JUDGMENT
K. Balakrishnan Nair, J.
1. The petitioner, who was the Additional Private Secretary to the then Minister for Health and Family Welfare, has filed this Writ Petition, challenging Ext. Pl order issued by the Lok Ayukta and also Complaint No. 14/06, in which, the above said order has been passed. The brief facts of the case are the following :
2. The Lok Ayukta received Ext. P2 petition, stated to have been filed by the President of the Kerala Government Medical Officers Association, Thiruvananthapuram dated 16.08.2005. The said forum instructed the 6th respondent, the Superintendent of Police, attached to it, to hold a discrete enquiry into the allegations contained in Ext. P2. The said Officer conducted an enquiry and filed Ext. P3 report, stating that the allegations contained in Ext. P2, against the petitioner, are substantiated by evidence. After considering the said report, the 1st respondent Lok Ayukta issued the impugned order Ext. Pl, which reads as follows:
This is a complaint, filed by President, Kerala Government Medical Officers Association. The complaint details many high-handed and illegal acts resorted to, by the Additional Private Secretary, Sri.P.Radhakrishnan, attached to Sri KKRamachandran, Minister for Health, Kerala. On receipt of this petition, without issuing notice, we thought it proper to have a discrete enquiry into the allegations by Superintendent of Police attached to the Investigation Wing of this forum. Superintendent of Police after detailed enquiry filed report dated 30.12.2005. That report prima facie proves the allegations made by the K.G.M.O. Association. Unholy interference in the administration of Health Service Department at the instance of P. Radhakrishnan, Addl. Private Secretary, has been brought out. Prima facie, we find it difficult to take the view that Sri. Radhakrishnan resorted to these courses without the knowledge of the Health Minister. Consequently, we issue notice on this petition to :
1. Sri. K.K. Ramachandran (Ramachandran Master) Minister for Health, Kerala.
2 Sri. P. Radhakrishnan, Addl. Private Secretary to Minister for Health, Thiruvananthapuram.
3. Principal Secretary to Government, Health & Family Welfare Department, Secretariat.
4. Director of Medical Education, Thiruvananthapuram.
5. Director of Health Services. Thiruvananthapuram.
Along with the notice to Minister copy of the report submitted by the Superintendent of Police will also be given. For their appearance and statement of defence, adjourned to 27.1.2006. Office will cause the service of notice by special messenger.
Though, the said exhibit is captioned as an order, it is, in fact, a notice, issued to the persons mentioned therein, to appear and file their statement of defence on 27.01.2006.
3. The petitioner attacks Ext. Pl, on several grounds. According to him, as evident from Ext. P3, Ext. P2 has not been filed by the Kerala Government Medical Officers Association. It is a bogus communication. Further, the Lok Ayukta is competent to entertain a complaint, if only the same is filed in accordance with the relevant Rules and supported by an affidavit, as prescribed therein. The Lok Ayukta has no suo motu power to entertain any allegation of corruption. So, the proceedings, which led to the issuance of Ext. Pl are void ab initio. An order in the nature of Ext. Pl could have been passed, only after holding an enquiry and an investigation. But, the said order has been issued without holding any investigation by the Lok Ayukta. The petitioner submits, there is no provision in the Kerala Lok Ayukta Act, providing for prima facie findings, behind the back of the affected parties. Apart from that, he submits, all the findings contained in Ext. P3 report, are unsustainable. He also submits, the 6th respondent has an axe to grind against him and so, the said respondent has filed a false report against him, maliciously. Therefore, he prays for quashing Ext. Pl and also complaint No. 14/06, on the file of the Kerala Lok Ayukta. The petitioner points out that the findings in Ext. Pl, which are made, contrary to the provisions of the above said Act and the Rules framed there under, will cause serious adverse consequences to him and his Minister. So, this Court may invoke its extraordinary jurisdiction under Article 226 of the Constitution of India and render justice to the petitioner, it is submitted.
4. The Kerala Lok Ayukta is a statutory body, constituted for the purpose of investigating into allegations, including commissions or omissions, arising out of action, relatable to Lists II and III of the 7th Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public authorities. Section 3 of the Kerala Lok Ayukta Act, 1999 provides that the Lok Ayukta shall be a person, who was a Supreme Court Judge or the Chief Justice of a High Court. The Upa-Lok Ayukta shall be a person, who is or who was the Judge of a High Court. Section 5 deals with the term of office and other conditions of service of Lok Ayukta and Upa-Lok Ayukta. Section 7 deals with matters, into which, the Lok Ayukta can hold investigations and Section 8 deals with matters, into which, no enquiry could be held. Section 9 governs the filing of complaints and holding investigations into them. Sections 10 and 11 deal with conferment of powers, necessary for holding the investigation. In the present case, we are concerned, only with the above said provisions. The Kerala Lok Ayukta (Form and Manner of Complaint) Rules, 1999 provide for the form, in which the a complaint has to be filed and also prescribe that an affidavit should accompany the complaint. Rule 9 thereof says that defective complaints should not be entertained. Going by the relevant provisions, Ext. Pl is only a notice, issued under Sub-section (3) of Section 9 of the Kerala Lok Ayukta Act, 1999, which reads as follows:
Where the Lok Ayukta or an Upa-Lok Ayukta 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 to the public servant and the competent authority concerned.
(b) shall afford to such public servant, an opportunity to offer his comments on such complaint.
(c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit.
So, Ext. Pl does not decide any of the rights of the parties. The preliminary enquiry through the 6th respondent, is made by the Lok Ayukta, to satisfy itself, whether there is any prima facie material, to proceed further in the matter. In other words, the findings entered in Ext. Pl, are only prima facie findings, for the purpose of deciding whether it should embark upon a further enquiry with notice to the persons, likely to be affected. Normally, in such circumstances, Courts and Tribunals only direct to issue notice, in other words, the reasons, which prompt the Courts or Tribunals to issue notice, are not recorded. This Court issues notice in several cases, in which serious allegations against Senior Officers and Constitutional Functionaries are made. If this Court gives the reasons for issuing notice, like the prima facie satisfaction about the correctness of the allegation arrived at based on the pleadings and materials in a Writ Petition, the same is likely to cause prejudice to the respondents therein. The uninformed and uninstructed may think that the respondent has already been found guilty of the accusation, by the High Court, which will put him in an embarassing position. So, it will be appropriate that when the Lok Ayukta issues notice under Section 9(3), it omits to indicate the reasons for issuing the same. This does not mean that the Lok Ayukta lacks power to give reasons for issuing notice, if, in a pension case, the Lok Ayukta gives reasons for issuing notice, it may not be of any consequence. But, in a case, involving serious corruption charges, if notice is issued, giving reasons, the respondent may suffer irreparable injury, even before he receives a copy of the notice in the complaint. See the observations in the majority and minority judgments, on the question of giving reasons, while issuing notice in a writ petition in K.C. Chandy v. R. Balakrishna Pillai 1985 KLT 762 (F.B.). However firm the conviction of the Judges be, it is likely to be changed on hearing the other side. See the following observation of Megarry. J. in John v. Rees (1970) 1 Ch D 345, 402):
As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases, which, somehow, were not: of unanswerable charges which, in the event, were completely answered: of inexplicable conduct which was fully explained; of fixed and unaltenable determinations that, by discussion, suffered a change.
The above quoted statement has been quoted with approval by the Apex Court in S.L. Kapoor v. Jagmohan .
5. In this case, the reasons given by the Lok Ayukta in its notice have led to a few unpleasant incidents. One of the respondents in the complaint, who was issued with notice, held a press conference, in which he said that all the findings of the Lok Ayukta are incorrect and unfounded and justice has not been done to him, by the Lok Ayukta. Normally, if a person is aggrieved by any proceedings of a Judicial Forum, he should appear before that Forum, place the materials with him before it and pray for recalling the order passed by it. Or, he may approach a superior forum, available under law, challenging the order of the forum below. Suppose, if a Munsiff passed an exparte injunction order against ‘A’, on the motion of ‘B’, ‘A’ does not hold a press conference and criticise the order of the Munsiff. He will, normally, move the Munsiff’s Court, after filing a counter Affidavit, to vacate the exparte order of interim injunction or in appropriate cases, he may move the superior forums. This elementary principle will apply to the proceedings of the Lok Ayukta also.
6. The job of a Judge is a difficult one. David Pannik opens his famous book ‘JUDGES’ with the following words: “Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid : make decisions. When he takes a decision, he cannot please both sides. One side will win and the other side will be defeated. The Judge is bound by his oath and he cannot make decisions, taking into account, what others may think. Judge Hiller B. Zobei, an Associate Justice of the Massachusetts Superior Court in the United States, began one of his judgments as follows:
Elected officials may consider popular urging and sway to public opinion polls. Judges must follow their oaths and do their duty, heedless of editorials, letters, telegrams, picketers, threats, petitions, panellists and talk shows. In this country, we do not administer justice by plebiscite.
A Judge, in short, is a public servant, who must follow his conscience, whether or not he counters the manifest wishes of those he serves; whether or not his decision seems a surrender to the prevalent demands.
More than two centuries ago, Lord Mansfield, in R. v. Wilkes (1770) 4 Burr 2527 said.
The constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences; how formidable soever they might be: if rebellion was the certain consequence, we are bound to say ‘fiat justitia, mat caelum’ (Let justice be done though the heavens fall). The constitution trusts the King with reasons of State and policy: he may stop prosecutions: he may pardon offences; it is his, to judge whether the law or the criminal should yield. We have no election. None of us encouraged or approved the commission of either of the crimes of which the defendant is convicted; none of us had any hand in his being prosecuted. As to myself, I took no part, (in another place) in the addresses for that prosecution. We did not advise or assist the defendant to fly from justice: it was his own act; and he must take the consequences. None of us have been consulted or had anything to do with the present prosecution. It is not in our power to stop it; it was not in our power to bring it on. We cannot pardon. We are to say, what we take the law to be: if we do not speak our real opinions, we prevaricate with God and our own consciences.
I pass over many anonymous letters I have received. Those in print are public: and some of them have been brought judicially before the court. Whoever the writers are they take the wrong way. I will do my duty, unawed. What am I to fear? That mendax infamia from the press, which daily coins false facts and false motives? The lies of calumny carry no terror to me. I trust, that my temper of mind and the colour and conduct of my life, have given me a suit of armour against these arrows. If, during this King’s reign. I have ever supported his Government and assisted his measures: 1 have done it without any other reward, than the consciousness of doing what thought right. If I have ever opposed, I have done it upon the points themselves: without mixing in party or faction and without my collateral views. I honour the King; and respect the people: but, many things acquired by the favour of either, are, in my account, objects not worth ambition. I wish popularity: but, it is that popularity which follows: not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble means. I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press: I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels: all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say, with a great magistrate, upon an occasion and under the circumstances not unlike. ‘I was always minded to regard unpopularity born of virtue not as a sign of envy but of glory’.
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Once for all, let it be understood, ‘that no endeavours of this kind will influence any man who at present sits here’. If they had any effect, it would be contrary to their intent: leaning against their impression, might give a bias the other way. But, I hope, and I know, that I have fortitude enough to resist even that weakness. No libels, no threats, nothing that has happened nothing that can happen, will weigh a feather against allowing the defendant, upon this and every other question, not only the whole advantage he is entitled to from substantial law and justice; but every benefit from the most critical nicety of form, which any other defendant could claim under the like objection.
The above wise words are beacon lights, which illumine the path of Judges of all times. Judges normally, do not answer to criticisms against their orders and judgments. Criticism of orders in pending matters, may have the effect of polluting the stream of justice, which may, in certain cases, amount to contempt of court. But, normally, dignified silence should be the eloquent answer to such criticisms. Once the final Judgment is passed, citizens have a right to criticise it, informed criticism of judgments, which have become final, should be welcomed also.
7. Courts and Tribunals should not be seen to be locking horns with any one, criticising them. They should not lose equanimity. Not only that, justice should be done and it should also appear to be done. Judges can be disabused on any point and they should appear to be so also.
8. Since Ext. Pl is only a notice, which does not decide any of the rights of the parties, it is not necessary for this Court to interfere with the same. Further, it is not a healthy practice to entertain the challenge against the proceedings pending before lower courts and tribunals, on preliminary objections and keep the main matter, pending for years without decision. While dealing with the challenge against such peripheral matters, the Apex Court in D.P. Maneswari v. Delhi Administration (1983) 4 SCC 283 held as follows :
We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade.
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There was a time, when it was thought prudent and wise policy to decide preliminary issues first. But, the time appears to have arrived for a reversal of that policy.
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After all, tribunals like industrial tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction, neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.
The above statement of the Apex Court, though, was in an industrial dispute matter, has got universal application. In the light of the principles laid down by the Apex Court in the above said case, it is not proper for this Court to interfere with the impugned notice, on the basis of the preliminary objection raised by the petitioner. Further, in this case, the petitioner did not appear before the Forum or raise his objections there. While filing the written statement, he can raise all the contentions raised by him in this Writ Petition. The preliminary objections regarding lack of jurisdiction etc., shall be considered by the Lok Ayukta, either as a preliminary issue or as one of the issues in the case before it, as it thinks fit. The petitioner can be said to be aggrieved, if the final order goes against him. If occasion arises to challenge the final order, he can challenge the same, raising all grounds available under law, including those concerning the jurisdiction of the Lok Ayukta.
9. The learned counsel for the petitioner voiced an apprehension of the petitioner that the Lok Ayukta appears to have prejudged the issue, going by the tone and tenor of Ext. Pl. The offices of Lok Ayukta and Upa-Lok Ayuktas are presently manned by a retired Chief Justice and two retired High Court Judges respectively. Those learned Judges can hold the scales even, even in the face of gravest provocation. So, the apprehensions of the petitioner are unfounded. In the result, the Writ Petition fails and it is dismissed without prejudice to the contentions of the petitioner.