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