Mahendra Singh Yadav Vs. the State of Madhya Pradesh - Court Judgment

1 HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION No.11722/2008 Mahendra Singh Yadav Vs. State of Madhya Pradesh & others ____________________________________________________________ Present : Hon’ble Shri Justice K.K. Trivedi ____________________________________________________________ Shri D.K. Dixit, learned Counsel for the petitioner. Shri Amit Sharma, learned Panel Lawyer for the respondents No.1 & 2. Shri Aditya Adhikari, learned Counsel for respondents No.3 & 4. Shri Sanjay Singh, lerned Counsel for respondent No.5. ____________________________________________________________ ORDER

(08/07/2013) By this petition under Article 226 of the Constitution of India, the petitioner has sought to challenge the report submitted by the respondent No.3 for taking an action against the petitioner for recovery of the amount, said to be spent unauthorizedly for the purpose of taking certain facilities. The petitioner was appointed as Chairman of the Madhya Pradesh Rajya Beej Avam Farm Vikas Nigam (herein after referred to as 'Corporation') vide notification dated 18.05.2004. According to the petitioner, he has been given the status of a Cabinet Minister by an order of the State Government issued on 5th August, 2004. According to the petitioner, he is entitled to get all the facilities which are provided to a Cabinet Minister. He was further appointed for a year as Chairman of the aforesaid Corporation vide notification dated 10th May, 2007. The said period was 2 extended by order dated 21st May, 2008 for a further period of two years. Certain actions were taken by the petitioner because of his strong administration against some of the erring officers. Out of prejudices and bias because of such strict action taken by the petitioner, a frivolous complaint was made before the Lokayukt alleging that the petitioner has taken certain facilities at the cost of the Corporation expenses without any authority and thereby has caused financial loss to the Corporation. Many other allegations were also made with respect to financial irregularities. Upon making of such a complaint, a case was registered by the Lokayukt, comments and replies were called from the Corporation, which were submitted. It was categorically contended by the Corporation that such facilities were extended to the petitioner at the cost of Corporation in view of the resolutions passed by the Corporation, in the past. It was said that no irregularity was committed by the petitioner. However, a show cause was issued to the petitioner of which the reply was submitted by him categorically denying all such allegations supported by documentary evidence but instead of considering such a reply of the petitioner in appropriate manner, the Lokayukt has given a report under Section 12 of the Madhya Pradesh Lokayukt Evam Up- Lokayukt Adhiniyam, 1981 (herein after referred to as 'Act'), to the State Government with a recommendation that amount spent by the petitioner for obtaining such facilities be recovered from him and information be given to the Lokayukt under the provisions of Section 12(2) of the Act aforesaid, therefore, the present writ petition is required to be filed.

2. It is contended that in view of such acts of Lokayukt since the petitioner is made to suffer financial loss, he is required to approach this Court by way of filing this writ petition. It is contended by the petitioner that he has No.3 committed any alleged misconduct or offence not any financial loss is caused to the Corporation by the petitioner in any manner, therefore, such a report is bad in law and liable to be quashed.

3. The petition was entertained by this Court and while issuing notices to the respondents, vide order dated 07.11.2008 it was directed that no coercive steps be taken to recover the amount in question from the petitioner. By filing a return, the Lokayukt, respondent No.3, has denied the allegations made in the petition. It is contended that since a complaint was received by the Lokayukt with respect to such illegal acts of the petitioner, enquiry was conducted, opportunity of hearing was given to the petitioner and after examining all the records, instructions of the State Government as also the circulars so issued from time to time, the Lokayukt came to the conclusion that petitioner has availed all such facilities in his capacity as Chairman of the Corporation, which otherwise were not available to him under the orders of the State Government. Since on account of availing such facilities, financial loss was caused to the Corporation, said amount was required to be deposited by the petitioner. Holding as such, a report was submitted before the State Government to take appropriate action against the petitioner. This being so, it is contended that no illegality whatsoever is committed by respondent No.3 in submitting the report or asking the State Government to comply with the suggestions made by the Lokayukt. In view of this, it is contended that the writ petition is wholly misconceived and deserves to be dismissed.

4. Respondents No.1 and 2 have filed their return and have contended that since charges levelled against the petitioner have been found proved, a report is submitted by 4 the Lokayukt under the provisions of Section 12(1) of the Act, the State Government will make the recovery of the amount from the petitioner as suggested by the Lokayukt and will submit a compliance report under Section 12(2) of the Act. It is contended that while doing so since the opportunity of hearing was given to the petitioner, it cannot be said that any illegality was committed by the Lokayukt in giving such findings. After receipt of the report of the Lokayukt, the respondent No.1 has already directed the competent authority to initiate appropriate proceedings for recovery of the amount found due against the petitioner. In view of these submissions, it is contended that the writ petition is misconceived and deserves to be dismissed.

5. A return has been filed by the respondent No.5 and he has categorically contended that there were several irregularities committed by the petitioner while he was functioning as Chairman of the Corporation and because of said reason, a complaint was made to the police for registering a criminal offence. An F.I.R. has been registered against the erring person only after obtaining an audit report, which makes it clear that the petitioner has in fact committed a criminal offence by misusing the funds of the Corporation for his personal use. It is, thus, contended that the petition is liable to be dismissed.

6. Shri D.K. Dixit, learned Counsel for the petitioner vehemently contended that in terms of the provisions of the Act, no power is available to the Lokayukt to investigate such a complaint, which does not constitute commission of an act causing financial loss to the Corporation as no personal gain to the petitioner on account of such act is alleged. It is contended that the charges of corruption are also not alleged not are found proved by the Lokayukt and, therefore, the Lokayukt would not be having the jurisdiction 5 to look into such complaint. No report whatsoever was to be submitted before the State Government not any action was required to be taken by the State Government to make any recovery from the petitioner. It is contended by learned Counsel for the petitioner that by passing the resolutions even before the appointment of the petitioner as Chairman of the Corporation, it was decided to grant certain facilities such as accommodation, expenses towards the electricity and telephone charges and the expenses towards the petrol consumption for the tours to be conducted by the Chairman. In terms of those resolutions if any facility was extended, which fact was categorically admitted by the Corporation-authorities in their reply before the Lokayukt, it was necessary on the part of the Lokayukt to close the enquiry against the petitioner. Instead a report is drawn and sent against the petitioner alleging that in terms of the instructions of the State Government, he was not entitled to certain benefits which he has obtained and, therefore, amount should be recovered from the petitioner and be deposited in the accounts of the Corporation. It is contended that since the Corporation is an autonomous body and it could have been resolved to extend certain more facilities than prescribed by the State Government to the Chairman of the Corporation, nothing wrong was committed if such facilities were made available to the petitioner at the cost of Corporation after passing of the resolutions. The Lokayukt is not required to function like Auditor and to ascertain whether any financial irregularity was committed by the petitioner while working as Chairman of the Corporation. It is, thus, submitted with vehemence that the report submitted by the Lokayukt is wholly unjustified.

7. Per contra it is submitted by learned Counsel appearing for the Lokayukt that the complaint made against 6 the petitioner contains allegation and that being so, in terms of the Rules made by the State Government, investigation was conducted and a report was submitted. If such a report is given holding that the petitioner has spent more money than his entitlement while working as Chairman of the Corporation, the said money is required to be deposited by the petitioner. That being so, it is contended that the writ petition is liable to be dismissed.

8. Heard learned Counsel for the parties at length and perused the records.

9. First of all it has to be seen whether an investigation could be initiated by the Lokayukt on a complaint made to it by the respondent No.5 against the petitioner or not and whether such allegations would constitute a cause for making enquiry or investigation under the Act ?. Section 2(a) of the Act defines the word 'allegation' in the following manner : “2.(b) “allegation”. in relation to a public servant means any affirmation that such public servant,- (i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm to any person. (ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motives; (iii) is guilty of corruption; or (iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary resources or property is held by the public servant personally or by any member of his family or by some other person on his behalf. 7 Explanation.- For the purpose of this sub-clause 'family' means husband, wife, sons and unmarried daughters living jointly with him;”. First sub-clause of this definition prescribes that in case any public servant has abused his position as such to obtain any gain or favour to himself, it would amount to an allegation, which is required to be enquired into by the Lokayukt. Since the other clauses mentioned in this sub-clause are not relevant, the same are not referred in detail but suffice it to say that there were no allegations that the petitioner, a public servant, was actuated in discharge of his functions by improper or corrupt motives as there are no allegations with respect to the charges of corruption and having in possession of pecuniary resources or property disproportionate to his known source of income.

10. The broader sense is attached to the word 'allegation' in the definition. If the petitioner was holding the post of Chairman of the Corporation, a definite allegation should have been made to the effect that he has abused his position as such to obtain any gain or favour to himself. From this aspect if the resolutions passed by the Corporation are seen, it would be clear from such resolutions that as back as in the year 1997 a resolution was passed by the Corporation to sanction Rs.7500/- per month as rent for the bungalow provided to the Chairman of the Corporation. Yet another resolution of the Corporation is brought to the notice where it was said that except the vehicles allotted to the Chairman and Vice-Chairman of the Corporation, the limit for providing petrol would be 60 liters per month. This fact that the electricity, water supply and other miscellaneous expenses on a bungalow provided to the Chairman would be borne by the Corporation was also brought to the notice of the Lokayukt. The entire allegation against the petitioner was that expenses were incurred in 8 using the bungalow allotted to the petitioner in his capacity as Chairman of the Corporation and loss was caused to the Corporation. The findings in this respect given by the Lokayukt are required to be seen. It is held in the report that the petitioner was entitled to the house rent at the rate of Rs.4000/- per month whereas the amount was spent at Rs.6750/- per month. Similarly, it was found that the petitioner has used 1450 liters petrol more than the allotted quantity of petrol and, thus, cost of petrol was also to be recovered from him. For reaching to such a conclusion in the report only this much was said that the limits were fixed by the circulars of the State Government and exceeding the said limits, expenses were done, therefore, the same was required to be recovered from the petitioner. However, in the entire report though the contentions of the petitioner were recorded but findings have not been given by the Lokayukt. If the Board of Directors of the Corporation have decided to extend certain facilities to the petitioner, while he was functioning as Chairman of the Corporation, at least it could not have been said that the petitioner was responsible or instrumental to such an act not could it be said that he has abused his position as such to obtain any gain or favour. There is nothing on record to show that this particular aspect was examined, investigated and a finding was recorded in this respect by the Lokayukt or the officer, who has conducted investigation. Thus, such a finding cannot be accepted.

11. not it has to be seen whether after enquiry if it was found that the allegation with respect to abuse of position as Chairman by the petitioner for obtaining any gain or favour was not proved, any report was required to be given by the Lokayukt against the petitioner or not. For the purposes, the scope of conducting such investigation by the Lokayukt is required to be examined. The Madhya Pradesh 9 Lokayukt Evam Up-Lokayukt (Investigation) Rules, 1982 (herein after referred to as 'Rules') have been framed in this respect. The word 'investigation' is defined in Rule 2(iv) of the Rules, which reads thus : “2(iv) “Investigation”. means any enquiry or other proceeding in connection with the complaint, but does not include a preliminary enquiry.”

. Again the word 'complaint' is mentioned in Rule 6 of the Rules. The power to regulate proceedings in investigation is conferred on Lokayukt and Up-Lokayukt under Rule 15 of the Rules and then the provisions are made in Rule 17 of the Rules for direction by the Lokayukt or Up-Lokayukt. If while conducting the investigation it was found that element of abuse of position so as to obtain any gain or favour was not established against the petitioner, specific direction could have been given by the Lokayukt in this respect to the investigating authority. It was required to be inquired whether any such decision was taken by the Corporation only because the petitioner was asking for making such a decision. If the Corporation has earlier resolved to grant certain facilities to the Chairman of the Corporation and in view of such a decision any facility was obtained by the petitioner, how could it be said that such a facility was obtained by abuse of his position by the petitioner. Nothing has been placed on record to indicate that such a fact was found proved even remotely. Therefore, to say that the allegations made against the petitioner to the extent referred in the order of the Lokayukt were made out and, therefore, such a direction was issued to make recovery from the petitioner, is wholly unjustified. In view of this, it cannot be said that the report drawn by the Lokayukt against the petitioner was just and proper or that any action was required to be taken by the State 10 Government in compliance of the report submitted by the Lokayukt.

12. Learned Counsel for the petitioner has put his reliance heavily in the case of C.K. Jaffer Sharief vs. State, AIR 201.SC 48.and has contended that without there being any element of dishonest intention to gain something, it could not have been said that the allegations made against the petitioner in complaint were even remotely proved. It is contended that on the basis of the material available on record if the allegations are examined, it will be clear that the complaint made against the petitioner was in fact nothing but a complaint actuated on prejudices and bais by some of the employees of the Corporation. That being so, the investigation initiated against the petitioner was required to be closed. The factum of law laid-down by the Apex Court in the case of C.K. Jaffer Sharief (supra) may not be applicable in the present case in view of the fact that the investigation in the said case was under Section 13(1) (d) of the Prevention of Corruption Act and not under the provisions of investigation of a complaint by the Lokayukt. Hard and fast rule of evidence may not be applicable in such circumstances because in fact the investigation conducted in respect of such complaint is not strictly an investigation as has to be conducted in a case of corruption. However, it was the authority of the Lokayukt to make the investigation in respect of the complaint made against the petitioner, as has been held by the Division Bench of this Court in the case of Kanhaiyalal Vishwakarma vs. State of M.P. and others, 2011(1) MPHT 20 It cannot be said that the investigation conducted by the Lokayukt was beyond the jurisdiction of the Lokayukt.

13. In view of the discussions made herein above, this Court would not be in a position to grant a stamp of 11 approval to the report submitted by the Lokayukt to the State Government to make recovery from the petitioner for alleged loss caused to the Corporation. Such a report submitted by the Lokayukt is, thus, liable to be quashed.

14. Consequently, this writ petition is allowed. The letter dated 19.08.2008 and the report annexed with it for taking action against the petitioner for making recovery of the amount said to be spent unauthorizedly by the petitioner is hereby quashed. However, there shall be no order as to costs. (K.K. Trivedi) Judge Skc