Jharkhand High Court
Shahank Kumar Sinha vs The Office Of Hon'Ble Lokayukta on 22 April, 2019
Equivalent citations: AIRONLINE 2019 JHA 765, 2019 (3) AJR 36
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 263 of 2019
...
Shahank Kumar Sinha, S/o-Late Arjun Prasad Sinha, Aged about 50 years, R/o-Kani Bazar, P.O. & P.S-Sadar, District-Hazaribagh, Present R/o-Harmu Housing Colony, P.O. Harmu, P.S. Argora, District-Ranchi.
... ... Petitioner
Versus
1.The Office of Hon'ble Lokayukta, Jharkhand through its Secretary, Ranchi, having office at Karamtoli Chowk, P.O-Morabadi, P.S-Bariatu, District-Ranchi.
2. The Deputy Secretary, Office of Hon'ble Lokayukta, Jharkhand through its Secretary, Ranchi, having office at Karamtoli Chowk, P.O- Morabadi, P.S-Bariatu, District-Ranchi.
3. The Anti Corruption Bureau, through its Director General, Ranchi having office at Kanke Road, Ranchi University, P.O. & P.S-Kanke, District-Ranchi.
4.Umesh Kumar Singh, S/o-Not known to the petitioner, R/o Sahjanand Chowk, Harmu, P.O. Harmu, P.S-Argora, District-Ranchi.
........ Respondents
...
CORAM: - HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD ...
For the Petitioner : Mr. Mahavir Pd. Sinha, Advocate. For the Respondents(Lokayukta): Mr. Rajesh Kumar, Advocate.
...
04/22.04.2019 This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 07.01.2019 passed in Complaint Case No.2/Lok (Finance) 01/2017, whereby and whereunder the Hon'ble Lokayukta has recommended to institute an F.I.R and to report within six weeks.
2. It is the grievance of the petitioner that the Hon'ble Lokayukta has exceeded its jurisdiction by making a recommendation with the proposal to institute F.I.R which is in the teeth of provision as contained in Section 12 of the Lokayukta Act, 2001 whereby and whereunder, it has been provided that the Lokayukta after making investigation is to make recommendation before the competent authority for taking action on its part and to submit action report before him but he in contrary to the said provision has made recommendation to institute FIR which cannot be said to be recommendation rather it is in the nature of direction upon the Director General, Anti Corruption Bureau, Ranchi for institution of FIR against him and hence the same is not sustainable in the eye of law.
23. Counter affidavit has been filed on behalf of respondent nos.1 and 2 whereby and whereunder stand has been taken that in course of investigation complaint has been made against the petitioner and recommendation to institute and FIR has been passed and as such the same cannot be said to be in consonance with the statutory provision, the reliefs upon the judgment rendered by the Hon'ble Apex Court in the case Rang Nath Mishra Vs. State of UP reported in (2015) 8 SCC 117 and, therefore, submission has been made to dismiss the writ petition.
4. Having heard the learned counsel for the respective parties and after appreciating the rival submissions, this Court thinks it proper to have discussion about the provision of the Jharkhand Lokayukta Act, 2001 prior to coming into effect of the Jharkhand Lokayukta Act, 2001 (hereinafter to be referred as the 'Act', 2001'), there was operation of the Bihar Lokayukta Act, 1973 and after bifurcation of the State, the Act, 2001 has been promulgated.
5. The Act contains definition of grievance and allegation apartfrom the other definitions, but the grievance and allegation is the issue, which is to be dealt with in the instant writ petition, therefore, the definitions are being referred hereunder :-
"2 (b). "Allegation" in relation to a public servant means by affirmation that such public servant -
(i) Has abused his position as such 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) Was actuated in the discharge of the function as such public servant by personal interest or improper, corrupt motives, or
(iii) is guilty of corruption or lack of integrity in his capacity as such public servant.
2(d). "Grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration;
6. It is evident from the definition of allegation that the same pertains to a public servant, if such public servant has abused his 3 position to obtain any gain or any favour to himself or to any other person to cause undue harm or hardship to any other person, was actuated in the discharge of the function by personal interest or improper corrupt motives or is guilty of corruption or lack of integrity in his capacity, as the public servant.
7. While, on the other hand, the grievance means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration.
8. Section 10 of the 'Act', 2001' provides procedure in respect of investigation, which stipulates hereunder:-
"10. Procedure in respect of investigation.- (1) Where the Lokayukta proposes (after making such preliminary inquiry, as he deems fit) 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) Every such investigation shall be conducted in private and in particular, the identity of the complaint and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation;
Provided that the Lokayukta may conduct any investigation relating to a matter of definite public importance in public if he, for reasons to be recorded in writing, thinks fit to do so.
(3) Save as aforesaid the procedure for conducting any such investigation shall be such as the Lokayukta considers appropriate in the circumstances of the case.
(4) The Lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation is in his opinion -
4(a) The complaint is frivolous or fexatious 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.
(4-A) The Lokayukta shall not proceed with any investigation under this Act where the Supreme Court or the High Court issues any direction, order or writ under Article 32 of Article 226 of the Constitution of India in respect of the matter mentioned in the complaint under investigation.
(5) In any case whether the Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons therefore and communicate the same to the complainant and the public servant concerned.
(6) The conduct of an investigation under this Act in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation."
9. It is evident from the aforesaid provision of Section 10, more particularly Section 10 (1) (b) that where the Hon'ble Lokayukta proposes to conduct any investigation, he shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement.
10. Section 11 stipulates about collecting evidence by the Hon'ble Lokayukta and for the said purpose, any such investigation including the preliminary enquiry, the Hon'ble Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, i.e. summoning.
11. Section 12 pertains to reports of the Hon'ble Lokayukta, the said provision is question for consideration, since the jurisdiction of Hon'ble Lokayukta has been questioned in the instant writ petition, therefore, the said provision needs to be referred hereunder :-
5" 12. Reports of Lokayukta - (1) If, after investigation of any action in respect of which a complaint involving a grievance has been or can be or could have been made, the Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, the Lokayukta shall by a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.
(2) The competent authority to whom a report is sent upon sub-section (1) shall, within one month of the expiry of the term specified in the report, intimate or cause to be intimated to the Lokayukta, the action taken for compliance with the report.
(3) If after investigation of any action in respect of which a complaint involving and allegation has been or can be or could have been made, the Lokayukta is satisfied that such allegation ccan be substantiated either wholly or partly, he shall by a report in writing communicate his findings and recommendations alongwith the relevant documents, materials and other evidence to the competent authority.
(4) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate within three months of the date of receipt of the report, the Lokayukta, the action taken or proposed to be taken on the basis of the report.
(5) If the Lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned; but whether 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 concerned.
(5 A) Where in a report forwarded by the Lokayukta any recommendation imposing the penalty of removal from the office of a public servant, falling within sub-clause (iv) of Clause (j) of Section 2 of the Act, had been made, it shall be lawful for the Government without any further enquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for 6 making his ineligible for being elected to any office, specified by the Government in this behalf notwithstanding anything contained in any law for time being in force.
(6) The Lokayukta shall present annually a consolidated report on the performance of his functions under this Act to the Governor.
(7) On receipt of a special report under sub-section (5), or the annual report under sub-section (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House off the State Legislature.
(8) Subject to the provisions of sub-section (2) off Section 10, the Lokayukta may, at his discretion, make available from time to time, the substance off cases closed or otherwise disposed of by him which may appear to him to be of general public, academic or professional interest in such manner and to such persons as he may deem appropriate."
12. It is evident from the provision, as contained in Section 12 sub- section (i), which pertains to the grievance, if suffered by a complaint or any other person, the Lokayukta shall by a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such a manner and within such time, as may be specified in the report.
While sub-section (2) of Section 12 provides power upon the competent authority to whom a report is sent upon sub-section (1) shall, within one month of the expiry of the term, specified in the report, intimate or cause to be intimated to the Hon'ble Lokayukta, the action taken for compliance with the report.
Thus, it is evident that Section 12 (i) and (ii) pertains to grievance of complainant or any other person.
Sub-section (3) of Section 12 pertains to allegation and in case of allegation, after investigation of any action in respect of which a complaint involving and allegation has been or can be or could have been made, the Hon'ble Lokayukta is satisfied that such allegation can be substantiated either wholly or partly, he shall by a report in writing 7 communicate his findings and recommendations alongwith the relevant documents, materials and other evidence to the competent authority.
Sub-section (4) stipulates that the competent authority shall examine the report forwarded to it under sub-section (3) of Section 12 of the 'Act', 2001 and intimate within three months of the date of receipt of the report, the Hon'ble Lokayukta, the action taken or proposed to be taken on the basis of the report.
Sub-section (5) stipulates that if the Hon'ble Lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information 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 concerned.
It is, thus, evident that sub-section (4) and sub-section (5) stipulates that provision of submission of a report as also the special Report in case by the action taken by the competent authority, the Hon'ble Lokayukta is not satisfied.
13. Thereafter, new Section i.e. Section (5A) has been inserted by the Bihar Act of 1988, which contains provision to the effect that where in a report forwarded by the Hon'ble Lokayukta, any recommendation imposing the penalty of removal from the office of a public servant, falling within sub-clause (iv) and Clause (j) of Section 2 of the Act, had been made, it shall be lawful for the Government without any further enquiry to take action on the basis of the said recommendation for removal of such public servant from his office and for making ineligible for being elected to any office, specified by the Government in this behalf, notwithstanding anything contained in any law for time being in force.
14. It is evident from the provision as contained in Section 12 that initially i.e. at the time of enactment of the Bihar Lokayukta Act, 1973, there were only 5 sub-sections i.e. sub-section (1) to (5) but the legislature has taken decision to insert the provision of Section (5A) for the reason that under sub-section (5), only provision has been made by 8 conferring power upon the Hon'ble Lokayukta to make a special report to the Governor and also inform the complainant of the action to be taken in terms of the said special report and, as such, Section 5 (A) has been inserted by way of Act, 1988 for taking action for the removal of the public servant without any further enquiry.
Thus, it is evident that the intent of the statute by inserting the provision under Section 5A to confer power upon the Hon'ble Lokayukta to make special report before the Government and the Government is required to act upon the same by removing the public servant from service.
It also does suggest that no power has been conferred upon the Hon'ble Lokayukta to take action for removal of the public servant, save and except, recommendation.
15. Learned counsel for the contesting respondent has relied upon a judgment of the Hon'ble Apex Court in the case of Rang Nath Mishra- Vs.-State of UP reported in (2015) 8 SCC 117 and has submitted that in the similar situation, the Hon'ble Apex Court has declined to interfere in the matter.
This Court has examined the aforesaid judgment and has found that the report dated 04.10.2011 of the Hon'ble Lokayukta, Uttar Pradesh containing the following recommendations:-
"(1) The charged public servant, Minister of Secondary Education Shri Ranga Nath Mishra, as the sources of income of the properties earned by him from 2007 onwards are not known, therefore, for prosecution under Section 13 (1) (e) of the Prevention of Corruption Act, 1988, criminal investigation be got done by an independent agency like CB CID or Uttar Pradesh Vigilance Commission, and his prosecution e considered to be initiated.
(2) On the basis of the illegal possession of the Gram Sabha land of Gat No.666 Mi/O.106 ha in Village Aurai, Bhadohi, District Sant Ravi Das Nagar, the proceedings be initiated against the charged public servant Shri Ranga Nath Mishra, under Section 122 of the Abolition of Zamindari Act, and the concerned Dy. District Collector should register the case and the aforesaid land of the Gram Sabha be ordered to be released from his possession.9
(3) During the aforesaid criminal proceedings and release of the land from his possession, for taking independent action as per the investigation unit and as per the rules of the competent authority, the charged public servant, Minister of Secondary Education, be removed from the portfolio of the Minister so that the aforesaid legal proceedings could be carried out independently.
(4) The criminal investigation be done through such an agency which can also investigate into the investments of such properties made in the State and outside the State. (5) The compliance report in respect of the aforesaid recommendations be made available within a month."
The aforesaid recommendations of the Hon'ble Lokayukta, UP have been implemented and necessary action in terms, thereof, has been taken.
The said report dated 04.10.2011 has been quashed on the ground of being contrary to the mandatory procedure prescribed under the provisions of U.P. Hon'ble Lokayukta and Hon'ble Up-Lokayuktas Act, 1975. It is further evident that on the basis of the said recommendation, the then Chief Minister of the State of Uttar Pradesh had dropped the appellant from the Council of Ministers and thereafter an open vigilance enquiry against the appellant was ordered and on the basis of the report of the said enquiry a decision was taken that a criminal case under the provisions of the Prevention of Corruption Act, 1988 be instituted against the appellant by the Vigilance Department of the State. Accordingly, an FIR was filed against the appellant of the said case, which was duly investigated and chargesheet was filed on 30th July, 2013, in which the trial has commenced.
It is evident from para 20 that the assertion has been made that the report of the Hon'ble Lokayukta was submitted without affording any opportunity of personal hearing to the appellant and also request for time for submission of the documents was refused by the Lokayukta, but the Hon'ble Apex Court by taking aid of provisions of Section 10 (3) of the Act has been pleased to observe that it leaves to the Hon'ble Lokayukta, the discretion to adopt such procedure, as may be considered appropriate in the given facts of the case, no prejudice, as has been caused to the appellant, who had taken part in the proceedings at every stage.
10But the factual aspect, therein, was that the procedure, as laid down under the Lokayukta Act has not been followed, more particularly, the principles of natural justice, but the Hon'ble Apex Court has been pleased to come to the conclusion that there is no violation of the principles of natural justice and therefore, has declined to interfere with the report of the Hon'ble Lokayukta. The recommendation, as has been referred to in paragraph 2 of the aforesaid judgment, it is evident from the report no. (1) that although, the recommendation for institution of a case under Section 13 (1) (e) of the Prevention of Corruption Act, 1988 is considered to be initiated, has been made and further, the investigation has been recommended to be made, but this Court has not found anywhere that there is any recommendation with a direction to institute FIR, as also as yet no FIR in terms of direction by Hon'ble Lokayukta, has been instituted, hence, the factual aspect involved in the case of Rang Nath Mishra (Supra) is not applicable in the facts and circumstances of the instant case, hence the said judgment is not applicable.
16. It is the cardinal rule of interpretation that when a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other manner, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Singhara Singh and Ors., reported in AIR (1964) SC 358, wherein it has been held at paragraph 8 as under:
"....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted...."
Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of Babu Verghese and Ors. vs. Bar Council of Kerala and Ors., reported in (1999) 3 SCC 422, wherein it has been at paragraphs 31 & 32 as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.11
The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
"[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law."
Reference to the judgment rendered by the Hon'ble Apex Court also needs to be made in the case of Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., reported in (2002) 1 SCC 633, wherein it has been held at paragraph 27 as under:
"..... it is a normal rule of consideration that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself...."
Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of State of Jharkhand & Ors. vs. Ambay Cements & Anr., reported in (2005) 1 SCC 368, wherein it has been held at paragraph 26 as under:
"....it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed....."
Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of Zuari Cement Ltd. vs. Regional Direction ESIC Hyderabad & Ors. (in Civil Appeal No.5138- 40/2007), reported in (2015) 7 SCC 690, wherein it has been held at paragraph 14 as under:
12"14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p. 378, para 26) 26.... it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
It is the settled position in law that a thing is required to be done strictly in pursuance to the provisions of law, if any deviation, then ultimately the provision as contained under the statute will have no effect."
17. The issue of power of Hon'ble Lokayukta has been discussed by the Hon'ble Apex Court in the case of Ram Kishan Fauji-Vs.-State of Haryana and Others reported in (2017) 5 SCC 533, wherein, after taking the aid of the judgment rendered in the case of Associated Cement Companies Ltd.-Vs.-P. N. Sharma reported in AIR 1965 SC 1595 at para 12, it has been held hereunder:-
"12. After so stating, the learned Judge referred to the opinions of Kania, C.J. and Das, J. in Associated Cement Companies Ltd. v. P. N. Sharma and arrived at the following conclusion: (Chandrashekaraiah case, SCC pp 167-68, para 112) "112. As mentioned above, an Upa-Lokayukta does function as an adjudicating authority but the Act places him short of a judicial authority. He is much more "judicial" than an investigator or an inquisitorial authority largely exercising administrative or executive functions and powers. Under the circumstances, taking an overall view of the provision of the Act and the law laid down, my conclusion si that the Upa-Lokayukta is a quasi- judicial authority or in any event an authority exercising functions, powers, duties and responsibilities conferred by the Act as a suit generis quasi-judicial authority."
The Hon'ble Apex Court had arrived at the formal conclusion as also the judgment rendered in the case of Justice ChandraShekharaiah (Retired)-Vs.-Janekere C. Krishna and Others reported in (2013) 3 SCC 117, the aforesaid pronouncement in the case 13 of Justice ChandraShekharaiah (Retired) (Supra) was challenged on the ground that one of the constitutional functionaries was not consulted and emphasis was on the nature of the post held by the Hon'ble Lokayukta or Hon'ble Upa-Lokayukta, since the plea was taken that when the posting of a public servant is quasi-judicial in nature, their functioning has to be given the same character and once was closed with such functioning and cannot taken by them, is subject to challenge before the High Court under Article 226 of the Constitution of India seeking a writ of certiorari for quashment of the order and in that event, the adjudication has to be recorded as civil in nature at para 16 of the aforesaid judgment, it has been observed that consideration was the nature for the post of Hon'ble Lokayukta or Hon'ble Upa-Lokayukta and it has been held that neither the Hon'ble Lokayukta nor the Hon'ble Upa-Lokayukta can direct for implementation of his report, but, it investigates and after investigation, if it is found that a public servant has committed criminal offence, prosecution can be initiated.
18. In the backdrop of this provision of law, as referred hereinabove, the factual aspect needs to be examined by this Court as to whether the order passed by the Hon'ble Lokayukta is in consonance with the provision of Section 12 of the Act, 2001. It is evident from the impugned order whereby and whereunder the Hon'ble Lokayukta has recommended to institute an F.I.R and to ensure the action taken report within a period of six weeks.
This finding cannot be said to be a recommendation, since the meaning of recommendation is the act of saying that someone should do something or something is good and deserves to be chosen/heard about, while direction means instructions for doing something, as is evident from the provision of Section 12 either sub-section (ii) or sub- section (iv) or sub-section (v), the Hon'ble Lokayukta has been conferred with the power to make recommendation and after getting the matter investigated with reference to allegation for its onward examination by the competent authority, who will intimate within three months of the date of receipt of the report of the action taken or proposed to be taken on the basis of the report and if the Hon'ble 14 Lokayukta is not so satisfied with the said report 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 concerned and where in a report forwarded by the Hon'ble Lokayukta any recommendation imposing the penalty of removal from the office of a public servant, in that situation, the Government without any further enquiry to take action on the basis of the said recommendation for the removal of such public servant.
This provision suggests that first a recommendation is to be made before the competent authority without any recommendation for imposing any penalty and thereafter, the competent authority is to take action or action not taken, report is to be sent before the Hon'ble Lokayukta, who, if found to be not satisfied, will prepare special report and thereafter, the procedure will be followed as, provided under Section (5A) of the Act, 2001.
There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. If a finding of fact is based on no evidence or the authority has acceded his jurisdiction, reference in this regard be made to the judgment rendered in the case of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477.
It needs to refer herein that the scope of interference of the High Court to issue writ of certiorari sitting under Article 226 of the Constitution of India is very limited, as has been discussed by Hon'ble Supreme Court in the case of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477 Supreme Court wherein at paragraph no.7 their Lordships have held as follows:-
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals 15 without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.
In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh Vrs. State of Punjab reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for 16 issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at para 17 has held as under:-
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of 17 appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:
......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."
It is evident from the aforesaid proposition of law, which settled down the legal position for issuance of writ of certiorari and in view of the aforesaid settled position of law and as has been discussed elaborately, hereinabove, the part of the order, passed by the Hon'ble Lokayukta does reflect to be a direction along with the recommendation is contrary to the provision made under Section 12 (3) of the Hon'ble Lokayukta Act, 2001 and hence, is excess of jurisdiction and, as such, the same is to be rectified/corrected within the power of issuance of writ of certiorari by this Court, sitting under Article 226 of the Constitution of India.
19. As has been referred hereinabove by referring to the impugned order, wherein, the recommendation has been made to the Director General, Anti-Corruption Bureau to institute an FIR and submit action 18 taken report and when the recommendation is with the action to be taken it cannot be said to be recommendation in the eye of law and keeping the provision of Section 12 of the Act, 2001 wherein only recommendation is to be made by the Hon'ble Lokayukta leaving it open to the competent authority to take action and to submit action taken report and in case of dissatisfaction the Hon'ble Lokayukta will prepare special report with the finding and again submit it before the Governor and also inform the complainant concerned and as per the provision made under Section 5A whether in a report forwarded by the Hon'ble Lokayukta any recommendation imposing the penalty of removal from the office of the public servant had been made, it shall be lawful for the Governor without any further enquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making his ineligible for being elected to any office, meaning thereby a recommendation imposing the penalty of removal is to be made by the Hon'ble Lokayukta only after exhausting the provision as contained in subsection 3, 4 and 5 of Section 12 but that stage has not yet reached as because at the stage of Section 12(3) the recommendation along with the proposal to institute an FIR has been made which is not to be done in view of the provision of Subsection 3 of Section 12 whereby and whereunder he shall by a report in writing communicate his finding and recommendations along with the relevant documents/materials and other evidence to the competent authority, that provision does not reflect that the recommendation by giving a proposal to institute an FIR or to take any penalty is to be made by the Hon'ble Lokayukta before coming to the stage of subsection 4 of Section 12.
In view of the entirety of the fact and circumstances, the recommendation having been made by the Hon'ble Lokayukta cannot be said to be in consonance with the statutory provision as contained in Act, 2001 and for that the matter could have been remitted before the Hon'ble Lokayukta but considering the nature of allegation if it will be remitted it will time consuming and therefore, this Court being given power conferred under Article 226 deem it fit and proper instead of removing the matter to pass a fresh order to modify the order 19 impugned in terms as indicated hereinbelow the direction part wherey and whereunder the recommendation to institute an FIR has been made the same is held to be not in consonance with subsection 3 of Section 12 of the Act, 2001 and therefore the said part of the order is quashed and the impugned order is modified to the extent to treat the order impugned as recommendation of the Hon'ble Lokayukta in terms of the provision as contained in Section 12(3) of the Act 2001.
Although this Court is interfering with the direction part of the Hon'ble Lokayukta, keeping the provision of law into consideration, as discussed above, that does not be construed to be an interference with the findings of recommendation, as has been recommended/recorded by the Hon'ble Lokayukta for the reason that the High Court sitting under Article 226 of the Constitution of India, cannot exercise the power of appeal, sitting over upon the findings given by the Hon'ble Lokayukta, based upon various evidence came before it by virtue of the enquiry reports.
Therefore, the authority before whom, the finding alongwith the recommendation has been sent, is directed to act strictly in pursuance to the provision of Section 12 of the Act, 2001, so that the purpose for which, the Lokayukta Act, 2001 as has been enacted, be achieved, keeping this into consideration the Chief Secretary of the State is directed to ensure compliance of this order.
Further, it is directed that the authority will not be prejudiced in any way while acting as per the recommendation and will take a decision without being prejudiced by this order.
Needless to say that the authority will follow the time schedule, as stipulated in the provision of law.
The writ petition stands disposed of with the observations and direction aforesaid.
Let a copy of this order be communicated to the Chief Secretary of the State through the Registry of this Court.
(Sujit Narayan Prasad, J.) Saket/-