Chattisgarh High Court
Rajesh Bissa vs State Of Chhattisgarh & Others on 27 April, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION C No 4964 of 2008
Rajesh Bissa
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri Sourabh Dangi and MsNaushina Afrin Ali Advocates for the petitioner
^ Shri Kishore Bhaduri Additional Advocate General for the State respondent No 1 Shri Sanjay K Agrawal and Shri Ashish Shriva
CORAM: Honble Shri Satish K Agnihotri J
Dated: 27/04/2010
: Judgement
O R D E R
Delivered on 27th day of April 2010 PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. By this petition, the petitioner seeks a writ in the nature of certiorari to qush the report dated 23.06.2008 submitted by the Principal Lok Ayukt, Chhattisgarh Lok Aayog, Raipur, to the Government of Chhattisgarh. Secondly, declaring the report as illegal on account of the fact that a copy of the reply/comments submitted by the second to fourth respondents were not supplied to the petitioner. Thirdly, an independent agency to investigate into the complaint, may be appointed and fourthly, a criminal prosecution may be lodged against the second to fourth respondents.
2. The facts, in nutshell, as projected by the petitioner is that the petitioner is a social worker and office bearer of the Indian National Congress at Raipur. He filed a complaint before the office of Lok Ayukt under the provisions of Chhattisgarh Lok Aayog Adhiniyam, 2002 (for short `the Adhiniyam, 2002') against the second to fourth respondents on 29.05.2008 (Annexure P/2). The case was registered as complaint case No. 31/2008 by the office of the fifth respondent. Thereafter, the petitioner was not communicated information about any proceedings, enquiry, reply or explanation, if any, offered by the second to fourth respondents. The petitioner surprisingly received the impugned report dated 23.06.2008 (Annexure P/1) holding that no case of misconduct has been made out against the second to fourth respondents. The petitioner thereafter made an application for supply of certified copy of the reply/comments, made by the second to fourth respondents under the provisions of Right to Information Act, 2005. Thus, this petition.
3. Shri Sourabh Dangi with Ms. Naushina Afrin Ali, learned counsel appearing for the petitioner would submit that the fifth respondent- Lok Aayog has not appreciated the facts of the case properly. The entire report is based on subjective satisfaction of Lok Aayog and no procedure as required for enquiry has been adopted by the fifth respondent. The basic principles of natural justice that the complainant is entitled to an opportunity of hearing on reply and comments made by the second to fourth respondents, was not afforded to the petitioner. Section 9 of the Adhiniyam, 2002 provides for procedure in respect of inquiry which clearly says that while conducting an inquiry the Lok Aayog must ensure that the principles of natural justice are satisfied. Shri Dangi would submit that the provisions of Section 8 and 9 are pari materia and not in disharmony with each other and therefore, the recourse ought to have been taken to section 10 of the Adhiniyam, 2002. The entire proceeding was ex parte. The fifth respondent ought to have first settled the procedure for conduct of enquiry and investigation and thereafter, an opportunity of hearing should have been provided to the petitioner. The fifth respondent has exercised its discretion arbitrarily and not judiciously. The award of consultancy to a particular person without following the well settled principles of law by inviting tenders from other similarly situated persons, is vitiated. It is well settled principle of law as laid down by the Hon'ble Supreme Court in a catena of decisions that contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public auction/public tender by inviting tenders from eligible persons and the notification of the public auction or inviting tenders should be advertised in well known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject matter of auction, technical specifications, estimated cost, earnest money, deposit, etc. The petitioner being the complainant should have been supplied a copy of the committee report or other relevant documents placed by the second to fourth respondents before the fifth respondent. The State largesse has been awarded arbitrarily. The kind of work awarded to IL&FS IDC (for short `IIDC') was in order to benefit him as IIDC was found to be competent enough to carry out the kind of work in question. The objections raised by the office of the Accountant General was not considered at all. Event he reasons recorded by the officers were also not just and proper. The second respondent, without explaining the reasons, have stated that he came to conclusion that everything was done in accordance with law, which is contrary to the well settled principles of law as laid down by the Supreme Court in Mohinder Singh Gill's case (AIR 1978 SC 851). The Lok Aayog has failed to recommend disciplinary action against the second to fourth respondents. Conclusion arrived at in the report that it was the first occasion for the Government of Chhattisgarh to award a consultancy contract, thus no one including the Accountant General and the fourth respondent had a clue about what in fact was a consultancy contract, and further it was the ignorance that has eventually led to the present state of affairs. It is ex facie bad and improper.
4. Shri Dangi would further submit that the circular dated 05.07.2007 (Annexure P/2-D) issued by the Central Vigilance Commission specifically provides that tender process or public auction is a basic requirement for awarding a contract by any government agency as any other method, specially award of contract on nomination basis would amount to a breach of article 14 of the Constitution guaranteeing right to equality to all interested parties. This was completely ignored in the present case. Shri Dangi places his reliance on a decision rendered by the Supreme Court in Nagar Nigam, Meerut v. Al Faheem Meat Exports Pvt. Ltd. (2006) 13 SCC 382.
5. On the other hand, Shri Bhaduri, learned Additional Advocate General appearing for the State/first respondent would submit that the present petition is filed under Article 227 of the Constitution of India calling into the question the correctness of the impugned report submitted by the fifth respondent. The Administrative Reforms Commission, constituted by the Government of India, made a recommendation for constituting a statutory body i.e. Lokpal or Lokayukta and procedures for investigating complaints by a person against public servants. Accordingly, fifth respondent has been created under the provisions of the Adhiniyam, 2002 to enquire into specific complaints of misconduct against the public servants and other matters connected there with. The provisions of section 9 and 14 of the Adhiniyam, 2002 provides for compliance of the principles of natural justice qua the public servants against whom a complaint has been lodged. There is no provision for affording an opportunity of hearing to the complainant, if no order condemning the complainant has been passed. The enquiry conducted by the fifth respondent is not a trial but a simple preliminary enquiry on the basis of which if the alleged misconduct is found proved against the public servant, a proper action is required to be taken after affording an opportunity of hearing to them again. There is a provision for imposition of punishment on the complainant, if the complaint is found to be false, under sub section (2) of section 8 of the Adhiniyam, 2002. In that case only, the complainant is entitled to benefit of the principles of audi alteram partem. In the case on hand, no action has been initiated under the provisions of Rule 8(2) of the Adhiniyam, 2002 against the complainant/petitioner. Thus, it is not required to afford an opportunity of hearing to the petitioner before submitting a report on the basis of complaint made by the petitioner, after examining the replies, comments submitted by the second to fourth respondents.
6. Shri Sanjay K. Agrawal with Shri Ashish Shrivastava, learned counsel appearing for the second respondent, with the permission of the Court, would adopt the return filed by the second respondent before the fifth respondent. Shri Agrawal would submit that the complaint was lodged by a political worker against the Chief Minister. It was nothing but an attempt to achieve political mileage and publicity against the Chief Minister, who belongs to another political party. Thus, such petition for political oblique motive may not be entertained. The averments of the petitioner that the petitioner has lodged a complaint on the basis of the order passed in W.P. (PIL) No. 1887/2008 is contrary to the facts on record as the second to fourth respondents were not a party to the said public interest litigation petition. All the allegations are bald and wild. The report is submitted by former Chief Justice of a High Court who held the office of Pramukh Lok Ayukt. Thus, on the basis of mere selfsame statement of the petitioner, the report may not be doubted. The report is just and proper as the contract in question was a consultancy contract not a works contract or supply contract. Therefore, consideration for award of consultancy contract is different than that of the award of other contracts. Due procedure as per the transaction of government business rules were followed. Thus, the grievance of the petitioner is baseless and unfounded and the petition deserves to be dismissed with cost.
7. Shri Agrawal would further submit that enquiry as contemplated under the provisions of the Adhiniyam, 2002 is in the nature of fact finding investigation. There is no lis between the complainant and the public servants against whom a complaint has been filed and as such there is no adjudication of lis. In support of his contention, Shri Agrawal relies on decisions rendered by the Supreme Court in Real Value Appliances Ltd. v. Canara Bank1 and Dr. Baliram Waman Hiray v. Justice B.Lentin & Others2.
8. Shri P.S.Koshy, learned counsel appearing for the third and fourth respondent would adopt the submissions made by the second respondent and would submit that on bare perusal of the pleadings in the petition, it is apparent that an attempt has been made to harass and falsely implicate the answering respondents. The petitioner has himself misunderstood and misinterpreted the provisions of the Adhiniyam, 2002 by claming compliance of the principles of natural justice on the ground that he was the original complainant on the basis of which an enquiry was initiated and in the enquiry, nothing was found against the respondents. The fifth respondent has not exercised its jurisdiction under section 8(2) of the Adhiniyam, 2002 whereunder a criminal case may be registered against the complainant, who makes a false complaint. Thus, the petitioner cannot claim to be aggrieved by the fact that he was not afforded an opportunity of hearing before passing of the adverse order against him.
9. The order dated 08.08.2002 (Annexure R-3/1) issued by the Environment and Urban Administration authorized the existing Capital Area Development Authority, now New Raipur Development Authority, to make a provision for appointment of a consultant either by inviting tender or by mutual discussion. Such decision was taken as the State of Chhattisgarh is a newly formed State and infrastructure development is one of the thrust area of the State Government. A committee on Technical Consultancy Services (for short `TCS') of the Planning Commission of India has recommended engagement of consultancy and fixing of their fees in accordance with the international practice adjusted to the Indian conditions. Price cutting and competitive bids was to be avoided. Contracts should be awarded to the consultants based on their capability and experience and reasonableness of the bids. The consultants should follow the same standards and practices as are observed by the medical practitioners and Chartered Accountants. The method of calling tenders for appointment of consultants should be used only sparingly. Accordingly, a renowned consultant who has rendered services to other State Governments also, was engaged.
10. The averments of the petitioner that the objection of the Accountant General was overlooked, learned counsel relies on a letter dated 7.6.2008 (Annexure R-4/6) in order to support his contention that proper reply was filed to the office of the Accountant General wherein it was stated that IIDC was engaged as consultant directly for infrastructure projects by the Government of Tamil Nadu, Government of Gurjrat, R&B Department, Andhra Pradesh Industrial Infrastructure Corporation Ltd, Karnataka State Industrial Infrastructure Development Corporation (KSIIDS), Andhra Pradesh Industrial Infrastructure Corporation Ltd, Government of Kerala, Punjab Infrastructure Development Board, Government of Gujarat for Vibrant Governance Programme, Oil & Natural Gas Corporation Ltd. and MMTC Ltd.
11. Having regard to the experience, reputation, caliber and further engagement by different State Governments and State Companies, it was not found advisable, as per TCS report, to call for tender and the consultancy was awarded to the IIDC. In respect of objection of the Accountant General that selection of technical consultant was not fair. All the queries were replied by the fourth respondent and thereafter, no direction was issued by the office of the Accountant General, being satisfied with the explanation/reply submitted by the fourth respondent.
12. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
13. The petitioner made a complaint on 29.05.2008 (Annexure P/2) to the fifth respondent on the basis that Chhattisgarh Infrastructure Development Corporation had entered into a consultancy contract on 10.08.2005 (Annexure P/9) with IIDC for development of the infrastructure in the State of Chhattisgarh without inviting tenders/applications from other similarly situated companies/ persons. Thus, the second to fourth respondents have committed serious misconduct. They have violated the provisions of Article 14 of the Constitution of India to benefit IIDC on accepting its proposal without following the due process of law. Award of Rs. 1.5 crores as consultancy fee was also with the same motive and purpose. The fifth respondent registered a complaint case being complaint case No. 31/2008. The learned Pramukh Lokayukt issued notices to the second to fourth respondents and examined their affidavits/comments and after due consideration, came to the conclusion that the CVC circular dated 5.7.2007 which was issued after agreement of contract with the IIDC, was not applicable in respect of the consultancy contract but for other works contract and other types of contract. The learned Pramukh Lokayukt relied on a committee report submitted by Planning Commission, Government of India on TCS and came to the conclusion that in case of consultancy contract, no tender is required. The method of calling tenders for consultancy works should therefore be used sparingly, and after examining the competence and reputation of IIDC, the method of selection, consultancy charges, held that for want of experience in appointment of technical consultants, agreement was like a professional engagement having technical expertise. No misconduct on the part of second to fourth respondents was found proved. Accordingly, the learned Pramukh Lokayukt submitted a detailed report with reasons on 23.06.2008 to the State Government holding that the charges leveled against the second to fourth respondents were baseless. The same are not tantamount to misconduct.
14. In Re; objection raised by the office of the Accountant General, have remained un-replied, the fourth respondent has replied to the objections raised by the office of the Accountant General, inter alia, as under:
"In regard to this observation the position is that Infrastructure Leasing and Financial Services, Infrastructure Development Corporation (IL&FS IDC), a subsidiary of Infrastructure Leasing and Financial Services Ltd. (IL&FS), vide their letter dated 9.12.2004 (Annex. 1), submitted a proposal to the Industries Department for accelerated Industrial Infrastructure development in the State by associating IL&FS IDC. In their letter, IL&FS IDC proposed a Special Purpose Company (SPC) to be formed jointly by IL&FS IDC and an agency of Government of Chhattisgarh (GoC) for development of industry related infrastructure in the State. Other options like Public Private Partnership (PPP), Build Operate and Transfer (BOT), Build, Own, Operate and Transfer (BOOT), Build, Own, Operate and Sale (BOOS) were also mentioned in the said letter. On receipt of this letter IL&FS IDC was asked to make a presentation before the Hon'ble Minister of Commerce & Industries Department of the State Government. On 22.12.2004 IL&FS IDC Ltd. made a presentation before the Minister of Commerce & Industries.
During this presentation IL&FS IDC inter-alia presented a credentials and the infrastructure development activities undertaken by them for the Central Government Organizations and in other States. IL&FS IDC during this presentation offered the following two options -
(I) Project Development & Promotion Partnership (PDPP) option under which IL&FS were to work as consultant for project development.
(II) Constitution of Special Purpose Company (SPC) of Chhattisgarh State Industrial Development Corporation Ltd. (CSIDC) / Chhattisgarh Infrastructure Development Corporation Ltd. (CIDC) and IL&FS IDC for infrastructure development.
In line with the discussion held during the presentation, IL&FS IDC submitted a proposal on 23.12.2004 (Annex 2) to the State Government for the development of following projects under PDPP option under which IL&FS IDC was to work for project development and marketing followed by the selection of project developer(s) for the following projects -
1 Herbal & Medicinal Park 2 Aluminium / Metal Park 3 Food Park The proposal was accepted by the State Government and approval was conveyed to CIDC vide letter no. F 20-109/04/11/6 dated 28.03.2005.
Later on Aluminium/Metal Park project was substituted by Gems and Jewellery SEZ project for the reason that while firm location for the former had not been finalized, location to the latter in the New Raipur township had been fixed. The MoA between CIDC and IL&FS IDC was signed 10.08.2005. It was ratified by the board of directors of CIDC in its 19th meeting held on 25.01.2006 (minutes annexed as Annex. 3). It is thus clear that offer of the IL&FS IDC was discussed at appropriate level in the State Government / CIDC after which decision was taken.
Audit is requested to accept the above explanation and file the observation.
With the objective of attracting investments in the food processing, herbal and medicinal plants based processing and jewellery making & gems processing industries, the State Government had, in the year 2004 decided to develop special industrial parks for attracting investments in these fields. Since CSIDC did not have the expertise and experience in these areas, it was felt that the work of project development/project making should be undertaken by some reputed consultant. Appointment of reputed consultant without bidding process has been in vogue for many years and the departments of Central/State Governments have been doing so. IL&FS IDC is a wholly owned subsidiary of the IL&FS, the pioneer company in the country in the field of infrastructure project development, financing, leasing etc. Substantial share holding (more than 43%) of the IL&FS belonged to government institutions namely, UTI, CBI and SBI. Other share holders in the year 2004 were Housing Development Finance Corporation Ltd. (HDFC), ORIX Corporation, Japan, International Finance Corporation, Washington, HSBC Bank, Government of Singapore etc. (Annex 4).
Therefore being a reputed consultant, owned by government companies and reputed financial institutions in the field of infrastructure development, IL&FS IDC was selected without bidding process.
It is noteworthy that IL&FS IDC has been engaged without bidding process in other states also by the State Government organizations as also by the organizations of the Central Government. Here is a list of such projects wherein IL&FS / IL&FS IDC were engaged as consultant directly for infrastructure projects
-
SN Name of Type of project Year
organization
1 Govt. of Tamil Development & 1994
Nadu. implementation of
Tirupur Area
Development
Programme.
2 Government of Development & 1996
Gujarat, R&B implementation of
Deptt. Gujarat toll roads.
3 Andhra Pradesh Vishakhapatanam 1998
Industrial Industrial Water
Infrastructure Supply Project.
Corporation Ltd.
4 Karnataka State Bangalore 1999
Industrial International
Infrastructure Airport.
Development Corp.
(KSIIDC)
5 Andhra Pradesh Development of green 2000
Industrial field Gangavaram
Infrastructure Port.
Corporation Ltd.
6 Government of Multiple Projects. 2002
Kerala
7 Punjab Punjab Road Sector 2003
Infrastructure Project.
Development
Board.
8 Government of Vibrant Governance 2003
Gujarat. Programme
9 Oil & Natural Gas ONGC Tripura Power 2004
Corp. Ltd. (ONGC) Project.
10 MMTC Ltd. Project development 2004
for setting up of
free trade and ware
housing zones in
India
In this connection, it is also worthwhile to mention that the Committee on Technical Consultancy Services set up by the Planning Commission of India around the year 1970 had recommended that consultancy services should preferably be hired without bidding process, wherein the main criteria for choosing a consultant should be its reputation, competence etc. Some of the relevant extracts from the conclusion of the said Committee are enclosed as Annex. 5. The said Committee report has been relied upon by the M.P. High Court in M.P. No. 2475/1991 (Bakatawar Singh Vs. State of MP and others) (AIR 1992 MP 318).
For achieving the objective of faster industrial growth in the newly born State of Chhattisgarh, it was necessary to select a consultant having reputation and competence wherein fees were fixed having regard to fees paid to them elsewhere"
15. Thus, the contention of the petitioner that the respondents have not submitted reply to the objections raised by the office of the Accountant General is incorrect and contrary to the facts on record.
16. The Chhattisgarh Lok Aayog Adhiniyam, 2002 was enacted by the State legislature with a purpose to make provisions for appointment and functions of certain authorities for the inquiry into specific information of misconduct or complaint against certain public servants and for the matter connected therewith.
17. Misconduct has been defined in section 2(h) of the Adhiniyam, 2002, as under:
"(h) "misconduct" by a public servant means and includes that such public servant, -
(i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii) has actuated in the discharge of his functions and as such public servant by personal interest or improper or corrupt motives;
(iii) has indulged in corruption, undue favour, nepotism or lack of integrity in his capacity as such public servant;
(iv) is in possession of pecuniary resources or property disproportionate to his known sources of income and such pecuniary resources or property is held by public servant personally or by any member of his family or by any other person on his behalf;"
18. Public Servant has been defined in section 2(i) of the Adhiniyam, 2002, which reads as under:
"(i) "Public Servant" shall mean and include a person who is-
(i) the Chief Minister;
(ii) a Minister;
(iii) a Member of Legislative Assembly of the State of Chhattisgarh;
(iv) a Government servant;
(v) the Chairperson and the Vice-Chairperson (by whatever name called), or a member of a local authority in the State or a statutory body or Corporation established by or under any law of the State Legislature including a co-operative society, or a Government Company within the meaning of section 617 of the Companies Act, 1956 (Central Act No. 1 of 1956) and such other Corporations or Boards, as the Government may, having regard to its financial interests, in such Corporation or Board by notification, from time to time, specify;
(vi) a member of a Committee or Board or Authority or Corporation, statutory or non-statutory, constituted by the Government of Chhattisgarh;
(vii) a person in the service or pay of -
(aa) a local authority in the State; (bb) a statutory body or a Corporation (not being a local authority) established by or under a State or a Central Act, owned or controlled by the Government of Chhattisgarh and any other Board or Corporation as the Government may, having regard to its financial interest therein, notify from time to time;
(cc) a company registered under the Companies Act, 1956 (Central Act No. 1 of 1956) in which not less than fifty-one percent of the paid up share capital is held by the State Government of Chhattisgarh or any company which is a subsidiary of such company.
(dd) a society registered or deemed to have been registered under the relevant Act of the State Legislature and subject to the control of the Government of Chhattisgarh;
(ee) a co-operative society;
(ff) a University created or deemed to have been created under the Chhattisgarh Vishwavidyalaya Adhiniyam, 1973 (Act No. 22 of 1972);"
19. Section 6 of the Adhiniyam, 2002 enables the Lok Aayog to proceed to enquire into the specific information of misconduct or a complaint against the Chief Minister, a Minister or any other public servant.
20. Section 7 makes it clear that the Lok Aayog shall not conduct any enquiry in case of complaint in respect of any action if such action relates to any matter specified in the Third Schedule, and further under provisions of section 7(2) of the Adhiniyam, 2002 which reads as under:
"7(2). Lok Aayog shall not inquire into any action, -
(a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1950 (Act No. 37 of 1950); or
(b) in respect of a matter which has been referred for enquiry under the Commission of Inquiry Act, 1952 (Act No. 60 of 1952).
(3) Lok Aayog shall not inquire into any complaint, -
(a) if it is made after expiry of twelve months from the date on which the action complained against become known to the complainant
(b) if it is made after expiry of five years from the date on which the action complained against is alleged to have taken place:
Provided that Lok Aayog may entertain a complaint referred to in clause (a), if the complainant satisfies it that he had sufficient cause for not making the complaint within the period specified in that clause."
21. Sub-section (4) of section 7 of the Adhiniyam, 2002 is a non-obstante clause which provides that nothing in this Adhiniyam shall be construed as empowering the Lok Aayog to question any administrative action involving the exercise of a discretion, except where it is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion cannot be regarded as having been properly exercised.
22. Section 8(1) of the Adhiniyam, 2002 provides for making a complaint to the Lok Aayog. Section 8(2) of the Adhiniyam, 2002 provides for imposition of punishment on the complainant, if it is found by the Lok Aayog that a false complaint was made willfully and maliciously. For that purpose, proviso to sub section (2) of section 8 of the Adhiniyam, 2002 provides that on a complaint made by or under the authority of the Lok Aayog, the Court may take cognizance of the offence punishable under this section.
23. Section 9 provides for ensuring compliance of the principles of natural justice. Under section 10 of the Adhiniyam, 2002, the Lok Aayog has been entrusted with all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commission for examination of witnesses and documents and such other matters as may be prescribed.
24. Section 11 of the Adhiniyam, 2002 provides for submission of a report. If in the opinion of the Lok Aayog, the complaint is established, the Lok Aayog shall communicate its finding and recommendations in writing alongwith the relevant documents of the competent authority. Sub section (2), (3), (4), (5), (6) and (7) of section 11 of the Adhiniyam, 2002 provides for monitoring of the action on the basis of report made by the Lok Aayog.
25. Section 14 of the Adhiniyam, 2002 provides that any information obtained in the course of the enquiry by the Lok Aayog, members of its staff or a person or agency whose services are utilized by the Lok Aayog for conducting inquiries in respect of any complaint and any evidence recorded or collected in connection with such information shall be treated as confidential. Sub section 2 of Section 14 of the Adhiniyam, 2002 provides for disclosure of information for the purpose of enquiry or in any report to be made thereon or for any action or proceedings to be taken on such report or for the purposes of any proceeding for an offence under the Official Secrets Act, 1923 (Act No. 19 of 1923) or any offence of giving or fabricating false evidence under the Indian Penal Code or for the purpose of any proceedings under Section 15 of this Adhiniyam or for such other purposes as may be prescribed.
26. Section 15 of the Adhiniyam, 2002 provides for protection against a suit, prosecution or other legal proceedings against the Lok Aayog, the Pramukh Lokayukt, the Lokayukt or against any officer, employee, agency or person referred to in Section 13 in respect of anything which is in good faith done or intended to be done under this Adhiniyam.
27. Section 17 provides for enabling the State Government to make rules for the purpose of carrying into effect the provision of this Adhiniyam. The Chhattisgarh Lok Aayog (Investigation) Rules, 2002 (for short `the Rules, 2002) was made by the Government of Chhattisgarh, which provides for complaint, deposit, affidavits, secrecy of information etc. There is a provision under Rule 17 of the Rules, 2002 that when an investigation against a public servant is being conducted by the Aayog, such servant shall be served with a copy of the complaint or a statement of imputations against him and shall be afforded an opportunity of hearing personally or through his authorized representative. There is no provision for affording an opportunity of hearing or supply of replies/comments/information furnished by the public servant, against whom enquiry/investigation was carried on the basis of complaint made by the complainant, to the complainant.
28. On perusal of the entire provisions of the Adhiniyam, 2002, it appears that the office of Lok Aayog has been constituted to enquire into misconduct as alleged against certain public servants and further for the matter connected therewith. `Misconduct' has been defined as a public servant who has abused his position to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person, or has actuated in the discharge of his functions and as such public servant by personal interest or improper or corrupt motives, has indulged in corruption, undue favour, nepotism or lack of integrity in his capacity, or such public servant is in possession of pecuniary resources or property disproportionate to his known sources of income and such pecuniary resources or property is held by public servant personally or by any member of his family or by any other person on his behalf. Thus, the complaint made by the petitioner has been examined, keeping in view the definition of `misconduct' qua misconduct by a public servant. It has not been found that the action of the second to fourth respondents was done with a motive to gain or favour to themselves or other person or have caused hardship or indulged in corruption, undue favour, nepotism, lack of integrity in their capacity, or they are in possession of pecuniary resources or property disproportionate to their known sources of income. The complaint was to the effect that a contract has been awarded to only IIDC without inviting tenders over competitive bids and the same may be for the purpose of personal gain or benefits etc. It appears that the second to fourth respondents have acted on the basis of TCS report and the fact that IIDC was engaged by several State Governments and its companies, as consultant.
29. The learned Pramukh Lokayukt has examined all the aspects of the matter and came to the conclusion that nothing has been found which amounts to `misconduct' alleged to have been committed by second to fourth respondents.
30. The Supreme Court, in State of Punjab & Others v. Ram Singh, Ex-Constable3, has defined `misconduct' as under:
"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mis-management, offense, but not negligence or carelessness".
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
P.Ramnatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines `misconduct', thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the contest wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law.
Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
6. Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the contest, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour;
unlawful behaviour, willful in character;
forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.
31. The maxim `audi alteram partem' which is the basic pillar of principles of natural justice means that no one should be condemned unheard. The principles of natural justice has been recognized in this country as a basis of the constitutional guarantee of fundamental rights. Application of rule of natural justice depends on the facts and circumstances of the case. In an enquiry, there is an obligation imposed on the enquiry authority to hear the person before he is condemned. The principle of natural justice applies to prevent miscarriage of justice also in domestic enquiries and administrative proceedings.
32. The principle of audi alteram partem, has been further explained in a subsequent decisions that unless prejudice is shown, affording an opportunity of hearing would be a futile exercise or empty formality.
33. In Union of India & Others v. E.G.Nambudiri4, the Supreme Court observed as under:
"7. The purpose of the rules of natural justice is to prevent miscarriage of justice and it is no more in doubt that the principles of natural justice are applicable to administrative orders. If such orders affect the right of a citizen. Arriving at the just decision is the aim of both quasi judicial as well as administrative inquiry, an unjust decision in an administrative enquiry may have more far reaching effect than a deicision in a quasi judicial enquiry. Now, there is no doubt that the principles of natural justice are applicable even to administrative enquiries See : A.K.Kraipak v. Union of India."
34. In Kumaon Mandal vikas Nigam Ltd. v. Girja Shankar Pant & Others5, the Supreme Court observed as under:
"20. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend though, however, we may hasten to add that the same is dependent upon the facts and circumstances of each individual case."
35. Further, in Canara Bank & Others v. Debasis Das & Others6, the Supreme Court observed as under:
"19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that a case, the framework of the statue under which then enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences"
encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non- pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
21. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by process of judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is "nemo judex in causa sua" or "nemo debet esse judex in propria causa sua" as stated in Earl of Derby's case that it is, "no man shall be a judge in his own cause".
Coke used the form "aliquis non debet esse judex in propria causa, quia non potest esse judex et pars" (Co. Litt. 1418), that is, "no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party". The form "nemo potest esse simul actor de judex", that is, "no one can be once suitor and judge" is also at time times used. The second rule is "audi alteram partem", that is , "hear the other side". At times and particularly in continental countries, the form "audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely "qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit" that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right. [See Boswel's case (Co Rep at p. 52-a)] or in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done". Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon (sic open). All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated."
36. The Supreme Court, while deciding the applicability of principles of natural justice in disciplinary enquiry, in P.D.Agrawal v. State Bank of India & Others7, observed as under:
"30. The principles of natural justice cannot be put in straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent times also undergone a sea change.
39. Decision of this court in S.L.Kapoor v. Jagmohan whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala v. S.K.Sharma and Rajendra Singh v. State of M.P. the principle of law is that some real prejudice must have been caused to the complainant. The court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/ doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula (See Vivekanand Sethi v. Chairman, J&K Bank Ltd and State of U.P. v. Neeraj Awasthi. See also Mohd.Sartaj v. State of U.P."
37. In Rajesh Kumar & Others v. Dy. CIT & Others8, the Supreme Court observed as under:
"20. Principles of natural justice are based on two basic pillars:
(i) Nobody shall be condemned unheard (audi alteram partem).
(ii) Nobody shall be judge of his own cause (nemo debet esse judex in propria sua causa).
21. Duty to assign reasons is, however, a judge-made law. There is dispute as to whether it comprises of a third pillar of natural justice. (See S.N.Mukherjee v.
Union of India and Reliance Industries Ltd. v. Designated Authority)."
38. In Ashok Kumar Sonkar v. Union of India & Others9, the Supreme Court observed as under:
"26. This brings to us the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise."
39. Recently, in Sarva Uttar Pradesh Gramin Bank v. Manoj Kumar Sinha10, the Supreme Court observed as under:
"37. Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant."
40. The complaint before the fifth respondent was not an open and shut case. On considering the materials and the reply/comments submitted by the public servants in question, it was found that full fledged enquiry was conducted. No notice was necessary to the complainant in view the provisions of section 14 of the Adhiniyam, 2002 also, wherein an element of confidentiality has been attached to such enquiry where complaint is lodged against a public servant. Even otherwise, no useful purpose would be served even if notice is given to the complainant. Contention of the petitioner that principles of natural justice was not complied with as copies of reply/comments and materials submitted by the second to fourth respondents were not supplied to him, is rejected as in case of this type of enquiry under the provisions of the Adhiniyam, 2002, it is not necessary and expedient to supply the reply/comments or documents submitted by public servant in question to the complainant as there is no prejudice caused or any adverse order is passed against the petitioner.
41. In respect of scope of judicial review in case where Lok Aayog has not found the complaint as established or proved against a public servant, the Supreme Court in Ch. Rama Rao v.
Lokayukta & Others11, observed as under:
"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 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 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 an opportunity to the petitioner at the preliminary verification."
42. In Kumari Shrilekha Vidhyarthi & Others v. State of U.P. & Others12, on which reliance was placed by Pramukh Lokayukt in an enquiry on a complaint made by the complainant, the Supreme Court observed as under:
"33. No doubt, it is true, as indicated by us earlier, that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 to prove the assertion. However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia case to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done was fair and reasonable in the facts and circumstances of the case. As indicated by Diplock, L.J., in Council of Civil Service Unions v. Minister for the Civil Service the power of jujdicial review is limited on the grounds of illegality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of irrationality is obvious."
43. With regard to nature and authenticity of the report submitted by the Lok Ayukt, a Constitution Bench of the Supreme Court, in M.P.Special Police Establishment v. State of M.P. & Others13, observed as under:
"29. The office of the Lokayukta was held by a former Judge of this Court. It is difficult to assume that the said high authority would give a report without any material whatsoever."
44. Prior to establishment of the office of Lok Aayog/Lok Ayukta, the government used to appoint enquiry committee under the provisions of Commission of Inquiry Act, 1952. The Supreme Court, in Dr. Baliram Waman Hiray (supra), observed as under:
"32. A Commission of Inquiry is not a court properly so called. A Commission is obviously appointed by the appropriate government `for the information of its mind' in order for it to decide as to the course of action to be followed. It is therefore a fact-finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a court. "
45. The Supreme Court, while dealing with the issue of scope of interference by the High Court in exercise of power under Article 226/227 of the Constitution of India, in Ashok Kumar & Others v. Sita Ram14, observed as under:
"17. In a matter like the present case where order passed by the statutory authority vested with power to act quasi- judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another appellate court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case."
46. The case of Real Value Appliances Ltd. (supra) and Dr. Baliram Waman Hiray (supra), relied on by learned counsel for the respondent No. 2 is not relevant to the facts of the case on hand as the enquiry under the Commissions of Enquiry Act, is a fact finding enquiry but enquiry/investigation under the scheme of Adhiniyam, 2002 is not an enquiry of the same nature.
In that sense, if Lok Ayukt, is of the opinion that the complaint is established, the report in writing is to be communicated to the competent authority and thereafter, the competent authority has to report within three months of the date of receipt of report and if the action is not taken on the report, special report may be made to the Governor and also inform the complainant. There is a further provision to take action by the Governor under the provisions of sub section 11 of the Adhiniyam, 2002.
47. Thus, the submission of the petitioner that enquiry report is perverse on account of the fact that State largesse has been distributed at the sweet will of the respondents 2 to 4 without inviting tenders from the eligible persons to award consultancy contract to the most competent and deserving candidate, is not sustainable. The enquiry is not with regard to competence of the contractor but the purpose of enquiry under provisions of the Adhiniyam, 2002 is to look into the misconduct of a public servant against whom complaint is lodged. The petitioner has not placed any material before this Court also to establish that the conduct of the second to fourth respondents comes within the definition of `misconduct' as prescribed under section 2(h) of the Adhiniyam, 2002. The Pramukh Lokayukt has already considered the allegations of the petitioner at length and has come to the conclusion. Thus, I have no hesitation in holding that the enquiry report cannot be held as perverse.
48. There is no quarrel on the proposition of law that in normal circumstances, contracts by the State, its corporations, instrumentalities and agencies must be granted through public auction/public tender by inviting tenders from eligible persons by the notification of the public auction. In the case on hand, wherein the second to fourth respondents decided to engage services of IIDC on the basis of the fact that TCS has made a recommendation to avoid price cutting and competitive bids and contracts should be awarded to the consultants based on their capability and experience and reasonableness of the bids.
Further, the services of IIDC was engaged by several other State Governments, its corporations and companies. Thus, it cannot be held that the decision of the second to fourth respondents was arbitrary, unreasonable or violative of provisions of right to equality as enshrined under Article 14 of the Constitution of India.
49. For the reasons stated hereinabove, the writ petition is dismissed.
50. No order asto costs.
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