Jharkhand High Court
Jai Prakash Narayan Sinha vs The State Of Jharkhand Through The ... on 10 February, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.6393 of 2013
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Jai Prakash Narayan Sinha ......... Petitioner
Versus
1. The State of Jharkhand through the Principal Secretary,
Department of Forest and Environment, Government of Jharkhand,
District-Ranchi, Jharkhand
2. The Secretary, Lokayukta, having its office at-Old Jail Road, P.O.-
G.P.O., P.S.-Lalpur, District-Ranchi, Jharkhand
3. A.M. Sharma, son of-not known to the petitioner, Conservator of
Forest, Territorial Circle Dumka, P.O. and P.S.-Dumka, District-
Dumka
4. Kamrool Haque, son of Late Abdul Aziz Ali, Resident of- Village
and P.O.-Barhat, P.S.-Barhat, District-Sahebganj
.......... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Ms. Shilpi Sandil, Advocate
For the State : Mr. P.A.S. Pati, Advocate
For the Resp. No.2 : Mr. Rajesh Kumar, Advocate
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14/10.02.2022 The matter has been taken up through video conferencing
with the consent of learned counsel for the parties.
2. This writ petition is under Article 226 of the Constitution of
India, whereby and whereunder, the order dated 30.09.2013
passed by the respondent no.2 in Case No.1/Lok(Forest)/06/12
has been assailed, primarily on the ground that under the
provision of Section 12(3) and Section 12(5)(A), the Lokayukta
has got no power to direct the disciplinary authority to take
action on the basis of the fact finding report.
3. Ms. Shilpi Sandil, learned counsel appearing for the
petitioner submits, by taking aid of the order passed by this
Court in W.P.(C) No.263 of 2019 which was disposed of vide
order dated 22.04.2019, wherein, the similar issue fell for
consideration about the power as has been conferred under the
Lokayukta Act, 2001 that the writ petition may be disposed of.
4. This Court, after taking into consideration the import of the
statutory provision specifically as provided under Section 12(3)
and 12(5)(k) of the Jharkhand Lokayukta Act, 2001 has come to
the conclusive finding that the statute does not provide power for
issuance of direction upon the disciplinary authority to take
action against the erring officials.
It has been held, therein, that the statute provides power
upon the Lokayukta to make recommendation on the basis of the
fact finding if any irregularities have been surfaced in course
thereof.
The relevant paragraph of the impugned order is being
referred as under:-
"14. अतः म लोकायु अिधिनयम की धारा 12 (3) एवं 12(5)(क) म द
श यों के अंतगत इस आदे श की ित, प रवाद प , जाँ च ितवे दन, सा एवं लोकायु
अिधिनयम की धारा 10(1)(क) अंतगत िनगत नोिटस की ित सिचव, वन एवं पयावरण
िवभाग, झारख , राँ ची को भेजते ए सभी पाँ चों आरोिपत लोक सेवकों (1) ी
जे०पी०एन० िस ा, भा०व०से 0, त ालीन वन मंडल पदािधकारी, साहे बगंज, वतमान वन
संर क, ादे िशक अंचल, दे वघर (2) ी सुशील सोरे न, वन मंडल पदािधकारी, साहे बगंज
वन म ल, साहे बगंज, (3) ी सुशील कुमार साद, त ालीन वन े पदािधकारी,
सकरोगढ़, दािमन वन े , साहे बगंज, वतमान वन े पदािधकारी, सामािजक वािनकी
े , काठीकु (4) ी जॉन केरके ा, वन े पदािधकारी, बड़हरवा, साहे बगं ज तथा (5)
ी सुरेश रिवदास, त ालीन वनपाल, सकरोगढ़, साहे बगंज, वतमान वनपाल, बरहेट बीट,
साहे बगंज को त ाल भाव से अपने काय से िनलंिबत करने, इनके िव ाथिमकी
दज करने एवं िवभागीय कारवाई ारं भ करने की अनुशंसा करता ँ तािक भिव म इस
तरह की घटनाओं की पुनरावृि रोकी जा सके तथा यह आदे िशत िकया जाता है िक
यथा िविहत तीन महीनों के अ र आरोिपत लोक सेवकों के िव की गई कारवाई की
सूचना द।"
5. It also requires to refer the relevant paragraph of the order
passed in W.P.(C) No.263 of 2019 which reads as under:-
"19. As has been referred hereinabove by referring to
the impugned order, wherein, the recommendation has
been made to the Director General, Anti-Corruption
Bureau to institute an FIR and submit action 18 taken
report and when the recommendation is with the action to
be taken it cannot be said to be recommendation in the eye
of law and keeping the provision of Section 12 of the Act,
2001 wherein only recommendation is to be made by the
Hon'ble Lokayukta leaving it open to the competent
authority to take action and to submit action taken report
and in case of dissatisfaction the Hon'ble Lokayukta will
prepare special report with the finding and again submit
it before the Governor and also inform the complainant
concerned and as per the provision made under Section
5A whether in a report forwarded by the Hon'ble
Lokayukta any recommendation imposing the penalty of
removal from the office of the public servant had been
made, it shall be lawful for the Governor without any
further enquiry to take action on the basis of the said
recommendation for the removal of such public servant
from his office and for making his ineligible for being
elected to any office, meaning thereby a recommendation
imposing the penalty of removal is to be made by the
Hon'ble Lokayukta only after exhausting the provision as
contained in subsection 3, 4 and 5 of Section 12 but that
stage has not yet reached as because at the stage of Section
12(3) the recommendation along with the proposal to
institute an FIR has been made which is not to be done in
view of the provision of Subsection 3 of Section 12
whereby and whereunder he shall by a report in writing
communicate his finding and recommendations along
with the relevant documents/materials and other evidence
to the competent authority, that provision does not reflect
that the recommendation by giving a proposal to institute
an FIR or to take any penalty is to be made by the Hon'ble
Lokayukta before coming to the stage of subsection 4 of
Section 12.
In view of the entirety of the fact and circumstances,
the recommendation having been made by the Hon'ble
Lokayukta cannot be said to be in consonance with the
statutory provision as contained in Act, 2001 and for that
the matter could have been remitted before the Hon'ble
Lokayukta but considering the nature of allegation if it
will be remitted it will time consuming and therefore, this
Court being given power conferred under Article 226
deem it fit and proper instead of removing the matter to
pass a fresh order to modify the order impugned in terms
as indicated hereinbelow the direction part wherey and
whereunder the recommendation to institute an FIR has
been made the same is held to be not in consonance with
subsection 3 of Section 12 of the Act, 2001 and therefore
the said part of the order is quashed and the impugned
order is modified to the extent to treat the order impugned
as recommendation of the Hon'ble Lokayukta in terms of
the provision as contained in Section 12(3) of the Act
2001.
Although this Court is interfering with the direction
part of the Hon'ble Lokayukta, keeping the provision of
law into consideration, as discussed above, that does not
be construed to be an interference with the findings of
recommendation, as has been recommended/recorded by
the Hon'ble Lokayukta for the reason that the High Court
sitting under Article 226 of the Constitution of India,
cannot exercise the power of appeal, sitting over upon the
findings given by the Hon'ble Lokayukta, based upon
various evidence came before it by virtue of the enquiry
reports.
Therefore, the authority before whom, the finding
along with the recommendation has been sent, is directed
to act strictly in pursuance to the provision of Section 12
of the Act, 2001, so that the purpose for which, the
Lokayukta Act, 2001 as has been enacted, be achieved,
keeping this into consideration the Chief Secretary of the
State is directed to ensure compliance of this order.
Further, it is directed that the authority will not
be prejudiced in any way while acting as per the
recommendation and will take a decision without being
prejudiced by this order.
Needless to say that the authority will follow the
time schedule, as stipulated in the provision of law.
The writ petition stands disposed of with the
observations and direction aforesaid."
6. Learned counsel appearing on behalf of the parties at bar
has submitted that the order passed in W.P.(C) No.263 of 2019
has not been assailed before the Higher Forum and as such, the
same has attained its finality.
Learned counsel for the respondents has not made
opposition to the submissions made on behalf of the petitioner,
rather fairly submits that the writ petition may be disposed of in
terms of the order dated 22.04.2019 passed in W.P.(C) No.263 of
2019.
7. This Court after taking into consideration the judgment
passed in the aforesaid case (W.P.(C) No.263 of 2019) and putting
reliance upon the aforesaid paragraph as quoted and referred
above, is of the view that the instant writ petition can be disposed
of on the basis of the aforesaid order.
8. This Court, has come to the fact of the given case and gone
across the order passed by the learned Lokayukta in order to test,
as to whether the order passed therein is a recommendation or a
direction.
9. Ms. Shilpi Sandil, learned counsel appearing for the
petitioner has submitted by referring to paragraph-14 of the
aforesaid order, wherein the learned Lokayukta has
recommended for suspending the petitioner along with others as
also instituting an FIR and to initiate departmental proceeding.
She further submits that if the order would have been up to
the stage of recommendation, the matter would have been
different, but if the next part of the said direction will be seen
which contains a direction upon the concerned competent
authority to whom the recommendation has been made, to
inform about the action taken report.
According to her, if the authorities making
recommendation, since it is not binding upon the decision taking
authority having the competency to take decision to follow the
recommendation, is not required to know about its outcome.
Since, therein the outcome is to be communicated to the
Lokayukta, which suggest that the same is a direction in the garb
of recommendation.
10. However, Mr. P.A.S. Pati, learned counsel appearing for the
State as also Mr. Rajesh Kumar, learned counsel appearing for the
learned Lokayukta have submitted that the contention which has
been raised by the learned counsel for the petitioner is not correct
in view of the fact that only recommendation has been made by
the learned Lokayukta and merely because the outcome of the
recommendation has been directed to be communicated to the
Office of the learned Lokayukta that cannot be construed to be a
direction in the strict sense.
11. This Court, has considered the rival submissions on behalf
of the parties and gone across the impugned order more
particularly the operative part of the order impugned at
paragraph-14 thereof and found therefrom that the order has
been passed making the recommendation to the competent
authority to suspend the petitioner along with other public
servants whose names has been referred at paragraph-14 of the
impugned order and to initiate departmental proceeding, apart
from that, an FIR has also been recommended to be instituted.
It further appears that after making such recommendation,
the stipulation has been made to the effect that such
recommendation is being made, so that, in future such
occurrence may not be repeated.
Further, the order has been passed upon the concerned
authority to communicate the Office of the learned Lokayukta
about the action taken report within the period of three months.
Thus, it is evident that the order impugned, initially,
contains recommendation of suspending the public servants and
initiating the departmental proceeding against them as also
instituting an FIR. If the order would have been up to the stage of
recommendation, then it would have been said to be in
consonance with the provision of Section 12(3) and 12(5)(k) under
which the power has been conferred by the Lokayukta to take
decision by making recommendation before the competent
authority, so that, the recommendation, if required be acted
upon.
But the stipulation as has been made to the effect that such
recommendation is being made, so that, such occurrence may not
be repeated and the action taken report be also furnished within
the period of three months, is changing the nature of
recommendation making it as a direction.
12. Therefore, according to the considered view of this Court,
since the provision of Section 12(3) does not confer power upon
the Lokayukta to pass such direction commanding upon the
disciplinary authority to take action against whom irregularities
have been found to be true in course of inquiry.
13. This Court, relying upon the judgment rendered by this
Court in W.P.(C) No.263 of 2019, is of the view that the order
passed by the Lokayukta (impugned) is required to be modified
to the extent that the aforesaid order will be treated to be
recommendation.
14. Therefore, the authority before whom, the finding along
with the recommendation has been sent, is directed to act strictly
in pursuance to the provision of Section 12 of the Act, 2001, so
that the purpose for which, the Lokayukta Act, 2001 as has been
enacted, be achieved, keeping this into consideration the Chief
Secretary of the State is directed to ensure compliance of this
order.
Further, it is directed that the authority will not be
prejudiced in any way while acting as per the recommendation
and will take a decision without being prejudiced by this order.
15. In view thereof, the instant writ petition stands disposed of.
16. In consequence thereof, I.A.No.2043 of 2016 and
I.A.No.7980 of 2013 stand disposed of.
(Sujit Narayan Prasad, J.)
Rohit/-
