is enough and sufficient material to make thorough and comprehensive probe into all the allegations. Added to this, some of the public servants do not come within the purview of A.P. Act 11 of 1983 and Mr. Venugopal is a private individual. Therefore, it is just and proper that this complaint needs to be referred to the Director General, ACB, for a comprehensive probe and necessary action. Hence, the Director General. ACB. is directed to register a case on the basis of the complaint (now forwarded) and cause investigation to be made in detail in respect of all the allegations including those which have been already investigated by the Director (Investigating Wing) of this Institution. The Director General, ACB shall also make use of all the records and Investigation of this Institution and also the records relating to the allegations pertaining to the construction work which are available with the Regional Vigilance and Enforcement Officer, Kurnool and take all the files and records collected from the Executive Officer, Srisailam Devasthanam by the said Vigilance and Enforcement Officer, Kurnool which are still with him."
40. The last paragraph of the final order dated 15-12-1999 of the Upa-Lokayukta reads thus:
"Having regard to the nature of the allegations it is necessary that the Director General, ACB, gives top priority into the complaint and see that investigation is made with utmost dispatch and also take necessary action for preventing tampering of records by the public servants. It is desirable that the investigation is completed within the time frame of three months from the date of receipt of this order. For submission of report as regards the progress by the Director General. ACB. call on 17-3-2000.
Send copy of this order to the competent authority and Vigilance Commissioner. Send copy of this order, complaint, preliminary verification report and the entire material collected during the investigation and all the connected records to the Director General, ACB forthwith. Send copy of this order to the Secretary to the Hon'ble Chief Minister for information."
41. A reading of the entire final order passed by the Upa Lokayukta dated 15-12-1999 goes to show that the Upa-Lokayukta has washed off his hands and directed the investigation to be taken up by the Director General, ACB and further directed that all the records relating to the allegations whether earlier enquired or not be entrusted to the ACB. The order further indicates that the Upa-Lokayukta directed the ACB to submit a report only regarding the progress of the case and directed the matter to be posted on 17-3-2000.
42. It is difficult for us, on a reading of the above final order of the Upa-Lokayukta, to say that the Upa-Lokayukta desired the Director General, ACB to assist him in the preliminary investigation. On the contrary, the said order manifestly indicates that the Upa-Lokayukta has entrusted the entire matter to the ACB and directed the Director General of ACB to conduct thorough and comprehensive investigation and send a report to him about the progress of the investigation. It is, thus clear that the Upa-Lokayukta desired a comprehensive investigation be made by the Director General of ACB and has further directed him to register a case on the basis of the complaint against the public servant. Could this action of the Upa-Lokayukta be considered by us as to be within the competence of the power of the Upa-Lokayukta or for that matter could it be said that the Supreme Court in Ch. Rama Rao's case has empowered the Upa-Lokayukta to do this act ? As discussed by us, in the earlier paragraphs, the Act provides for the appointment of Lokayukta and Upa-Lokayukta for the investigation of the administrative action taken by the public servants and such others, collect necessary material including evidence and forward a report to the appropriate authority with recommendations for taking appropriate action. The tenor of the interim order dated 15-11-1999 and the final order dated 15-12-1999 passed by the Upa-Lokayukta reflect that he has transgressed from this object and went beyond the Scheme of the Act itself.
43. Interestingly, the Upa-Lokayukta traces his power from the decision of the Supreme Court in Ch. Rama Rao's case. That means, the Upa-Lokayukta is conscious of the fact that he has no such power of issuing a mandate to an authority to do a particular act but only takes shelter under the guise of the observation made by the Supreme Court in the said decision. This, in our view, is impermissible and the decision of the Supreme Court cannot be read to say that the Supreme Court has approved such acts of the Lokayukta or Upa-Lokayukta which are beyond their competence, not traceable to any provisions of the Act or Rules made thereundre. Ratio laid down by the Constitutional Courts could be applied, depending upon the facts and circumstances of a particular case. In the case on hand, the facts are otherwise and the observation made by the Supreme Court in Ch. Rama Rao's case cannot be used as handle to exercise such powers which are not conferred by the Statute on the Upa-Lokayukta.
44. It is though argued by Sri M. Surender Rao, learned Counsel appearing on behalf of the respondent/public servant in Writ Petition No. 239 of 2000 that the decision of the Supreme Court in Ch. Rama Rao's case (supra) has to be treated as per incurium, we do not think, this submission is proper. In our view, the Supreme Court has not given such powers to the Upa-Lokayukta as claimed by him, which are not available to him under the Act or under the Rules. The observation of the Supreme Court shall be read in the context of the facts which were placed before it in that case and the said decision cannot be made applicable to each and every case where the facts are totally different. We do not think it any more necessary for us to examine whether the said decision of the Supreme Court is per incurium or not in the light of Rule 16 which provides for submission of an interim report in a particular contingency by the Lokayukta or the Upa-Lokayukta.
45. As discussed above, the interim order dated 15-11-1999 issued by the Upa-Lokayukta is not recommendatory but is directory in nature. Likewise, the final order dated 15-12-1999 passed by the Upa-Lokayukta entrusting the matter pertaining to the allegations levelled against the public servant to the Director General, ACB for registration of a case and causing investigation would indicate that the Upa-Lokayukta has not intended the Director General, ACB to assist him in the matter but desired that the investigation be done by the Director General, ACB, Hyderabad, independently. Incidentally during the course of hearing of these writ petitions, the order passed by the Inspector of Police, ACB, Kurnool Range, Kurnool on 7-1-2000 is placed before us which indicate that a case in Crime No. 1/2000 has been registered against G. Kesavulu, the Executive Officer (Under transfer) of Srisailam Devasthanam on the basis of directions issued by the Upa-Lokayukta. Thus, the matter is now with the ACB and when once a crime is registered, the other procedure provided under Criminal Procedure Code would have to be followed.
46. No where it is found, in the final order dated 15-12-1999 passed by the Upa-Lokayukta, that the Director General, ACB was required to complete the investigation and send the report to the Upa-Lokayukta, enabling him to prepare a final report and submit the same to the appropriate authority for further action. Therefore, we have no hesitation to hold that the Upa-Lokayukta has exercised such jurisdiction which is not vested in him either under the Act or under the Rules. It could also not be said that the Supreme Court while deciding the case in Ch. Rama Rao v. Lokayukta (supra) conferred such power in the Upa-Lokaukta which the Statute has not given. We, therefore, declare that the interim order dated 15-11-1999 and the final order dated 15-12-1999 passed by the Upa-Lokayukta of Andhra Pradesh, in complaint No. 792/99/B2 are ultra vires the powers of the Upa-Lokayukta and are liable to be quashed. We accordingly quash the interim order dated 15-11-1999 and the final order dated 15-12-1999 issued by the Upa-Lokayukta in complaint No. 792/99/B2. Consequent to our quashing of these orders, any consequential order passed by any authority pursuant to the said interim order dated 15-11-1999 and the final order dated 15-12-1999 of the Upa-Lokayukta including registering of the case by the ACB shall stand quashed.
47. The respondent/public servant in Writ Petition No. 239 of 2000 was transferred from the post of the Executive Officer, Srisailam Devasthanam pursuant to the interim order dated 15-11-2000 passed by the Upa-Lokayukta. In the counter filed on behalf of the Government in OA No. 7137 of 1999 before the A.P. Administrative Tribunal, the Government has categorically indicated that the transfer of the respondent/ public servant has been made only on the basis of the interim direction issued by the Upa-Lokayukta on 15-11-1999. That means, the respondent/public servant would not have been transferred in normal circumstances, but for the interim order of the Upa-Lokayukta, dated 15-11-1999. Though a lame effort is made by the learned Additional Advocate General appearing on behalf of the writ petitioners in WP No. 239 of 2000, to justify the action of the Upa-Lokayukta in directing the Government to transfer the public servant from the post of Executive Officer, Srisailam Devasthanam by an order dated 15-11-1999 and the consequential order of transfer issued on 25-11-1999 by the first and second petitioners and that the order of transfer is on administrative grounds, in view of our discussion in the foregoing paragraphs holding that the Upa-Lokayukta has no power to issue such directions and such power exercised by him ultra vires the Statute, the consequent transfer order issued by the first and second petitioners in WP No. 239 of 2000 cannot be sustained.
48. Having regard to our discussion in the preceding paragraphs, holding that the Upa-Lokayukta has no power to issue directives and the consequent steps initiated by various authorities pursuant to the directives of the Upa-Lokayukta, have been quashed by us, without regard to the observations made by the Administrative Tribunal while disposing of OA No. 7137 of 1999 dated 27-12-1999, the transfer order issued by the first petitioner in WP No. 239 of 2000 in G.O.RT No. 1801, Revenue (Endts.I) Department dated 25-11-1999 and the consequential order dated 25-11-1999 issued by the second petitioner making relief arrangements shall stand set aside.
49. In the result, Writ Petition No. 602 of 2000 is allowed and Writ Petition No. 239 of 2000 is dismissed. However, no costs.
WP Nos. 239 and 602 of 2000 S. Ananda Reddy, J.
1. As I am unable to agree with the conclusions of my learned brother Dr. Motilal B. Niak, J. I am passing the following separate order.
2. In these two writ petitions the dispute is regarding the power and jurisdiction of the Upa-Lokayukta of Andhra Pradesh appointed under the A.P. Lokayukta and Upa-Lokayukta, Act, 1983 (Act No. 11 of 1983) in passing interim order dated 15-11-1999 and order dated 15-12-1999 and the legality of the transfer order dated 25-11-1999 passed by the Government transferring the Executive Officer (hereinafter referred to as Public Servant) of Sri Bramarambika Mallikarjuna Swamy Devasthanam, Srisailam. The public servant while he was working at Tirupathi, held additional charge of the institution of Sri Bramarambika Mallikarjuna Swamy Devesthanam, Srisailam from 31-3-1998 to 31-12-1998 and he was regularly posted as Executive Officer from 1-1-1999, as he was promoted as Joint Commissioner of Endowments. As soon as he was regularly posted as the Executive Officer, number of works were taken up, according to him to improve the conditions in the temple for the benefit of the devotees as well as to improve the income of the Institution. In fact, it is stated at the time of hearing by the learned Counsel for the public servant that the gross income of the institution had increased from Rs. 10.89 crores in the year 1997-98 to Rs. 13.6 crores in the year 1998-99 and the assessable income increased from Rs. 5.22 Crores to Rs. 6.6 Crores. But fortunately or unfortunately there were number of complaints against the public servant complaining of irregularities as well as misappropriation of public funds. In fact, some of the complaints made to both the Lokayukta as well as Upa-Lokayukta were rejected. But the complaint made by one Sri M. Venkateswarlu was taken up for consideration. Though there were as many as 20 alleged irregularities by the public servant, as per the complaint, the first one, was dealing with the purchase of Very High Frequency (VHF) Sets for an alleged sum of Rs. 10 lakhs, was taken up for preliminary verification by the Upa-Lokayukta. In the course of preliminary verification, it was found from the report of the Investigating Officer attached to the Institution of Lokayukta that the transaction of purchase of wireless communication systems by the public servant prima facie, through the acts of criminal conspiracy, cheating, fraud by way of fabrication of documents, criminal misconduct by way of obtaining pecuniary advantage, without any public interest by abusing the official position, by the public servant. It came to light that though under the Rules public bids are to be called for, to purchase such equipment, costing to about Rs. 10 lakhs, no such bids were called for, but, accepted an unsigned quotation, dated 29-12-1998 for the supply of VHF Sets in the name of Panasonic Systems, Vijayawada (which is a fictitious name). There is no proper address even. Basing on the said quotation, an order was placed for the supply of VHF Sets of Panasonic made and paid a sum of Rs. 2,20,000/- as advance on 22-1-1999 out of the total sum of Rs. 8,91,273/- and further paid another sum of Rs. 6,00,000/- on 6-2-1999, even though out of nine Items mentioned in the quotation, supply was made only of Items 1 to 4 and that too not the Items specified in the quotation. As per the quotation, VHF System of Panasonic made are to be supplied, but what was supplied was Motorola of India make. As per the report of the Investigating Officer the systems said to have been supplied by the fictitious dealer, costs only about Rs. 2 lakhs. The enquiry conducted by the Investigating Officer shows that there was no dealer at Vijayawada in the name of the alleged person, who supplied the wireless systems. The Investigating Officer had also referred to the communication given by the public servant stating that the transaction of purchase of wireless sets as well as payment of 70% of the cost was ratified by the Commissioner of Endowments. It was also conveyed by the public servant through his letter dated 6-10-1999 to the Investing Officer that he had negotiated with the supplier, who had agreed to receive Rs. 3,94,400/- for the supply of wireless sets in the place of Rs. 8,91,273/- as per the alleged quotation. Basing on the said report submitted by the Investigationg Officer, the Upa-Lokayukta during the course of preliminary verification submitted an interim report to the Government recommending the transfer of the public servant along with two other Officers attached to the Institution of Sri Bramarambika Mallikarjuna Swamy Devasthanam, Srisailam, as their presence in the present place in likely to cause hindrance to the investigation. It was also further noticed that though the preliminary verification was taken up without any notice to the public servant, as he came to know that the case was taken up for verification, he started acting in the direction to cover-up the alleged misdeeds committed and had also started corresponding with the Investigating Officer. Therefore, the Upa-Lokayukta, before whom the matter was pending, submitted the interim report on 15-11-1999, recommending the transfer of the public servant and the Government on consideration of the said interim report passed orders transferring the public servant from the present place.
3. The said transfer order was questioned before the A.P. Administrative Tribunal by filing OA No. 737 of 1999 on several grounds. The Tribunal on 2-12-1999 passed an interim order directing the respondents to re-admit and continue the public servant as Executive Officer of Sri Bramarambika Mallikarjuna Swamy Devasthanam, Srisailam. When the Government moved for vacating the said interim order, the Tribunal disposed of the main OA., confirming the same interim order, making almost the interim order as final order, observing that the public servant should be re-posted and continued at the same place till the enquiry is completed. The said order is assailed by the Government in Writ Petition No. 239 of 2000.
4. After the interim report, dated 15-11-1999, the Upa-Lokayukta passed an order on 15-12-1999 observing that a perusal of the preliminary verification report reveals that there is enough and sufficient material to make a thorough and comprehensive probe into all the allegations. Added to this some of the public servants do not come within the purview of A.P. Act 11 of 1983 and Mr. Venugopal is a private individual. Therefore, it is just and proper that this complaint needs to be referred to the Director General, ACB for a comprehensive probe and necessary action. Accordingly the complaint received by the Upa-Lokayukta was sent to the Director General, ACB to register a case and cause investigation into all the allegations. The public servant filed WP No. 602 of 2000 questioning both the orders passed by the Upa-Lokayukta, dated 15-11-1999 and 15-12-1999.
5. The learned Additional Advocate General appearing for the Government while assailing the order of the A.P. Administrative Tribunal contended that the Government has got the power to transfer the public servant and when the public servant has been transferred, the said order can be assailed only on two grounds- that the order is mala fide or for want of jurisdiction. The learned Counsel contended that it is not the case of the public servant that the Government has no power to transfer him or the said action is mala fide. In the absence of any of the above said grounds, there was absolutely no justification for the Tribunal to interfere with the order of transfer. It is in fact stated that it was specifically mentioned in the order of transfer that the transfer was on administrative grounds. Further, in the light of other circumstances there was no justification for cancelling the transfer order and also directing the Government to re-post the public servant to the same place and continue him till the enquiry by the ACB is completed.
6. Though the learned Counsel appearing for the public servant contended on merits of the matter also regarding the allegations made against the public servant, at this stage it is not for this Court to go into the merits of the matter except to the extent whether there is a prima facie case, which requires a comprehensive investigation.
7. On consideration of the material on record and without going into the merits and demerits of the allegations, in the present set of facts, there cannot be any doubt that the matter requires a comprehensive enquiry to find out the culprits, who are responsible for causing loss to the public institution. Further, in order to have the investigation without any hindrance, the Officers, who are parties to the transaction should be kept away and to comply the same, the public servant was transferred from the present post of the Executive Officer along with two other Officers. In my humble view the said order is proper and just, which is being observed in almost all similar cases.
8. The Tribunal while ordering re-posting of the public servant took the following factors. According to the Tribunal the Upa-Lokayukta took up the enquiry when similar petition is pending with the Lokayukta. At the time of hearing before this Court, it is clarified by the Counsel appearing for the Institution of Upa-Lokayukta that the petition pending with the Lokayukta is in respect of different allegations, which fact was not even disputed. It was even stated that earlier another petition filed even before the same Upa-Lokayukta on some other allegations was dismissed. Therefore, the above fact referred to by the Administration Tribunal that Upa-Lokayukta had taken up the enquiry when similar petition was pending before the Lokayukta was based on incorrect material. The Tribunal, however, held that the Upa-Lokayukta was within his powers to take up the preliminary verification and even directing the State Government to take necessary action to ensure smooth investigation into the complaint prima facie held proved, but observed that the records relating to the allegations are said to have been transferred to the ACB, therefore, there is no need to transfer the public servant and directed to continue him by re-posting as Executive Officer till the enquiry is completed by the ACB. It is further observed that the Head of the Department can keep a close watch on the work of the public servant, if necessary to ensure that the public servant does not in any way hamper the investigation by the ACB. The above observations or findings of the Tribunal are inconsistent and the same shall not go together. Further on the practical point of view, would it be possible for the Head of the Department to watch the public servant as if he had no other work. It is also stated that all the records are not collected from the officer of the public servant. The records referred to are only the records that are available with the Institution of Upa-Lokayukta. Therefore, even the said finding is also incorrect. Therefore, the order of the A.P. Administrative Tribunal directing the Government to re-post the public servant and continue him as Executive Officer of Sri Bramarambika Mallikarjuna Swamy Devasthanam, Srisailam, till the completion of investigation by the ACB, is illegal and unsustainable, as the same was based on incorrect facts. Accordingly, the order of the Tribunal in OA No. 739 of 1999 is liable to be set aside.
9. Coming to the writ petition filed by the public servant, in the affidavit filed in support of the writ petition, though elaborate contentions were incorporated, at the time of hearing the learned Counsel for the public servant has formulated the points that arise for consideration, which are as under :-
(1) Whether the preliminary verification and investigation is one and the same?
(2) Whether Lokayukta or Upa-Lokayukta can send an interim report, even before investigation is started, proposing some action against an Officer?
(3) Whether Lokayukta or Upa-Lokayukta can entertain a complaint, even after an earlier complaint based on the same allegations was previously disposed of by an authority?
(4) Whether there is any provision either in the Statute or under the Rules, empowering the Lokayukta or Upa-Lokayukta to submit an interim report recommending action against an Officer at the stage of preliminary verification?
(5) Whether the Lokayukta or Upa-Lokayukta can entertain a complaint where other remedies are available to the complainant?
(6) Whether Lokayukta or Upa-Lokayukta exercised their discretion to refuse to investigate the complaint, since the allegations were already enquired into by the Director General and recommended for dropping further action?
(7) Whether an Officer be subjected to several enquiries by several authorities for the same allegations ?
(8) Whether Upa-Lokayukta can entertain a complaint when the other complaint with similar allegations is pending before Lokayukta?
(9) Whether an Officer be subjected to suspension or transfer on the interim report of Lokayukta or Upa-Lokayukta without affording an opportunity?
10. The learned Counsel Sri P. Gangaiah Naidu, appearing for the public servant, in support of his contentions took us through the provisions of the A.P. Lokayukta and Upa-Lokayukta Act, 1983 and the Rules (hereinafter referred to as the Act and the Rules), Referring to Sections 10 and 12 of the Act, it is contended that the public servant shall be given an opportunity before proceeding with the investigation on a complaint by forwarding a copy of the complaint to offer his comments on such complaint. Further, after completion of the investigation the Upa-Lokayukta shall communicata his findings along with the documents, material and other evidence to the competent authority alongwith his recommendations. The grievance of the public servant is that he was not given any opportunity by the Upa-Lokayukta. Further, according to him there is no provision for submitting an interim report, as was done, in the present case and Upa-Lokayukta has no power to refer the matter to ACB for comprehensive probe. Therefore, the orders dated 15-11-1999 and 15-12-1999 are vitiated. Further, according to the learned Counsel the Upa-Lokayukta has no power to direct the Government to transfer the public servant or direct the ACB to investigate into the complaint forwarded by the Upa-Lokayukta. In fact, the learned Counsel contended that the Lokayukta and Upa-Lokayukta for that matter, have got the power to submit interim report as contemplated under Rule 16 of the Rules only. It is also contended that the judgment rendered by the Supreme Court in the case of Ch. Ram Rao v. Lokayukta, 1998 (4) ALT 8, shall be considered as per incurium as it was rendered without reference to Rule 16 of the Rules. The learned Counsel also relied upon certain other decisions for the same proposition, which according to me are not relevant for the present case.
11. The learned Counsel Sri M.V.S. Suresh Kumar, on the other hand, appearing for the Institution of Lokayukta and Upa-Lokayukta supported the orders of Upa-Lokayukta. The learned Counsel also referred to the relevant provisions of the Act and the Rules in support of his contentions. It is stated that the Upa-Lokayukta did not reach the stage of investigation in order to comply with the requirement of giving an opportunity to the public servant. The matter is still at the stage of preliminary verification. Therefore, at that stage giving an opportunity to the public servant does not arise and, in fact, it shall not be disclosed to anybody in order to maintain confidentiality. With reference to the power to submit interim report, the learned Counsel relied upon the decision of the Supreme Court in the case of Ch. Rama Rao (supra).
12. In view of the rival contentions, let us examine the merits of the legal Issues formulated by the learned Counsel for the public servant.
The first Issue formulated is whether the preliminary verification and investigation is one and the same. The terms 'preliminary verification' as well as 'investigation' are separately defined under Rule 2 (viii) and 2 (vi) respectively. When once they are separately defined under the Rules, there is no merit in the contention of the learned Counsel whether the preliminary verification and investigation are one and the same. Preliminary verification is the first stage of the enquiry, when once the Lokayukta or Upa-Lokayukta for that matter, find prima facie there is some merit on the complaint to enquire into. After completion of the preliminary verification, the stage of investigation begins and at that stage the authorities have to give an opportunity to the public servant before proceeding further.
The Issues framed at Sl.Nos. 2, 4 and 9 relate to the submission of an interim report as well as recommending the action against the public servant at that stage. These issues are directly covered by the decision of the Supreme Court in the case of Ch. Mama Rao (supra) where it was categorically held that the Lokayukta or Upa-Lokayukta have got the power to submit interim report recommending for transfer or suspension of the Officer, pending further investigation, at the stage of preliminary verification itself, in order to enable smooth enquiry or investigation, conducted without being hampered by the persons concerned or to prevent an opportunity to tamper with the record or to destroy the record. In the light of the said decision of the Supreme Court, the interim report sent by the Upa-Lokayukta and the consequential order of transfer is proper and just, under the circumstances.
The third Issue relates to the power of Lokayukta or Upa-Lokayukta to entertain a complaint even after an earlier complaint based on the same allegations was previously disposed of by an authority. The learned Counsel did not specify the authority or filed any material in support of his contention that similar allegations are considered and disposed of earlier. From the material on record as well as the earlier finding in this order, the complaint received and disposed of by the Lokayukta as well as Upa-Lokayukta relates to totally different allegations and the allegations are not identical. Similarly, even if it is referred to the complaint, which was alleged to have been enquired into by the Regional Vigilance and Enforcement Officer, a copy of which is filed before this Court in the material papers, shows that there is absolutely no reference to the allegation of purchase of wireless systems from Panasonic, Vijayawada, with reference to which the Upa-Lokayukta found prima facie material, which requires a comprehensive probe. Therefore, there is absolutely no merit in this issue.
The fifth Issue relates to whether the Lokayukta or Upa-Lokayukta can entertain a complaint when other remedies are available to the complainant. The provisions of the Act give discretion to the Lokayukta and the Upa-Lokayukta either to investigate or refuse to investigate any complaint and Section 10 (4) specifically provided for. Insofar as the powers of the Lokayukta or Upa-Lokayukta are concerned, there are no fetters to entertain a complaint and enquiry into the allegations. Therefore, the said contention is devoid of merit.
The sixth Issue is whether the Lokayukta or Upa-Lokayukta had exercised the discretion to refuse to investigate the complaint since the allegations were already enquired into by the Director General, Vigilance and Enforcement and recommended for dropping further action. This Issue needs certain factual aspects. The complaint before the Upa-Lokayukta was filed on 22-6-1999. On 7-7-1999 the Upa-Lokayukta referred the file to the Director of Investigation, attached to the Institution of Lokayukta, for discreet probe and for submitting the report. The Investigating Officer has written a letter, dated 10-8-1999 to the Commissioner of Endowments seeking certain information/particulars. A letter, dated 7-8-1999 was addressed by the Registrar to the Director General, Vigilance and Enforcement Department, Andhra Pradesh, Hyderabad, for handing over the records collected by the Regional Vigilance and Enforcement Officer, Kurnool, which was conveyed to the Regional Vigilance and Enforcement Officer by the Director General by letter, dated 7-9-1999 and by letter dated 8-9-1999 the Regional Vigilance and Enforcement Officer informed that the records are kept ready for handing over. However, it appears that the Regional Vigilance and Enforcement Officer, Kurnool submitted a report dated 16-9-1999 with reference to the communication, dated 8-9-1999 of the Director General, Vigilance and Enforcement. It is not clear under what circumstances such a report was called for and submitted and that too within one week of the communication. The report also does not show that any enquiry was made with reference to any of the records. Apart from the merits and demerits of the report, the issue relating to the purchase of wireless systems is not the subject matter, which was enquired into by the Regional Vigilance and Enforcement Officer, in respect of which the Upa-Lokayukta found prima facie material for further comprehensive enquiry. Therefore, the report of the Regional Vigilance and Enforcement Officer, Kurnool is not of any assistance to the public servant to contend that the allegations were already enquired into and recommended for dropping of any further action. Therefore, there is no merit in this issue.
The Issues 7 and 8 relates to the claim of the public servant that he could not subjected to several enquiries by several authorities, especially the Upa-Lokayukta cannot entertain a complaint when other complaint on similar allegations is pending before the Lokayukta. These issues are already answered holding that the earlier complaints were on different allegations and that were not pending even as they were closed by rejecting the complaints. It is also a fact that no complaint is pending before the Lokayukta on similar allegations as was contained in the complaint pending before the Upa-Lokayukta.
In view of the above, the Issues, which are framed and urged before this Court are clearly devoid of merit.
13. The other contention advanced on behalf of the public servant is that he was not given an opportunity before submitting the interim report recommending action by way of transfer. It is clear from the material on record as well as what is stated above, the said interim report was sent to the competent authority at the stage of preliminary verification, which do not contemplate a notice and opportunity. Under the Scheme of the Act, the preliminary verification is to be conducted in confidentiality to get prima facie evidence so that the needed evidence or material may not be got suppressed or destroyed. In fact, the Hon'ble Supreme Court in the case of Ch. Rama Rao (supra) held that the power to submit a final report with recommendations to take punitive or penal action includes power to submit interim report with recommendations to suspend an official or to transfer him, pending further investigation at the preliminary verification itself. When the Lokayukta or Upa-Lokayukta, as the case may be, conducts 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 of such recommendation is only to enable smooth enquiry or investigation conducted without being hampered with by the persons concerned or to prevent an opportunity to tamper with the records or to destroy the records. In order to achieve this object not only the public servant but also two other Officers- the Executive Engineers, Electrical and Civil connected with the transactions are recommended for transfer by the competent authority. They were also, in fact, transferred. It is not as if the public servant alone was singled out for action as per the interim report. In view of the above there is no possibility of giving any opportunity at the stage of interim report to the public servant. In fact, though no notice was given to the public servant, he came to know of the matter and he had started covering up activities, which are clear from his communications to the Investigating Officer regarding his negotiations with the supplier, who, according to the public servant, had agreed to reduce the cost of wireless systems from Rs. 8.91 lakhs to Rs. 3.94 lakhs. This itself proves prima facie that the nature of the transaction requires a thorough investigation. The public servant had also filed the First Information Report (FIR) against the supplier of the wireless systems and initiated disciplinary proceedings against two other officers i.e., the Executive Engineer, Electrical and Civil. In order to avoid all this the public servant was ordered to be transferred from the present place, which was perfectly justified.
14. Another contention advanced during the hearing was that in the interim report, the Upa-Lokayukta directed the competent authority, i.e., the Government to transfer the public servant and Upa-Lokayukta does not have such power. No doubt the wording in the interim report is such, but the same need not be interpreted as mandatory. It is only a directory under the circumstances and also under the Scheme of the Act. The competent authority shall examine the report and take appropriate action without any further enquiry. In fact, the transfer order of the public servant shows that the transfer was on administrative grounds, which goes to show that the competent authority considered the report of Upa-Lokayukta and took appropriate action. Therefore, on the ground that there is a direction in the interim order, it could not be held that the interim order passed by the Upa-Lokayukta is without jurisdiction.
15. Similarly, the Upa-Lokayukta passed an order on 15-12-1999 wherein having found that some of the public servants do not come under the purview of the A.P. Act 11 of 1983 and also a private individual is also involved in the transactions, in respect of which allegations are made, felt that the complaint needs to be referred to the Director General, ACB for comprehensive probe and necessary action. Accordingly, the Director General, ACB was directed to register the case on the complaint (now forwarded) and cause investigation in detail in respect of the allegations. This order is assailed on the ground that the Upa-Lokayukta had no jurisdiction to pass such order. In this case the facts are peculiar. The Upa-Lokayukta received a complaint against the public servant and having satisfied on the nature of the allegations taken up the complaint for enquiry. In the course of preliminary verification, it was found that there was sufficient material for comprehensive probe into all the allegations. The Upa-Lokayukta found that some of the public servants connected with the transactions do not come within the purview of Act 11 of 1983 and also a private individual one Mr. Venu Gopal was also a party to the transactions. Therefore, thought it fit to forward the complaint received by the Institution of Upa-Lokayukta to the Director General, ACB for necessary action. It is not doubt that the Director General, ACB is directed to register a case on the basis of the complaint (now forwarded) and cause investigation to be made into all the allegations. Under the circumstances of the case, on the preliminary verification having found enough material to establish prima facie case, the course adopted by the Upa-Lokayukta is just and proper. Now the contention of the public servant is that Upa-Lokayukta has no such power and hence the direction given to the Director General, ACB is liable to be quashed. It is not the case of the public servant that Upa-Lokayukta has no power to enquiry into the complaint made against him. It is also not disputed that Upa-Lokayukta had found prima facie material on preliminary verification into one of the allegations. Under such circumstances, instead of proceeding further against the public servant alone as there are other persons also involved in those transactions, the complaint was forwarded to the Director General, ACB for necessary action. In the normal course if such a complaint is received by the Director General, ACB they would conduct a preliminary enquiry and if found enough material on the allegations then a case will be registered for regular enquiry in accordance with the law. Here the preliminary enquiry was conducted by the Institution of Upa-Lokayukta and the Upa-Lokayukta found prima facie case and sufficient material for a comprehensive probe. Hence directed the Director General, ACB to register a case on the complaint and cause thorough investigation in respect of the allegations made in the complaint. Under the present set of facts the action of Upa-Lokayukta is perfectly justified.
16. The Supreme Court in the case of Institution of Andhra Pradesh Lokayukta/ Upa-Lokayukta, A.T. etc., v. T. Rama Subba Reddy and Anr. etc., , stated the purpose and the scope of the Act as under:
"Before parting with these matters, it may be necessary to note that the legislative intent behind the enactment is to see that the public servants covered by the sweep of the Act should be answerable for their actions as such to the Lokayukta who is to be a Judge or a retired Chief Justice of the High Court and in appropriate cases to the Upa-Lokayukta who is a District Judge of Grade-I as recommended by the Chief Justice of the High Court, so that these statutory authorities can work as real ombudsmen for ensuring that people's faith in the working of these public servants is not shaken. These statutory authorities are meant to cater to the need of public at large with a view to seeing that public confidence in the working of public bodies remains in tact. When such authorities consist of high judicial dignitaries it would be obvious that such authorities should be armed with appropriate powers and sanctions so that their orders and opinions do not become mere paper directions. The decisions of Lokayukta and Upa-Lokayukta, therefore, must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the effect put in by them are not wasted and their reports are not shelved by the concerned disciplinary authorities. When we turn to Section 12, Sub-section (3) of the Act, we find that once report is forwarded by the Lokayukta or Upa-Lokayukta recommending the imposition of penalty of removal from the office of a public servant, all that is provided is that is should be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making him ineligible for being elected to any office etc. Even if it may be lawful for the Government to act on such recommendation, it is nowhere provided that the Government will be bound to comply with the recommendation of the Lokayukta or Upa-Lokayukta. The question may arise in a properly instituted public interest litigation as to whether the provision of Section 12(3) of the Act implies a power coupled with duty which can be enforced by writ of mandamus by the High Court or by writ of any other competent Court but apart from such litigations and uncertainty underlying the results thereof, it would be more appropriate for the Legislature itself to make a clear provision for due compliance with the report of Lokayukta or Upa-Lokayukta so that the public confidence in the working of the system does not get eroded and these institutions can effectively justify their creation under the statute."
17. From the above it is clear that while dealing with the matters arising under the Act the Scheme and purpose of the Act has to be kept in mind and it should be ensured that the purpose of the Act is to be achieved. If so viewed, the Upa-Lokayukta was justified in forwarding the complaint to the Director General, ACB for appropriate action on the same. The said action of the Upa-Lokayukta is perfectly justified under the circumstances of the case.
18. To sum up, the Upa-Lokaukta received the complaint from one Mr. Venkateswarlu and was taken up for enquiry, on preliminary verification, found prima facie case and enough material for further probe/ investigation into the matter. Further the Upa-Lokayukta also noticed the actions of the public servant after the matter was taken up for enquiry. Therefore, during the course of preliminary verification, passed an interim order recommending for the transfer of the public servant along with two other officers in order to have a smooth investigation into the matter and the needed evidence or material may not be got suppressed or destroyed. Accordingly, the public servant was transferred from the present post and the same is just and proper under the circumstances. The Upa-Lokayukta is empowered to submit an interim report, which is very clear from the judgment of the Supreme Court viz., Ch. Rama Rao (supra). Even with reference to the order of Upa-Lokayukta, dated 15-12-1999 the same is in tune with the scheme and purpose of the Act. Under the circumstances of the present case, where a comprehensive probe or investigation is required by an Agency, like the Director General, ACB, the order passed by the Upa-Lokayukta is proper and just and there are no justifiable grounds warranting interference by this Court. If the enquiry is interdicted at this stage it will frustrate the very object of the Act.
19. Accordingly, the order of the Tribunal directing the respondents to re-post the public servant as Executive Officer of Sri Bramarambika Mallikarjuna Swamy Devasthanam, Srisailam, is set aside and the Writ Petition No.239 of 2000 is allowed.
The orders passed by the Upa-Lokayukta, dated 15-11-1999 and 15-12-1999 are upheld and consequently the Writ Petition No. 602 of 2000 is dismissed. No costs.
WP Nos. 239 and 602 of 2000 Ar. Lakshmanan, C.J.
1. Pursuant to a reference order dated 7th March, 2000, passed by a Division Bench of this Court consisting of Honourable Dr.Justice Motilal B. Naik and Honourable Sri Justice S. Ananda Reddy, directing the Registry to place the papers before me for the purpose of referring the matter to a Third Judge, on the administrative side, I directed the Registry to post these matters before me. Since the learned Judges of the Division Bench could not concur with their views expressed on the points in issue and have been pleased to record two divergent views of the matter by their separate judgments on the issues involved in the above two writ petitions, the matters came to be listed before me. The order of reference dated 7th March, 2000 passed by the Bench reads as under:
"The issue involved in these two writ petitions is with regard to the competency of the Upa-Lokayukta to direct the Director General of ACB to register a case against the Executive Officer of Sree Bhramarambika Mallikarjuna Swamy Devasthanam, Srisailam to investigate into the allegations made against the said Executive Officer by one M.Venkateswarlu and also the action taken by the Principal Secretary to Revenue, Government of Andhra Pradesh transferring the Executive Officer.
These two writ petitions, one filed by the Principal Secretary, Government of Andhra Pradesh in W.P.No. 239 of 2000 against the order passed by the A.P. Administrative Tribunal and the other in W.P.602 of 2000 filed by the Executive Officer questioning the authority of the Upa-Lokayukta, were considered and on behalf of the Bench a draft judgment was prepared by one of us (Dr. Motilal B. Naik, J) and circulated to the Honourable Sri Justice S. Ananda Reddy. The Honourable Sri Justice S.Ananda Reddy expressed his desire to write a separate judgment dissenting from the view taken by me and thus two judgments are written by us and pronounced by us today in the Court.
It would therefore be appropriate that the matter has to be referred to another learned Judge. Registry to place the matter before the Honourable the Chief Justice for referring the matter to a third Judge."
2. It is pertinent to notice here a subsequent event. Since the Honourable Judges of the Bench have expressed two conflicting opinions on the questions raised in the writ petitions, the matter was directed to be referred to a third Judge as already stated supra and thereafter posted before me as per my direction. When the matter was listed before me on 16.8.2002, at the instance of the Government, W.V.M.P.88 of 2000 was taken up for hearing as the Government thought it fit to pursue the said application which they had filed earlier in W.P.No. 239 of 2000 seeking to vacate the interim order of status quo passed by the aforesaid Bench on 27.1.2000 and extended until further orders on 10.2.2002. Since the controversy raised in the writ petitions could not be set at rest once for all in view of the contradictory views expressed by the Bench on the issues involved in the matter, I passed the following order on 16.8.2002 in the above vacate-stay application after hearing both sides:
"Since there was difference of opinion between the two Judges, the matter is referred for the opinion of the third Judge. There was an interim order of status quo passed by the learned Judges on 27.1.2000. Since the matter is pending for very long time it is better liberty be reserved to the authorities to consider any suitable officer for being posted as Executive Officer of the Srisailam Devasthanam, including the petitioner if the authorities so desire."
3. Mr. Gangaiah Naidu now informed this Court that pursuant to this order, the Department of Endowments passed orders transferring Mr. G. Kesavulu, Executive Officer, Srisaliam Devasthanam, petitioner in W.P. No. 602 of 2000 and respondent in W.P. No. 239 of 2000 (hereinafter referred to as the 'public servant') to another place and the post held by the public servant at Srisailam Devasthanam has already been filled up by another officer. However, the order passed by the department transferring the public servant would be subject to the outcome of this reference.
4. Narration of a few facts is necessary so as to have a better understanding of the issues involved in the two writ petitions. W.P. No. 239 of 2000 has been filed by the Government of Andhra Pradesh represented by the Principal Secretary to Government, Revenue (Endowments-I) Department and two others viz., Commissioner of Endowments and Assistant Commissioner of Sree Bhramarambika Mallikarjuna Swamy Devasthanam, Srisailam, Kurnool District whereas W.P.No. 602 of 2000 has been filed by the said G.Kesavulu, Executive Officer, of Sree Bhramarambika Mallikarjuna Swamy Devasthanam, Srisailam. The two writ petitions under reference are clubbed together, heard and disposed of by this common judgment since they involve common questions of fact and law.
5. As already noticed supra, these two writ petitions have been originally heard by a Division Bench consisting of Honourable Dr.Justice Motilal B. Naik and Honourable Sri Justice S. Ananda Reddy. Both sides have filed counter-affidavits in the respective matters and argued them at length before the Bench. Mr. Gangaiah Naidu advanced arguments on behalf of the petitioner-public servant in W.P.No. 602 of 2000 whereas Mr. Surender Rao, learned Counsel also appeared on behalf of the public servant who was arrayed as respondent in the Writ Petition W.P.No. 239 of 2000 filed by the Government and others. On the other hand, the learned Additional Advocate General appeared on behalf of the petitioners i.e., Government of A.P. and others in W.P.No. 239 of 2000. Mr. M.V.S. Suresh Kumar, learned Counsel appeared on behalf of the sole respondent-Upa-Lokayukta in W.P.No. 602 of 2000 filed by the public servant. Elaborate arguments were advanced on behalf of all sides before the Bench on the principal questions as to whether the Upa-Lokayukta has got jurisdiction/power to issue direction to the Government by interim orders dated 15.11.1999 for transfer of the public servant and such a direction given is mandatory or directory and whether the Governmental authorities are duty-bound in passing the consequential orders dated 25.11.1999 transferring the Government servant from the post of Executive Officer, Srisailam Devasthanam and whether the Upa-Lokayukta was correct in law in directing the Department of ACB, by orders dated 15.12.1999 to conduct investigation in the complaint forwarded by the said authority and also on certain other allied questions which, I would refer to in the later part of my judgment in detail. The learned Judges of the Bench have gone into the matter in great detail and rendered two separate erudite judgments by elaborately recording two conflicting opinions on the questions raised. Honourable Dr.Justice Motilal B. Naik expressed the opinion that the Upa-Lokayukta of Andhra Pradesh does not have power to pass directions in its interim order dated 15.11.1999 directing the Government to transfer the public servant or directing the Anti Corruption Bureau by order dated 15.12.1999 to take up investigation into the allegations levelled against the public servant. Accordingly, he quashed and set aside not only both the orders dated 15.11.1999 and 15.12.1999 passed by the Upa-Lokayukta but also the consequential orders, G.O. Rt. No. 1801, dated 25.11.1999 passed by the Government and Rc.No. El/ 59849/99, dated 25-11-1999 passed by the Commissioner, Endowments Department, Hyderabad transferring the public servant. Accordingly the learned Judge allowed W.P.No. 602 of 2000 filed by the public servant and dismissed the W.P.No. 239 of 2000 filed by the Government and others. However, dealing with the same questions Honourable Sri Justice S. Ananda Reddy was of the opinion that Upa-Lokayukta has got power to pass the interim order dated 15.11.1999 directing the Government to transfer the public servant to a non-focal place and to pass the orders dated. 15.12.1999 directing the investigating Agency ACB to conduct investigation into the matter. The learned Judge also upheld all the consequential orders that have been passed by the Government and Commissioner of Endowments Department transferring the appellant and accordingly allowed the Writ Petition No. 239 of 2000 filed by the Government and others and dismissed the Writ Petition No. 602 of 2000 filed by the public servant.
6. I shall now endeavour to deal with the entire matter separately and attempt to determine the questions involved in these writ petitions independently. It is necessary for this purpose to go into the facts of the matter in some more detail.
7. The public servant, who belongs to a Scheduled Caste, was appointed in the year 1985 as Assistant Commissioner of Endowments and later promoted to that post of Deputy Commissioner of Endowments in the year 1993. On 31.3.1998 he was posted as an In-charge Executive Officer of Srisailam Devasthanam. Later he was promoted as Joint Commissioner of Endowments and was posted as regular Executive Officer of Srisailam Devasthanam, Srisailam with effect from 1.1.1999. According to the public servant, as averred by him in the affidavit filed in support of the writ petition in W.P.No. 602 of 2000, with the past experience he gained at Tirumala Tirupathi Devasthanams, Tirupathi and Hathiramji Baba Mutt of Tirupathi, where he worked as Deputy Executive Officer, he introduced various innovative measures in the administrative functioning of the Srisaliam Devasthanam. In the process, he provided various facilities to the pilgrims and was instrumental in getting the income of the temple escalated from Rs. 10 crores to 13 crores per annum in a financial year. And the assessable income during his tenure in the said year rose from Rs. 5 crores to Rs. 6 crores. According to him, he enforced strict discipline amongst the staff and did not spare, even a single member of the staff who indulged in misappropriation of funds and that he initiated disciplinary action against the errant officials. As a result, many staff members became inimical towards the public servant and lodged several false complaints against the public servant before various authorities as well as Lokayukta including the complaint in question i.e., Complaint No. 792/99/B2 lodged before the Upa-Lokayukta complaining that he had indulged in several irregularities and misappropriation of public funds. During the preliminary verification of the said complaint the Upa-Lokayukta ordered enquiry into the matter by the Department of investigation attached to the Institution of Lokayukta/Upa-Lokayukta. The reports of the Investigation Department revealed a prima facie case in respect of one allegation regarding purchase of Very High Frequency Wireless Sets by the public servant. So as to have a smooth enquiry into the matter, the Upa-Lokayukta by its interim Report dated 15.11.1999 recommended the Government to transfer the public servant. And the Government on consideration of the said report passed orders dated 25.11.1999 in G.O.Rt.No. 1801 transferring the public servant from the post of Executive Officer, of Sree Bhramarambika Mallikarjuna Swamy Devasthanam, Srisailam. The said order reads:
"Sri G. Kesavulu, Joint Commissioner and Executive Officer, Sri Bhramarambika Mallikarjunaswamy Devasthanam, Srisailam, Kurnool District is transferred on administrative grounds with immediate effect. He is directed to relieve himself duly handing over the charge to his PA. (Assistant Commissioner Cadre) today i.e., on 25.11.1999 (Afternoon).
He is directed to report before the Government for further posting. The Commissioner of Endowments, Andhra Pradesh, Hyderabad shall take further action immediately."
In compliance with the above G.O., the Commissioner, Endowments Department, Hyderabad, passed consequential orders dated 25.11.1999 transferring the public servant.
8. This transfer order has given rise to the whole controversy. The public servant challenged the said order of transfer before the Andhra Pradesh Administrative Tribunal in O.A.No. 7137 of 1999 and obtained interim orders of suspension of the said transfer orders dated 25.11.1999. It would be beneficial here to reproduce the interim order dated 2.12.1999 passed by the Tribunal, which reads;
"In the circumstances, pending further consideration of the O.A., the orders impugned in this O.A. i.e., G.O. Rt. No. 1801, Revenue Endowments-I Department dated 25.11.1999 and the consequential order of the Commissioner of Endowments dated 25.11.1999 itself, directing the applicant to relieve himself on 25.11.1999 itself handing over the charge to his own PA. (Assistant Commissioner cadre) are suspended, directing the respondents to re-admit and continue the applicant as Executive Officer in Sri Shramarambika Mallikarjunaswamy Devasthanam, Srisailam."
9. During the pendency of the matter before the learned Tribunal, the Upa-Lokayukta passed orders on 15.12.1999 entrusting investigation of the complaint No. 792/99/B2 to the ACB. The Department, thereafter, contested the matter before the Tribunal by filing Vacate Miscellaneous Application No. 1521 of 1999. After considering the rival contentions advanced on behalf of both the parties, the learned Tribunal disposed of the matter finally holding that since the Upa-Lokayukta has entrusted the allegations made against the petitioner for comprehensive probe and necessary action to the Director General, ACB and as the entire records relating to the allegations are already transferred to the Director General of ACB, there is no scope for the public servant to hamper the investigation that would be conducted by ACB as directed by the Upa-Lokayukta. The Tribunal also took notice of the fact that most of the financial irregularities alleged to have been committed by the public servant have been ratified by the competent authorities of the Endowments Department. The Tribunal, therefore, directed the respondents in the O.A, i.e., the Government and others to re-post and continue the public servant as Executive Officer/ Joint Commissioner of Sri Bhramarambika Mallikarjuna Swamy Temple, Srisailam till such time as the enquiry is completed by the ACB authorities. The Tribunal, accordingly, disposed of the O.A. on 27.12.1999 in the above terms.
10. This order of the Tribunal has been challenged by the Government and others by way of filing W.P. No. 239 of 2000 which has been listed in the first instance before a Division Bench of this Court consisting of Honourabie Mr. Justice Bilal Nazki and Honourable Sri Justice J.Chelameswar. By orders dated 11.1.2000, the said Division Bench has been pleased to pass interim orders of stay of the learned Tribunal's order dated 27.12.1999. By another order dated 27.1.2000, the Bench consisting of Honourable Dr. Justice Motilal B.Naik and Honourable Sri Justice S.Ananda Reddy, passed orders of status quo for a period of one week as follows:
"Status quo obtaining as on today with regard to the posting of regular Executive Officer to Sri Bhrarambika Mallikarjuna Swamy Devasthanam, Srisailam shall be maintained up to one week."
On 10.2.2000, the learned Judges of the said Bench have extended the said order of status quo until further orders. As already stated above, the Executive Officer of Sri Bhramarambika Mallikarjuna Swamy Devasthanam, Srisailam, has also filed W.P.No. 602 of 2000 questioning the competency of the Upa-Lokayukta of Andhra Pradesh in directing the Government to transfer him or to direct the investigation agency ACB to enquire into the allegations levelled against him in the complaint No. 792/ 99/B2. As already noticed above, both the above Writ Petitions - W.P.No. 239 of 2000 and 602 of 2000 were clubbed together, arguments were heard and the learned Judges of the Bench have rendered two separate judgments expressing different views on the issues involved in the matter which led to posting of the matter before me.
11. I have gone through the judgments handed down by both the learned Judges and heard the arguments advanced on behalf of Mr. Gangaiah Naidu for the public servant and the learned Additional Advocate General on behalf of the Government and others and Mr. M. V.S. Suresh Kumar for the Upa-Lokayukta.
12. The contentions that were raised before the learned Tribunal and the Honourable Judges of the Bench of this Court have been repeated and reiterated by the learned Counsel on all sides. While the learned Additional Advocate General and Mr. Suresh Kumar have supported the Government and Upa-Lokayukta, Sri Gangaiah Naidu defended the public servant.
13. Sri Gangaiah Naidu learned Counsel for the public servant submitted that:
(1) The Upa-Lokayukta should have refused to exercise its discretion in regard to the complaint No. 792/99/B2 in view of the similar such complaints having been rejected/closed as fictitious and false.
(2) The Terms 'preliminary verification' and 'investigation' carry the same meaning and purpose and the procedure prescribed therein together with the procedure prescribed in the Sub-clause (b) of Sub-section (1) of Section 10 is mandatory and following the same opportunity would have given to the public servant to offer his comments.
(3) There is no provision in the Act for the Upa-Lokayukta to submit an interim report as was submitted in the case on hand. Only in cases where relief is required to be granted to the affected parties, interim report, in terms of Section 16 of the Act has to be submitted.
(4) The decision rendered by the Supreme Court in Ch. Rama Rao v. Lokayukta be treated as per incurium as the said decision clothed the Institution of Lokayukta with powers that were not found in the statute.
(5) Upa-Lokayukta has no power to direct the ACB to conduct investigation into the matter or to forward the complaint lodged before it to the ACB for comprehensive probe.
(6) The transfer order has been issued by way of punitive measure without affording any opportunity to the public servant which amounts to violation of principles of natural justice.
He accordingly urged that W.P.No. 602 of 2000 may be allowed and W.P.No. 239 of 2000 may be dismissed.
14. On the other hand, the learned Additional Advocate General submitted that the order dated 27.12.1999 passed by the learned Administrative Tribunal is uncalled for as it is the prerogative of the Government to transfer any of its employees on administrative grounds. Without appreciating this fact, learned Advocate General submits, that the learned Tribunal wrongly interfered with the matter and set aside the transfer orders passed by the Government transferring the public servant. He also submitted that when no mala fides are attributed to the transferring authority, Courts would not interfere in the matter of transfer of public servants. He, therefore submits that the learned Tribunal was not correct in interfering with such a transfer in the case on hand which was passed in compliance with the directions of the Upa-Lokayukta. He also submits forcefully placing reliance upon the decision of the Supreme Court in Ch.Rama Rao's case (supra) that Upa-Lokayukta has power to issue the interim report dated 15.11.1999 recommending transfer of the public servant and the further order dated 15.12.1999 directing the ACB to take up the probe in the matter and that the public servant is not entitled to any notice during the proceedings taken against him in the course of 'preliminary verification'.
15. Mr. M.V.S. Suresh Kumar, who appeared on behalf of the Upa-Lokayukta brought my attention to various reports of the investigating officer attached to the Institution of the Lokayukta and Upa-Lokayukta and also drew my attention to the letters addressed by the public servant to the investigating officer and submitted that since the public servant started to fill up the loop holes and was tampering with the records, the learned Upa-Lokayukta passed the orders dated 15.11.2000 and 15.12.1999. Insofar as the questions relating to the power of the Upa-Lokayukta to submit the interim report to the Government and also to pass the order dated 15.12.1999 directing ACB to take investigation in the matter, learned Counsel relied upon the decision of the Supreme Court in Ch.Rama Rao v. Lokayukta (supra) and submitted vehemently that the Upa-Lokayukta is well within its powers in issuing those orders,
16. I may now deal with the contentions advanced on behalf of the public servant by Sri Gangaiah Naidu, learned Counsel for the petitioner. Insofar as the 1st contention is concerned, Sri Gangaiah Naidu, has drawn my attention to a Report of the Regional Vigilance and Enforcement Officer dated 16.9.1999 wherein the said authority has enquired into the various allegations levelled against the public servant and recorded findings. He has also invited my attention to the findings reached by the said authority wherein it was found that the allegations levelled against the public servant are utterly false, far from truth and fabricated one and that as the said authority was of the opinion that the allegations were fictitious and the complaint was pseudonym, it was recommended to be closed, Mr. Gangaiah Naidu further contended that subsequently a similar such complaint was filed before the Lokayuktha with several fictitious allegations wherein the public servant offered his comments and basing on the comments further action in the matter was dropped except directing the Government on 13.4.1999 to conduct departmental enquiry. Basing on the above, Sri Gangaiah Naidu vehemently contended that in view of the frivolous, fictitious, false, pseudonym complaints lodged against the public servant wherein the further action was closed as unnecessary, the Upa-Lokayukta could not have taken up the complaint in question for consideration especially when the departmental enquiry was in progress. He also contended that the Upa-Lokayukta was not correct in law in stalling the departmental proceedings by his proceedings dated 15.12.2002 on the ground that the case was entrusted to Director General of ACB for investigation. It is also contended by Sri Gangaiah Naidu that in view of the above frivolous and vexatious complaints, me Upa-Lokayukta should have refused to exercise discretion regarding the complaint on hand which contains self-same allegations as were held to be fictitious in the earlier complaints in view of the fact that other remedies were available to the complainant.
17. However, the records reveal that though many of the complaints lodged by various complainants against the public servant were rejected, the complaint made by one Sri M. Venkateswarlu before the Upa-Lokayukta, appointed under the A.P.Lokayukta and Upa-Lokayukta Act,1983 (for short 'the Act No. 11 of 1983'), was taken up for consideration by the said authority. There were as many as 20 allegations in the said complaint levelled against the public servant which, the records reveal, were different from the allegations that were levelled in the earlier complaints. The first allegation in the complaint relates to purchase of Very High Frequency Sets from M/s. Panasonic Systems, Vijayawada which is also a fresh allegation which does not find a place in the earlier complaints. Therefore, the Upa-Lokayukta did not refuse to exercise discretion in terms of the provisions of Section 10(4) of the Act and proceeded with enquiry regarding that complaint I am, therefore, of the opinion that Upa-Lokayukta was right in exercising his discretion to order probe into the matter. The mere fact of availability of the alternative remedies to the complainant could not preclude the said authority from exercising its discretion. I, therefore, see no merit in the contentions advanced by the learned Counsel in this regard.
18. As far as the second contention of Sri Gangaiah Naidu is concerned, Section 10 of the Act laid down the procedure to be followed in respect of conducting both investigation and preliminary verification by the Lokayukta/Upa-Lokayukta. According to him both the terms investigation and preliminary verification contained in Sub-section (1) of Section 10 of the Act carry me same meaning and purpose and the procedure prescribed therein together with the procedure prescribed in the Sub-clauses (a) and (b) of Sub-section (1) is mandatory. Placing strong reliance on the above provisions learned Counsel strenuously contended that the Upa-Lokayukta ought to have forwarded the copy of the complaint in question with a statement setting out the grounds for the proposed investigation and further ought to have afforded the public servant with an opportunity to offer his comments on such complaint or statement. Since the procedure prescribed in the above provisions is mandatory, failure to comply with the same vitiates the whole subsequent proceedings and the consequential orders passed by the Upa-Lokayukta dated 15.11.1999 and 15.12.1999 are, therefore, without jurisdiction since they lack legal sanction and are non est in the eye of law and, therefore, be declared as void ab initio. He also submits that when once the proceedings issued by the Upa-Lokayukta are void ab initio, the G.O. Rt. No. 1801 dated 25.11.1999 and the consequential order dated 25.11.1999 passed by the Department transferring the public servant would become null and void and, therefore, they are to be set aside and quashed as baseless.
19. I may now endeavour to examine the contention whether both the terms investigation and preliminary verification are one and the same and the further contention whether the public servant should have been provided with the opportunity as provided under the provisions of Section 10 of the Act and whether all the subsequent proceedings that were taken place subsequently are vitiated for non-compliance of the procedure prescribed in the said provisions. For this purpose, it is necessary to notice as to how both the terms investigation and preliminary verification are defined in the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 (for short, 'the Rules'). Sub-rules (vi) and (viii) of the Rules define both the terms investigation and preliminary verification as follows:
"(vi) "investigation" means any inquiry or other proceedings conducted by the Lokayukta or Upa-Lokayukta in connection with the complaint, or on his own motion or under the orders of the Governor but shall not include preliminary verification;
(viii) "preliminary verification" means any inquiry or other proceedings conducted by the Lokayukta or Upa-Lokayukta in connection with a complaint or on his own motion for the purpose of satisfying himself as to whether there are any grounds for conducting an investigation into such complaint,"
As can be seen from the sub-rules extracted above, both the terms investigation and preliminary verification have quite different meanings and purposes in the Act. Preliminary verification contains a lengthy process for scrutinizing the allegations in the complaint and the action complained of. Sub-rules (1) to (6) of Rule 5 in Chapter III of the Rules provide detailed procedure of preliminary investigation including hearing of the complainant, calling for remarks/ information or report after a confidential probe taking assistance of any investigating agency. After receipt of such report, examination of such information takes place in the legal section. Thereafter consideration of the remarks, information and reports would take place and then only it would be decided whether or not there are any sufficient grounds for ordering investigation. If there are no grounds, during the stages of preliminary verification only, the complaint can be rejected. As per Sub-rule (7) of Rule 5, after such consideration of the reports etc., if the Lokayukta/Upa-Lokayukta is satisfied that there is a prima facie case for conducting an investigation into the allegations in the complaint, he may pass an order to that effect and direct the concerned officers of the Institution to take the necessary steps in that behalf. Thus, preliminary verification is a quite different process that precedes the stage of investigation.
Insofar as the stage of investigation is concerned Rules 6 to 13 elaborately deal with the same in a given complaint before the Institution of Lokayukta/Upa-Lokayukta. Suffice it to notice in this connection Sub-rule (2) of Rule 6 wherein the requirement of providing notice to the public servant is prescribed. The said provision reads:
"6. Commencement of investigation:--
(1) xx x x x (2) Where the Lokayukta or Upa-Lokayukta proposes to conduct an investigation on his own motion against a public servant, he shall forward to the public servant concerned, and the competent authority concerned a statement containing details of the action attributed to such public servant or the allegation against him regarding which information has been received by the Lokayukta or Upa-Lokayukta otherwise than through a complaint together with a list of witnesses whom the Lokayukta or Upa-Lokayukta proposes to examine, if any......"
20. As can be seen from the records available before me, it is clear that the complaint on hand, pending before the Upa-Lokayukta, was merely proceeding at the stage of preliminary verification at the relevant time and it has not reached the stage of investigation and the learned Counsel Sri Gangaiah Naidu has not pointed out from the records or invited my attention to any paper which shows that the Upa-Lokayukta has proposed to conduct the investigation. As a matter of fact, from the order dated 15.12.1999, it is known that the enquiry proceeding before the Upa-Lokayukta was posted to 17.3.2000. I am, therefore unable to countenance the contention advanced by Sri Gangaiah Naidu that since both preliminary Investigation and investigation are one and the same, the public servant was entitled to notice.
21. I may now examine the aspect whether the public servant requires to be afforded with an opportunity to offer his comments. Clause (b) of Sub-section (1) of Section 10 of the Act deals with this aspect, which reads:
10. Procedure in respect of investigations :--
(1) Where the Lokayukta or Upa-Lokayukta after making such preliminary verification as he deems fit, proposes to conduct any investigation under this Act, he--
(a) shall forward a copy of the complaint or, in the case of any investigation which he proposes to conduct on his own motion, a statement setting out the grounds therefor, to the public servant concerned and the competent authority concerned
(b) shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement."
I have already held above, that the complaint has not reached the 2nd stage of investigation before the Upa-Lokayukta. In my considered opinion, learned Counsel is not correct in saying that the public servant should have been given an opportunity because the very next Sub-section (2) of Section 10 displays not only the wide disparity that is there between the terms Preliminary Verification and Investigation but also unequivocally provide that the public servant does not require to be given with any opportunity during the stage of preliminary investigation. The said provision reads as under:
"(2)(a) 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..."
I am therefore, of the considered opinion that the enquiry before the Upa-Lokayukta, was at the stage of preliminary verification and, therefore, the said authority need not give the public servant any opportunity since he shall have to conduct the preliminary verification in private without disclosing the identity of complainant to the public servant or to the public or press. Hence the procedure adopted by the Upa-Lokayukta in the present case cannot be faulted with on the ground that the opportunity, as required under Clauses (a) and (b) of Sub-section (1) of Section 10 of the Act, was not provided to the public servant.
22. Insofar as the third contention of the learned Counsel is concerned, according to him, there is no provision in the Act for submitting an interim report as was done in the instant case by the Upa-Lokayukta basing on which the G.O. Rt. No. 1801, dated 25.11.1999 was passed by the Government and Rc.No. El/59849/99, dated 25-11-1999 was passed by the Commissioner, Endowments Department, Hyderabad transferring the public servant. He, submits that the order passed by the Upa-Lokayukta dated 15.11.1999 does not have legal sanction and is liable to be set aside and quashed. According to the learned Counsel the Lokayukta and Upa-Lokayukta have power only to submit report in terms of the provisions of Rule 16 of the Rules and not otherwise.
23. It is necessary to examine the circumstances under which the orders dated 15.11.1999 came to be passed by the Upa-Lokayukta. The records placed before me reveal that though many of the complaints lodged by various complainants against the public servant were rejected, the complaint made by one Sri M.Venkateswarlu before the Upa-Lokayukta was taken up for consideration by the said authority. There were as many as 20 allegations in the said complaint levelled against the public servant. The first allegation in the complaint relating to purchase of Very High Frequency Sets from M/s. Panasonic Systems, Vijayawada. The said allegation reads:
"The Executive Officer has purchased V.H.F. (Very High Frequency) Sets for Rs. 10 lakhs at exorbitant price than the market value and paid 70% advance amount to the supplier even without the approval of the Commissioner of Endowments."
24. The above complaint containing the said allegation was taken up for preliminary verification by the Upa-Lokayukta and enquiry was ordered which proceeded mainly regarding the 1st item of the complaint. The said order for purchase of VHP Sets appears to have been made based on a single unsigned quotation dated 29-12-1998 submitted by M/s. Panasonic Systems, Vijayawada for Rs. 8,91,273/- which reads thus:
10 No. Hand Sets GMT 800 TOC:
1,70,800-00 Repeater K.S. 800 Type : G.P. Battery Backup :
1,79,800-00 15 feet Antenna with stand running Card :
18,973-00 Sub-Station with Battery Backup-2 Nos :
1,54,600-00 Mobile Sets with High Frequency :
1 ,68,500-00 Licence Total System :
30,000-00 Box, Card, TOC 8Y Card, Relay :
79,850-00 D.O.T Observer Connector, Relay supply Double line (Eight lines) :
88,750-00 8,91,273-00 (Eight Lakhs Ninety One Thousand Two Hundred and Seventy Three Rupees Only.) In the course of preliminary verification of the complaint, the Upa-Lokayukta has ordered enquiry into the complaint to the Investigating Department attached to the Institution of Lokayukta/Upa-Lokayukta and after enquiry, reports were submitted by the Department of Investigation to the Upa-Lokayukta. I have meticulously gone through the entire reports of the Investigating Officer in regard to the above allegation. As can be seen from the report dated 25.10.1999, the Investigating Officer personally visited Vijayawada and found that no such address viz., M/S.Panasonic Systems is in existence which fact has been further corroborated by the letter dated 14.10.1999 addressed by the Commissioner, Municipal Corporation, Vijayawada which categorically says that such an address is not in existence in Vijayawada. The Investigating Officer further stated that subsequent to ordering of enquiry by the Upa-Lokayukta, the public servant obtained a letter from the supplier. V.Venugopal to the effect that he is prepared to reduce the total amount quoted earlier in his unsigned quotation dated 29.12.1998 for Rs. 8,91.273-00 and promised to pay back an amount of Rs. 3,94,400/-. The Investigating Officer was, therefore, of the opinion :
"Thus, it is evident that Sri G. Keshavulu, PS.1 while working as Executive Officer at Sri Bhramarambika Mallikarjuna Swamy Devasthanam, Srisailam in abuse of his official position motivated by corrupt consideration and connived with PS.2 and 3 and the supplier, Sri Venugopal; paid an amount of Rs. 8,22,000/- in favour of non-existing firm M/s. Panasonic Systems, Vijayawada for the supply of VHP sets. But whereas PS.l has received 10 hand sets, one base set and one mobile VHP set with antenna material other than the M/s. Panasonic Systems by fabrication of document in the name of Panasonic Systems, Japan causing loss of Rs. 6,22,000/- to the Srisailam Devasthanam under the Endowments Department and thereby caused a pecuniary advantage to himself and others i.e., P.S.2 and 3 and supplier, besides violating departmental rules."
The Investigating Officer accordingly recorded his finding to the following effect:
"Hence they are (the petitioner in W.P.602 of 2000 and two others who are not before this Court) liable to be proceeded against under Section 13(d) of Prevention of Corruption Act, 1988 and Sections 420, 468 IPC."
The Investigation Report dated 25.10.1999 further states that it was also revealed during the enquiry that, as contemplated under the Rules, public bids were not called for, to purchase the VHF system and the unsigned quotation, with fictitious address was accepted, that an order was placed for the supply and that a sum of Rs. 2,20,000/- as advance was released on 22,1.1999 and a further sum of Rs. 6,00,000/- was also paid on 6.2,1999. The above payment was made notwithstanding the fact that supply was made only in respect of Items 1 to 4 of the quotation barring the other four items.
25. By report dated 26.10.1999, the Director (Investigation), A.P. Lokayukta and Upa-Lokayukta, Hyderabad observed:
"It is seen from the foregoing facts and circumstances that the transaction of purchasing the wireless communication system by PS.1 ('the public servant') was prima facie through acts of criminal conspiracy, cheating, fraud by way of fabrication of documents, criminal misconduct by way of obtaining pecuniary advantage without any public interest by abusing their official position (PS.1/PS.3 etc.,) in which PS.1, PS.3 and Sri V.Venu (V. Venugopal), a private person claiming to be the proprietor of the firm Panasonic Systems, Vijayawada figure as the main accused. As such it is found that this allegation is, prima facie, true against them and they are liable to be proceeded against under Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Sections 420, 468, 471 and 120-B IPC. ..............Since the role of the Commissionerate, Endowments Department in the matter of wrongful loss caused by PS.l, PS.3 etc., in the transaction of purchasing wireless communication system by abusing their official positions for pecuniary advantage appears incriminatory, it may be desirable to bring this matter to the notice of the Principal Secretary to the Government, Revenue Department and the A.P. Vigilance Commissioner for initiating appropriate measures immediately to ensure that the relevant documents pertaining to all the allegations made in the complaint are properly secured and safeguarded against tampering or loss, pending further action as per orders of the Honourable Upa-Lokayukta."
While the matter was pending before the Upa-Lokayukta, the records reveal, that the public servant, on 28-10-1999 had lodged a complaint before the Station House Officer, I Town Police Station, Srisailam, complaining that the Executive Engineer (Electricals) has obtained a quotation from Sri V. Venugopal, Vijayawada, Proprietor of Panasonic Systems to supply 8 Items for Rs. 8,92,273/-basing on the Trust Board Resolution pending approval of the Commissioner of Endowments Department, paid an amount of Rs. 8,22,000/- as advance in different dates in favour of Sri V. Venugopal, Panasonic Systems, Vijayawada and provided Wireless Sets (10+2). As against his quotation, he (V.Venugopal) has supplied equipment of Motorola Company which is made in India instead of Panasonic, Japan Sets and that it is noticed on 28-10-1999 that the value of the sets cost only about Rs. 2,00,000/- but the supplier has misled the department and received heavy payments. Moreover he has supplied Motorola Company sets as against Panasonic System of Japan sets, which are actually quoted by the Supplier. Since the public servant failed to lodge any complaint in the matter of purchase of VHF sets earlier, the Investigating Officer attached to the Institution of Lokayukta requested that orders may be passed directing the concerned authorities to transfer the public servant and 4 others to different non-focal posts as there is every likelihood that they may cause hindrance to the investigation of ACB Officers if they are continued in their present postings.
26. It appears, thereafter the public servant and another had lodged a complaint against the said Venugopal who had allegedly supplied Motorola VHF Wirless Sets instead of Panasonic, Japan sets as quoted in the quotation dated 29-12-1998. The Director (Investigation), A.P. Lokayukta and Upa-Lokayukta by another report dated 9-11-1999 stated in this connection that the action of the public servant and another (PS.3) in preferring a complaint and getting a case registered on 29-10-1999 against the said V. Venugopal at Srisailam I-Town Police Station for the alleged offence of cheating is a clear indication of a desperate attempt on their part to extricate themselves from the criminal offences which they had committed in criminal conspiracy with the said private person. He, therefore, requested that instructions may be given to the Principal Secretary to Government to direct the Chief Vigilance Officer of his department to take over all the records pertaining to this and other matters referred to in the complaint and to request the Superintendent of Police, Kurnool District to issue instructions to the Srisailam I Town Police Station not to proceed with the investigation into the Crime No. 24/99 under Section 420 IPC pending further instructions. It is further stated that:
"In the meantime, it appears desirable to transfer out P.S.1 (the public servant) and P.S.5 to prevent them from hampering further course of action to be decided upon."
27. While serious allegations against the public servant were pending consideration before the Upa-Lokayukta, strangely, on 10-11-1999, the public servant addressed a letter to the Investigating Officer, A.P. Lokayukta and Upa-Lokayukta informing him about the FIR being lodged against the said V. Venugopal who drew excess amounts from the Devasthanam and also informing that disciplinary action has been initiated against the concerned Executive Engineer (Electrical). He also forwarded a copy of the letter dated 10-11-1999 addressed to the said V. Venugopal by him which states that:
"Out of the above amount, on the request made by you, an amount of Rs. 8,22,000/-was paid as advance for supply of above items and erection. But you have supplied 10+2 wirless sets of Motorola Company which are being manufactured in Bangalore instead of Panasonic Systems, Japan. The remaining items from Item Nos.5 to 8 have not been supplied by you and you have misguided since you have not obtained licence before supply of the items. When verified the costs of the said sets in Hyderabad it was found that the cost of Mobile Sets supplied by you will be about Rs. 2.00 lakhs. Thus the entire transaction made by you seems that your company is a bogus one and you have cheated the Devasthanam. As such it is decided to return all the sets and its equipment supplied by you. Therefore, you are requested to go over to Srisailam and take over the Mobile Sets and its equipment and repay the balance amount arrived due after adjusting the bills payable by the Devasthanam to you for other works."
28. Thus, the public servant started correspondence with the Investigating Officer, though the preliminary verification was taken up without any notice to him. And as per the reports of the Department of Investigation attached to the Institution of Lokayukta he had started to fill up the loopholes and was undertaking image building exercises. Under these circumstances, the Upa-Lokayukta, before whom the matter was pending, submitted the Interim Report dated 15-11-1999 to the Government recommending the transfer of the public servant in order to continue the enquiry smoothly without any hindrance. The operative portion of the order dated 15-11-1999 passed by the Upa-Lokayukta reads:
"In the facts and circumstances of the case, the Principal Secretary to Government, Revenue Department is directed immediately to immediately transfer the above three persons (the public servant and 2 others) to different non-focal posts or post them to far away place, so that they will not tamper with the records or hamper further progress in the matter, The Principal Secretary is directed to submit compliance report on this interim report by 26-11-1999."
29. I have already pointed out from the records placed before this Court as to the manner in which the public servant started communicating with the Investigating Officer attached to the Institution of Lokayukta and Upa-Lokayukta and how he started filling up the loop holes and image building exercises and under what circumstances, the Upa-Lokayukta passed the orders dated 15-11-1999. The operative portion of the interim order dated 15-11-1999 passed by the Upa-Lokayukta by which the transfer of the public servant was recommended itself shows very clearly that it has been passed on the strength of the law laid down by the Supreme Court in Ch. Rama Rao's case (supra). The operative portion of the order dated 15-11-1999 passed by the Upa-Lokayukta reads thus:
"A perusal of the scrutiny report and the investigation report in this complaint shows that I have prima facie found that there are some allegations against the Executive Officer and others which require further probe/investigation into the matter. Their Lordships of the Apex Court have categorically observed (in Ch. Ramarao's case) that suffice it to state that the Lokayukta has power to submit a preliminary report to take further action so as to enable the Lokayukta to conduct further investigation. The power to submit final report with recommendation to take punitive or penal action includes power to submit interim report with recommendation to suspend an officer or to transfer him pending further investigation."
Learned Additional Advocate General and Mr. M.V.S. Suresh Kumar, learned Counsel drew my attention in this connection to the decision of the Supreme Court in Ch. Rama Rao 's case (supra) and forcefully argued that based on the law laid down by the Supreme Court in the above case, the Upa-Lokayukta is well within its power/ jurisdiction to pass the interim order dated 15-11-1999. I have gone through the above judgment of the Supreme Court. It would be pertinent here to reproduce the observations made by the Supreme Court at Para 5 wherein the Supreme Court has been categorically ruled that:
"Suffice it to state that the Lokayukta has power to submit a preliminary report to take further action so as to enable the Lokayukta to conduct further investigation. The power to submit final report with recommendation to take punitive or penal action includes power to submit interim report with recommendation to suspend an officer or to transfer him pending further investigation or the preliminary verification itself. The object of the recommendation is only to enable smooth enquiry or the investigation conducted without being hampered with by the persons concerned or to prevent an opportunity to tamper with the record or to destroy the record. Under these circumstances, we think that the Lokayukta was well justified in not issuing notice or giving any opportunity to the petitioner at preliminary verification"
In view of the above authoritative pronouncement of the Supreme Court, I cannot accept the contention of Mr. Gangaiah Naidu that the Upa-Lokayukta lacks power/ jurisdiction to pass interim order dated 15-11-1999.
30. This apart, my finding above, to the effect that the public servant is not entitled to be provided with an opportunity of offering comments at the stage of preliminary investigation has also been fortified by the ruling of the Supreme Court in Rama Rao's case (supra) as extracted above, wherein it is held that the public servant does not require to be afforded with any opportunity of offering his comments when the complaint is at the stage of preliminary verification.
Insofar as the fourth contention of learned Counsel Sri Gangaiah Naidu is concerned, according to him, the decision of the Supreme Court in Ch, Rama Rao's case (supra) has to be treated as per incuriam having regard to the specific provisions of Rule 16 which say that interim report can be submitted by the Lokayukta when relief is to be granted to the complainant when he suffered any loss in the hands of the public servant. In support of the contention learned Counsel placed reliance on the decision reported in Young v. Bristol Aeroplane Company, (1944) All E.R. 293, Penny v. Nicholas, (1950) 2 All E.R 89, A.R. Antulay v. R.S. Nayak, and Gasket Radiators Pvt. Ltd. v. State Insurance Corporation, . I have no doubt regarding the propositions of law laid down in those judgments. But in my considered opinion the facts of the said decisions do not apply to the facts of the case on hand. I have gone through the decision of the Supreme Court in Ch. Rama Rao's case (supra) carefully. The Supreme Court has merely interpreted the various provisions of the Act and in the process of interpretation, referred to various Sections of the Act. Therefore, it would be wrong to say that the Supreme Court has clothed the Institutions of Lokayukta and Upa-Lokayukta with the powers that were not found a place in the Act. I, therefore, see no merit in the contention of the learned Counsel Sri Gangaiah Naidu in this regard.
31. Accordingly I hold that the interim report sent by the Upa-Lokayukta in terms of the judgment of the Supreme Court in Ch. Rama Rao 's case (supra) is perfectly in order and the consequential transfer orders passed by the Government and the Commissioner of Endowments Department are also correct and requires no disturbance.
32. Sri Gangaiah Naidu's further contention is that the Upa-Lokayukta has no power to direct the ACB to conduct investigation into the matter or to forward the complaint lodged before it to the ACB for comprehensive probe.
33. The operative portion of the purported final order dated 15-12-1999 reads thus:
"It is evident from the preliminary verification report that out of 12 allegations, the Investigating Officer has investigated mainly into the allegations relating to the purchase of VHF sets and also at illumination crackers etc. In respect of the allegations relating to the construction works, it is to be noted that the Investigation Wing of this Institution does not have the technical wing of the Engineering Section to probe into the said allegations.
It is suffice to say that perusal of the preliminary verification report reveals that there is enough and sufficient material to make thorough and comprehensive probe into all the allegations. Added to this, some of the public servants do not come within the purview of A.P Act 11 of 1983 and Mr. Venugopal is a private individual. Therefore, it is just and proper that this complaint needs to be referred to the Director General, ACB for a comprehensive probe and necessary action. Hence the Director General, ACB is directed to register a case on the basis of the complaint (now forwarded) and cause investigation to be made in detail in respect of all the allegations including those which have been already investigated by the Director (Investigating Wing) of this Institution. The Director General, ACB shall also make use of all the records and Investigation of this Institution and also the records relating to the allegations pertaining the construction work which are available with the Regional Vigilance and Enforcement Officer, Kurnool and take all the files and records collected from the Executive Officer Srisailam Devasthanam by the said Vigilance and Enforcement Officer, Kurnool which are still with him......."
The order dated 15-12-1999 of the Upa-Lokayukta further reads:
For submission of report as regards the progress by the Director General, ACB call on 17-3-2000.
34. As can be seen from the above order dated 15-12-1999, the order passed by the Upa-Lokayukta is not a final order. The matter thereafter was to be posted before the Upa-Lokayukta for recording the progress of enquiry by the ACB on 17-3-2000 at which stage it was stayed. The Scheme and purpose of passing of the enactment viz., Act 11 of 1983 have been clearly stated by the Supreme Court in the case of Institution of Andhra Pradesh Lokayukta/Upa-Lokayukta v. T. Ramasubba Reddy, JT 1996 (1) SC 266. It would be apposite here to refer to the scintillating observations of the Supreme Court, according to which, the decisions of Lokayukta and Upa-Lokayukta must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the concerned disciplinary authorities. When Report under the provisions of Section 12 is forwarded by the Lokayukta or Upa-Lokayukta recommending the imposition of penalty of removal from the office of a public servant, all that is provided is that it should be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making him ineligible for being elected to any office etc. Even if it may be lawful for the Government to act on such recommendation, it is nowhere provided that the Government will be bound to comply with the recommendation of the Lokayukta or Upa-Lokayukta. To the question whether the Report under the provisions of Section 12 can be enforced like a Writ of a Court, the Supreme Court desired that the Legislature itself would make a clear provision for due compliance with the Report of Lokayukta or Upa-Lokayukta so that the public confidence in the working of the system does not get eroded and these institutions can effectlivey justify their creation under the statute. Coming to the order dated 15-12-1999 passed by the Upa-Lokayukta, it is clear that it is a reasoned order and the Upa-Lokayukta, categorically stated that there are certain private individuals like Venugopal who do not come within the purview and jurisdiction of the Institution of Lokayukta. He, therefore, for the purpose of having a fullfledged enquiry into the whole allegations levelled against the public servant thought it fit to direct the ACB to launch a thorough and comprehensive probe into the matter by registering a case on the complaint forwarded by the said authority. I am, therefore of the considered opinion that looking at the Scheme of things and the purpose for which the Act i.e., Act 11 of 1983, has been introduced, the Upa-Lokayukta, in the instant case is well within its powers in passing the order dated 15-12-1999.
35. As far as the last contention of Sri Gangaiah Naidu is concerned, according to him, the transfer order has been issued by way of punitive measure without affording opportunity to the public servant which amounts to violation of principles of natural justice. I have gone through the order dated 25-11-1999 passed by the Government transferring the public servant which reads:
"Sri G. Kesavulu, Joint Commissioner and Executive Officer, Sri Bharamarambikaa Mallikarjuna Swamy Devasthanam, Srisailam, Kurnool District is transferred on administrative grounds with immediate effect. He is directed to relieve himself duly handing over the charge to his P.A. (Assistant Commissioner Cadre) today i.e., on 25-11-1999 (Afternoon).
36. Nowhere in the order it is mentioned that it was issued by way of a punitive measure. It can be seen from the order that the transfer of the public servant was effected purely on administrative grounds. It is a trite law that it would always be open to the employer to transfer an employee working under him on administrative grounds for the purpose of smooth running of the administration. Since grave allegations are levelled against the public servant and the process of enquiry was in progress and prima facie material was found against him, he was subjected to transfer so as to allow a smooth enquiry in the interests of justice and fair play. Hence I see no violation of principles of natural justice by the Government in effecting the transfer against the public servant.
37. As a matter of fact the issue relating to providing opportunity to the public servant at the preliminary verification stage, and the issue whether the Upa-Lokayukta has got power to issue interim report and final report with recommendations to take punitive and penal action are squareiy covered by the decision of the Honourable Supreme Court in Rama Rao's case (supra) wherein the Supreme Court considering the provisions of Sections 10 to 12 of the Act, categorically held:
"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 Upa-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. It is seen from the report submitted by the Lokayukta, that he has prima facie found that there are some allegations against the petitioner. We are not dealing with the nature of the allegations since the matters are yet to be investigated. Suffice it to state that the Lokayukta has power to submit a preliminary report to take further action so as to enable the Lokayukta to conduct further investigation. The power to submit final report with recommendation to take punitive or penal action includes power to submit interim report with recommendation to suspend an officer or to transfer him pending further investigation or the preliminary verification itself. The object of the recommendation is only to enable smooth enquiry or the investigation conducted without being hampered with by the persons concerned or to prevent an opportunity to tamper with the record or to destroy the record. Under these circumstances, we think that the Lokayukta was well justified in not issuing any notice or giving any opportunity to the petitioner at preliminary verification."
38. Having regard to the facts and circumstances narrated and the law discussed by me above, I see no merit in any of the contentions advanced by Sri Gangaiah Naidu, learned Counsel for the public servant.
39. For the foregoing reasons, I am in full agreement with the views expressed by my learned brother Sri S. Ananda Reddy, J. I, therefore, affirm the said views. Accordingly, the orders dated 15-11-1999 and 15-12-1999 passed by the Upa-Lokayukta are upheld. Since the order dated 15-12-1999 is not a final order and still the matter is pending before the learned Upa-Lokayukta which was posted to 17-3-2000 as can be seen from the extract above, the Upa-Lokayukta may be at liberty to proceed further with the matter with full liberty from the stage where it was stopped, if not already proceeded further. The consequential orders viz., G.O. Rt. No. 1801, dated 25-11-1999 passed by the Government and Rc.No. El/59849/99, dated 25-11-1999 passed by the Commissioner, Endowments Department, Hyderabad are also upheld. The WP No. 602 of 2000 preferred by the public servant is accordingly dismissed. The order dated 27-12-1999 passed by the learned Administrative Tribunal in OA 7137 of 1999 is also set aside and quashed. The Writ Petition WP No. 239 of 2000 filed by the Government and others is accordingly allowed.
40. Before parting with the case I must make it very clear that I have not entered into the merits of any of the allegations levelled against the public servant that are referred to herein.
The reference is answered accordingly.
Ar. Lakshmanan, C.J.
WP Nos.239 and 602 of 2000 In view of the majority opinion, the Writ Petition; WP No. 239 of 2000 filed by the Government and others is allowed. The WP No. 602 of 2000 preferred by the public servant is dismissed.