Judgment:
ORDER
Anand Byrareddy, J.
1. Heard the Counsel for the petitioner and the respondents.
2. The facts of the case are as follows:
The petitioner was said to be working as the Executive Engineer of the Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'the BBMP' for brevity), earlier known as the Bangalore City Corporation, and retired from service on attaining the age of superannuation on 31-3-2000. Certain civil works executed by the petitioner were sought to be investigated by the Standing Committee for Accounts of the BBMP. The Committee found certain irregularities in execution of the works and the payments made thereof. A report was sent in this regard to the Commissioner of the Corporation, The petitioner was promptly placed under suspension as on 22-2-1999 and a report was submitted to the Government with a recommendation to refer the matter to the Lokayukta for investigation. While the petitioner was reinstated into services upon directions issued by the Secretary to Government, Urban Development Department. The office of the Lokayukta was however addressed to take up investigation under the Karnataka Lokayukta Act, 1984 and to furnish a report to the Government. Though there was an earlier report insofar as the allegations against the petitioner and others was concerned submitted by the Assistant Executive Engineer, the same was cancelled by the Lokayukta and a fresh investigation was entrusted to the Chief Engineer and the Superintending Engineer of the Lokayukta. They, in turn, held spot inspection in respect of the works which were under scrutiny and drew up a mahazar, though it was at a point of time, three years after the completion of the said works.
It further transpires that the Lokayukta himself took up investigation and the petitioner was afforded a hearing. The petitioner made a request, having regard to the nature of the case, that since the case was being investigated by the Lokayukta himself, the petitioners ought to be permitted to take the assistance of a legal Counsel. No orders were passed on this request.
The Lokayukta completed his investigation and sent a report to the Government, dated 31-1-2002. Since the Lokayukta had given special attention to the case of the petitioner and others and since it was apprehended that the first respondent would promptly pass an order accepting the recommendations, the petitioner had pointed out that having regard to the tenor of Sub-section (2) of Section 7, the Lokayukta was not vested with the authority to investigate the complaint and there was no compliance with Section 9(3) of the Act in the petitioner not having been furnished with a report of the Standing Committee for Accounts of BBMP, which was the genesis of the entire investigation and further reports. The first respondent, however, ignored the representation and passed an order dated 4-4-2002, in initiating action against the petitioner in accordance with the recommendation by the Lokayukta. It is this which is under challenge in the present petition.
3. The Counsel for the petitioner while reiterating the above sequence of events, would submit that while Sub-section (1) of Section 7 of the Act enumerates that the public servants, complaints against whom could be investigated by the Lokayukta, Sub-section (2) of the Section 7 empowers the Upalokayukta to investigate the complaints against actions of public servants other than those which fall within the jurisdiction of the Lokayukta. Since the petitioner was not a public servant as specified under Sub-section (1) of Section 7, the complaint against them could not have been investigated by the Lokayukta and hence, his report is without jurisdiction. Consequently, the impugned order passed on such a recommendation by the first respondent is also not sustainable and hence liable to be quashed.
The Counsel would further submitted that though Sub-section (2-A) of Section 7 of the Act authorises the Lokayukta or Upalokayukta to investigate into the complaints referred to it by the Government of Karnataka, the same cannot be read in isolation. The sub-sections of Section 7, namely, (1), (2) and (2-A) are to be read together or else it leads to an incongruous situation. Sub-section (2-A) does contain non obstante clause, the effect of the same would have to be understood in the light of the law, as explained by the Supreme Court as to the implication of a non obstante clause, in the case of R.S. Raghunath v. State of Karnataka : AIR 1992 SC 81 : (1992)1 SCC 335.
It is also contended that Sub-section (2-A) of Section 7, which reads as follows:
(2-A) Notwithstanding anything contained in Sub-sections (1) and (2), the Lokayukta or an Upalokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.The Counsel would submit that a precondition for the Lokayukta to investigate any action taken by a public servant is only if it is referred to him by the State Government. In the case on hand, it is evident that the matter was referred to the Lokayukta in terms of Annexure-C by the first respondent. The Counsel for the petitioner would submit that in the absence of definition of 'State Government', it is the definition as found in the Mysore General Clauses Act, 1899 which would be applicable and in terms of the definition of 'Government' under Section 3(16) read with Article 166 of the Constitution of India, all executive actions of the Government of a State shall be expressed to be taken in the name of the 'Governor' and would submit that Annexure-C therefore cannot be held to be a reference made to the Lokayukta by the State Government.
In this regard, he would place reliance on a judgment of the Supreme Court in Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors. : (1996)2 SCC 26 and therefore, would submit that the impugned order be quashed.
4. The Counsel for the respondent 3, namely, the Lokayukta would contend that the reference made is a reference by the Government of Karnataka, represented by a Competent Authority. The petitioner's contention is therefore not tenable. He would further seek to justify the action of the Lokayukta in having conducted an investigation as it was a reference under Sub-section (2-A) of Section 7. The office of the Lokayukta had, by way of abundant caution, sought clarification as regards the reference made and it was reiterated on behalf of the Government that a reference was made to the Lokayukta, a copy of that letter is produced as Annexure-R1 to the Statement of Objections.
As regards the contention that the petitioner was not afforded the services of a legal Counsel is concerned, it is contended that the Lokayukta Act does not prescribe any such requirement where a public servant being investigated being permitted to engage the services of a legal Counsel. In any event, the investigation conducted by the Lokayukta was in the nature of a preliminary enquiry preceding the disciplinary enquiry contemplated under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. It is to be noticed that in the course of the investigation, charges were not framed, witnesses were not cross-examined and it is only at the disciplinary proceedings which is now entrusted to the Lokayukta, that these procedures are contemplated. It is prima facie found by the Lokayukta that there have been acts of misconduct and this will be adjudicated while affording ample opportunity to the petitioner. Hence, it is contended that the present petition is premature and is liable to be rejected.
5. By way of a rejoinder that the petitioner reiterates that a reference under Section 2-A is to be made by the State Government and the Principal Secretary to the Government, Urban Development Department, cannot elevate himself to the position of the Governor to make any such reference, in the name of the State Government. In this regard, attention is drawn to Rules 18 and 19 of the Karnataka Government (Transaction of Business) Rules, 1977, which reads as follows:
18. All orders or instruments made or executed by or on behalf of Government shall be expressed to be made or executed in the name of the Governor of Karnataka, or for grant of leave for a part or whole of the period of extended service accruing under the proviso to Clause (a) of Rule 95 of the Karnataka Civil Services Rules which amounts to extension of service.
19. (1) Orders and instruments made and executed in the name of the Governor of Karnataka, shall be authenticated by the signature of a Principal Secretary, a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary (a Desk Officer) for any other officer holding these posts on ex officio basis) or by such other officer as may be specially empowered in that behalf by the Governor in the manner specified below, and such signature shall be deemed to be the proper authentication of such order or instrument.
By order and in the name of theGovernor of Karnataka(Signature)Name and designation of the officerauthoirsed to sign.(2) Amendment to the Karnataka Civil Services Rules, Manual of Contingent Expenditure, Karnataka Financial Code and Karnataka Treasury Code which are of a routine nature and which do not involve any question of policy or heavy financial commitments may be made by the Secretary to Government Finance Department with the prior approval of the Minister-in-charge of the Finance Department and the Chief Minister.
And it is further asserted that the view taken in Gulabrao Keshavrao Patil's case, has been reiterated in the case of J.P. Bansal v. State of Rajasthan and Anr. : AIR 200 SC 1405 : (2003)5 SCC 134 and insofar as the competence of the Lokayukta to conduct an investigation against the petitioner is no longer res Integra and is covered by a decision of this Court in the case of Prof. S.N. Hegde v. Lokayukta, Bangalore and Ors. : 2004(3) Kar. LJ. 505.
6. The Counsel for the BBMP would firstly seek to draw attention to Article 166(3) of the Constitution of India to submit that though all executive action of the Government of a State shall be expressed to be taken in the name of the Governor as per Article 166(1), it is provided under Article 166(3) that the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. He would submit that it is pursuant to this that there is delegation of such authority which requires the exercise by and in the name of the Governor. Rule 30 of the Karnataka Government (Transaction of Business) Rules, 1977 provides as follows:
30. (1) The Secretary of a Department shall, save as provided in Sub-rule (2), submit a case for orders to the Minister-in-charge or to the Minister of State or the Deputy Minister, if any, as the case may be.
(2) Subject to the general or special directions of the Minister-in-charge, routine cases and cases of minor importance, namely, cases covered by rule, decided policy or precedent which do not involve the overruling of a Head of a Department and which raise no points of delicacy, may be disposed of by the Secretary of the Department on his own responsibility. The Secretary of the Department may also dispose of in the absence of the Minister-in-charge or the Minister of State or the Deputy Minister cases requiring immediate action, on his own responsibility.
(3) The Minister-in-charge may direct that cases of minor importance may be disposed of by a Deputy Secretary or an Under Secretary of the Department.
(4) A copy of every direction given under Sub-rule (3) shall be submitted to the Governor.
(5) Before the second day of every week a compilation of abstract of orders issued during the preceding week, relating to policy decisions and matters of importance shall be prepared and submitted immediately to the Chief Secretary for transmission to the Chief Minister and the Governor.
Note.-(1) Where the case relates to a matter in which a Minister is personally interested, it shall be sent to the Chief Minister who may dispose of it himself or pass it on to any other Minister for disposal.
(2) Where sanction or approval of Government is required for any proposal from any company, society, local body or other institution it shall be examined by the Department concerned in the same manner as a case belonging to such department.
And the Counsel therefore would submit that from a plain reading of the said rule, it cannot be said that the reference made by the first respondent in terms of Annexure-C is bad in law. He places reliance on the following decisions of the Supreme Court:
(a) R. Chitralekha and Anr. v. State of Mysore and Ors. : AIR 1964 SC 1823;
(b) M. Bala Krishna Reddy v. Director, CBI, New Delhi : AIR 2008 SC 1754 : (2008)4 SCC 409.
7. In the above circumstances, the question that arises for consideration by this Court is, whether the impugned order is bad in law, in view of Sub-section (2-A) of Section 7 of the Karnataka Lokayukta Act, 1984, which requires that a reference is to be made by the State Government in the Lokayukta conducting an investigation against a public servant and whether a demi-official letter issued by the Principal Secretary, Urban Development Department, can be construed as a reference made by the State Government to the Lokayukta.
The question is no longer res integra stands answered by the decisions cited by the Counsel for the petitioner. In Gulabrao Keshavarao Patil's case, the question Was, whether the appropriate Government under Sub-section (2) of Section 5-A of the Land Acquisition Act (1 of 1894) had decided the objections raised by the claimants under the Act, for further action under Section 6 of the Act.
The background was as follows:
A Standing Committee of the Surat Municipal Corporation had, by a resolution, authorised action to be taken to acquire the land, for relieving traffic congestion near the Surat Railway Station. Permission was granted by the Town Planning Department to the Corporation to acquire the land under the Town Planning Act. A declaration was also made in that behalf. A notification under Section 4(1) of the Act was published. Notice under Section 5-A was issued and the appellant, who was before the Supreme Court, had objected to the acquisition. The Land Acquisition Officer conducted an enquiry and submitted a report to the Government for a decision. The dispute arose as regards this aspect, namely, whether a decision had been taken by the State Government to proceed with the acquisition or to stop further action in that behalf. It was found that the revenue department of the State Government, had written to the Section Officer of the Revenue Department that notification under Section 6 could not be sanctioned in view of the objection as well as the legal position. While a reference was also made to a revenue circular. The Ministry of Urban Development did not agree with the Ministry of Revenue and accordingly they moved the Chief Minister to have the issue re-examined. But, before a decision was taken, the Section Officer of the Revenue Department communicated its decision to the Land Acquisition Officer to withdraw further proceedings. Since no further steps were taken to stop the proceedings, the appellant had approached the High Court, by way of a writ petition. The High Court held that the Government had not taken a decision under Sub-section (2) of the Section 5-A of the Act and dismissed the writ petition. Therefore, the appellant was before the Supreme Court. After discussing the case-law and in interpreting Article 166, the Supreme Court has held as follows:
In other words, Article 166 (1) and (2) expressly envisage authentication of all the executive action and shall be expressed to be taken in the name of the Governor and shall be authenticated in such manner specified in the rules made by the Governor. Under Article 166(3), the Governor is authorised to make the rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In other words, except in cases when the Government in his individual discretion exercises his constitutional functions, the other business of the Government is required to be conveniently transacted as per the business rules made by Article 166(3) of the Constitution. If the action of the Government and the order is duly authenticated as per Article 166(2) and the Business Rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken according to Rules. The letter of the Section Officer is not in conformity with Rule 12 and Article 166 (1) and (2), though under Rule 13 he is one of the authorised officers to communicate the decision of the Government. In Major E.G. Barsay v. State of Bombay : AIR 1961 SC 1762, this Court held that if an order is issued in the name of the President and is duly authenticated in the manner prescribed in Article 77(2) there is an irrebutable presumption that the orders is made by the President. Whereby the order does not comply with the provisions of Article 77(2), it is open to the party to question the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. Where the evidence establishes that the Deputy Secretary on behalf of the Central Government made the order a delegate, the order cannot be questioned. Therefore, it is necessary to show whether decision of the Government is according to business rules.Also, in J.P. Bansal's case, while interpreting Article 166 of the Constitution the Court has held as follows:
Clause (1) requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further, there is no particular formula of works required for compliance with Article 166(1). What the Court has to see is whether the substance of its requirement has been complied with. A Constitution Bench in R. Chitralekha v. State of Mysore and Ors. : AIR 1964 SC 1823, held that the provisions of the article were only directory and not mandatory in character and if they were not complied with, it could still be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. Clause (1) does not prescribe how an executive action of the Government is to be performed; it only prescribes the mode under which such act is to be expressed. While Clause (1) in relation to the mode of expression, Clause (2) lays down the way in which the order is to be authenticated. Whether there is any Government order in terms of Article 166, has to be adjudicated from the factual background of each case. Strong reliance was placed by learned Counsel for the appellant on L.G. Chaudhari v. Secretary, L.S.G. Department, Government of Bihar and Ors. : AIR 1980 SC 383, to contend that for all practicable purposes the decision of the cabinet has to be construed as a Government order, because three of the decisions taken by the Cabinet have been implemented. As noted above, learned Counsel for the State took the stand that neither in the writ petition nor before the High Court, the Cabinet decision itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show that no decision was taken to pay any compensation. In this connection reference is made to the Cabinet Memorandum dated 18-3-1993 and Decision No. 57 of 1999. It was further submitted that even if it is conceded for the sake of argument that such decision was taken, the same cannot be enforced by a writ petition.
8. We need not delve into the disputed question as to whether there was any cabinet decision, as it has not been established that there was any Government order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council of Ministers are advisors and as the Head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor views of the Council of Ministers do not get crystallised into action of the State. (See: State of Punjab v. Sodhi Sukhdev Singh : AIR 1961 SC 493 and Bachhittar Singh v. State of Punjab and Anr. : AIR 1963 SC 395). That being so, the first plea of the appellant is rejected.
8. On the other hand, the decisions sought to be relied upon by the Counsel for the BBMP would not lend support to the contention put-forth by the Counsel, whereas the very decision has referred to the decisions cited by the Counsel for the petitioner with approval and has extracted the views expressed therein. In any event, the facts of that case were that the appellant appeared in the examination conducted by the UPSC in the year 1996. It was alleged that the appellant was found to be in possession of the pre-written answer sheets which were similar to the answer sheets supplied by the Examination Board. He was removed from the hall and a statement was recorded, whereby he had confessed to have pre-written answer sheets with him. The matter was then reported to the UPSC. A preliminary enquiry was conducted and on being satisfied about the allegations levelled, the Secretary had lodged a criminal case against the appellant for several offences under the Indian Penal Code, 1860. A charge-sheet was filed in the Court of the Special Magistrate, CBI. The appellant had raised a preliminary objection contending that the alleged offences had been committed at Bhopal in the State of Madhya Pradesh and that CBI had no authority or jurisdiction to institute the criminal proceedings.
It was also contended that before initiating the proceedings under the Delhi Special Police Establishment Act, 1946, consent of the State Government was required. No such consent having been given by the State, proceedings initiated against the appellant were without jurisdiction. The Magistrate having rejected the preliminary objection, a revision petition was preferred under Section 397 of the Code of Criminal Procedure, 1973, before the High Court. The High Court having dismissed the revision petition, the appellant was before the Supreme Court. The Supreme Court held that it cannot be said that consent by a State Government for prosecution by the CBI can never be accorded except by issuing a notification. Though Section 3 refers to 'Notification' and 'Circulars', the Central Government to issue the same under Section 5 has used the term 'order' and enables the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 which speaks of consent of the State Government for the exercise of powers and jurisdiction neither refers to notification nor order. It merely requires the consent of the State Government for the application of the Delhi Act and in the case on hand before the Supreme Court, the letter written by the Deputy Secretary to the State Government mentioned that the State Government had no objection to the members of the Delhi State Police Establishment exercising powers and jurisdiction within the State and the Supreme Court held that it could not be said that the State Government had not given consent as envisaged by Section 6.
As could be seen, the Supreme Court was called upon to interpret the scope and effect of the provisions of the Delhi Special Police Establishment Act, which did not specify that the consent of the State Government should be given either by a notification or an order and therefore, the Deputy Secretary to the State Government acting as a correspondent for the State Government and indicating that it had no objection to the members of the Delhi State Police Establishment exercising powers and jurisdiction, cannot be equated with the action being taken by the State Government in calling upon the Lokayukta to investigate into the alleged actions of the petitioner in the instant case on hand.
Article 166 of the Constitution of India read with Rules 18 and 19 of the Karnataka Government (Transaction of Business) Rules, 1977 would indicate that an order of reference required under Section 7(2-A) of the Lokayukta Act, 1984 could not be made in the form and in terms of Annexure-C to the petition. Rule 30 of the above rules sought to be relied upon by the Counsel for BBMP is not tenable to contend otherwise. The rule requires the Secretary of a Department to submit a case for orders to the Minister in-charge. And subject to his directions routine cases and cases of minor importance - such as cases covered by a Rule, policy or precedent - are disposed of by the Secretary. This obviously relates to disposal of business within the department and certainly does not enable the Secretary of the Department to make a reference on behalf of the State Government for purposes of Section 7(2-A) of the Act, by way of a demi-official letter the Principal Secretary of a Department on the letter head of the office of the Secretary addressed to the Registrar office of the Lokayukta.
Therefore, the petition is allowed. Annexures-E and G are quashed. While it would be open for the State Government, if the law so permits, to initiate fresh action in accordance with law.