JUDGMENT
G. Bikshapathy, J.
1. The writ petition is directed against the Orders of the learned Lok Ayukta in Notice Dis.No. 396/ 2002/B-1/Lok/7095/2002, dated 9.3.2002.
Backdrop:
2. Petitioner submitted a complaint to the learned Lok Ayukta against the Principal Secretary to the Government of Andhra Pradesh and Command Area Development, Hyderabad levelling certain allegations and seeking appropriate action in accordance with the provisions contained in A.P. Lok Ayukta and Upa-Lokayukta Act, 1983(for brevity the ‘Act’). The learned Lok Ayukta in his Order dated 2.8.2002 communicated to the petitioner on 9.8.2002 observed thus:
“The threshold question that arises for consideration in this case is whether a preliminary enquiry or the investigation be made by this institution against the Principal Secretary to Government (P.S.1) in this case and the Commissioner (CAD) & E.G. Secretary to Government (P.S.2) in view of the judgment of the High Court in “Santhanam v. State of A.P.” () striking down the word Secretary in Sub-section (1) of Section 2 and the word Secretary in Sub-section (1) of Section 7 and declaring G.O.Ms.No. 158, dated; 13.3.1984 as bad in law. Unless this issue is decided, no further preliminary investigation can be made. The complainant wants to make his submissions on this subject.”
Against the said Orders, the present writ petition has been filed.
3. The issue involved in the writ petition is of considerable importance and the petitioner being a party-in-person, we requested Mr. Nooty Ram Mohan Rao and Dr. K. Laxmi Narasimham to assist the Court as amicus curiae and they responded spontaneously.
4. The issue that calls for consideration is whether the learned Lok Ayukta or Upa-Lokayukta has jurisdiction to cause enquiry under the Act in respect of the complaints/allegations against the Officers of All India Service like I.A.S., I.P.S. etc?
5. Mr. Nooty Ram Mohan Rao, the learned amicus curiae at the outset submits that the learned Lok Ayukta refused to entertain the complaint against the Secretary in view of the decision of the learned Single Judge reported in S. Santhanam v. State of A.P., and that decision was rendered in a particular set of facts and circumstances which are not present in the instant case. Therefore, the learned Lok Ayukta ought to have considered the matter without reference to the aforesaid decision. Even otherwise, he submits that the decision of the learned Single Judge in Sanathanam’s case (supra) requires reconsideration, as the relevant provisions of the Act were not considered in proper perspective. He submits that in view of the large scale irregularities committed right from the lowest cadre to the highest echlon of the administration, it is necessary that the learned Lok Ayukta should be armed to deal with such complaints irrespective of their status and emoluments of the public servants. Otherwise, the very purpose of establishing clean and good governances is frustrated. Hence, he submits that the view taken by the learned Single Judge is liable to be set aside as it is not commensurate with the avowed objects of the Act.
6. The learned Government Pleader and Mr. Suresh Kumar appearing for Lok Ayukta institution submits that the judgment of the learned Single Judge is binding on the institution and the Government inasmuch as the complaint was made against the Secretary, who is an I.A.S. Officer, The learned Lok Ayukta has no jurisdiction to investigate the complaint in view of the judgment referred to above. Therefore, the Government as well as the learned Lok Ayukta institution expressed their inability to deal with the complaint against an I.A.S. Officer.
7. To appreciate the rival contentions, it is necessary to refer to some of the relevant provisions under the Act?
8. The very Preamble of the Act makes it clear that it is the Act to make provision for appointment of Lok Ayukta and functions of the learned Lok Ayukta and Upa-Lokayukta for the investigation of the administrative actions taken by or on behalf of the Government of Andhra Pradesh or certain local and public authorities in the State of Andhra Pradesh (including any omission or commission) in connection with or arising out of such action in certain cases and for matters connected therewith.
9. The Act was reserved by the Governor on 11.10.1982 for the assent of the President and the same was received on 25.8.1983, which was published in the Andhra Pradesh Gazette on 25.8.1983.
10. The expression ‘Officer’ is defined in para 2 (i) thus:
“Officer” means a person appointed to a public service or post in connection with the affairs of the State of Andhra Pradesh, but does not include a person holding a post carrying a minimum scale of pay of rupees one thousand one hundred and fifty and below;”
“Public Servant” is defined in Section 2(k), which reads thus:
“(k) “public servant” means a person falling under any of the following descriptions, namely:
(i) every Minister referred to in Clause (g);
(ii) every Member of either House of the State Legislature, including the Chief Whip in the Assembly and the Chief Whip in the Council, whether present or past;
(iii) every officer referred to in Clause (i);
(iv)(1) every Chairman of a Zilla Parishad, and every President of a Panchayat Samithi, constituted by or under the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959;
(2) every Mayor of the Municipal Corporation constituted by or under the relevant law for the time being in force;
(3) every Chairman of a Municipal Council constituted or, deemed to be constituted under the Andhra Pradesh Municipalities Act, 1965, other than that of second and third grade Municipalities;
(v) every Chairman or President, by whatever name called of the governing body to which the Management is entrusted and every director, if any in respect of
(1) any local authority in the State;
(2) any Corporation (not being a local authority) established by or under State Act and owned controlled by the Government;
(3) any Government Company within the meaning of Section 617 of the Companies Act, 1956
(4) any society registered under the Societies Registration Act, 1860 or the Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350 F. which is subject to the control of the Government;
(5) any Co-operative Society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 whose area of operation extends to the whole of the State or is confined to a part of the State extending to an area not less than a district;
(vi) every Vice-Chancellor and every. Registrar, of a University in the State, established by law made by the State Legislature;”
In Section 2(1), the Secretary defined thus:
“(1) “Secretary” means a Secretary to the Government, and includes the Principal Secretary, a Second Secretary, a Special Secretary, an Additional Secretary and a Joint Secretary;”
The matters which could be investigated by the Lok Ayukta or Upa-Lokayukta have been stipulated in Section 7 which reads thus:
“7. Matters which may be investigated by Lokayukta or Upa-Lokayukta :–(1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of, or at behest of,
(i) a Minister or a Secretary; or
(ii) a Member of either House of the State Legislature; or
(iii) a Mayor of the Municipal Corporation constituted by or under the relevant law for the time being in force; or
(iv) any other public servant, belonging to such class or section of public servants, as may be notified by the Government in this behalf after consultation with the Lokayukta, in any case where a complaint involving an allegation is made in respect of such action, or such action can be or could have been, in the opinion of the Lokayukta, the subject of an allegation.
(2) Subject to the provisions of this Act, the Upa-Lokayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant, other than those referred to in Sub-section (1), in any case where a complaint involving an allegation is made in respect of such action, or such action can be or could have been in the opinion of the Upa-Lokayukta, the subject of an allegation,
(3) Notwithstanding anything in Sub-section (2), the Lokayukta may, for reasons to be recorded in writing, investigate any allegation in respect of an action which may be investigated by the Upa-Lokayukta under that sub-section, whether or not complaint has been made to the Lokayukta in respect of such action.
(4) Where two or more Upa-Lokayuktas are appointed under this Act, the Lokayukta may by general or special order, assign to each of them matters which may be investigated by them under this Act:
Provided that no investigation made by the Upa-Lokayukta under this Act and no action taken or thing done by him in respect of such investigation shall be called in question on the ground only that such investigation relates to a matter which is not assigned to him by such order.”
Procedures relating to entertaining complaints are dealt with under Sections 9 to 12 with which we are not concerned. However, under Section 21, the learned Lok Ayukta is not authorised to investigate into the allegations against certain constitutional authorities and certain Officers and Section 21 reads thus:
“21. Removal of doubts :–For the removal of doubts, it is hereby declared that nothing in this Act shall be construed to authorise the Lokayukta or Upa-Lokayukta to investigate any allegation against
(a) the Chief Justice or any Judge of the High Court or a member of the Judicial service as defined in Clause (b) of Article 236 of the Constitution;
(b) any officer or servant of any Court in the State;
(c) the Accountant General, Andhra Pradesh;
(d) the Chairman or a member of the Andhra Pradesh Public Service Commission;
(e) the Chief Election Commissioner, the Election Commissioners and the Regional Commissioners referred to in the Article 324 of the Constitution and the Chief Electoral Officer of the State of Andhra Pradesh;
(f) the Speaker and the Deputy Speaker of the Legislative Assembly and Chairman and the Deputy Chairman of the Legislative Council and the staff of the Legislature Secretariat;
(g) the Chairman or member of the Andhra Pradesh Administrative Tribunal.
(h) any officer or servant of the Andhra Pradesh Administrative Tribunal.”
Even under Section 22, the provisions of the Act are in addition to the provisions of any other enactment or any rule of law, under which remedy in any other manner being available to a person making a complaint under this Act and nothing in this Act shall limit or effect the right of such person to avail right to such remedy.
11. In the wake of the aforesaid provisions, let us consider the judgment of the learned Single Judge.
12. Before the learned Single Judge, the issue that arose and was considered was “whether the Lok Ayukta has jurisdiction to conduct preliminary verification into the matters of All India Service Officers?
13. The term “preliminary verification” is not defined in the Act. But, however, it is stipulated in the Rules called Andhra Pradesh Lok Ayukta and Upa-Lokayukta Investigation Rules, 1994 which means any enquiry or other proceedings conducted by the Lok Ayukta or Upa-Lokayukta in connection with a complaint or of his enquiry in motion for the purpose of satisfying himself as to whether there were any grounds for conducting investigation into such complaints. In that case, a complaint was made against I.A.S. Officer levelling certain allegations against him. Thereupon, a preliminary verification was conducted by the learned Lok Ayukta and a report was made in that regard. That was sought to be challenged on the ground that leakage of verification report to a substantial extent to the Press stigmatising their character and diminishing their reputation while at the same time a copy of such report was denied in spite of requests. The Press while styling that they are findings of learned Lok Ayukta reports, the two petitioners have used public power for private benefit by bureaucratic corruption and that stern action was recommended against them so as to serve as a lesson to others of this type and they are responsible for trying to grab huge extent of Government land by misusing official position. The following is the extract from the Deccan Chronicle dated 16.12.1992:
“The report, dated: November 5, 1992, of which Mr. Santhanam is yet to receive a copy, has literally damned the Chief Secretary hopeful. The Lok Ayukta, Mr. Justice A. Seetharama Reddy, has said in the report.” I have no hesitation whatsoever in coming to the firm conclusion that the two I.A.S. Officers (Mr. Santhanam and Mr. Valliappan) used public power for private benefit and I also feel that this bureaucratic corruption, which is eating into the vitals of the State, if not checked immediately with stern action, would cause lot of incalculable damage to the State and its citizens. The action taken should act as a lesson to others of this type.”
Similar reports were published in other dailies. It was the contention before this Court that the leakage of report has resulted in infringement of rights of the petitioners in Articles 14 and 21 of the Constitution of India.
14. The learned Single Judge went into the aspect as to whether sufferance of reputation would have effect of infringement of rights under Articles 14, 16, and 19(1)(g) of Constitution and found that inasmuch as copy of the report of learned Lok Ayukta was not furnished, which had resulted in violation of the fair justice. The learned Single Judge observed thus:
“22. Referring to the safeguarding of reputation embraced by Section 8-B(b), the Supreme Court held that the reason for the importance attached in this behalf, namely safeguarding of reputation of a person, is not far to seek. It is in that context that extracts from Bhagwad Gita, Blackstone’s Commentary on Laws of England and Corpus Juris Secundum were referred to by the Supreme Court. Finally, the Supreme Court held in para 48 that the action of the committee in holding that the petitioners were not covered by Section 8-B of the Act and compelling them to enter the witness box was discriminatory and the Orders directing complaint being filed against the petitioners were illegal and that it was a case involving infringement of Articles 14 and 21 of the Constitution of India.
23. From the foregoing, it is clear that the right to reputation is one in the nature of fundamental right under the Constitution and that the right to live as a dignified man carries with it the right to reputation. Therefore, in cases where the reputation is impaired by whatsoever action either of the State or its instrumentality, infringement of Articles 14 and 21 of the Constitution do involve in.”
Further with reference to the attack of the petitioner assailing the very competence of State Legislature to incorporate the provisions empowering the Lok Ayukta to investigate into their conduct, the learned Single Judge observed that when a Constitutional validity of the enactment is challenged on the ground that the action taken under the said Act infringed the rights of the citizen, alternative remedy is no bar and the High Court in exercise of its power under Article 226 of Constitution of India can consider the constitutional validity of the relevant provisions in the enactment.
15. Delving into the substantial controversy with regard to certain provisions, the learned ‘Single Judge referred to the crucial provision that was to be tested in the light of Act 61 of 1951 namely All India Service Act, 1951. The learned Single Judge held as follows:
“39. Thus, by reading Articles 309, 312 and 320 together it is clear that the federal services and the provincial services are made separately and the entire administration of federal services i.e., All India Services is under the control of the Federal Government. The Act and the Rules framed are in pursuance of the above power conferred by the constitution on the Central Government and the Parliament. Except the power delegated to the State, i.e. concerning disciplinary matters with regard to minor punishments, the entire control and administration is with the Central Government.”
16. It is worth noting that before the learned Single Judge the learned Advocate-General appearing for the State Government as well as the Counsel appearing for the Lok Ayukta institution conceded that the learned Lok Ayukta has no jurisdiction to conduct investigation into the matters of All India Service matters, but has only to conduct preliminary verification. But, refusing to accept their submission, the learned Single Judge observed that it has to be seen that Section 21 of Act 11 of 1983 while excluding Officers not covered by the legislation has not referred to the Officers like the petitioners therein and therefore, as the Act stands the Lok Ayukta has jurisdiction to conduct not only preliminary verification, but also investigation into matters relating to All India Service Officers. While referring to the Rules, rejecting the stand of the Government and Lok Ayukta institution, that it has no jurisdiction to conduct an enquiry against the I.A.S. Officer, the learned Single Judge observed as follows:
“48. Rule 2(viii) of A.P. Lokayukta Upa-Lokayukta (Investigation) Rules, 1984 defines ‘preliminary verification’ as any inquiry or other proceedings conducted by the Lok Ayukta or Upa-Lokayukta in connection with a complaint or on his own motion for the purpose of satisfying himself as to whether there are any grounds for conducting an investigation into such complaint. As per the above definition, it is clear that the preliminary verification is conducted to enable the Lok Ayukta or Upa-Lokayukta to satisfy whether there is a case for investigation or not. Where there is no power to Lok Ayukta to conduct investigation, the question of conducting preliminary verification does not arise, as the sole purpose of the preliminary verification is to find out whether there exists a case for investigation or not to the satisfaction of the Lok Ayukta. Therefore, on this ground itself, the contention of the learned Counsel for the respondent is not tenable. Apart from it, by reading Sections 2, 7, 9 and 10 together it is evident that the Lok Ayukta has got power to investigate into matters relating to members of All India Service also. Therefore, when such power is provided under the Act, it is not open to the respondent to contend that the Lok Ayukta has no power to conduct investigation in order to suit their present stand. It is well settled principle of law that a creature of statute cannot challenge the virus of the enactment under which it came into existence as held by the Supreme Court in Alpea Chem v. State of U.P., 1991 Supp. (1) SCC 518. Therefore, it is to be concluded that Act 11 of 1983, as it reads, empowers the Lok Ayukta to conduct investigation also in respect of All India Service Officers, more particularly, when G.O. Ms. No. 158, dated: 13.5.1984 is issued vesting power of investigative jurisdiction in the Lok Ayukta and Upa-Lokayukta in regard to All India Service Officers.”
17. The learned Judge went into the aspect of repugnancy under Article 246 of Constitution of India and relying on the judgment of the Supreme Court in State of J&K v. M.S. Farooqi, , approved in The Kerala State Electricity Board v. Indian Aluminium Company Ltd., , held that the petitioners are the members of All India Services and preliminary verification is conducted against them, whereas the enquiry has to be conducted under Act 61 of 1951 and the rules. Therefore, the provisions of Act 11 of 1983 dealing with the conducting of preliminary verification and investigation against All India Service Officers is repugnant to the procedure provided under the Central Rules framed under Section 3(1) of the All India Services Act, 1951. Thus, they are repugnant and directly in conflict. Dealing with the legislative subjects, the learned Judge observed as follows:
“In the present case, the subject, viz., service matters relating to members of All India Service is exclusively provided in Entries 70 and 94 of List I, which is within the exclusive power of the Parliament. Further, Act 61 of 1951 deals with the service conditions of members of All India Service and Rules are framed under that Act. Therefore, the Parliament has occupied the field under which the concerned authorities will conduct enquiries as and when called for. Therefore, the power of the Lok Ayukta to conduct preliminary verification in regard to matters relating to the members of All India Service is directly repugnant to the power given in the Central Act. It can neither be said to be incidental nor tangential as contended by the Learned Advocate-General. Therefore, State Legislature is incompetent to legislate empowering Lok Ayukta to conduct preliminary verification and investigation into matters relating to All India Service Officers.
The Advocate-General contended that when the Act 11 of 1983 was sent for the assent of President, the Central Government took objection that All India Service Officers; may be excluded from the purview of the Act, that the State Government explained its view, which was considered by the Central Government, that the President gave his assent to the Act 11 of 1983 and that therefore, the legislative competence of the State in enacting the Act 11 of 1983 cannot, now, be questioned.”
However, the Single Judge relying on entry No. 70 of List-I, held thus:
“In case the subject is found to be in Concurrent List and the State Legislature passed legislation and President gives his assent, the same would be valid and it cannot be said that the provisions of the said enactment dealing with I.A.S. Officers are unconstitutional. But, it has been found that the subject is in Entry 70 of List I, which is within the legislative competence of Parliament. Therefore, the State Legislature is not competent to pass any legislation and even if the President gives his assent, the same cannot cure the defect of the Act being unconstitutional on the ground of legislative competence (sic. Incompetence). Therefore, I am unable to accept the said contention.”
Referring to the provisions of Section 2(i), the learned Judge held as follows:
“The next question is as to what are the provisions in Act 11 of 1983 that are liable to be struck down being ultra vires of the Constitution. Section 2(i) defines ‘Officer’. According to the definition, the All India Service Officers are taken within its fold. Therefore, wherever ‘Officer’ occurs in the Act, it is to be applied by resorting to judicial technique of reading down, as not to include All India Service Officers. Section 2(k) should be understood with the read down effect of Section 2(i). Section 2(1) defines ‘Secretary’, meaning thereby a Secretary to Government and includes the Principal Secretary, a Second Secretary, a Special Secretary, an Additional Secretary and a Joint Secretary. They are all I.A.S. Officers except the Law Secretary, who is a District Judge. Further, I.A.S. Officers (Fixation of Cadre Strength) Regulation, 1955 is made under Rule 4(1) of the I.A.S. Cadre Rules, 1954 and according to that, the posts of Secretaries and Principal Secretary, Second Secretary are identified as posts to be filled up by I.A.S. Officers. Therefore, until the regulation goes no other Officer except I.A.S. Officer can be posted to the post of Secretary. Insofar as Law Secretary is concerned, he has already been excluded from the purview of the Act by Section 21 thereof. So, Section 2(1), in as such, is struck down. Consequently, in Sub-section (i) of Section 7, the word ‘Secretary’ has to be struck down as being unconstitutional. If the above provisions as stated supra are read down and struck down, the rest of Act 11 of 1983 will be within the legislative competence of the Andhra Pradesh Legislature. Further, the preliminary verification report is also quashed as invalid being the result of the provisions of the Act read down or struck down above. Consequently, G.O. Ms. No. 158, dated 13.3.1984 is bad in law.”
18. It is pertinent to note that in the instant case, the preliminary verification is yet to be conducted. But, in any case, it is of no consequences, when the learned Single Judge has held that the arms of the learned Lok Ayukta cannot be spread on the All India Service Officers. There is no dispute that the All India Service Officers are governed by the Act 61 of 1951 and the Rules framed thereunder. The disciplinary proceedings are required to be initiated against the Officers in accordance with rules contained therein. The learned Single Judge found that the Entry 70 in List I deals with Union Public Service, AH India Service and Union Public Service Commission, while Entry 94 of List I relates to enquiries, surveys and statistics for the purpose of any of the matters in List I. Entry 41 of List II relates to State Public Services and State Public Service Commission. Entry 45 of List III reads thus:
“Enquiries and statistics for the purpose of any of the matters specified in List II or List-III.”
19. Therefore, the question that calls for consideration is whether the State is entitled to legislate in the matters relating to enquiries specified in List II and III. Admittedly, List III is Concurrent List of which both Centre and State Legislatures are entitled to legislate on it. Even though List-I and II are specified in this regard, but, yet, List II and List III are to be considered.
The following is the comparative chart:
List I (Union List)
List II (State List)
List III (Concurrent List)
Entry- 70 :
Union Public Service Commission, All India
Service, Public Service Commission,
Entry-41 :
State Public Services Public Service
Commission;
1. Criminal law including all matters included in the
Indian Penal Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified in List-I
or List-II and excluding the use of naval, military or air forces or any
other armed forces of the Union in aid of the civil power.
Entry-94 :
Inquiries, Surveys and Statistics for the
purpose of any of the matters in the list
2. Criminal Procedure including all matters included in
the Code of Criminal Procedure at the commencement of this Constitution.
Entry-97:
Any other matter not enumerated in List-11 or
III including any tax not mentioned in either of those lists.
8. Actionable wrongs.
Entry-45
Inquiries and Statistics for
the purpose of any of the matters specified in List-II or List III.
20. Before the learned Single Judge, the State Government as well as the 2nd respondent-Lok Ayukta sought to concede that Lok Ayukta has no jurisdiction to conduct investigation into the matters relating to All India Service Officers, but he has only power to conduct preliminary verification. But, however, the learned Single Judge de hors this contention taking into consideration. Section 21 of Act 11 of 1983 tried to enquire as to whether while excluding the Officers not covered by the legislation, in which the All India Service Officers are not covered, held that the Act as it stood, Lok Ayukta has jurisdiction to conduct not only preliminary verification but also investigation into the matters relating to I.A.S. Officers. After referring to the provisions of Act 11 of 1983 and also the notification issued by the Government in G.O. Ms. No. 158, dated 30.3.1984, the learned Single Judge has concluded that Act 11 of 1983 as it read empowers Lok Ayukta to conduct not only preliminary enquiry, but also investigation in respect of the All India Service Officers, more especially in view of G.O. Ms. No. 158 vesting powers in Lok Ayukta and Upa-Lokayukta in regard to the All India Service Officers. But, however, the learned Single Judge went into the legislative competence of Parliament and State Legislature with reference to Act 11 of 1983 and observed that the subject entries in List II, the State has exclusive power to make laws with respect to any laws enumerated in it. By Article 248 of Constitution of India the Parliament is empowered to exercise the Residual powers for making laws in respect of the matters not enumerated in the State list or Concurrent List. It was the contention of the learned Additional Advocate-General before the learned Single Judge that the Act 11 of 1983 was referable to Entry 41 of List II and therefore, the State has exclusive power to make laws as I.A.S. serving in the State are deemed to be public servants in the State and further Entry-45 of List III deals with the Inquiries and Statistics for the purpose of any of the matters specified in List-II or List-III and that therefore, if Entry-45 of List III and Entry 41 of List II are read together, it can be said that the State has got ample power to enact the Act 11 of 1983.
21. The learned Single Judge referring to the decision of the Supreme Court in Farooqi’s case (supra) and posing the question for himself as to whether the State Legislature was competent to make Act 11 of 1983 providing for conducting preliminary verification and investigation in regard to All India Service Officers observed that the State Legislature was not competent to pass any Legislation and even if the President gives assent, the same cannot cure the defect of the Act being unconstitutional on the basis of the legislative incompetence. Para 64 is extracted below:
“In case the subject is found to be in Concurrent List and the State Legislature passes legislation and President gives his assent, the same would be valid and it cannot be said that the provisions of the said enactment dealing with I.A.S. Officers are unconstitutional. But, it has been found that the subject is in Entry 70 of List-I, which is within the legislative competence of Parliament. Therefore, the State Legislature is not competent to pass any legislation and even if the President gives his assent, the same cannot cure the defect of the Act being unconstitutional on the ground of legislative competence, (sic. incompetence). Therefore, I am unable to accept the said contention.”
22. Thus, the learned Single Judge has held that the Act 11 of 1983 to the extent it empowers the Lok Ayukta to conduct Preliminary Inquiry and investigation into the conduct of the members of All India Service Officers or repugnant to Act 61 of 1951 and the rules framed thereunder rendering them thereby ultra vires of the Constitution calling for the striking down and accordingly quashed Preliminary Report and also set aside G.O. Ms. No. 158, dated 13.3.1984 as without jurisdiction.
23. In view of the above findings of the learned Single Judge, it has to be seen whether there is in fact any repugnancy between the State Act 11 of 1983 and the Central Act 61 of 1951.
24. The All India Service Act, 1951 (Central Act 61 of 1951) which came into force from 29.10.1951, was enacted to regulate the recruitment and conditions of service of persons appointed to the All India Service common to the Union and the State.
25. Under Section 3, the Central Government may after consultation with the Government of the States concerned including the State of Jammu and Kashmir and by notification in the Official Gazette make Rules for the Recruitment and Conditions of service for the persons appointed to All India Service. Various Service Rules relating to All India Service including (Disciplinary and Appeal Rules, 1969) were framed by the Central Government by virtue of the powers conferred by Sub-section (1) of Section 3 of Act 61 and 51 after consultation with the Government of States concerned. Under the said Rules, the disciplinary authority was defined as authority competent under the Rules to impose a member of Service, any of the penalties specified in Rule 6. The expression ‘Government’ is defined as follows:
“Government” means
(i) in the case of a member of the Service serving in the connection with the affairs of a State, or who is deputed for service in any company, association or body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State the Government of that State;
(ii) in any other case, the Central Government'”
26. Under Rule 3, it is open for the State Government or the Central Government as the case may be if satisfied that it is necessary or desirable to place a member of the service under suspension.
27. Under Rule 6, major or minor penalties have been provided that could be imposed on a member of service.
28. However, under Rule 7, whether a Member of service has committed any omission or commission of any offence in Rule 6 and if that act or omission has been committed, while he was serving in connection with the affairs of the State or deputed to the Company or Association of body of individuals, whether incorporated or not, owned or controlled by the Government of State or the local authority set up by the Legislative authority, the Government of that State is competent to impose the penalty.
29. However, under Sub-rule (2) of Rule 7, the penalty of dismissal or removal or compulsory retirement shall not be imposed on any Officer, except by the Order of the Central Government.
30. Under Rule 8, no Order imposing any of the major penalties specified in Rule 6 shall be made except after an inquiry is held as far as may be, in the manner provided in these rules and Rule 10, or provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
31. Under Rule 10, procedure for imposing minor penalties as specified in Clauses (i) to (iv) of Rule 6 is stipulated.
32. Under Rule 16, an appeal is provided inter alia, against the Order passed by the State Government imposing any penalty, specified in Rule 6.
33. It is to be noted that different procedure has been prescribed in respect of the members of service borne on a joint cadre with which we are not concerned,
34. Therefore, from the aforesaid Rules, it is clear that the State Government is competent to impose all the punishments contemplated under Rule 6 except dismissal, removal or compulsory retirement.
35. Let us consider the legislative competency of the Central Government and the State Government in respect of the service conditions of member of All India Service.
36. Article 246 of the Constitution of India deals with the distribution of legislative powers as between the Union and the State Legislatures with reference to the different list in VII Schedule. Union Legislature has full and exclusive power to legislate with respect to matters in Union List-I as also with respect to matters in List-III (Concurrent List) while the State Legislature on the other hand, has exclusive power to legislate with respect to matters in List II (State List) excluding the entries falling in List-I and concurrent powers with respect to matters included in List III.
37. We are concerned with the following entries in the respective Lists;
List I (Union List)
List II (State List)
List III (Concurrent List)
Entry- 70 :
Union Public Service Commission, All India
Service, Public Service Commission,
Entry-41 :
State Public Services Public Service
Commission;
1. Criminal law including all matters included in the
Indian Penal Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified in List-I
or List-II and excluding the use of naval, military or air forces or any
other armed forces of the Union in aid of the civil power.
Entry-94 :
Inquiries, Surveys and Statistics for the
purpose of any of the matters in the list
2. Criminal Procedure including all matters included in
the Code of Criminal Procedure at the commencement of this Constitution.
Entry-97:
Any other matter not enumerated in List-11 or
III including any tax not mentioned in either of those lists.
8. Actionable wrongs.
Entry-45
Inquiries and Statistics for
the purpose of any of the matters specified in List-II or List III.
38. From the aforesaid lists, it is clear that the Union Parliament has exclusive power to legislate on the subject contained in Lists namely Entries 70 and 94, While the State is empowered to legislate on the matters in Entry No. 41. Apart from this, the Central Legislature as well as the State Legislatures have concurrent power to legislate on inter alia of criminal law covered by Entry-1 and Entry 45 of List-III.
39. Act 61 of 1951 was brought on statute books by the Parliament to regulate the recruitment and the conditions of service of persons appointed to All India Services common to Union and the States.
Under Section 3, the Central Government after consultation with the Governments of the States concerned shall make the Rules for regulation of recruitment and conditions of service of the persons appointed to the All India Service.
40. Therefore, the Rules were framed in consultation with the States concerned. Entry-45 in Concurrent List empowers both the Parliament and the State Legislature to make laws with regard to Inquiries and Statistics for the purpose of any of the matters specified in List II or List III.
41. It is also noticed that there are overlapping of matters between the three Lists. But, in case of overlapping of matters as between three Lists, predominance has been given to the Union Legislature, the powers of the State Legislature to legislate with respect to matters enumerated in the State Lists had to be subject to the power of Parliament to legislate in respect of the matters enumerated in the Union and the Concurrent List. In case of repugnancy between the law of the State and the law of the Union in the Concurrent List, the later will prevail. The State Legislation may, however, prevail notwithstanding such repugnancy if the State law is reserved by the President and received his assent.
42. In the first instance Act 61 of 1951 relates to Constitution of All India Services and the Rules regarding the recruitment etc., of the All India Services. While the State Act 11 of 1983 is an Act to make the provision for appointment and for functions of Lok Ayukta and Upa-Lokayukta for investigation and administrative action taken by or on behalf of the Government of Andhra Pradesh or certain local or public authorities in the State of Andhra Pradesh (including any omission or commission in connection with or arising out of such action) in certain cases and for matters connected therewith. The Act was reserved by the Governor for consideration and has receive the assent of the President on 25.8.1983. Therefore, by State Act 11 of 1983, the State Legislation did not create any All India Services nor did it provide any recruitment Rules in respect of the All India Services. Both the Acts travel in a different areas. Therefore, the question of repugnancy between the Central and the State Act does not arise.
43. The principle of federal supremacy has laid down in Article 246(1) of Constitution of India cannot be resorted to, unless, there is irreconcilable conflict between the entries in the Union and the State List. It has been held by the Supreme Court in Federation of Hotel and Restaurant Association of India v. Union of India, , that in the case of a seeming conflict between Entries in the two Lists, the entries should be read together without giving a narrow or restricted sense to either of them. An attempt should be made to see whether the two entries cannot be reconciled so as to avoid conflict of jurisdiction. It should be considered whether a fair reconciliation cannot be effected by giving to the language of the Union Legislative list, a meaning which, if less wide than it might in accordance with the context bear, is yet, one that can properly be given to it and equally giving to the language of the List, a meaning which can be probably bear. However, when there is seemly overlapping of legislative entries the doctrine of pith and substance has to be applied. When a question of vires of any enactment is raised, it has to be seen whether looking at the Legislation as a whole, can it be said that a Legislation substantially (as distinguished from a remote connection) with respect to any of the entries in the lists. Once, it is held that it does, the legislative power conferred by that entry will extend to all ancillary matters which may fairly and reasonably be said to be comprehended in that topics of Legislation.
44. In Calcutta Gas Company v. State of West Bengal, , the Supreme Court has held that while the widest amplitude should be given to the language used in one Entry, every attempt should be made to harmonise its contents with those of some other Entry operating in the same field, so that the latter may not be robbed of its entire content and render it nugatory. Therefore, the law with respect to a subject may incidentally affect another subject in some way, but that is not the same thing as the law being on the latter subject. There might by overlapping, but the overlapping must be in law. Thus, the same transactions may involve, two or more taxable events in its different aspects, but the fact that there is an overlapping does not detract from the distinctiveness of the aspects. (See: India Cements v. State of Tamil Nadu, ).
45. Further, Act No. 61 of 1951 was brought into force by the Union Legislature and the Rules were framed after consultation with the State Governments. The State Act 11 of 1983 is a later Act brought into effect by the State Legislature, which has received the assent of the President of India. In such a situation, even assuming, it has been held by the Supreme Court time and again whenever the question of legislative competence arises and whether that Legislation falls within any of the entries in List II. If it does, no farther question arises and Article 246 of Constitution of India cannot be brought into, yet, the State Legislature has no competence to enact any laws. Incidentally, trenching does not take away legislative competence (See: Mahesh Saharia v. State of Nagaland, ). Even, in case of repugnancy, if any provision of a law is made by legislature of a State is repugnant to any provision of the law made by the Parliament, which Parliament is competent to enact any of the provisions existing law with respect to one of the matters enumerated in Concurrent List, the Law made by the Parliament whether passed or after the law is made by the State Legislature shall prevail and to that extent law made by the State Legislature shall be void. But, whether the law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provisions repugnant to the provisions of any earlier law made by the Parliament or existing law with respect to that matter, then the law so made by the Legislature of such State shall, however if it has been reserved for the assent of the President and has received assent prevails in the State. Therefore, by virtue of the Article 254 of Constitution of India when the State Law was made which is later in time with the assent of the President, it cannot be said to be repugnant to the provisions of the Act 61 of 1951 and the State Law prevails and it cannot also be said that there is a direct conflict between the Central Law and State Law. But, even assuming that the field was totally occupied by the Central Law, yet, in view of the fact that the State Act received the assent of the President with reference to entry in List III to the extent of the provisions contained in Act 11 of 1983 insofar as it related to the All India Service Officers, they are protected and the State Government is quite competent to legislate by virtue of the entries made in the Concurrent List referred to above.
46. A similar identical issue came up for consideration before the Division Bench of Gujarat High Court in Rajendra Manubhai Patel v. State of Gujarat, , it was a case where the petitioner sought to challenge the action of the Lok Ayukta in summoning them to be present as witnesses along with the documents mentioned in the summons on the ground that they cannot be so summoned without disclosing identity of the complainant, the public functionaries involved and the nature of the allegations levelled against said public functionaries. The petitioners have also challenged the legislative competence of the State Legislature enacting Lok Ayukta Act and also the provisions of Section 11 Read with Sections 2(2), 15, 16 and 17 of the said Act are ultra virus of the Constitution. The preamble of the Act reads that it is an Act to make the provision for appointment of Lok Ayukta for the investigation of the allegations against the public functionaries in the State of Gujarat and also for safeguarding the dignity and prestige of public functionaries against false and frivolous allegations and the matters connected therewith.
47. Expression “public functionary’ was defined in Section 2(vii) so as to mean a person, who holds or has held an office of a Minister, Chairman or Vice-Chairman of a Government Company or a Corporation as are mentioned in Clauses (b) and (c) of Sub-section (7) and Vice-Chancellor of a University established by law in the State of Gujarat. The allegations which are required to be investigated are as to whether such public functionary is guilty of corruption or lack of integrity or was actuated in the discharge of his functions by personal interest or improper or corrupt motives or 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. The Division Bench observed thus:
“It will be noticed that in pith and substance the said enactment relates to enquiry or investigation into the allegations made against public functionaries in respect of their actions in their capacity as such public functionaries. Entry 45 of the Concurrent List-List III of the Seventh Schedule to the Constitution enumerates the following matter in respect of which the Parliament and the State Legislature have concurrent powers to make law, – “Entry No. 45 the enquiry and statistics for the purposes of any of the matters specified in List II or List-III”. The said enactment in pith and Substance, in our opinion, is law enacted with a view to make investigations or enquiries into the actions of public functionaries in respect of the allegations made against them. Having regard to the nature of allegations, which can be investigated, it is clear to us that they would amount to enquiries into the matters, which would fall within the domain of Criminal Law including matters in the Indian Penal Code and might also amount to actionable wrongs. In this connection, we may notice Entries 1 and 8 of the Concurrent List, which read as under:
List III – Concurrent List:
Entry 1. “Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union aid of the civil power.
Entry. Actionable wrongs.”
Therefore, the enquiries and investigations intended to be made under the said enactment are enquiries for the purposes of the matters specified in Entries 1 and 8 of the Concurrent List. Since the matters squarely fall in Item 45 read with Items 1 and 8 of the Concurrent List, it cannot be covered under the Remainder Entry No. 97 of List-I-Union List of the Seventh Schedule to the Constitution of India. The scope of Entry 45 of the Concurrent List and also Entry 94 of the Union List, which relates to the enquiries for the purpose of the matters in the Union List, came to be considered by the Supreme Court in R.K. Dalmia v. Justice Tendolkar . The Supreme Court held that the law to be made by the appropriate Legislature with respect to the said two legislative entries may cover enquiries into any aspect of the matters enumerated in any of the lists mentioned therein and was not confined to those matters as mere heads of legislative topic. The law with respect to the inquiries for the purpose of any of the matters in the lists may also be for administrative purposes and the scope of the inquiry under such law will cover all the matters, which may properly be regarded as ancillary to such inquiries. It was observed that the words “for the purpose of indicate that the scope of the inquiry was not necessarily limited to the particular or specific matter enumerated in any of the entries in the list concerned but may extent to the inquiries into collateral matters which may be necessary for the purpose of Legislative or otherwise, of those particular matters. The said question, which had arisen before the Supreme Court in context of the provisions of the Commissions of Inquiry Act, 1952, again cropped up before the Supreme Court in Karnataka v. Union of India with a frontal attack on the provisions of Commissions of Inquiry Act, 1952 and in considering the question of powers flowing from the said two Legislative Entries, the Supreme Court observed that the term “enquiries” as used in Item 94 of List I and Items 45 of List III, without any limitation upon their nature or specification of their character or objects, is wide enough to embrace every kind of inquiry, whether a criminal offence by any one is disclosed or not by facts alleged, Entry 45 in List III must include inquiries to cover allegations against all persons which bring them within the sphere of Entry I of List III relating to criminal law. The Supreme Court observed that to determine whether there is a prima facie case for a criminal offence facts have to be necessarily investigated or inquired into. But, if every type of inquiry and investigation except one by the House of the Legislature of which a Minister is a member is barred, the very first step towards a prosecution for any serious crime would be shut out in limine. NO question of any further legal proceedings would arise under any enactment. Such a consequence of the constitutional provisions could not be possible within the contemplation of our Constitution makers. The Supreme Court held that the language used – “any of the matters specified” in the said Entry 45 was broad enough to cover anything reasonably related to any of the enumerated items even if done by holders of ministerial Officers in the States, The view, that we are taking in the context of the provisions of the said Act, thus, stands completely fortified by the aforesaid two decisions by the Supreme Court which have a direct bearing on the reading of Entry 45 of the Concurrent List. We, therefore, hold that the State Legislature has legislative competence to enact the said Act,”
48. The Supreme Court in Institution of A.P. Lokayukta/Upa-Lokayukta, A.P. v. T. Rama Subba Reddy, , held that the Chief Executive Officer of A.P. State Co-operative Union Ltd., Business Manager of A.P. State Handloom Weavers’ Co-operative Society Ltd. Divisional Manager and a Doctor of A.P. State Road Transport Corporation constituted by the State of Andhra Pradesh under Central Act are not public servants within the meaning of Section 2(k) of A.P. Lok Ayukta Act nor Officers referred to under 2(i) of the said Act. Accordingly, the Supreme Court held that they being not the public servants, Lok Ayukta has no jurisdiction to investigate the action taken by them.
49. But, however, in the instant case, the learned Single Judge has clearly held that the Lok Ayukta has got power to proceed against the I.A.S. Officers also, but in view of the Central Act 61 of 1951, the I.A.S. Officers are excluded from the purview of the Lok Ayukta.
50. The learned Single Judge while concluding that Act 11 of 1983 empowering the Lok Ayukta to conduct investigation also in respect of the All India Service Officers went to consider the Legislative competence of the Parliament and the State Legislature and the learned Single Judge observed as follows:
“Now, turning to the respective competence of the Parliament and the State Legislatures to bring in the enactments governing the services, it is to be seen that Article 246(1) provides that notwithstanding anything in Clauses (2) and (3), the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the VII Schedule, which is referred to as the Union List. Clause (2) of Article 246 says that notwithstanding anything in Clause (3) the Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in List III in the VII Schedule, which is referred to as the Concurrent List. Clause (3) of Article 246 says that subject to Clauses (1) and (2) the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the VII Schedule, which is referred to as State List. Thus, by reading Article 246(1) to (3), it is clear that regarding the matters enumerated in List I the Parliament has got exclusive power to make laws and with regard to matters enumerated in List III the Parliament and States have got concurrent power to make laws. If the Parliament has made a Legislation, even though there is an enactment of the State, the Legislation of Parliament prevails. Where the State Legislature enacts under the Concurrent List, on which there is already a Legislation of Parliament and the President has given his assent, then the State enactment will prevail to the extent. But, again if Parliament enacts on the same subject, then the enactment of Parliament will prevail. However, regarding the matters enumerated in List II, the State has got exclusive power to make laws with respect to any of the matters enumerated in it. Article 248 of the Constitution provides for the residuary powers of Legislation to the Parliament regarding the matters not enumerated in State List or Concurrent List.”
After referring to the principle of repugnancy, the learned Single Judge held in para 64 thus;
“In case the subject is found to be in Concurrent List and the State Legislature passes legislation and President gives his assent, the same would be valid and it cannot be said that the provisions of the said enactment dealing with I.A.S. Officers are unconstitutional. But, it has been found that the subject is in Entry 70 of List-I, which is within the legislative competence of Parliament, Therefore, the State Legislature is not competent to pass any legislation and even if the President gives his assent, the same cannot cure the defect of the Act being unconstitutional on the ground of legislative competence, (sic. incompetence). Therefore, I am unable to accept the said contention.”
51. In case of entries in the Concurrent List even if the field is occupied by the earlier enactment made by the Parliament, yet, if the State Legislature had brought into effect later enactment duly obtaining the assent of the President, it cannot be said that the later enactment is void being repugnant to the Central Law.
52. In Farooqi’s case(supra), the question that came up before the Supreme Court was whether Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 was repugnant to the provisions of All India Service Act, 1951 and the All India Services (Discipline and Appeal) Rules, 1955. Mr. Farooqi, who was an I.P.S. Officer, which is an All India Service, was born in Jammu and Kashmir cadre. In March, 1964, an anonymous complaint was received by the Commission constituted under the Commission Act. Thereafter, the Commission sought for the report from the Deputy Inspector General of Police, who raised a question of jurisdiction. But, however, Commission held that the Act was applicable and the objection raised by the Investigating Agency was overruled. Thereupon, Mr. Farooqi filed a writ petition in the High Court challenging the jurisdiction of the Commission and the High Court allowed the writ petition, but later granted Certificate of Fitness and accordingly the appeal was filed by the State of Jammu and Kashmir before the Supreme Court. At the relevant time, when the Commission Act was brought into effect, the Supreme Court at the out set observed that they are concerned with the Constitution of India as applicable to the Jammu and Kashmir State at the relevant time namely Commission Act came into force. Article 370 of Constitution of India inter alia provides that the powers of Parliament to make laws for the State (of Jammu and Kashmir) shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the Accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
53. It is also observed that Article 246 of Constitution of India has applied to the Jammu and Kashmir, then read:
“246(1) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”)”.
54. Articles 248 and 249 of the Constitution had not been made applicable to the State of Jammu and Kashmir and, therefore, all the residuary powers rested with the State of Jammu and Kashmir. Entry 97 of List I, dealing with residuary powers, had also been omitted.
55. Article 254, as applicable to the State of Jammu and Kashmir at the relevant time, provided;
“254. If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void.”
However, Article 254 of Constitution of India reads thus:
“ARTICLE 254 Inconsistency between laws made by Parliament and laws made by the Legislatures of States:–(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State;
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
56. It is also observed that at the relevant time, there was no Concurrent List. Certain entries in the Concurrent List seem to have been applied by the Order No. CO 66 of 1963, dated 25.9.1963 for the first time,
57. Therefore, from the constitutional scheme it follows that if a provision of the Commission Act is repugnant to a provision of the Discipline and Appeal Rules, 1955, then the law made by the State of Jammu and Kashmir must give way.
58. But, in the instant case, the State has power to enact law by virtue of the Entry 45 in List III read with Entry-1 and 8 of List III. Further, the State Act is subsequent to the Central Act and it has received the assent of the President. Therefore, by virtue of Sub-clause (2) of Article 254 of Constitution, the State Law prevails in the State of Andhra Pradesh. These provisions are inapplicable to the State of Jammu and Kashmir. Further, it is also to be seen that the Commission Act is almost an identical Act on par with All India Service (Discipline and Appeal) Rules, 1955. The Supreme Court in Farooqi’s case (supra) referring to All India Service (Discipline and Appeal) Rules, 1955 as also Jammu and Kashmir Government Servant’s Prevention of Corruption (Commission) Act, 1962, the Commission Act, observed in paras 33, 34, 35, 36 and 37 thus:
“(33) Now it remains to be seen whether the impugned Act is repugnant to the provisions of the All India Service (Discipline and Appeal) Rules, 1955. We may first notice the provisions of the Discipline and Appeal Rules Rule 3 prescribes certain penalties, which may for good and sufficient reasons, and as hereinafter provided be imposed on a member of the Service. The penalties include censure, withholding of increments or promotion; reduction in rank, removal from service and dismissal from service, etc. The authority to institute proceedings and to impose penalties is mentioned in Rule 4. It is the Government, under whom the member is serving at the time of the commission of an act or omission which renders him liable to any penalty, which is competent alone to institute disciplinary proceedings and that Government can also impose all the penalties specified in Rule 3 except the penalty of dismissal, removal or compulsory retirement which order can only be passed by an order of the Central Government. Rule 5 prescribes. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. A member of the service is given reasonable time to put in a written statement of defence. It enables him to be heard if he so desires. The member of the Service is entitled to have access to official records. After the Written statement is received, if such is filed, the Government may appoint a Board of Inquiry Officer to enquire into the charges or the Government enquires into the charges itself.
(34) In brief, detailed rules are laid down regarding the manner of holding the enquiry. Rule 6 provides for consultation with the Union Public Service Commission. Rule 7 deals with suspension during disciplinary proceedings and Rule 8 deals with subsistence allowance during suspension Rules 9 deals with payment of pay and allowances and treatment of pay and allowances and treatment of service on reinstatement. A right of appeal is given against certain orders and Rule 20 provides for memorial to be submitted to the President.
(35) These rules are a complete code as far as infliction of penalties prescribed in Rule 3 is concerned.
(36) The Commission Act provides for the constitution of one or more Commissions to be known as the Anti-Corruption Commissions to hold enquiry into the charges of corruption and misconduct, as defined in Sections 3 and 4 of the Commission Act, against all Government servants including members of All India Services. The Commission is provided with an investigating agency to investigate into the charges. Section 10, before its amendment, provided for an enquiry by the Commission either suo motu or on a report in writing by certain officers. Under Section 11 every person is entitled to complain to the Commission against a Government servant. Section 12 provides for a preliminary examination of the complaint. The Commission may either dismiss the complaint or, if in its opinion there are sufficient grounds for taking further proceedings in the complaint, the Commission shall cause the substance of the allegations to be drawn into distinct articles of charges and summon the accused to appear before it. Under Sub-section (5) of Section 12, as it existed before its amendment in 1969, the Government servant had to be placed under suspension after the charges were drawn up against him by the Commission. Section 13 provides for procedure at the enquiry. Section 17 requires the Commission to record its findings on the various articles of the charges and submit its recommendation to the Sadar-i-Riyasat. If any of the charges are held to have been established against the accused, the Commission has to recommend the punishment mentioned in this section. Under Sub-section (2) of Section 17 the Commission may, in addition to the punishment referred to in Sub-section (1), recommend that the accused be declared forever, or for any shorter period of time to be specified, incapable of holding or being appointed to any public office. Sub-section (3) provides that in fit case the Commission may recommend that the accused be prosecuted for any offence in a Court of law. Sub-section (7) specifically deals with members of the All India Services and provides that in their case the Sadar-i-Riyasat may recommend the imposition of the punishment to the appropriate authority. There are various other incidental provisions which we need not detail.
(37) From the perusal of the provisions of the two statutory laws, namely, the All India Services (Discipline and Appeal) Rules, 1955, and the Jammu and Kashmir Government Servants’ (Prevention of Corruption) (Commission) Act, 1962, it is impossible to escape from the conclusion that the two cannot go together. The impugned Act provides for additional punishments not provided in the Discipline and Appeal Rules. It also provides for suspension and infliction of some punishments. It seems to us that insofar as the Commission Act deals with the infliction of disciplinary punishments it is repugnant to the Discipline and Appeal Rules. Parliament has occupied the field and given clear indication that this was the only manner in which any disciplinary action should be taken against the members of the All India Service. Insofar as the Commission Act deals with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative competence of the Jammu and Kashmir State and not repugnant to the provisions of the Discipline and Appeal Rules. But as the provisions dealing with investigation for possible criminal prosecution are inextricably intertwined with the provisions dealing with infliction of disciplinary punishment the whole Act must be read down so as to leave the members of the All India Services outside its purview.”
59. But, in the instant case, the provisions of the State Act are quite different and distinct. It cannot be said that the State has brought a parallel Rules on par with I.A.S. Disciplinary and Appeal Rules. As already stated, the objects of the Act are quite different and distinct and squarely falls in Entry 45 read with Item Nos. 1 and 2 of List-III. Therefore, we are of the considered view that the decision of the Supreme Court cannot be made applicable to the facts of this case, more especially when the State Legislature is empowered to make law with respect to Entry-45 relating to List II and List III. To avoid this possible repugnance, the assent of the President was also obtained. Thus, the Farooqi’s case (supra) on facts is quite distinguishable and the principles cannot be made applicable to the case on hand.
60. In Kerala State Electricity Board’s case (supra), the validity of Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order, 1968 issued under the provisions of Kerala Essential Articles Control (Temporary Powers) Act, 1961 was questioned. The Act is passed for the control of the production, supply and distribution and trade and commerce in certain articles. It was the contention that the declaration of the Electricity as essential under the Act, the Act impinges upon various matters either in List I or List III of the Seventh Schedule to the Constitution. Thus, it is repugnant to the Electricity Act and Electricity Supply Act, which fell in Entry-43 and 45 of List-I. The Supreme Court observed that the question of repugnancy arises only in the case, when both Legislations fall within the same list. Therefore, there can be no question of repugnance between the Electricity Act on one hand and the Kerala Electricity (Supply) Act on the other. If the former falls in List I or III and later falls in List II, if any Legislation is enacted by the State Legislature in matter fall within List I, that will be without jurisdiction and therefore, void.
61. In the instant case, the power is traceable to Entry-45 of List III as observed by the Division Bench, whereas I.A.S. Service Rules are framed under the Central enactment and there is no overlapping of Rules under any circumstances. Under those circumstances, this case is also cannot be made applicable to the case on hand. Thus, the reliance placed by the learned Single Judge on the aforesaid two cases is also not of any assistance.
62. The learned Single Judge was of the view that when the subject is covered by the Entry 70 of List-I, which is within the Legislative competence of Parliament even if the later State Act is received the assent of the President, the same cannot cure the defect. But, this approach of the learned Single Judge appears to be erroneous. As can be seen from the Act 61 of 1951, it was brought into effect in consultation with the States concerned and Section 3 itself stipulates that the Central Government is entitled to make Regulations in consultation with the State Government. Therefore, participation of the State is always anticipated. Moreover, in the Regulation relating to Officers Service conditions, the State Government is the appropriate authority to initiate inquiries and also impose punishments except dismissal, discharge or compulsory retirement. When the State Government has power to punish the employee though belonging to I.A.S. cadre except the higher punishments, which are to be awarded by the Central Government, there is no reason why the Lok Ayukta is precluded from conducting Preliminary verification or investigation. Though, he may not recommend the punishment, but yet, it does not preclude the Lok Ayukta from conducting the enquiry and sending the reports to the State Government, who is the disciplinary authority in respect of the I.A.S. Officers, who were posted in connection with the affairs of the State. But, totally prohibiting the Lok Ayukta from conducting enquiry in cases where the All India Services including the I.A.S. Officers are involved on the ground of lack of legislative competence is wholly misconceived. Take for instance if the irregularity or alleged actions are conducted in a joint and collusive manner by I.A.S. Officer (All India Officer) and the non-I.A.S. Officers, can it be said that the I.A.S. Officer has to be excluded from the enquiry proceedings. It would result in anomalous situation and the very purpose of bringing the act to eliminate the corruption of every kind in the Administration will be frustrated, if, some Officers are left out on the ground that they are not covered by the provisions of the Lok Ayukta Act. Thus, it defeats the avowed purpose and therefore, it cannot be said that the State Legislature has no competence to proceed against the I.A.S. Officers by virtue of the provisions contained in Act 61 of 1951. The enquiries cannot be bisected or trisected depending on the cadre of the Office namely All India Cadre or State Cadre or deputation cadre, but when once the remedy is provided for the grievance of the public in the State against the maladministration or the corruption irrespective of the status of the Officers, it has to be enquired into by Lok Ayukta excluding the categories specified in Section 21 of the Act. In this regard, the Supreme Court has aptly and succinctly emphasised the need for transparency in administration at all levels so that public confidence is not eroded. The Supreme Court observed in Para 17 thus:
“Before parting with these matters, it may be necessary to note that the legislative intent behind the enactment is to see that the public servants covered by the sweep of the Act should be answerable for their actions as such to the Lokayukta who is to be a Judge or a retired chief justice of the High Court and in appropriate cases to the Upa-Lokayukta who is a District Judge of Grade I as recommended by the Chief Justice of the High Court, so that these statutory authorities can work as real ombudsmen for ensuring that people’s faith in the working of these public servants is not shaken. These statutory authorities are meant to cater to the need of the public at large with a view to seeing that public confidence in the working of public bodies remains intact. When such authorities consist of high judicial dignitaries it would be obvious that such authorities should be armed with appropriate powers and sanctions so that their orders and opinions do not become mere paper directions. The decisions of Lokayukta and Upa-Lokayukta, therefore, must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the disciplinary authorities concerned. When we turn to Section 12(3) of the Act, we find that once the report is forwarded by the Lokayukta or Upa-Lokayukta recommending the imposition of penalty of removal from the office of a public servant, all that is provided is that it should be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making him ineligible for being elected to any office etc. Even if it may be lawful for the Government to act on such recommendation, it is nowhere provided that the Government will be bound to comply with the recommendation of the Lokayukta or Upa-Lokayukta. The question may arise in a properly-instituted public interest litigation as to whether the provision of Section 12(3) of the Act implies a power coupled with duty which can be enforced by a writ of mandamus by the High Court or by writ of any other competent Court but apart from such litigations and uncertainty underlying the results thereof, it would be more appropriate for the Legislature itself to make a clear provision for due compliance with the report of Lokayukta or Upa-Lokayukta so that the public confidence in the working of the system does not get eroded and these institutions can effectively justify their creation under the statute.”
Similarly, the Officers, holding the post carrying a minimum scale of Rs. 1,150/- and below also cannot be excluded for the reasons recorded supra and to that extent provisions contained in Section 2(i) are illegal and unconstitutional.
63. Institutions of Lok Ayukta and Upa-Lokayukta are the centres aimed at ensuing clean and transparent Administration. The persons heading the institutions are chosen from higher echelons of the judiciary. They are akin to Ombudsman of Sweden and Denmark and have been vested with power to conduct preliminary verification, investigation and suggest appropriate remedial measures in the administration. Law is not an omnipotence in the sky, but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bulls* eye. Therefore, to avoid striking spot and creating obstacles in discharge of their functions would be an indication of spreading protective umbrella to the Governmental omissions and commissions through the public functionaries. Hence, every effort is to be made to interpret the powers of the Lok Ayukta/Upa-Lokayukta in a widest possible manner so as to sub-serve the object the Act.
64. In this regard we also observe that any concession made by the party or for that purpose, the learned Additional Advocate-General submitting that the Act does not apply to the I.A.S. Officers or the Act applies only to the limited extent cannot be taken note of as no person is entitled to make any concessions in respect of law and it has to take its own course, unshaken by such concessions. Thus, we find that the learned Single Judge failed to take into consideration the relevant provisions of the Act and the intendment and the object sought to be achieved by the State Act. We therefore, hold that the decision of the learned Single Judge reported in Santhanam’s case (supra) was not correctly decided.
Final Conclusion
65. Accordingly, we over rule the said decision and declare that the Act 11 of 1983 also covers the All India Service Officers and there is no repugnancy between the Central Act 61 of 1951 and the Rules framed thereunder and State Act 11 of 1983. We also hold that portion “but does not include a person holding a post carrying a minimum scale of pay of rupees one thousand one hundred and fifty and below” in Section 2(i) of the Act as unconstitutional. We declare that the learned Lok Ayukta/Upa-Lokayukta have jurisdiction to investigate into any action taken by the persons specified in Section 7 of the Act except those covered by Section 21 of the Act.
66. Dr. Laxmi Narsimha and Nooty Ram Mohan Rao have ably assisted this Court as amicus curiae. We place on record our appreciation and gratitude for their spontaneous response and matured assistance.
67. The writ petition is accordingly allowed.
68. No costs.