{"id":210030,"date":"2010-04-27T00:00:00","date_gmt":"2010-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajesh-bissa-vs-state-of-chhattisgarh-others-on-27-april-2010"},"modified":"2018-06-19T13:54:35","modified_gmt":"2018-06-19T08:24:35","slug":"rajesh-bissa-vs-state-of-chhattisgarh-others-on-27-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajesh-bissa-vs-state-of-chhattisgarh-others-on-27-april-2010","title":{"rendered":"Rajesh Bissa vs State Of Chhattisgarh & Others on 27 April, 2010"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Rajesh Bissa vs State Of Chhattisgarh & Others on 27 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  HIGH COURT OF CHATTISGARH AT BILASPUR          \n\n WRIT PETITION C No 4964 of 2008   \n\n Rajesh Bissa \n                                           ...Petitioners\n                        Versus\n\n State of Chhattisgarh & Others\n                                           ...Respondents\n\n! Shri Sourabh Dangi and MsNaushina Afrin Ali Advocates for the petitioner\n\n^ Shri Kishore Bhaduri Additional Advocate General for the State respondent No 1 Shri Sanjay K Agrawal and Shri Ashish Shriva\n\n CORAM: Honble Shri Satish K Agnihotri J \n\n Dated: 27\/04\/2010\n\n: Judgement \n\n                           O R D E R\n<\/pre>\n
             Delivered on 27th day of  April 2010<\/p>\n
    PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA         <\/p>\n
  1.   By  this  petition, the petitioner seeks a writ  in  the<\/p>\n
       nature of certiorari to qush the report dated 23.06.2008<\/p>\n
       submitted by the Principal Lok Ayukt, Chhattisgarh Lok Aayog,<\/p>\n
       Raipur, to the Government of Chhattisgarh. Secondly, declaring<\/p>\n
       the report as illegal on account of the fact that a copy of the<\/p>\n
       reply\/comments submitted by the second to fourth respondents<\/p>\n
       were not supplied to the petitioner. Thirdly, an independent<\/p>\n
       agency to investigate into the complaint, may be appointed and<\/p>\n
       fourthly, a criminal prosecution may be lodged against the<\/p>\n
       second to fourth respondents.\n<\/p>\n
2.   The facts, in nutshell, as projected by the petitioner is
\nthat the petitioner is a social worker and office bearer of the
\nIndian National Congress at Raipur. He filed a complaint before
\nthe office of Lok Ayukt under the provisions of Chhattisgarh
\nLok Aayog Adhiniyam, 2002 (for short `the Adhiniyam, 2002′)
\nagainst the second to fourth respondents on 29.05.2008
\n(Annexure P\/2). The case was registered as complaint case No.
\n31\/2008 by the office of the fifth respondent. Thereafter, the
\npetitioner was not communicated information about any
\nproceedings, enquiry, reply or explanation, if any, offered by
\nthe second to fourth respondents. The petitioner surprisingly
\nreceived the impugned report dated 23.06.2008 (Annexure P\/1)
\nholding that no case of misconduct has been made out against
\nthe second to fourth respondents. The petitioner thereafter
\nmade an application for supply of certified copy of the
\nreply\/comments, made by the second to fourth respondents under
\nthe provisions of Right to Information Act, 2005. Thus, this
\npetition.\n<\/p>\n
3.   Shri Sourabh Dangi with Ms. Naushina Afrin Ali, learned
\ncounsel appearing for the petitioner would submit that the
\nfifth respondent- Lok Aayog has not appreciated the facts of
\nthe case properly. The entire report is based on subjective
\nsatisfaction of Lok Aayog and no procedure as required for
\nenquiry has been adopted by the fifth respondent. The basic
\nprinciples of natural justice that the complainant is entitled
\nto an opportunity of hearing on reply and comments made by the
\nsecond to fourth respondents, was not afforded to the
\npetitioner. Section 9 of the Adhiniyam, 2002 provides for
\nprocedure in respect of inquiry which clearly says that while
\nconducting an inquiry the Lok Aayog must ensure that the
\nprinciples of natural justice are satisfied. Shri Dangi would
\nsubmit that the provisions of Section 8 and 9  are pari materia
\nand not in disharmony with each other and therefore, the
\nrecourse ought to have been taken to section 10 of the
\nAdhiniyam, 2002. The entire proceeding was ex parte. The fifth
\nrespondent ought to have first settled the procedure for
\nconduct of enquiry and investigation and thereafter, an
\nopportunity of hearing should have been provided to the
\npetitioner. The fifth respondent has exercised its discretion
\narbitrarily and not judiciously. The award of consultancy to a
\nparticular person without following the well settled principles
\nof law by inviting tenders from other similarly situated
\npersons, is vitiated. It is well settled principle of law as
\nlaid down by the Hon’ble Supreme Court in a catena of decisions
\nthat contracts by the State, its corporations,
\ninstrumentalities and agencies must be normally granted through
\npublic auction\/public tender by inviting tenders from eligible
\npersons and the notification of the public auction or inviting
\ntenders should be advertised in well known dailies having wide
\ncirculation in the locality with all relevant details such as
\ndate, time and place of auction, subject matter of auction,
\ntechnical specifications, estimated cost, earnest money,
\ndeposit, etc. The petitioner being the complainant should have
\nbeen supplied a copy of the committee report or other relevant
\ndocuments placed by the second to fourth respondents before the
\nfifth respondent. The State largesse has been awarded
\narbitrarily. The kind of work awarded to IL&FS IDC (for short
\n`IIDC’) was in order to benefit him as IIDC was found to be
\ncompetent enough to carry out the kind of work in question. The
\nobjections raised by the office of the Accountant General was
\nnot considered at all. Event he reasons recorded by the
\nofficers were also not just and proper. The second respondent,
\nwithout explaining the reasons, have stated that he came to
\nconclusion that everything was done in accordance with law,
\nwhich is contrary to the well settled principles of law as laid
\ndown by the Supreme Court in Mohinder Singh Gill’s case (AIR
\n1978 SC 851). The Lok Aayog has failed to recommend
\ndisciplinary action against the second to fourth respondents.
\nConclusion arrived at in the report that it was the first
\noccasion for the Government of Chhattisgarh to award a
\nconsultancy contract, thus no one including the Accountant
\nGeneral and the fourth respondent had a clue about what in fact
\nwas a consultancy contract, and further it was the ignorance
\nthat has eventually led to the present state of affairs. It is
\nex facie bad and improper.\n<\/p>\n
4.   Shri Dangi would further submit that the circular dated
\n05.07.2007 (Annexure P\/2-D) issued by the Central Vigilance
\nCommission specifically provides that tender process or public
\nauction is a basic requirement for awarding a contract by any
\ngovernment agency as any other method, specially award of
\ncontract on nomination basis would amount to a breach of
\narticle 14 of the Constitution guaranteeing right to equality
\nto all interested parties.  This was completely ignored in the
\npresent case. Shri Dangi places his reliance on a decision
\nrendered by the Supreme Court in Nagar Nigam, Meerut v. Al
\nFaheem Meat Exports Pvt. Ltd.<\/a> (2006) 13 SCC 382.\n<\/p>\n
5.   On the other hand, Shri Bhaduri, learned Additional
\nAdvocate General appearing for the State\/first respondent would
\nsubmit that the present petition is filed under Article 227 of
\nthe Constitution of India calling into the question the
\ncorrectness of the impugned report submitted by the fifth
\nrespondent. The Administrative Reforms Commission, constituted
\nby the Government of India, made a recommendation for
\nconstituting a statutory body i.e. Lokpal or Lokayukta and
\nprocedures for investigating complaints by a person against
\npublic servants. Accordingly, fifth respondent has been created
\nunder the provisions of the Adhiniyam, 2002 to enquire into
\nspecific complaints of misconduct against the public servants
\nand other matters connected there with. The provisions of
\nsection 9 and 14 of the Adhiniyam, 2002 provides for compliance
\nof the principles of natural justice qua the public servants
\nagainst whom a complaint has been lodged. There is no provision
\nfor affording an opportunity of hearing to the complainant, if
\nno order condemning the complainant has been passed. The
\nenquiry conducted by the fifth respondent is not a trial but a
\nsimple preliminary enquiry on the basis of which if the alleged
\nmisconduct is found proved against the public servant, a proper
\naction is required to be taken after affording an opportunity
\nof hearing to them again. There is a provision for imposition
\nof punishment on the complainant, if the complaint is found to
\nbe false, under sub section (2) of section 8 of the Adhiniyam,
\n2002. In that case only, the complainant is entitled to benefit
\nof the principles of audi alteram partem. In the case on hand,
\nno action has been initiated under the provisions of Rule 8(2)
\nof the Adhiniyam, 2002 against the complainant\/petitioner.
\nThus, it is not required to afford an opportunity of hearing to
\nthe petitioner before submitting a report on the basis of
\ncomplaint made by the petitioner, after examining the replies,
\ncomments submitted by the second to fourth respondents.\n<\/p>\n
6.   Shri Sanjay K. Agrawal with Shri Ashish Shrivastava,
\nlearned counsel appearing for the second respondent, with the
\npermission of the Court, would adopt the return filed by the
\nsecond respondent before the fifth respondent. Shri Agrawal
\nwould submit that the complaint was lodged by a political
\nworker against the Chief Minister. It was nothing but an
\nattempt to achieve political mileage and publicity against the
\nChief Minister, who belongs to another political party. Thus,
\nsuch petition for political oblique motive may not be
\nentertained. The averments of the petitioner that the
\npetitioner has lodged a complaint on the basis of the order
\npassed in W.P. (PIL) No. 1887\/2008 is contrary to the facts on
\nrecord as the second to fourth respondents were not a party to
\nthe said public interest litigation petition. All the
\nallegations are bald  and wild. The report is submitted by
\nformer Chief Justice of a High Court who held the office of
\nPramukh Lok Ayukt. Thus, on the basis of mere selfsame
\nstatement of the petitioner, the report may not be doubted. The
\nreport is just and proper as the contract in question was a
\nconsultancy contract not a works contract or supply contract.
\nTherefore, consideration for award of consultancy contract is
\ndifferent than that of the award of other contracts. Due
\nprocedure as per the transaction of government business rules
\nwere followed. Thus, the grievance of the petitioner is
\nbaseless and unfounded and the petition deserves to be
\ndismissed with cost.\n<\/p>\n
7.   Shri Agrawal would further submit that enquiry as
\ncontemplated under the provisions of the Adhiniyam, 2002 is in
\nthe nature of fact finding investigation. There is no lis
\nbetween the complainant and the public servants against whom a
\ncomplaint has been filed and as such there is no adjudication
\nof lis. In support of his contention, Shri Agrawal relies on
\ndecisions rendered by the Supreme Court in Real Value
\nAppliances Ltd. v. Canara Bank1 and Dr. Baliram Waman Hiray v.
\nJustice B.Lentin & Others2.\n<\/p>\n
8.   Shri P.S.Koshy, learned counsel appearing for the third
\nand fourth respondent would adopt the submissions made by the
\nsecond respondent and would submit that on bare perusal of the
\npleadings in the petition, it is apparent that an attempt has
\nbeen made to harass and falsely implicate the answering
\nrespondents. The petitioner has himself misunderstood and
\nmisinterpreted the provisions of the Adhiniyam, 2002 by claming
\ncompliance of the principles of natural justice on the ground
\nthat he was the original complainant on the basis of which an
\nenquiry was initiated and in the enquiry, nothing was found
\nagainst the respondents. The fifth respondent has not exercised
\nits jurisdiction under section 8(2) of the Adhiniyam, 2002
\nwhereunder a criminal case may be registered against the
\ncomplainant, who makes a false complaint. Thus, the petitioner
\ncannot claim to be aggrieved by the fact that he was not
\nafforded an opportunity of hearing before passing of the
\nadverse order against him.\n<\/p>\n
9.   The order dated 08.08.2002 (Annexure R-3\/1) issued by the
\nEnvironment and Urban Administration authorized the existing
\nCapital Area Development Authority, now New Raipur Development
\nAuthority, to make a provision for appointment of a consultant
\neither by inviting tender or by mutual discussion. Such
\ndecision was taken as the State of Chhattisgarh is a newly
\nformed State and infrastructure development is one of the
\nthrust area of the State Government. A committee on Technical
\nConsultancy Services (for short `TCS’) of the Planning
\nCommission of India has recommended engagement of consultancy
\nand fixing of their fees in accordance with the international
\npractice adjusted to the Indian conditions. Price cutting and
\ncompetitive bids was to be avoided. Contracts should be awarded
\nto the consultants based on their capability and experience and
\nreasonableness of the bids. The consultants should follow the
\nsame standards and practices as are observed by the medical
\npractitioners and Chartered Accountants. The method of calling
\ntenders for appointment of consultants should be used only
\nsparingly. Accordingly, a renowned consultant who has rendered
\nservices to other State Governments also, was engaged.\n<\/p>\n
10.  The averments of the petitioner that the objection of the
\nAccountant General was overlooked, learned counsel relies on a
\nletter dated 7.6.2008 (Annexure R-4\/6) in order to support his
\ncontention that proper reply was filed to the office of the
\nAccountant General wherein it was stated that IIDC was engaged
\nas consultant directly for infrastructure projects by the
\nGovernment of Tamil Nadu, Government of Gurjrat, R&B
\nDepartment, Andhra Pradesh Industrial Infrastructure
\nCorporation Ltd, Karnataka State Industrial Infrastructure
\nDevelopment Corporation (KSIIDS), Andhra Pradesh Industrial
\nInfrastructure Corporation Ltd, Government of Kerala, Punjab
\nInfrastructure Development Board, Government of Gujarat for
\nVibrant Governance Programme, Oil & Natural Gas Corporation
\nLtd. and MMTC Ltd.\n<\/p>\n
11.  Having regard to the experience, reputation, caliber and
\nfurther engagement by different State Governments and State
\nCompanies, it was not found advisable, as per TCS report, to
\ncall for tender and the consultancy was awarded to the IIDC. In
\nrespect of objection of the Accountant General that selection
\nof technical consultant was not fair. All the queries were
\nreplied by the fourth respondent and thereafter, no direction
\nwas issued by the office of the Accountant General, being
\nsatisfied with the explanation\/reply submitted by the fourth
\nrespondent.\n<\/p>\n
12.  Heard learned counsel appearing for the parties, perused
\nthe pleadings and documents appended thereto.\n<\/p>\n
13.  The petitioner made a complaint on 29.05.2008 (Annexure
\nP\/2) to the fifth respondent on the basis that Chhattisgarh
\nInfrastructure Development Corporation had entered into a
\nconsultancy contract on 10.08.2005 (Annexure P\/9) with IIDC for
\ndevelopment of the infrastructure in the State of Chhattisgarh
\nwithout inviting tenders\/applications from other similarly
\nsituated companies\/ persons. Thus, the second to fourth
\nrespondents have committed serious misconduct. They have
\nviolated the provisions of Article 14 of the Constitution of
\nIndia to benefit IIDC on accepting its proposal without
\nfollowing the due process of law. Award of Rs. 1.5 crores as
\nconsultancy fee was also with the same motive and purpose. The
\nfifth respondent registered a complaint case being complaint
\ncase No. 31\/2008. The learned Pramukh Lokayukt issued notices
\nto the second to fourth respondents and examined their
\naffidavits\/comments and after due consideration, came to the
\nconclusion that the CVC circular dated 5.7.2007 which was
\nissued after agreement of contract with the IIDC, was not
\napplicable in respect of the consultancy contract but for other
\nworks contract and other types of contract. The learned Pramukh
\nLokayukt relied on a committee report submitted by Planning
\nCommission, Government of India on TCS and came to the
\nconclusion that in case of consultancy contract, no tender is
\nrequired. The method of calling tenders for consultancy works
\nshould therefore be used sparingly, and after examining the
\ncompetence and reputation of IIDC, the method of selection,
\nconsultancy charges, held that for want of experience in
\nappointment of technical consultants, agreement was like a
\nprofessional engagement having technical expertise. No
\nmisconduct on the part of second to fourth respondents was
\nfound proved. Accordingly, the learned Pramukh Lokayukt
\nsubmitted a detailed report with reasons on 23.06.2008 to the
\nState Government holding that the charges leveled against the
\nsecond to fourth respondents were baseless. The same are not
\ntantamount to misconduct.\n<\/p>\n
  14.  In  Re; objection raised by the office of the Accountant<\/p>\n
       General, have remained un-replied, the fourth respondent has<\/p>\n
       replied  to the objections raised by the office  of  the<\/p>\n
       Accountant General, inter alia, as under:\n<\/p>\n
               “In  regard to this observation the position  is
\n               that   Infrastructure  Leasing   and   Financial
\n               Services, Infrastructure Development Corporation
\n               (IL&FS  IDC),  a  subsidiary  of  Infrastructure
\n               Leasing  and  Financial Services  Ltd.  (IL&FS),
\n               vide  their  letter dated 9.12.2004 (Annex.  1),
\n               submitted   a   proposal   to   the   Industries
\n               Department     for    accelerated     Industrial
\n               Infrastructure  development  in  the  State   by
\n               associating  IL&FS IDC. In their  letter,  IL&FS
\n               IDC proposed a Special Purpose Company (SPC)  to
\n               be  formed jointly by IL&FS IDC and an agency of
\n               Government of Chhattisgarh (GoC) for development
\n               of industry related infrastructure in the State.
\n               Other  options  like Public Private  Partnership
\n               (PPP),  Build Operate and Transfer (BOT), Build,
\n               Own,  Operate and Transfer (BOOT),  Build,  Own,
\n               Operate  and Sale (BOOS) were also mentioned  in
\n               the said letter. On receipt of this letter IL&FS
\n               IDC  was asked to make a presentation before the
\n               Hon’ble   Minister  of  Commerce  &   Industries
\n               Department   of   the   State   Government.   On
\n               22.12.2004  IL&FS IDC Ltd. made  a  presentation
\n               before  the  Minister of Commerce &  Industries.
\n               During  this  presentation IL&FS IDC  inter-alia
\n               presented  a  credentials and the infrastructure
\n               development  activities undertaken by  them  for
\n               the  Central  Government  Organizations  and  in
\n               other States. IL&FS IDC during this presentation
\n               offered the following two options –
\n               (I)  Project Development & Promotion Partnership (PDPP) option
\n                    under which IL&FS were to work as consultant for project
\n                    development.<\/p>\n
(II) Constitution of Special Purpose Company (SPC) of
\nChhattisgarh State Industrial Development Corporation Ltd.
\n(CSIDC) \/ Chhattisgarh Infrastructure Development Corporation
\nLtd. (CIDC) and IL&FS IDC for infrastructure development.\n<\/p>\n
                    In line with the discussion held during the
\n               presentation, IL&FS IDC submitted a proposal  on
\n               23.12.2004 (Annex 2) to the State Government for
\n               the development of following projects under PDPP
\n               option  under which IL&FS IDC was  to  work  for
\n               project  development and marketing  followed  by
\n               the  selection of project developer(s)  for  the
\n               following projects –\n<\/p>\n
                      1    Herbal & Medicinal Park\n2    Aluminium \/ Metal Park\n3    Food Park\n<\/pre>\n
                  The   proposal  was  accepted  by  the  State
\n               Government  and  approval was conveyed  to  CIDC
\n               vide   letter   no.   F   20-109\/04\/11\/6   dated
\n               28.03.2005.\n<\/p>\n
                  Later  on  Aluminium\/Metal Park  project  was
\n               substituted  by Gems and Jewellery  SEZ  project
\n               for  the reason that while firm location for the
\n               former  had not been finalized, location to  the
\n               latter  in  the  New  Raipur township  had  been
\n               fixed.  The MoA between CIDC and IL&FS  IDC  was
\n               signed 10.08.2005. It was ratified by the  board
\n               of directors of CIDC in its 19th meeting held on
\n               25.01.2006 (minutes annexed as Annex. 3). It  is
\n               thus  clear  that  offer of the  IL&FS  IDC  was
\n               discussed  at  appropriate level  in  the  State
\n               Government  \/  CIDC  after  which  decision  was
\n               taken.\n<\/p>\n
                  Audit   is  requested  to  accept  the  above
\n               explanation and file the observation.\n<\/p>\n
                  With  the objective of attracting investments
\n               in  the  food  processing, herbal and  medicinal
\n               plants  based processing and jewellery making  &
\n               gems processing industries, the State Government
\n               had, in the year 2004 decided to develop special
\n               industrial  parks for attracting investments  in
\n               these  fields.  Since CSIDC  did  not  have  the
\n               expertise and experience in these areas, it  was
\n               felt     that     the    work     of     project
\n               development\/project making should be  undertaken
\n               by   some  reputed  consultant.  Appointment  of
\n               reputed  consultant without bidding process  has
\n               been in vogue for many years and the departments
\n               of Central\/State Governments have been doing so.
\n                  IL&FS  IDC  is  a wholly owned subsidiary  of
\n               the IL&FS, the pioneer company in the country in
\n               the field of infrastructure project development,
\n               financing,   leasing  etc.   Substantial   share
\n               holding (more than 43%) of the IL&FS belonged to
\n               government  institutions namely,  UTI,  CBI  and
\n               SBI.  Other share holders in the year 2004  were
\n               Housing  Development  Finance  Corporation  Ltd.
\n               (HDFC),  ORIX  Corporation, Japan, International
\n               Finance  Corporation,  Washington,  HSBC   Bank,
\n               Government   of   Singapore  etc.   (Annex   4).\n<\/p>\n
               Therefore being a reputed consultant,  owned  by
\n               government   companies  and  reputed   financial
\n               institutions  in  the  field  of  infrastructure
\n               development,  IL&FS  IDC  was  selected  without
\n               bidding process.\n<\/p>\n
                  It  is  noteworthy that IL&FS  IDC  has  been
\n               engaged without bidding process in other  states
\n               also  by  the State Government organizations  as
\n               also   by   the  organizations  of  the  Central
\n               Government.  Here  is a list  of  such  projects
\n               wherein  IL&FS  \/  IL&FS  IDC  were  engaged  as
\n               consultant directly for infrastructure  projects\n<\/p>\n
               –\n<\/p>\n
               SN   Name            of Type of project        Year\n                    organization\n               1    Govt.   of   Tamil Development         &  1994\n                    Nadu.              implementation     of\n                                       Tirupur          Area\n                                       Development\n                                       Programme.\n               2    Government      of Development         &  1996\n                    Gujarat,       R&B implementation     of\n                    Deptt.             Gujarat toll roads.\n               3    Andhra     Pradesh Vishakhapatanam        1998\n                    Industrial         Industrial      Water\n                    Infrastructure     Supply Project.\n                    Corporation Ltd.\n               4    Karnataka    State Bangalore              1999\n                    Industrial         International\n                    Infrastructure     Airport.\n                    Development  Corp.\n                    (KSIIDC)\n               5    Andhra     Pradesh Development of  green  2000\n                    Industrial         field      Gangavaram\n                    Infrastructure     Port.\n                    Corporation Ltd.\n               6    Government      of Multiple Projects.     2002\n                    Kerala\n               7    Punjab             Punjab   Road  Sector  2003\n                    Infrastructure     Project.\n                    Development\n                    Board.\n               8    Government      of Vibrant    Governance  2003\n                    Gujarat.           Programme\n               9    Oil  & Natural Gas ONGC   Tripura  Power  2004\n                    Corp. Ltd. (ONGC)  Project.\n               10   MMTC Ltd.          Project   development  2004\n                                       for  setting  up   of\n                                       free  trade and  ware\n                                       housing   zones    in\n                                       India\n\n<\/pre>\n
                  In  this connection, it is also worthwhile to
\n               mention   that   the  Committee   on   Technical
\n               Consultancy  Services set  up  by  the  Planning
\n               Commission  of  India around the year  1970  had
\n               recommended  that  consultancy  services  should
\n               preferably  be  hired without  bidding  process,
\n               wherein   the  main  criteria  for  choosing   a
\n               consultant  should be its reputation, competence
\n               etc.  Some  of  the relevant extracts  from  the
\n               conclusion of the said Committee are enclosed as
\n               Annex.  5.  The said Committee report  has  been
\n               relied  upon by the M.P. High Court in M.P.  No.
\n               2475\/1991 (Bakatawar Singh Vs. State of  MP  and
\n               others) (AIR 1992 MP 318).\n<\/p>\n
                  For   achieving  the  objective   of   faster
\n               industrial  growth in the newly  born  State  of
\n               Chhattisgarh,  it  was  necessary  to  select  a
\n               consultant   having  reputation  and  competence
\n               wherein  fees were fixed having regard  to  fees
\n               paid to them elsewhere”\n<\/p>\n
  15.  Thus,   the  contention  of  the  petitioner  that   the<\/p>\n
       respondents have not submitted reply to the objections raised<\/p>\n
       by the office of the Accountant General is incorrect and<\/p>\n
       contrary to the facts on record.\n<\/p>\n
16.  The Chhattisgarh Lok Aayog Adhiniyam, 2002 was enacted by
\nthe State legislature with a purpose to make provisions for
\nappointment and functions of certain authorities for the
\ninquiry into specific information of misconduct or complaint
\nagainst certain public servants and for the matter connected
\ntherewith.\n<\/p>\n
17.  Misconduct has been defined in section 2(h) of the
\nAdhiniyam, 2002, as under:\n<\/p>\n
               “(h) “misconduct” by a public servant means  and
\n               includes that such public servant, –\n<\/p><\/blockquote>\n
                 (i)  has abused his position as such public servant to obtain
\n                      any gain or favour to himself or to any other person or to
\n                      cause undue harm or hardship to any other person;\n<\/p><\/blockquote>\n
(ii) has actuated in the discharge of his functions and as such
\npublic servant by personal interest or improper or corrupt
\nmotives;\n<\/p>\n
(iii)     has indulged in corruption, undue favour, nepotism or
\nlack of integrity in his capacity as such public servant;\n<\/p>\n
(iv) is in possession of pecuniary resources or property
\ndisproportionate to his known sources of income and such
\npecuniary resources or property is held by public servant
\npersonally or by any member of his family or by any other
\nperson on his behalf;”\n<\/p>\n
  18.  Public  Servant has been defined in section 2(i) of  the<\/p>\n
       Adhiniyam, 2002, which reads as under:\n<\/p>\n
               “(i)  “Public Servant” shall mean and include  a
\n               person who is-\n<\/p><\/blockquote>\n
                 (i)  the Chief Minister;\n<\/p><\/blockquote>\n
(ii) a Minister;\n<\/p>\n
(iii)     a Member of Legislative Assembly of the State of
\nChhattisgarh;\n<\/p>\n
(iv) a Government servant;\n<\/p>\n
(v)  the Chairperson and the Vice-Chairperson (by whatever name
\ncalled), or a member of a local authority in the State or a
\nstatutory body or Corporation established by or under any law
\nof the State Legislature including a co-operative society, or a
\nGovernment Company within the meaning of section 617 of the
\nCompanies Act, 1956 (Central Act No. 1 of 1956) and such other
\nCorporations or Boards, as the Government may, having regard to
\nits financial interests, in such Corporation or Board by
\nnotification, from time to time, specify;\n<\/p>\n
(vi) a member of a Committee or Board or Authority or
\nCorporation, statutory or non-statutory, constituted by the
\nGovernment of Chhattisgarh;\n<\/p>\n
(vii)     a person in the service or pay of –\n<\/p>\n
                      (aa) a local authority in the State;
\n                      (bb)  a  statutory body or a  Corporation
\n                      (not being a local authority) established
\n                      by  or  under  a State or a Central  Act,
\n                      owned or controlled by the Government  of
\n                      Chhattisgarh  and  any  other  Board   or
\n                      Corporation as the Government may, having
\n                      regard to its financial interest therein,
\n                      notify from time to time;\n<\/p><\/blockquote>\n
                      (cc)  a  company  registered  under   the
\n                      Companies Act, 1956 (Central Act No. 1 of
\n                      1956)  in  which not less than  fifty-one
\n                      percent  of the paid up share capital  is
\n                      held   by   the   State   Government   of
\n                      Chhattisgarh or any company  which  is  a
\n                      subsidiary of such company.\n<\/p><\/blockquote>\n
                      (dd)  a  society registered or deemed  to
\n                      have  been registered under the  relevant
\n                      Act  of the State Legislature and subject
\n                      to  the  control  of  the  Government  of
\n                      Chhattisgarh;\n<\/p><\/blockquote>\n
                      (ee) a co-operative society;\n<\/p><\/blockquote>\n
                      (ff)  a  University created or deemed  to
\n                      have  been created under the Chhattisgarh
\n                      Vishwavidyalaya Adhiniyam, 1973 (Act  No.
\n                      22 of 1972);”\n<\/p><\/blockquote>\n
  19.  Section 6 of the Adhiniyam, 2002 enables the Lok Aayog to<\/p>\n
       proceed to enquire into the specific information of misconduct<\/p>\n
       or a complaint against the Chief Minister, a Minister or any<\/p>\n
       other public servant.\n<\/p>\n
20.  Section 7 makes it clear that the Lok Aayog shall not
\nconduct any enquiry in case of complaint in respect of any
\naction if such action relates to any matter specified in the
\nThird Schedule, and further under provisions of section 7(2) of
\nthe Adhiniyam, 2002 which reads as under:\n<\/p>\n
               “7(2).  Lok  Aayog  shall not inquire  into  any
\n               action, –\n<\/p><\/blockquote>\n
                      (a)  in respect of which a formal and public inquiry has been
\n                         ordered under the Public Servants (Inquiries) Act, 1950 (Act
\n                         No. 37 of 1950); or\n<\/p><\/blockquote>\n
(b)  in respect of a matter which has been referred for enquiry
\nunder the Commission of Inquiry Act, 1952 (Act No. 60 of 1952).\n<\/p><\/blockquote>\n
               (3)   Lok  Aayog  shall  not  inquire  into  any
\n               complaint, –\n<\/p><\/blockquote>\n
                      (a) if  it is made after expiry of twelve
\n                          months  from  the date on  which  the
\n                          action   complained  against   become
\n                          known to the complainant\n<\/p><\/blockquote>\n
                      (b)   if  it is made after expiry of five
\n                          years  from  the date  on  which  the
\n                          action  complained against is alleged
\n                          to have taken place:\n<\/p><\/blockquote>\n
               Provided   that  Lok  Aayog  may   entertain   a
\n            complaint  referred  to  in  clause  (a),  if   the
\n            complainant  satisfies it that  he  had  sufficient
\n            cause  for  not  making  the complaint  within  the
\n            period specified in that clause.”\n<\/p><\/blockquote>\n
  21.  Sub-section (4) of section 7 of the Adhiniyam, 2002 is a<\/p>\n
       non-obstante clause which provides that nothing in  this<\/p>\n
       Adhiniyam shall be construed as empowering the Lok Aayog to<\/p>\n
       question any administrative action involving the exercise of a<\/p>\n
       discretion, except where it is satisfied that the elements<\/p>\n
       involved in the exercise of the discretion are absent to such<\/p>\n
       an extent that the discretion cannot be regarded as having been<\/p>\n
       properly exercised.\n<\/p>\n
22.  Section 8(1) of the Adhiniyam, 2002 provides for making a
\ncomplaint to the Lok Aayog. Section 8(2) of the Adhiniyam, 2002
\nprovides for imposition of punishment on the complainant, if it
\nis found by the Lok Aayog  that a false complaint was made
\nwillfully and maliciously. For that purpose, proviso to sub
\nsection (2) of section 8 of the Adhiniyam, 2002 provides that
\non a complaint made by or under the authority of the Lok Aayog,
\nthe Court may take cognizance of the offence punishable under
\nthis section.\n<\/p>\n
23.  Section 9 provides for ensuring compliance of the
\nprinciples of natural justice. Under section 10 of the
\nAdhiniyam, 2002, the Lok Aayog has been entrusted with all the
\npowers of a Civil Court  for the purposes of summoning and
\nenforcing the attendance of any person and examining him on
\noath, requiring the discovery and production of any document,
\nreceiving evidence on affidavits, requisitioning any public
\nrecord or copy thereof from any court or office, issuing
\ncommission for examination of witnesses and documents and such
\nother matters as may be prescribed.\n<\/p>\n
24.  Section 11 of the Adhiniyam, 2002 provides for submission
\nof a report. If in the opinion of the Lok Aayog, the complaint
\nis established, the Lok Aayog shall communicate its finding and
\nrecommendations in writing alongwith the relevant documents of
\nthe competent authority. Sub section (2), (3), (4), (5), (6)
\nand (7) of section 11 of the Adhiniyam, 2002 provides for
\nmonitoring of the action on the basis of report made by the Lok
\nAayog.\n<\/p>\n
25.  Section 14 of the Adhiniyam, 2002 provides that any
\ninformation obtained in the course of the enquiry by the Lok
\nAayog, members of its staff or a person or agency whose
\nservices are utilized by the Lok Aayog for conducting inquiries
\nin respect of any complaint and any evidence recorded or
\ncollected in connection with such information shall be treated
\nas confidential. Sub section 2 of Section 14 of the Adhiniyam,
\n2002 provides for disclosure of information for the purpose of
\nenquiry or in any report to be made thereon or for any action
\nor proceedings to be taken on such report or for the purposes
\nof any proceeding for an offence under the Official Secrets
\nAct, 1923 (Act No. 19 of 1923) or any offence of giving or
\nfabricating false evidence under the Indian Penal Code or for
\nthe purpose of any proceedings under Section 15 of this
\nAdhiniyam or for such other purposes as may be prescribed.\n<\/p>\n
26.  Section 15 of the Adhiniyam, 2002 provides for protection
\nagainst a suit, prosecution or other legal proceedings against
\nthe Lok Aayog, the Pramukh Lokayukt, the Lokayukt or against
\nany officer, employee, agency or person referred to in Section
\n13 in respect of anything which is in good faith done or
\nintended to be done under this Adhiniyam.\n<\/p>\n
27.  Section 17 provides for enabling the State Government to
\nmake rules for the purpose of carrying into effect the
\nprovision of this Adhiniyam.  The Chhattisgarh Lok Aayog
\n(Investigation) Rules, 2002 (for short `the Rules, 2002) was
\nmade by the Government of Chhattisgarh, which provides for
\ncomplaint, deposit, affidavits, secrecy of information etc.
\nThere is a provision under Rule 17 of the Rules, 2002 that when
\nan investigation against a public servant is being conducted by
\nthe Aayog, such servant shall be served with a copy of the
\ncomplaint or a statement of imputations against him and shall
\nbe afforded an opportunity of hearing personally or through his
\nauthorized representative. There is no provision for affording
\nan opportunity of hearing or supply of
\nreplies\/comments\/information furnished by the public servant,
\nagainst whom enquiry\/investigation was carried on the basis of
\ncomplaint made by the complainant, to the complainant.\n<\/p>\n
  28.  On  perusal  of the entire provisions of the  Adhiniyam,<\/p>\n
       2002,  it appears that the office of Lok Aayog has  been<\/p>\n
       constituted to enquire into misconduct as alleged against<\/p>\n
       certain public servants and further for the matter connected<\/p>\n
       therewith. `Misconduct’ has been defined as a public servant<\/p>\n
       who has abused his position to obtain any gain or favour to<\/p>\n
       himself or to any other person or to cause undue harm or<\/p>\n
       hardship to any other person, or has actuated in the discharge<\/p>\n
       of  his functions and as such public servant by personal<\/p>\n
       interest or improper or corrupt motives, has indulged in<\/p>\n
       corruption, undue favour, nepotism or lack of integrity in his<\/p>\n
       capacity, or such public servant is in possession of pecuniary<\/p>\n
       resources or property disproportionate to his known sources of<\/p>\n
       income and such pecuniary resources or property is held by<\/p>\n
       public servant personally or by any member of his family or by<\/p>\n
       any other person on his behalf. Thus, the complaint made by the<\/p>\n
       petitioner has been examined, keeping in view the definition of<\/p>\n
       `misconduct’ qua misconduct by a public servant. It has not<\/p>\n
       been found that the action of the second to fourth respondents<\/p>\n
       was done with a motive to gain or favour to themselves or other<\/p>\n
       person or have caused hardship or indulged in corruption, undue<\/p>\n
       favour, nepotism, lack of integrity in their capacity, or they<\/p>\n
       are  in  possession of pecuniary resources  or  property<\/p>\n
       disproportionate to their known sources of  income.  The<\/p>\n
       complaint was to the effect that a contract has been awarded to<\/p>\n
       only IIDC without inviting tenders over competitive bids and<\/p>\n
       the same may be for the purpose of personal gain or benefits<\/p>\n
       etc. It appears that the second to fourth respondents have<\/p>\n
       acted on the basis of TCS report and the fact that IIDC was<\/p>\n
       engaged by several State Governments and its companies, as<\/p>\n
       consultant.\n<\/p>\n
29.  The learned Pramukh Lokayukt has examined all the aspects
\nof the matter and came to the conclusion that nothing has been
\nfound which amounts to `misconduct’ alleged to have been
\ncommitted by second to fourth respondents.\n<\/p>\n
30.  The Supreme Court, in State of Punjab & Others v. Ram
\nSingh, Ex-Constable3,<\/a> has defined `misconduct’ as under:\n<\/p>\n
                     “5. Misconduct has been defined in Black’s
\n                     Law  Dictionary, Sixth Edition at page 999
\n                     thus:\n<\/p><\/blockquote>\n
                     “A  transgression of some established  and
\n                     definite rule of action, a forbidden  act,
\n                     a    dereliction   from   duty,   unlawful
\n                     behavior,  willful in character,  improper
\n                     or   wrong  behavior,  its  synonyms   are
\n                     misdemeanor,     misdeed,     misbehavior,
\n                     delinquency,  impropriety, mis-management,
\n                     offense,    but    not    negligence    or
\n                     carelessness”.\n<\/p><\/blockquote>\n
                     Misconduct in office has been defined as:
\n                     “Any unlawful behavior by a public officer
\n                     in  relation to the duties of his  office,
\n                     willful  in character. Term embraces  acts
\n                     which  the office holder had no  right  to
\n                     perform,  acts  performed improperly,  and
\n                     failure   to  act  in  the  face   of   an
\n                     affirmative duty to act.”\n<\/p><\/blockquote>\n
                     P.Ramnatha  Aiyar’s Law  Lexicon,  Reprint
\n                     Edition   1987   at   page   821   defines
\n                     `misconduct’, thus:\n<\/p><\/blockquote>\n
                     “The  term  misconduct implies a  wrongful
\n                     intention,  and  not  a  mere   error   of
\n                     judgment.  Misconduct is  not  necessarily
\n                     the  same thing as conduct involving moral
\n                     turpitude.  The  word  misconduct   is   a
\n                     relative  term,  and has to  be  construed
\n                     with  reference to the subject matter  and
\n                     the   contest  wherein  the  term  occurs,
\n                     having  regard to the scope of the Act  or
\n                     statute    which   is   being   construed.
\n                     Misconduct  literally means wrong  conduct
\n                     or  improper  conduct. In usual  parlance,
\n                     misconduct means a transgression  of  some
\n                     established and definite rule  of  action,
\n                     where  no discretion is left, except  what
\n                     necessity  may  demand  and  carelessness,
\n                     negligence    and    unskilfulness     are
\n                     transgressions  of some  established,  but
\n                     indefinite,  rule  of action,  where  some
\n                     discretion  is  necessarily  left  to  the
\n                     actor.   Misconduct  is  a  violation   of
\n                     definite  law; carelessness  or  abuse  of
\n                     discretion   under  an   indefinite   law.\n<\/p><\/blockquote>\n
                     Misconduct    is    a    forbidden    act;
\n                     carelessness,  a forbidden quality  of  an
\n                     act,   and   is   necessarily  indefinite.
\n                     Misconduct  in  office may be  defined  as
\n                     unlawful behaviour or neglect by a  public
\n                     officer,  by which the rights of  a  party
\n                     have been affected.”\n<\/p><\/blockquote>\n
                     6.  Thus  it could be seen that  the  word
\n                     `misconduct’ though not capable of precise
\n                     definition,  on  reflection  receives  its
\n                     connotation   from   the   contest,    the
\n                     delinquency  in  its performance  and  its
\n                     effect on the discipline and the nature of
\n                     the  duty. It may involve moral turpitude,
\n                     it  must  be  improper or wrong behaviour;
\n                     unlawful  behaviour, willful in character;\n<\/p><\/blockquote>\n
                     forbidden   act,   a   transgression    of
\n                     established and definite rule of action or
\n                     code  of  conduct but not  mere  error  of
\n                     judgment,  carelessness or  negligence  in
\n                     performance   of   the   duty;   the   act
\n                     complained  of bears forbidden quality  or
\n                     character.  Its ambit has to be  construed
\n                     with  reference to the subject matter  and
\n                     the   context  wherein  the  term  occurs,
\n                     regard  being  had  to the  scope  of  the
\n                     statute and the public purpose it seeks to
\n                     serve.\n<\/p><\/blockquote>\n
  31.  The maxim `audi alteram partem’ which is the basic pillar<\/p>\n
       of principles of natural justice means that no one should be<\/p>\n
       condemned unheard. The principles of natural justice has been<\/p>\n
       recognized in this country as a basis of the constitutional<\/p>\n
       guarantee of fundamental rights. Application of rule of natural<\/p>\n
       justice depends on the facts and circumstances of the case. In<\/p>\n
       an enquiry, there is an obligation imposed on the enquiry<\/p>\n
       authority to hear the person before he is condemned. The<\/p>\n
       principle of natural justice applies to prevent miscarriage of<\/p>\n
       justice  also  in domestic enquiries and  administrative<\/p>\n
       proceedings.\n<\/p>\n
32.  The principle of audi alteram partem, has been further
\nexplained in a subsequent decisions that unless prejudice is
\nshown, affording an opportunity of hearing would be a futile
\nexercise or empty formality.\n<\/p>\n
33.  In Union of India & Others v. E.G.Nambudiri4, the Supreme
\nCourt<\/a> observed as under:\n<\/p>\n
                “7.  The  purpose of the rules of  natural
\n                justice  is  to  prevent  miscarriage   of
\n                justice  and it is no more in  doubt  that
\n                the  principles  of  natural  justice  are
\n                applicable  to administrative  orders.  If
\n                such orders affect the right of a citizen.
\n                Arriving at the just decision is  the  aim
\n                of   both   quasi  judicial  as  well   as
\n                administrative inquiry, an unjust decision
\n                in an administrative enquiry may have more
\n                far reaching effect than a deicision in  a
\n                quasi  judicial enquiry. Now, there is  no
\n                doubt   that  the  principles  of  natural
\n                justice    are    applicable    even    to
\n                administrative enquiries See : A.K.Kraipak
\n                v. Union of India.<\/a>”\n<\/p><\/blockquote>\n
  34.  In Kumaon Mandal vikas Nigam Ltd. v. Girja Shankar Pant &<\/p>\n
       Others5, the Supreme Court<\/a> observed as under:\n<\/p>\n
                “20.  It  is a fundamental requirement  of
\n                law  that the doctrine of natural  justice
\n                be  complied with and the same has,  as  a
\n                matter  of  fact,  turned  out  to  be  an
\n                integral     part     of    administrative
\n                jurisprudence   of   this   country.   The
\n                judicial  process itself embraces  a  fair
\n                and   reasonable  opportunity  to   defend
\n                though, however, we may hasten to add that
\n                the  same is dependent upon the facts  and
\n                circumstances of each individual case.”\n<\/p><\/blockquote>\n
  35.  Further, in Canara Bank & Others v. Debasis Das & Others6,<\/p>\n
       the Supreme Court<\/a> observed as under:\n<\/p>\n
                “19.   Concept  of  natural  justice   has
\n                undergone a great deal of change in recent
\n                years.  Rules of natural justice  are  not
\n                rules  embodied  always  expressly  in   a
\n                statute  or  in  rules framed  thereunder.
\n                They may be implied from the nature of the
\n                duty to be performed under a statute. What
\n                particular rule of natural justice  should
\n                be  implied and what its context should be
\n                in  a  given case must depend to  a  great
\n                extent  on the facts and circumstances  of
\n                that  a  case, the framework of the statue
\n                under which then enquiry is held. The  old
\n                distinction between a judicial act and  an
\n                administrative act has withered away. Even
\n                an  administrative  order  which  involves
\n                civil consequences must be consistent with
\n                the   rules   of   natural  justice.   The
\n                expression       “civil      consequences”
\n                encompasses  infraction  of   not   merely
\n                property  or personal rights but of  civil
\n                liberties, material deprivations and  non-
\n                pecuniary  damages. In its  wide  umbrella
\n                comes everything that affects a citizen in
\n                his civil life.\n<\/p><\/blockquote>\n
                21.  How  then  have  the  principles   of
\n                natural  justice been interpreted  in  the
\n                courts and within what limits are they  to
\n                be  confined? Over the years by process of
\n                judicial and administrative process.  They
\n                constitute the basic elements  of  a  fair
\n                hearing, having their roots in the  innate
\n                sense  of  man for fair play  and  justice
\n                which   is   not  the  preserve   of   any
\n                particular race or country but  is  shared
\n                in  common by all men. The first  rule  is
\n                “nemo  judex in causa sua” or “nemo  debet
\n                esse judex in propria causa sua” as stated
\n                in  Earl  of Derby’s case that it is,  “no
\n                man  shall  be a judge in his own  cause”.
\n                Coke used the form “aliquis non debet esse
\n                judex  in  propria causa, quia non  potest
\n                esse judex et pars” (Co. Litt. 1418), that
\n                is, “no man ought to be a judge in his own
\n                case,  because he cannot act as judge  and
\n                at  the  same time be a party”.  The  form
\n                “nemo  potest esse simul actor de  judex”,
\n                that  is,  “no one can be once suitor  and
\n                judge”  is  also at time times used.   The
\n                second rule is “audi alteram partem”, that
\n                is  , “hear the other side”. At times  and
\n                particularly in continental countries, the
\n                form  “audietur et altera pars”  is  used,
\n                meaning  very  much  the  same  thing.   A
\n                corollary has been deduced from the  above
\n                two   rules  and  particularly  the   audi
\n                alteram  partem rule, namely “qui  aliquid
\n                statuerit,  parte inaudita  altera  acquum
\n                licet  dixerit, haud acquum fecerit”  that
\n                is,  “he who shall decide anything without
\n                the other side having been heard, although
\n                he  may have said what is right, will  not
\n                have  been  what is right.  [See  Boswel’s
\n                case  (Co  Rep at p. 52-a)]  or  in  other
\n                words,  as  it is now expressed,  “justice
\n                should   not  only  be  done  but   should
\n                manifestly  be seen to be done”.  Whenever
\n                an  order is struck down as invalid  being
\n                in  violation  of  principles  of  natural
\n                justice, there is no final decision of the
\n                case  and fresh proceedings are left  upon
\n                (sic  open). All that is done is to vacate
\n                the   order  assailed  by  virtue  of  its
\n                inherent  defect, but the proceedings  are
\n                not terminated.”\n<\/p><\/blockquote>\n
  36.  The  Supreme Court, while deciding the applicability  of<\/p>\n
       principles of natural justice in disciplinary enquiry, in<\/p>\n
       P.D.Agrawal v. State Bank of India & Others7,<\/a> observed as<\/p>\n
       under:\n<\/p>\n
                “30.  The  principles of  natural  justice
\n                cannot be put in straitjacket formula.  It
\n                must    be    seen    in    circumstantial
\n                flexibility.  It has separate  facets.  It
\n                has  in recent times also undergone a  sea
\n                change.\n<\/p><\/blockquote>\n
                39.  Decision of this court in  S.L.Kapoor
\n                v.   Jagmohan<\/a>  whereupon  Mr.  Rao  placed
\n                strong  reliance  to  contend  that   non-
\n                observance of principle of natural justice
\n                itself causes prejudice or the same should
\n                not  be  read “as it causes difficulty  of
\n                prejudice”,   cannot   be   said   to   be
\n                applicable  in  the  instant   case.   The
\n                principles of natural justice, as  noticed
\n                hereinbefore, have undergone a sea change.
\n                In  view of the decisions of this Court in
\n                State  Bank  of Patiala v. S.K.Sharma  and
\n                Rajendra  Singh<\/a>  v.  State  of  M.P.   the
\n                principle   of  law  is  that  some   real
\n                prejudice  must have been  caused  to  the
\n                complainant.  The court has  shifted  from
\n                its  earlier  concept that  even  a  small
\n                violation shall result in the order  being
\n                rendered  a  nullity.  To  the  principle\/
\n                doctrine of audi alteram partem,  a  clear
\n                distinction has been laid down between the
\n                cases  where there was no hearing  at  all
\n                the  cases  where there was mere technical
\n                infringement of the principle.  The  Court
\n                applies  the principles of natural justice
\n                having   regard  to  the  fact   situation
\n                obtaining in each case. It is not  applied
\n                in  a  vacuum  without  reference  to  the
\n                relevant  facts and circumstances  of  the
\n                case. It is no unruly horse. It cannot  be
\n                put   in   a  straitjacket  formula   (See
\n                Vivekanand Sethi v. Chairman, J&K Bank Ltd
\n                and  State of U.P. v. Neeraj Awasthi.  See<\/a>
\n                also Mohd.Sartaj v. State of U.P.<\/a>”\n<\/p><\/blockquote>\n
  37.  In Rajesh Kumar & Others v. Dy. CIT & Others8, the Supreme<\/p>\n
       Court observed as under:\n<\/p>\n
                “20.  Principles  of natural  justice  are
\n                based on two basic pillars:\n<\/p><\/blockquote>\n
                    (i)  Nobody shall be condemned unheard
\n                    (audi alteram partem).\n<\/p><\/blockquote>\n
                    (ii) Nobody shall be judge of his  own
\n                    cause   (nemo  debet  esse  judex   in
\n                    propria sua causa).\n<\/p><\/blockquote>\n<\/blockquote>\n
                21. Duty to assign reasons is, however,  a
\n                judge-made  law. There is  dispute  as  to
\n                whether it comprises of a third pillar  of
\n                natural  justice.  (See  S.N.Mukherjee  v.
\n                Union  of  India  and Reliance  Industries
\n                Ltd.<\/a> v. Designated Authority).”\n<\/p><\/blockquote>\n
  38.  In  Ashok Kumar Sonkar v. Union of India & Others9,  the<\/p>\n
       Supreme Court<\/a> observed as under:\n<\/p>\n
                “26. This brings to us the question as  to
\n                whether  the principles of natural justice
\n                were  required to be complied with.  There
\n                cannot  be any doubt whatsoever  that  the
\n                audi  alteram partem is one of  the  basic
\n                pillars of natural justice which means  no
\n                one  should be condemned unheard. However,
\n                whenever possible the principle of natural
\n                justice should be followed. Ordinarily  in
\n                a  case of this nature the same should  be
\n                complied  with.  Visitor may  in  a  given
\n                situation issue notice to the employee who
\n                would  be  effected by the ultimate  order
\n                that may be passed. He may not be given an
\n                oral hearing, but may be allowed to make a
\n                representation in writing.\n<\/p><\/blockquote>\n
                27. It is also, however, well settled that
\n                it cannot put any straitjacket formula. It
\n                may  not be applied in a given case unless
\n                a  prejudice is shown. It is not necessary
\n                where it would be a futile exercise.”\n<\/p><\/blockquote>\n
  39.  Recently,  in Sarva Uttar Pradesh Gramin Bank  v.  Manoj<\/p>\n
       Kumar Sinha10,  the Supreme Court observed as under:\n<\/p>\n
                “37.  Thereafter, this Court  notices  the
\n                development   of   the   principle    that
\n                prejudice must be proved and not  presumed
\n                even    in    cases    where    procedural
\n                requirements have not been complied  with.
\n                The Court notices a number of judgments in
\n                which  the  action has not been held  ipso
\n                facto illegal, unlawful or void unless  it
\n                is    shown   that   non-observance    had
\n                prejudicially affected the applicant.”\n<\/p><\/blockquote>\n
  40.  The complaint before the fifth respondent was not an open<\/p>\n
       and  shut  case.  On considering the materials  and  the<\/p>\n
       reply\/comments submitted by the public servants in question, it<\/p>\n
       was found that full fledged enquiry was conducted. No notice<\/p>\n
       was necessary to the complainant in view the provisions of<\/p>\n
       section 14 of the Adhiniyam, 2002 also, wherein an element of<\/p>\n
       confidentiality has been attached to such enquiry  where<\/p>\n
       complaint is lodged against a public servant. Even otherwise,<\/p>\n
  no useful purpose would be served even if notice is given  to<\/p>\n
       the complainant. Contention of the petitioner that principles<\/p>\n
       of  natural justice was not complied with as  copies  of<\/p>\n
       reply\/comments and materials submitted by the second to fourth<\/p>\n
       respondents were not supplied to him, is rejected as in case of<\/p>\n
       this type of enquiry under the provisions of the Adhiniyam,<\/p>\n
       2002,  it  is not necessary and expedient to supply  the<\/p>\n
       reply\/comments or documents submitted by public servant in<\/p>\n
       question to the complainant as there is no prejudice caused or<\/p>\n
       any adverse order is passed against the petitioner.\n<\/p>\n
  41.  In respect of scope of judicial review in case where Lok<\/p>\n
       Aayog has not found the complaint as established or proved<\/p>\n
       against a public servant, the Supreme Court in Ch. Rama Rao v.\n<\/p>\n
       Lokayukta & Others11, observed as under:\n<\/p>\n
                “5.   Considered   from  the   operational
\n                conspectus  of  the above  provisions,  it
\n                would not be necessary to issue any notice
\n                or give opportunity to a public servant at
\n                preliminary verification or investigation.
\n                When  the  Lokayukta or Upa Lokayukta,  as
\n                the   case  may  be,  conducts  a  regular
\n                investigation into the complaint, it would
\n                be  necessary to give prior opportunity to
\n                the  public  servant etc. By  implication,
\n                such  an opportunity stands excluded  when
\n                preliminary  verification or investigation
\n                is  conducted.  The object appears  to  be
\n                that  the  preliminary  investigation   or
\n                verification  is required to  be  done  in
\n                confidentiality   to   get   prima   facie
\n                evidence  so  that the needed evidence  or
\n                material  may  not  be got  suppressed  or
\n                destroyed.  It  is seen  from  the  report
\n                submitted  by the Lokayukta, that  he  has
\n                prima  facie  found that  there  are  some
\n                allegations against the petitioner. We are
\n                not   dealing  with  the  nature  of   the
\n                allegations since the matters are  yet  to
\n                be  investigated. Suffice it to state that
\n                the  Lokayukta has power to submit interim
\n                report  with recommendation to suspend  an
\n                officer or to transfer him pending further
\n                investigation    or    the     preliminary
\n                verification  itself. The  object  of  the
\n                recommendation  is only to  enable  smooth
\n                enquiry  or  the  investigation  conducted
\n                without being hampered with by the persons
\n                concerned or to prevent an opportunity  to
\n                tamper  with the record or to destroy  the
\n                record.  Under  these  circumstances,   we
\n                think   that   the  Lokayukta   was   well
\n                justified  in  not issuing any  notice  or
\n                giving an opportunity to the petitioner at
\n                the preliminary verification.”\n<\/p><\/blockquote>\n
  42.  In Kumari Shrilekha Vidhyarthi & Others v. State of U.P. &<\/p>\n
       Others12, on which reliance was placed by Pramukh Lokayukt in an<\/p>\n
       enquiry on a complaint made by the complainant, the Supreme<\/p>\n
       Court observed as under:\n<\/p>\n
                  “33.  No doubt, it is true, as indicated
\n                by us earlier, that there is a presumption
\n                of  validity of the State action  and  the
\n                burden   is  on  the  person  who  alleges
\n                violation  of  Article  14  to  prove  the
\n                assertion.  However,  where  no  plausible
\n                reason or principle is indicated nor is it
\n                discernible and the impugned State action,
\n                therefore,   appears  to   be   ex   facie
\n                arbitrary, the initial burden to prove the
\n                arbitrariness is discharged shifting  onus
\n                on the State to justify its action as fair
\n                and reasonable. If the State is unable  to
\n                produce material to justify its action  as
\n                fair  and  reasonable, the burden  on  the
\n                person alleging arbitrariness must be held
\n                to  be  discharged. The scope of  judicial
\n                review   is   limited  as   indicated   in
\n                Dwarkadas  Marfatia case  to  oversee  the
\n                State action for the purpose of satisfying
\n                that  it  is not vitiated by the  vice  of
\n                arbitrariness and no more. The  wisdom  of
\n                the  policy  or  the lack  of  it  or  the
\n                desirability  of a better  alternative  is
\n                not   within  the  permissible  scope   of
\n                judicial review in such cases. It  is  not
\n                for the courts to recast the policy or  to
\n                substitute  it  with  another   which   is
\n                considered  to  be more appropriate,  once
\n                the  attack on the ground of arbitrariness
\n                is  successfully repelled by showing  that
\n                the  act  which  was  done  was  fair  and
\n                reasonable  in the facts and circumstances
\n                of  the  case.  As indicated  by  Diplock,
\n                L.J.,  in Council of Civil Service  Unions
\n                v.  Minister  for  the Civil  Service  the
\n                power  of  jujdicial review is limited  on
\n                the  grounds  of illegality, irrationality
\n                and procedural impropriety. In the case of
\n                arbitrariness, the defect of irrationality
\n                is obvious.”\n<\/p><\/blockquote>\n
  43.  With  regard  to nature and authenticity of  the  report<\/p>\n
       submitted by the Lok Ayukt, a Constitution Bench of the Supreme<\/p>\n
       Court, in M.P.Special Police Establishment v. State of M.P. &<\/p>\n
       Others13, observed as under:\n<\/p>\n
                “29.  The office of the Lokayukta was held
\n                by  a  former Judge of this Court.  It  is
\n                difficult  to  assume that the  said  high
\n                authority would give a report without  any
\n                material whatsoever.”\n<\/p><\/blockquote>\n
  44.  Prior  to  establishment of the office of Lok  Aayog\/Lok<\/p>\n
       Ayukta, the government used to appoint enquiry committee under<\/p>\n
       the provisions of Commission of Inquiry Act, 1952. The Supreme<\/p>\n
       Court, in Dr. Baliram Waman Hiray (supra), observed as under:\n<\/p>\n
                “32.  A  Commission of Inquiry  is  not  a
\n                court properly so called. A Commission  is
\n                obviously  appointed  by  the  appropriate
\n                government  `for  the information  of  its
\n                mind’ in order for it to decide as to  the
\n                course  of  action to be followed.  It  is
\n                therefore a fact-finding body and  is  not
\n                required to adjudicate upon the rights  of
\n                the   parties   and  has  no  adjudicatory
\n                functions. The government is not bound  to
\n                accept its recommendations or act upon its
\n                findings. The mere fact that the procedure
\n                adopted by it is of a legal character  and
\n                it  has  the power to administer  an  oath
\n                will  not  impart to it the  status  of  a
\n                court. ”\n<\/p><\/blockquote>\n
  45.  The Supreme Court, while dealing with the issue of scope<\/p>\n
       of interference by the High Court in exercise of power under<\/p>\n
       Article 226\/227 of the Constitution of India, in Ashok Kumar &<\/p>\n
       Others v. Sita Ram14,<\/a> observed as under:\n<\/p>\n
                “17.  In  a  matter like the present  case
\n                where   order  passed  by  the   statutory
\n                authority vested with power to act  quasi-
\n                judicially is challenged before  the  High
\n                Court,   the   role  of   the   Court   is
\n                supervisory and corrective. In exercise of
\n                such  jurisdiction the High Court  is  not
\n                expected to interfere with the final order
\n                passed  by the Statutory Authority  unless
\n                the  order suffers from manifest error and
\n                if  it is allowed to stand it would amount
\n                to  perpetuation of grave  injustice.  The
\n                Court  should bear in mind that it is  not
\n                acting  as yet another appellate court  in
\n                the  matter. We are constrained to observe
\n                that  in  the present case the High  Court
\n                has failed to keep the salutary principles
\n                in mind while deciding the case.”\n<\/p><\/blockquote>\n
  46.  The  case of Real Value Appliances Ltd. (supra) and  Dr.<\/p>\n
       Baliram Waman Hiray (supra), relied on by learned counsel for<\/p>\n
       the respondent No. 2 is not relevant to the facts of the case<\/p>\n
  on hand as the enquiry under the Commissions of Enquiry Act, is<\/p>\n
       a fact finding enquiry but enquiry\/investigation under the<\/p>\n
       scheme of Adhiniyam, 2002 is not an enquiry of the same nature.\n<\/p>\n
       In  that sense, if Lok Ayukt, is of the opinion that the<\/p>\n
       complaint is established, the report in writing is to be<\/p>\n
       communicated to the competent authority and thereafter, the<\/p>\n
       competent authority has to report within three months of the<\/p>\n
       date of receipt of report and if the action is not taken on the<\/p>\n
       report, special report may be made to the Governor and also<\/p>\n
       inform the complainant. There is a further provision to take<\/p>\n
       action by the Governor under the provisions of sub section 11<\/p>\n
       of the Adhiniyam, 2002.\n<\/p>\n
47.  Thus, the submission of the petitioner that enquiry report
\nis perverse on account of the fact that State largesse has been
\ndistributed at the sweet will of the respondents 2 to 4 without
\ninviting tenders from the eligible persons to award consultancy
\ncontract to the most competent and deserving candidate, is not
\nsustainable. The enquiry is not with regard to competence of
\nthe contractor but the purpose of enquiry under provisions of
\nthe Adhiniyam, 2002 is to look into the misconduct of a public
\nservant against whom complaint is lodged. The petitioner has
\nnot placed any material before this Court also to establish
\nthat the conduct of the second to fourth respondents comes
\nwithin the definition of `misconduct’ as prescribed under
\nsection 2(h) of the Adhiniyam, 2002. The Pramukh Lokayukt has
\nalready considered the allegations of the petitioner at length
\nand has come to the conclusion. Thus, I have no hesitation in
\nholding that the enquiry report cannot be held as perverse.\n<\/p>\n
  48.  There  is no quarrel on the proposition of law  that  in<\/p>\n
       normal circumstances, contracts by the State, its corporations,<\/p>\n
       instrumentalities and agencies must be granted through public<\/p>\n
       auction\/public tender by inviting tenders from eligible persons<\/p>\n
       by the notification of the public auction. In the case on hand,<\/p>\n
       wherein the second to fourth respondents decided to engage<\/p>\n
       services of IIDC on the basis of the fact that TCS has made a<\/p>\n
       recommendation to avoid price cutting and competitive bids and<\/p>\n
       contracts should be awarded to the consultants based on their<\/p>\n
       capability and experience and reasonableness of the bids.\n<\/p>\n
       Further, the services of IIDC was engaged by several other<\/p>\n
       State Governments, its corporations and companies. Thus, it<\/p>\n
       cannot be held that the decision of the second to fourth<\/p>\n
       respondents was arbitrary, unreasonable or violative  of<\/p>\n
       provisions of right to equality as enshrined under Article 14<\/p>\n
       of the Constitution of India.\n<\/p>\n
49.  For the reasons stated hereinabove, the writ petition is
\ndismissed.\n<\/p>\n
50.  No order asto costs.\n<\/p>\n
                                                      J U D G E<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Rajesh Bissa vs State Of Chhattisgarh & Others on 27 April, 2010 HIGH COURT OF CHATTISGARH AT BILASPUR WRIT PETITION C No 4964 of 2008 Rajesh Bissa …Petitioners Versus State of Chhattisgarh & Others …Respondents ! Shri Sourabh Dangi and MsNaushina Afrin Ali Advocates for the petitioner ^ Shri Kishore Bhaduri Additional […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-210030","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nRajesh Bissa vs State Of Chhattisgarh & Others on 27 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajesh-bissa-vs-state-of-chhattisgarh-others-on-27-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajesh Bissa vs State Of Chhattisgarh & Others on 27 April, 2010 - 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