The Registrar vs Dr Dakshayini K
2021 Latest Caselaw 2133 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF JUNE, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

         WRIT PETITION No.58804/2016 (S - KAT)

BETWEEN :
THE REGISTRAR
KARNATAKA LOKAYUKTA
M.S.BUILDING
Dr. AMBEDKAR VEEDHI
BANGALORE - 560001                            ...PETITIONER

             (BY SRI VENKATESH S. ARBATTI, ADV.)

AND :
1.      Dr. DAKSHAYINI K.,
        D/O LATE KARUNAMURTHY
        AGED ABOUT 39 YEARS,
        K.A.S. (JUNIOR SCALE) OFFICER
        WORKING AS DEPUTY DIRECTOR (PLAN)
        MINES AND GEOLOGY DEPARTMENT
        KHANIJA BHAVAN, RACE COURSE ROAD,
        BANGALORE - 560001

        R/AT No.57, 2ND CROSS,
        3RD MAIN, KATRIGUPPE EAST
        BANASHANKARI III STAGE
        BANGALORE- 560085

2.      THE STATE OF KARNATAKA
        REP BY ITS PRINCIPAL SECRETARY
        REVENUE DEPARTMENT
                        -2-

     MULTISTORIED BUILDING
     BANGALORE - 560001

3.   THE PRINCIPAL SECRETARY TO GOVERNMENT
     URBAN DEVELOPMENT DEPARTMENT
     VIKASA SOUDHA, BANGALORE - 560001

4.   THE PRINCIPAL SECRETARY TO GOVERNMENT
     DEPARTMENT OF PERSONNEL
     AND ADMINISTRATIVE REFORMS
     VIDHANA SOUDHA
     BANGALORE - 560001               ...RESPONDENTS

          (BY SRI MANMOHAN P.N., ADV. FOR R-1;
      SRI R.SUBRAMANYA, ADDL. ADV. GENERAL A/W
          SRI A.C.BALARAJ, AGA FOR R-2 TO R-4.)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 29.04.2016 PASSED IN APPLICATION No.2249/2016 BY
THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL AT
BANGALORE AS PER ANNEXURE-A.

     THIS PETITION HAVING BEEN HEARD AND RESERVED,
COMING   ON   FOR PRONOUNCEMENT OF ORDER, THIS DAY,
S. SUJATHA, J., PASSED THE FOLLOWING:


                      ORDER

This writ petition is filed by the petitioner

challenging the order dated 29.04.2016 passed in

Application No.2249/2016 by the Hon'ble Karnataka

State Administrative Tribunal, Bangalore.

2. A preliminary objection has been raised in

this Writ Petition inasmuch as the maintainability of the

Writ Petition filed by the Institution of Lokayukta in

challenging the order dated 29.04.2016 passed in

Application No.2249/2016 on the file of the Karnataka

State Administrative Tribunal, Bangalore ('Tribunal' for

short).

BACKGROUND

3. The genesis of the case relates to the

complaint filed by one Sri.A.P.L.Ranganath before the

Tribunal against the respondent No.1-Dr.Dakshayini K.,

a K.A.S. (Junior Scale) officer who was working as

Special Tahsildar, KGF, Bangarpet Taluk during March

2008. It transpires that the said officer was placed in

charge of the post of Commissioner, KGF Urban

Development Authority from 11.03.2008 to 19.09.2008

in view of transfer of Sri.Nusrat Ulla Shariff, who was

working in the said post. It was alleged in the

complaint that the concerned Authorities had not taken

any action against one Sri.Munirathna Naidu who had

put up unauthorized construction in Sy.Nos.193/2 and

196 of Bethamangala. Hon'ble Upa-Lokayukta had

conducted an investigation in the matter under the

Karnataka Lokayukta Act, 1984 ('Act' for short). A

report dated 04.06.2014 was submitted to the

competent Authority by the Hon'ble Upa-Lokayukta

under Section 12(3) of the Act recommending initiation

of departmental enquiry against the respondent No.1

and one Sri.P.G.Ravindra, Village Accountant,

Bethamanagla Gram Panchayath. Pursuant to which,

the respondent No.2 passed the order dated 12.02.2016

directing initiation of departmental enquiry against the

respondent No.1 and Sri.P.G.Ravindra, thereby

entrusting the matter to the Hon'ble Upa-Lokayukta.

The said order dated 12.02.2016 was challenged by the

respondent No.1 before the Tribunal mainly on the

ground that the said order was not in conformity with

Section 12[4] of the Act. The Tribunal after hearing

both the parties, allowed the Application No.2249/2016

filed by the respondent No.1 quashing the order dated

12.02.2016 passed by the respondent No.2 whereby

initiation of departmental enquiry was directed against

the respondent No.1 entrusting the same to the Hon'ble

Upa-Lokayukta and all further proceedings pursuant to

the same against respondent No.1 reserving liberty to

the respondent No.2 to re-examine the report sent

under Section 12(3) of the Act and take appropriate

action in the matter in accordance with law. This order

of the Tribunal has been challenged by the Registrar,

Karnataka Lokayukta, in the present writ petition filed

under Article 226 of the Constitution of India.

4. Learned counsel for the respondent No.1 has

filed the statement of objections along with Annexure-

R1, the copy of the order dated 25.08.2016 passed by

the respondent No.2, whereby the respondent No.2 has

rejected the recommendation of the Hon'ble Upa-

Lokayukta made in the report under Section 12(3) of the

Act. The main objection raised is to the maintainability

of the writ petition inter alia contending that the Writ

Petition itself has rendered infructuous in view of the

order of the respondent No.2 dated 25.08.2016 insofar

as the respondent No.1 is concerned.

ARGUMENTS

5. Learned counsel for the petitioner

vehemently argued on the maintainability of the Writ

Petition referring to host of cases vis-à-vis the statement

of objects and reasons to the Act. It was argued that

the object of the Act is to perform enquiries into

administrative action relatable to matters specified

under Lists 2 and 3 of the Seventh Schedule of the

Constitution of India. The institution of Lokayukta has

been established to curb the mal administration by

looking into complaints against administrative actions

including cases of corruption, favoritism and official

indiscipline in the administrative machinery. Thus the

institution of Lokayukta is entrusted with the main

object of weeding out corruption. It was submitted that

while exercising the powers under the provisions of the

Act, the Hon'ble Lokayukta and the Hon'ble Upa-

Lokayukta are performing investigative functions, while

doing so, they also act as a quasi-judicial authority. The

Hon'ble Lokayukta/Hon'ble Upa-Lokayukta are thus

playing multifarious roles under the provisions of the

Act including the role of investigation, enforcement,

quasi- judicial determination of the rights of the parties,

prosecution of the errant public servant and protecting

the rights of the aggrieved persons. Accordingly, the

representatives of the Hon'ble Lokayukta/Hon'ble Upa-

Lokayukta are arrayed as parties in the proceedings

before the Tribunal and they are also heard in the said

proceedings after providing an opportunity to file their

statement of objections. In these circumstances, the

institution of Lokayukta certainly has locus standi to

challenge the proceedings of the Tribunal before this

court on merits. It was submitted that the Hon'ble

Tribunal has set aside the order dated 12.02.2016

mainly for want of compliance of section 12[4] of the Act

which indeed is an erroneous order for the reason that

the respondent No.2 had meticulously considered all the

material aspects as well as the reply submitted by the

respondent No.1.

6. Learned counsel appearing for respondent

No.1 strenuously argued that the Hon'ble

Lokayukta/Hon'ble Upa-Lokayukta being an enquiry

officer on delegation of power simplicitor for the cases

referred under Rule 14-A of the Karnataka Civil Services

(C.C.A) Rules, 1957 ('Rules' for short) is either an

aggrieved party or has locus to question the impugned

order. In view of the order dated 25.08.2016 (Annexure-

R1) passed by the respondent No.1, the Writ Petition

has become infructuous. The respondent No.1 was the

incharge officer of the Commissioner, KGF Urban

Development Authority only from 11.03.2008 to

19.09.2008. For the allegations of no action taken

against Sri.Munirathna Naidu for putting up

unauthrorised construction in Sy.Nos.193/2 and 196 in

Bethamangala, the respondent No.1 had filed a detailed

reply pursuant to the notice issued by the Hon'ble Upa-

Lokayukta. As the report under Section 12(3) sent by

the Hon'ble Lokayukta being recommendatory in

nature, it was mandatory on the part of the respondent

No.2 to examine the contents of the report as well as

the reply submitted by the respondent No.1 and

Sri.Munirathna Naidu along with the complaint filed by

Sri.A.P.L.Ranganath. There being no semblance of

reference to the reply submitted by respondent No.1,

the Tribunal has rightly come to the conclusion that

there was no application of mind by the respondent

No.2 in passing the order dated 12.02.2016.

Accordingly, quashed the said order reserving liberty to

the respondent No.2 to re-examine the order of the

Hon'ble Upa-Lokayukta and take appropriate action in

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accordance with law in compliance with the direction

issued by the Tribunal. The respondent No.2 has re-

examined the matter and has passed the order dated

25.08.2016 rejecting the recommendation made by the

Hon'ble Upa-Lokayukta in the report submitted under

Section 12(3) of the Act assigning valid reasons as far as

respondent No.1 is concerned. In view of the said

order, the Writ Petition does not survive for

consideration.

7. Learned Addl. Advocate General appearing

for respondent Nos.2 to 4 submitted that Hon'ble Upa-

Lokayukta is an inquiring officer, the enquiry was

entrusted to Karnataka Lokayukta under Rule 14-A of

the Rules for holding an enquiry and to submit the

report retaining the power of imposing any penalties

with the Government itself under Rule 14(A)(2)(e) of the

Rules. The role of the Hon'ble Lokayukta/Hon'ble Upa-

Lokayukta is that of the Inquiring Authority on

delegation of power by the Government. The Rules being

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self contained code in every sense i.e., the procedure to

be adopted by the Hon'ble Lokayukta/Upa-Lokayukta

for conducting enquiry is indicated and mandated

under Rule 14-A(2)(c) which contemplates it to follow

procedure prescribed under Rule 11(2) of the Rules. It

was argued that under Rule 11-A, role and powers of

the State Government and Inquiring authority is

separated. No powers can be invoked by the Hon'ble

Lokayukta/Hon'ble Upa-Lokayukta under the Act while

enquiring under Rule 14-A of the Rules. Though all the

enquiries are to be conducted by the parent Department

in the normal course, due to administrative

contingencies, the enquiries are entrusted to the

Hon'ble Lokayukta/Hon'ble Upa-Lokayukta under the

Rules. There is limited delegation of power to hold

enquiry against its officers or the omissions and

commissions. If the order of reference under Rule 14-A

of the Rules is quashed, then the Government of

Karnataka becomes the aggrieved party and not the

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Hon'ble Lokayukta/Hon'ble Upa-Lokayukta under the

scheme of the Rules. At most, the Hon'ble Lokayukta

would be discharging judicial functions in an enquiry

entrusted to it by the Government of Karnataka. Hence,

the Hon'ble Lokayukta/Upa-Lokayukta exercising the

powers of an Enquiry Officer cannot be said to be an

aggrieved party if the proceedings are terminated.

Moreover, the role of the Hon'ble Lokayukta cannot be

equated to an "aggrieved party" in adversary litigation.

Further, under Karnataka Litigation Rules, the

Government of Karnataka is required to authorize by

special order for filing Writ Petition on its behalf. No

such authorization is issued.

8. It is apt to refer to the relevant provisions of

the Act, Rules and the Karnataka Administrative

Tribunal's Act for appreciating the arguments addressed

by the learned counsel appearing for the parties

regarding the core issue involved in the Writ Petition,

viz., the maintainability of the Writ Petition.

- 13 -

RELEVANT PROVISIONS

9. This Act has come into force on 15.01.1986

by Notification No.DOPAR 24 KLU 85(1), dated

15.01.1986, Karnataka Gazette Extraordinary, dated

15.01.1986.

Statement of objects and reasons appended to the

Act reads thus:

"Act 4 of 1985.- The administrative reforms commission had recommended the setting up of the institution of Lokayukta for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in administration machinery.

One of the election promises in the election manifesto of the Janatha Party was the setting up of the institution of the Lokayukta.

The Bill provides for the appointment of a Lokayukta and one or more Upalokayuktas to investigate and report on allegations or grievances relating to the conduct of public servants.

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The public servants who are covered by the Act include,-

(1) Chief Minister;

(2) all other Minister and members of the State Legislature;

(3) all officers of the State Government;

(4) Chairmen, Vice-Chairmen of Local Authorities, statutory bodies, or corporations established by or under any law of the State Legislature, including Co-operative societies.

(5) Persons in the service of Local Authorities, Corporations, owned or controlled by the State Government, a company in which not less than fifty-one percent of the shares are held by the State Government, Societies registered under the Societies Registration Act, Co-operative Societies and Universities established by or under any law of the Legislature.

Where, after investigation into a complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration that the post held by him, and the declaration is accepted by the Competent Authority, the public servant concerned, if he is a Chief Minister, or any other Minister or Member of State Legislature shall resign his office and if he is any other non-official shall be deemed to have

- 15 -

vacated his office, and, if an official, shall be deemed to have been kept under suspension , with effect from the date of the acceptance of the declaration.

If after investigation, the Lokayukta is satisfied that the public servant has committed any criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law for such prosecution shall be deemed to have been granted.

The Vigilance Commission is abolished. But all inquiries and investigations and other disciplinary proceedings pending before the Vigilance Commission will get transferred to the Lokayukta.

               There       are      other    incidental       and
        consequential provisions.
               Hence this Bill."

10. Subsequently certain amendments are made

to the Act. The relevant amendment and the statement

of objects and reasons to the said amendment reads

thus:

- 16 -

"Amending Act 25 of 2010 - It is considered necessary to make the following amendments to the Karnataka Lokayukta Act, 1984 to enable the Karnataka Lokayukta to function more effectively, namely:-

(i) to include the Chief Secretary, Additional Chief Secretary, Principal Secretary and Secretary-II to Government within the meaning of the word "Secretary";

(ii) to confer upon the Lokayukta the suo-motu power to hold investigation on recording his opinion, into the action taken by the public servants whose fixed pay, salary or remuneration of more than twenty thousand per month except the Chief Minister, Ministers, Members of the State Legislature and the persons nominated by the State Government to the Boards, Corporations, Government companies, Co- operative Societies and societies as Chairman, Vice-Chairman or member;

(iii) to enable the Lokayukta to discharge the functions of the Upalokayukta when the office of the Upalokayukta is vacant and similarly to enable the Upalokayukta to discharge the functions of the Lokayukta when the office of the Lokayukta is vacant;

- 17 -

(iv) to enable the legal heirs of an aggrieved person to file a complaint or to pursue the complaint already made;

(v) it is laid down that the Lokayukta and the Upalokayukta can utilize the services of any other Agency. This means any person also. However, in the interest of clarity the amendment is proposed to the effect that the Lokayuktha and the Upalokayuktha can utilize the services of any person also.

Hence, the Bill."

11. Under the scheme of the Act, Hon'ble

Lokayukta and Hon'ble Upa-Lokayukta are appointed

under Section 3 of the Act for the purpose of conducting

investigations and enquiries in accordance with the

provisions of the Act. As per the recommendations made

by the Administrative Reforms Commission, the

institution of Lokayukta should deal with all cases of

corruption. In addition there to, the main features of the

institution of Lokpal or Lokayukta identified by the

Administrative Reforms Commission's Report and

approved by the Hon'ble Apex Court in Justice

- 18 -

Chandrashekaraiah (Retd.) Vs. Janekere C. Krishna

and others1 are as under:

(a) They should be demonstrably independent and impartial;

(b) Their investigations and proceedings should be conducted in private and should be informal in character;

(c) Their appointment should, as far as possible, be non-political;

(d) Their status should compare with the highest judicial functionaries in the country;

(e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favoritism;

(f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties; and

(g) They should not look forward to any benefit or pecuniary advantage from the executive Government.

12. Matters which may be investigated by the

Hon'ble Lokayukta and Hon'ble Upa-Lokayukta are

AIR 2013 SC 726

- 19 -

contemplated under Section 7[1] and [2] of the Act.

Notwithstanding the same, the Hon'ble

Lokayukta/Hon'ble Upa-Lokayukta may investigate any

action which is taken by or with the general or specific

approval of, any public servant, if it is referred to him by

the State Government as per section 2-A inserted by Act

No.25 of 2010 w.e.f. 23.7.2010. Matters which cannot

be the subject of investigation by the Hon'ble

Lokayukta/Upa-Lokayukta is contemplated in

Section 8.

13. Section 9 of the Act deals with the

complaints and investigations. As per Section 9[3],

where the Lokayukta or an Upa-Lokayukta proposes,

after making such preliminary inquiry as he deems fit,

to conduct any investigation under the Act, he,-

(a) shall forward a copy of the complaint and in the case of an investigation initiated suo moto by him, the opinion recorded by him to initiate the investigation under sub-section (1) or (2), as the case may

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be, of Section 7 to the public servant and the competent authority concerned;

(b) Shall afford to such public servant an opportunity to offer his comments on such complaint or opinion recorded under sub-section(1) and (2) of Section 7 as the case may be;

(c) May make such order as to the safe custody of documents relevant to the investigation, as he deems fit.

14. Section 10 empowers Hon'ble

Lokayukta/Hon'ble Upa-Lokayukta to exercise powers

in relation to search and seizure. Section 11 deals with

the production and recording of evidence. Section 12

deals with the reports of Lokayukta. As per section

12[1], if after investigation of any action involving a

grievance has been made, the Lokayukta or an Upa-

Lokayukta is satisfied that such action has resulted in

injustice or undue hardship to the complainant or to

any other person, the Lokayukta or an Upa-Lokayukta

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shall, by a report in writing, recommend to the

Competent Authority concerned that such injustice or

hardship shall be remedied or redressed in such

manner and within such time as may be specified in the

report. In terms of section 12(2), the Competent

Authority to whom a report is sent under sub-section (1)

shall, within one month of the expiry of the period

specified in the report, intimate or cause to be intimated

to the Lokayukta or the Upa-Lokayukta the action taken

on the report. As per Section 12[3], if, after

investigation of any action involving an allegation has

been made, the Lokayukta or an Upa-Lokayukta is

satisfied that such allegation is substantiated either

wholly or partly, he shall by report in writing

communicate his findings and recommendations along

with the relevant documents, materials and other

evidence to the Competent Authority. The Competent

Authority shall examine the report forwarded to it under

sub-section (3) and within three months of the date of

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receipt of the report, intimate or cause to be intimated

to the Hon'ble Lokayukta or the Hon'ble Upa-Lokayukta

the action taken or proposed to be taken on the basis of

the report as per sub-section(4). A special report could

be made by the Hon'ble Lokayukta or the Upa-

Lokayukta to the Governor and also inform the

Competent Authority concerned and the complainant as

per sub-section [5]. Section 14 provides that if after

investigation into any complaint the Hon'ble Lokayukta

or an Upa-Lokayukta is satisfied that the public servant

has committed any criminal offence and should be

prosecuted in a court of law for such offence, then, he

may pass an order to that effect and initiate prosecution

of the public servant concerned and if prior sanction of

any authority is required for such prosecution, then,

notwithstanding anything contained in any law, such

sanction shall be deemed to have been granted by the

appropriate authority on the date of such order.

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15. Rule 14-A of the Rules reads thus:

      "14-A         -   Procedure                in       cases
      entrusted           to        the         Lokayukta:(1)

The provisions of sub-rule (2) shall, notwithstanding anything contained in Rules 9 to 11-A and 13, be applicable for purposes of proceeding against Government Servants whose alleged misconduct has been investigated into by the Lokayukta or an Upalokayukta either under the provisions of the Karnataka Lokayukta Act, 1984 or on reference from Government or where offences alleged against them punishable under the Prevention of Corruption Act, 1947, or the Prevention of Corruption Act, 1988 has been investigated by the Karnataka Lokayukta Police before 21st day of December, 1992."

      (2)     (c)         The             Lokayukta,            the
      Upalokayukta                  or          the      Officer

authorised under clause (b) to conduct an inquiry shall conduct it in

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accordance with the provisions of rule 11 in so far as they are not inconsistent with the provisions of this rule and for that purpose shall have the powers of the Disciplinary Authority referred to in the said Rule.

(d) After the inquiry is completed, the record of the case along with the findings of the Inquiring Officer and the recommendation of the Lokayukta or the Upalokayukta, as the case may be, shall be sent to the Government.

(e) On receipt of the record under clause (d) the Government shall take action in accordance with the provisions of Rule 11-A and in all such cases the Government shall be the Disciplinary Authority competent to impose any of the penalties specified in Rule 8.

16. Section 19(1) of the Administrative Tribunals

Act, 1985 ['Act, 1985' for short] provides for applications

to the Tribunals subject to the other provisions of this

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Act,1985. As per this provision, a person aggrieved by

any order pertaining to any matter within the

jurisdiction of a Tribunal may make an application to

the Tribunal for the redressal of his grievance under

this provision.

17. As per Section 27 of the Act, 1985, the order

of the Tribunal finally disposing of an application or an

appeal shall be final and shall not be called in question

in any Court (including a High Court) and such order

shall be executed in the same manner in which any

final order of the nature referred to in clause (a) of sub-

section(2) of Section 20 (whether or not such final order

had actually been made) in respect of the grievance to

which the application relates would have been

executed.

18. However, it is the basic foundational

principle of jurisprudence in our country that every

order passed by judicial, quasi-judicial or administrative

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Authority, even though may attain finality under the

respective statute, the same will still be the subject of

the writ jurisdiction of the Hon'ble High Court as held

by the Hon'ble Apex Court in Chandra Kumar Vs.

Union of India2.

DECISIONS

19. In State of Karnataka, Department of

Transport and Another Vs. Sri. Shivanand B

Magadum and others3, the Division Bench of this

Court while considering Rule 14-A(2)(a)(ii) and (b) of the

CCA Rules held that though the language under section

14-A(2)(a)(iii) of the CCA Rules uses the word "may" but

further uses the word "either" to direct an inquiry into

the case by Lokayukta or Upa-Lokayukta or to direct

the appropriate authority to take action in accordance

with Rule 12. In case of major penalty or holding of

inquiry under Rule 11 of the Rules, if the investigation

1997 (3) SCC 261

ILR 2016 KAR 5131

- 27 -

is made by Lokayukta or the Upa-Lokayukta or

Inspector General of Police of Lokayukta and the report

of the investigation with the recommendation is

forwarded to the Government, it would be required for

the Government to direct entrustment of the inquiry to

Lokayukta or Upa-Lokayukta, in case of major penalty

(for holding enquiry as per Rule 11 of the CCA Rules) or

to direct appropriate disciplinary authority for minor

penalty (in accordance with Rule 12 of the CCA Rules).

This judgment was rendered in the context of an

enquiry initiated under Rule 11 of the CCA Rules,

investigation was made by Hon'ble Lokayukta under the

Lokayukta Act and the report and the recommendations

were forwarded to the Government whereas the enquiry

was entrusted to the high power committee constituted

by the Government.

20. In the case of Sri.J.P.Prakash Vs. The State

of Karnataka (W.P.No.5361/2016 D.D. 6.4.2016) the

Division Bench of this Court has held that when the

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Lokayukta has recommended for initiation of the

enquiry under Section 12(3) of the Act, the Government

cannot go behind the recommendation made by the

Hon'ble Lokayukta unless the order of the Upa-

Lokayukta is set aside by the competent court or only in

exceptional circumstances and on a very strong ground

can the Government make a departure. It is thus held

that the scope of enquiry even at the stage when the

recommendation is made under Section 12(3) of the Act

by Hon'ble Lokayukta, at the level of State Government

cannot be so wide as it would result in permitting the

Government to exercise the appellate power against the

recommendation made by the Hon'ble Lokayukta under

Section 12(3) of the Act. These observations are made

in the context of the challenge made to the order of the

Hon'ble Lokayukta under Section 12(3) of the Act before

the Tribunal. Indeed there was no challenge to the

order of the Hon'ble Lokayukta under Section 12(3) of

the Act, prior to Government acting upon the said order

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and it was only after the order was passed for initiation

of enquiry, the challenge was made to the order of the

Hon'ble Lokayukta under Section 12(3) of the Act.

21. In Sri. Gopal Hanumanth Kase Vs. The

State of Karnataka4 the Division Bench of this court

referring to the case The Karnataka Lokayukta and

another Vs. Sri. H.N.Niranjan (W.P.No.43079/2015

D.D.6.3.2017) and Mr.Jayaprakash K. Vs. State of

Karnataka and others (W.P.No.23522/2016 D.D.

4.10.2016) has observed thus:

"A content of the report made in this case under Section 12(3) of the Act of 1984 (Annexure- K), particularly paragraphs 6 and 7 thereof, make it clear that the Upalokayukta definitely took into account the replies/comments of the petitioner and found the same not acceptable so as to drop the proceedings against him. Similarly, the order passed by the Government, as the Competent Authority, for entrusting the matter to the Upalokayukta for instituting departmental inquiry cannot be said to be suffering from non-

ILR 2018 KAR 2347

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     application    of   mind.    Therein,       the   gist    and
     substance      of    the    report     made        by      the

Upalokayukta has been taken note of and it has been indicated that after perusal of the report and the documents enclosed therewith, the Government decided to institute the inquiry.

In our view, at the given stage of entrusting the matter for inquiry, the Government, as the Competent Authority, was not expected to enter into a detailed or even a summary inquiry with consideration of reply/defence of the petitioner. The impugned order dated 07.12.2017, read as a whole, makes it clear that the satisfaction of the Competent Authority about existence of the prima facie case has been indicated therein and that had been sufficient compliance of the requirement of law."

22. In the case of The Karnataka Lokayukta

Vs. H.N.Niranjan, supra, it is observed thus:

"4. It is not the case of the petitioner herein, that the State Government has independently considered the matter under Section 12(4) of the Lokayukta Act and thereafter had passed the order. But the only contention

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raised by the learned counsel appearing for the petitioner is that in the preamble of the order the State Government has referred to the contents of the recommendation of the Lokayuktha and therefore it may be considered as deemed consideration by the State Government and resultantly compliance to Section 12(4) of the Act.

5. We are afraid that such contention can be accepted. What is required to be considered as per the provisions of 12(4) of the Act is consideration and application of mind by the Government for concurring with the opinion of Lokayuka, for initiation of the enquiry. When there is no examination of the case by the Government under Section 12(4) of the Act, it cannot be said the Tribunal has committed any error which may call for any interference by this court.

6. Apart from the above, the petition is by the Lokayukta and not by the State Government."

23. In W.P.No.29101/2018 (The Hon'ble

Lokayukta & another Vs. Sri. K.G.Anantha

Narayana and another D.D. 22.11.2018), the

Division Bench of this court has held thus:

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" The petitioners have no locus standi insofar as challenging the order of the Tribunal dated 25.1.2018 since the very Entrustment of Enquiry dated 25.10.2013 and consequential proceedings of framing of charges have been set aside on the score that Entrustment is without appreciation of mind. When framing of charges by the petitioners is pursuant to the Entrustment order itself is held to be bad. Consequently further proceedings of framing of charges have to go. Unless the Government takes decision or implementing the order of the Tribunal, till then, the petitioners have no locus standi. Thus, they have not made out any ground to interfere with the order of the Tribunal."

24. Sri. H.N.Niranjan and Sri. K.G.Anantha

Naryaana, supra would indicate that the State

Government is the 'aggrieved person' insofar as the

order of the Tribunal setting aside the order passed

under Section 12(4) for non-compliance of Section 12(4).

It has been held that consideration and application of

mind by the Government for concurring with the

opinion of Lokayukta for initiation of the enquiry are

- 33 -

sine qua non and non-compliance of the same would be

fatal to the case.

25. In the case of Justice Chandrashekaraiah

(Retd.) vs. Janekere C. Krishna and Others1, the

Hon'ble Apex Court has extensively dealt with the

scheme of the Act and observed thus:

"25. The provisions discussed above clearly indicate that the functions to be discharged by Lokayukta or Upa Lokayukta are investigative in nature and the report of Lokayukta or Upa Lokayukta under sub-sections (1) and (3) of Section 12 and the Special Report submitted under sub-section (5) of Section 12 are only recommendatory. No civil consequence as such follows from the action of Lokayukta and Upa Lokayukta, though they can initiate prosecution before a competent court. I have extensively referred to the object and purpose of the Act and explained the various provisions of the Act only to indicate the nature and functions to be discharged by Lokayukta or Upa Lokayukta under the Act.

- 34 -

30. Lokayukta and Upa Lokayukta while exercising powers under the Act, of course, is acting as a quasi judicial authority but it functions are investigative in nature. The Constitution Bench of this Court in Nagendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam and others AIR 1958 SC 398 held whether or not an administrative body or authority functions as purely administrative one or in a quasi-judicial capacity, must be determined in each case, on an examination of the relevant statute and rules framed thereunder. This Court in Indian National Congress (I) v. Institute of social Welfare and others (2002) 5 SCC 685, while dealing with the powers of the Election Commission of India under the Representation of the People Act, 1951 held that while exercising power under Section 29-A, the Commission acts quasi-judicially and passes quasi judicial orders.

89. The Upa-lokayukta is statutorily obliged under Section 12(1) of the Act to submit a report in writing if, after investigation of any grievance, he is satisfied that the complainant has suffered some injustice or undue hardship. In his report to the Competent Authority, as defined in Section 2(4) of the Act, the Upa-lokayukta shall

- 35 -

recommend that the injustice or hardship be remedied or redressed in a particular manner and within a specified time frame. Sub-section (2) of Section 12 of the Act requires the Competent Authority to submit an 'action taken report' to the Upa-lokayukta within one month on the report given by him. Sub-section (3) and sub-section (4) of Section 12 of the Act are similar to sub-sections (1) and (2) thereof except that they deal with an 'action taken report' in respect of an investigation resulting in the substantiation of an allegation. In such a case, the Competent Authority is obliged to furnish an 'action taken report' within three months of receipt of the report of the Upa- lokayukta. Sub-section (5) and sub-section (7) of Section 12 of the Act provide that in the event the Upa-lokayukta is not satisfied with the action taken report, he may make a special report upon the case to the Governor of the State who shall cause a copy thereof to be laid before each House of the State Legislature together with an explanatory memorandum."

26.In the light of the said judgment, it is clear that

the Hon'ble Lokayukta/Hon'ble Upa-Lokayukta though

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discharge the functions of investigating nature, is acting

as a quasi-judicial authority.

27. In Ghulam Qadir vs Special Tribunal and

others5 while considering the rule of interpretation

regarding locus-standi, it has been held thus:-

"38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea- change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dis-lodging the claim of a litigant merely on hyper-technical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or

(2002) 1 SCC 33

- 37 -

property, he cannot be non-suited on the ground of his not having the locus standi."

28. In M.S. Jayaraj vs. Commissioner of

Excise, Kerala and others6, the Hon'ble Apex Court

has referred to Chairman, Railway Board vs.

Chandrima Das7 inasmuch as the interpretation given

to the concept of locus-standi. In the context of public

interest litigation, the Hon'ble Apex Court has held that

the restricted meaning of "aggrieved person" and the

narrow outlook of a specific injury has yielded in favour

of a broad and wide construction in the wake of public

interest litigation. This judgment was rendered in the

context of an order passed by the Hon'ble High Court of

Kerala holding that the order of Excise Commissioner

was passed in violation of law where he had no

authority to permit a liquor shop owner to move out of

the range in which auction was held and have his

AIR 2000 SC 3266

(2000) 2 SCC 465

- 38 -

business in another range as it would be improper to

allow such an order to remain alive.

29. In Jasbhai Motibhai Desai vs. Roshan

Kumar, Haji Bashir Ahmed and others8, the points

inasmuch as, who is an aggrieved person and what are

the qualifications requisite for such a status has been

answered thus:-

"13. The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been

(1976) 1 SCC 671

- 39 -

devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction."

30. It is thus observed that in the context of

locus standi to apply for a writ of certiorari, an

applicant may ordinarily fall in any of these categories:

(i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or

meddlesome interloper. In the first category, two

concentric zones, viz., a solid central zone of certainty

and a grey outer circle of lessening certainty are carved

out. To distinguish such applicants coming in the outer

zone from 'strangers' certain broad tests are deduced.

31. In Institution of A.P. Lokayukta/Upa-

Lokayukta A.P. and others vs. T. Rama Subba

Reddy and another9, the Hon'ble Apex Cout has held

thus:-

"17. Before parting with these matters, it may be necessary to note that the legislative

(1997) 9 SCC 42

- 40 -

intent behind the enactment is to see that the public servants covered by the sweep of the Act should be answerable for their actions as such to the Lokayukta who is to be a Judge or a retired Chief Justice of the High Court and in appropriate cases to the Upa-Lokayukta who is a District Judge of Grade-I as recommended by the Chief Justice of the High Court, so that these statutory authorities work as real ombudsmen for ensuring that people's faith in the working of these public servants is not shaken. These statutory authorities are meant to cater to the need of public at large with a view to seeing that public confidence in the working of public bodies remains in tact. When such authorities consist of high judicial dignitaries it would be obvious that such authorities should be armed with appropriate powers and sanction so that their orders and opinions do not become mere paper directions. The decisions of Lokayukta and Upa- Lokayukta, therefore, must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the concerned disciplinary authorities. When we turn to Section

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12, sub-section (3) of the Act, we find that once report is forwarded by the Lokayukta or Upa- lokayukta recommending the imposition of penalty of removal from the office of a public servant, all that is provided is that it should be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such servant from his office and for making him ineligible for being elected to any office etc. Even if it may be lawful for the Government to act on such recommendation, it is nowhere provided that the Government will be bound to comply with the recommendation of the Lokayukta or Upa- lokayukta. The question may arise in a properly instituted public interest litigation as to whether the provision of Section 12(2) of the Act implies a power coupled with duty which can be enforced by writ of mandamus by the High Court or by writ of any other competent court but apart from such litigations and uncertainty underlying the results thereof, it would be more appropriate for the legislature itself to make a clear provision for due compliance with the report of Lokayukta or Up-lokayukta system does not get eroded and these institutions can effectively justify their creation under the statute."

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32. In The Karnataka Lokayukta Vs. The

State of Karnataka (W.P.No.33097/2017 D.D.

21.12.2018), the Division Bench of this Court having

regard to the jurisdiction of the Hon'ble Lokayukta to

challenge the order passed by the Tribunal has held

that the Hon'ble Lokayukta is entitled to question the

said order, especially, when the order is passed without

application of mind. Moreover, when an illegality is

brought to the notice of the Court, the Court is duty

bound to rectify such illegalities and to ensure that

justice is done to the parties. Miscarriage of justice

cannot be allowed on mere technicalities. The subject

matter of challenge was to the reduction of quantum of

punishment by the Tribunal without application of

mind, blindly applying the rule of Hon'ble acquittal to

the case.

33. In Devendra vs. State of Karnataka,

Department of Panchayatraj, by its Secretary,

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Bangalore and Others10, Co-ordinate bench of this

court has held thus:-

"18. Therefore, the recommendation must be to the effect that, it is a fit case wherein the materials available on record prima facie establishes to take disciplinary action against the delinquent employees but not the recommendation to the effect that the penalty should be imposed by the disciplinary authority without any disciplinary enquiry. However, it is left to the discretion of the disciplinary authority either to accept the report or to reject the report and pass appropriate orders. The disciplinary authority if on the basis of such report submitted by the Lokayukta, if it feels further to take disciplinary enquiry has to be conducted, then the same has to be conducted after following the principles of natural justice, it can do so."

RELEVANT FACTS

34. At this juncture, it would be apt to refer to

relevant facts of the present case. The petitioner vide

12(3) report dated 04.06.2014 has recommended to

respondent No.1 for initiation of departmental

enquiry against the respondent No.1. Letter dated

ILR 2020 KAR 66

- 44 -

29.01.2016 was addressed by the petitioner calling

upon the Chief Secretary to appear before him on

19.02.2016 for reporting any action taken on 12(3)

report. It appears that to cover up the mistake of not

complying with the mandatory requirement of Section

12(4) in intimating the action taken or proposed to be

taken on the basis of the 12(3) report, within three

months of the date of receipt of the report, the

respondent No.2 has hastily passed the order dated

12.02.2016 entrusting the matter to the Hon'ble

Lokayukta under Rule 14-A of the Rules, 1957 to

conduct an enquiry without application of mind as

canvassed by the respondents. On the challenge made

by the respondent No.1 under Section 19 of the Act,

1985, the same has been quashed by the Tribunal

remanding the mater to the Government. Subsequent to

remand, a consequential order has been passed on

25.08.2016 by the respondent No.2 rejecting the report

under 12(3) as far as respondent No.1 is concerned.

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Admittedly, there is no challenge to the said order dated

25.08.2016. It is trite that the consequential order

would be invalid by implication, only if the impugned

order of the Tribunal is held to be vitiated.

CONCLUSION

35. In the light of the principles envisaged by the

Hon'ble Courts as discussed supra read with Rule 14A

of the Rules, the function of investigation/enquiry

conducted by the Hon'ble Lokayukta/Upa Lokayukta

pursuant to Rule 14 of CCA Rules is recommendatory in

nature and the discretion is left with the Government

either to accept it or to reject the report after assigning

valid reasons based on a strong ground. The power to

impose penalties is retained by the Government under

Rule 14(A)(2)(e) of the Rules, 1957. It is trite that the

legislative intent behind the enactment of the Act makes

it clear that the public servant covered by the sweep of

the Act should be answerable for their actions. There is

no cavil on the proposition that when certain power is

- 46 -

vested with the Hon'ble Lokayukta/Upa-Lokayukta,

such authorities should be armed with appropriate

powers in order to implement their orders and opinions

and their efforts should not be washed out by the

disciplinary authorities concerned. There being some

sanctity to the report, it should be considered in a

reasonable manner by the State Government while

passing the order under Section 12(4). But the

discretion left with the Disciplinary Authority cannot be

interfered by the petitioner. When the illegality

committed by the Tribunal is brought to the notice of

the Court by an institution constituted under the

special enactment to curb the corruption and to achieve

the objects and purport of the Act in the interest of the

public, the same cannot be thrown out on technicalities

but not in the cases filed regularly in the routine

manner challenging the quashing of the entrustment

order passed under Rule 14-A of CCA Rules. No such

illegality committed by the Tribunal is brought to the

- 47 -

notice of the Court except defending the action of the

State Government in entrusting the matter for enquiry

under Rule 14-A of the Rules. On the contrary, such

defence is not taken by the State Government. The

petitioner for the reasons best known to him having not

participated in the proceedings before the Tribunal

though arrayed as a party, is now challenging the

impugned order as the "person aggrieved". If the

petitioner has remained neutral to maintain impartiality

relating to the lis between the respondent Nos.1 and 2,

the same approach would have been maintained at the

further higher levels.

36. In the present case, the Tribunal has set

aside the entrustment order mainly for want of

application of mind by the State Government under

Section 12(4) of the Act. The State Government itself

has accepted the same and the material on record

indicates, non-consideration of the reply submitted by

the respondent No.1. Though a detailed or even a

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summary inquiry with consideration of reply/defence of

the DGO is not warranted, the entrustment order

should clearly indicate therein, about existence of the

prima-facie case on independent application of mind as

held in Gopal Hanumanth Kase4 which was lacking as

rightly observed by the Tribunal. Be that as may, the

impugned order is neither challenged nor satisfaction

about existence of the prima-facie case to entrust the

matter to the Hon'ble Upa-Lokayukta under Rule 14-A

of the Rules is canvassed or established by the State

Government which is the aggrieved party. Thus, having

regard to the facts and circumstances of the case, as

discussed above, in our opinion, the petitioner has no

locus to challenge the impugned order. Accordingly,

consequential order dated 25.08.2016 passed by the

respondent No.2 has to be given effect to, in the absence

of any challenge to the same.

37. For the reasons aforesaid, we do not find any

ground to interfere with the order of the Tribunal

impugned herein.

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In the result, writ petition stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Dvr/PMR