Mr. Justice Chandrashekaraiah (Retd.) Vs. Janekere C. Krishna & Ors. etc. [January 11, 2013]

Mr. Justice Chandrashekaraiah (Retd.) Vs. Janekere C. Krishna & Ors. etc.

[Civil Appeal Nos. 197-199 of 2013 arising out of SLP (Civil) Nos. 15658-15660 of 2012]

[Civil Appeal Nos. 200-202 of 2013 arising out of SLP (Civil) Nos. 16512-16514 of 2012]

K. S. Radhakrishnan, J.

1. Leave granted.

2. The sentinel issue that has come up for consideration in these appeals is whether the views expressed by the Chief Justice of the High Court of Karnataka has got primacy while making appointment to the post of Lokayukta or Upa Lokayukta by the Governor of Karnataka in exercise of powers conferred on him under Section 3(2)(a) and (b) of the Karnataka Lokayukta Act, 1984 (for short 'the Act').

3. The Division Bench of the Karnataka High Court took the view that under the Act the opinion expressed by the Chief Justice of the High Court of Karnataka has primacy while tendering advice by the Chief Minister of the State to the Governor. The Court held since, the order passed by the Governor of Karnataka, appointing Justice Chandrashekaraiah as Upa Lokayukta on 21.1.2012, was without consulting the Chief Justice of the High Court, the same was illegal. The High Court also issued various directions including the direction to the State and the Principal Secretary to the Governor to take steps for filling up the post of Upa Lokayukta in accordance with the directions contained in the judgment. Aggrieved by the Judgment of the High Court, these appeals have been preferred by Justice Chandrashekaraiah and the State of Karnataka.

Facts

4. The notification dated 21.1.2012 issued in the name of the Governor was challenged by two practicing lawyers in public interest contending that the institution of Lokayukta was set up in the State for improving the standard of public administration by looking into complaints against administrative actions including cases of corruption, favouritism and official indiscipline in administrative machinery and if the Chief Minister's opinion has primacy, then it would not be possible for the institution to work independently and impartially so as to achieve the object and purpose of the Act.

5. The office of the Karnataka Upa Lokayukta fell vacant on the resignation of Justice R. Gururajan and the Chief Minister initiated steps for filling up that vacancy. Following that, the Chief Minister on18.10.2011 addressed separate letters to the Chief Justice of the High Court of Karnataka, Chairman of the Karnataka Legislative Council, Speaker of the Karnataka Legislative Assembly, Leader of the Opposition in the Legislative Council and Leader of the Opposition in the Legislative Assembly requesting them to suggest a panel of eligible persons for appointment as Upa Lokayukta on or before 24.10.2011.

6. The Chief Justice suggested the name of Mr. H. Rangavittalachar (Retd.), the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly suggested the names of Mr. Justice K. Ramanna (Retd.) and Mr. Justice Mohammed Anwar (Retd.). The Chairman of the Karnataka Legislative Council and the Speaker of the Karnataka Legislative Assembly suggested the name of Justice Chandrashekaraiah (Retd.). The Chief Minister then advised the Governor to appoint Justice Chandrashekaraiah as Upa Lokayukta. The Governor, accepting the advice of the Chief Minister, passed the order dated 20.1.2012 appointing Justice Chandrashekaraiah as the Up a Lokayukta.

7. The Chief Justice on 21.01.2012 received an invitation for attending the oath taking ceremony of Justice Chandrashekaraiah as Upa Lokayukta in the morning which, according to the Chief Justice, was received only in the evening. The Chief Justice then addressed a letter dated 04.02.2012 to the Chief Minister stating that he was not consulted in the matter of appointment of Justice Chandrashekaraiah as Upa Lokayukta and expressed the opinion that the appointment was not in conformity with the constitutional provisions and requested for recalling the appointment.

8. The stand taken by the Chief Justice was widely published in various newspapers; following that, as already indicated, two writ petitions were filed in public interest for quashing the appointment of Justice Chandrashekaraiah as Upa Lokayukta. A writ of quo warran to was also preferred against the functioning of Justice Chandrashekaraiah as UpaLokayukta.Arguments

9. Shri K.V. Viswanathan, learned senior counsel appearing for the State of Karnataka took us extensively to the objects and reasons and to the various provisions of the Act and submitted that the nature and functions of the office of Lokayukta or Upa Lokayukta are to carry out investigation and enquiries and the institution of Lokayukta, as such, does not form part of the judicial organ of the State. Learned senior counsel also submitted that the functions and duties of the institution of Lokayukta, as such, cannot be compared with the functions and duties of the Judiciary, Central Administrative Tribunals, State Administrative Tribunals or Consumer Disputes Redressal Forums etc.

10. Learned senior counsel, referring to the various provisions such as Sections 3, 7, 9 etc. of the Act, submitted that Lokayukta or Upa Lokayuktaare appointed for the purpose of conducting investigations and enquiries and they are not discharging any judicial functions as such and their reports are only recommendatory in nature. Consequently, the Act never envisaged vesting any primacy on the views of the Chief Justice of the High Court in the matter of appointment of Lokayukta or Upa Lokayukta. In support of his contentions, reference was made to the various judgments of this Court, which we will discuss in the latter part of this judgment. Shri Viswanathan, however, has fairly submitted that, as per the Scheme of the Act, especially under Section 3(2)(a) and (b), before making appointment to the post of Lokayukta and Upa Lokayukta, it is obligatory on the part of the Chief Minister to consult the Chief Justice of the State High Court, even though the views of the Chief Justice has no primacy. Learned senior counsel submitted that the Governor has to act on the advice of the Chief Minister for filling up the post of Lokayukta and UpaLokayukta.

11. Shri P.V. Shetty, learned senior counsel appearing for Justice Chandrashekaraiah (retd.) submitted that the primacy in terms of Section 3of the Act lies with the Chief Minister and not with the Chief Justice. In support of his contention, reference was made to the various judgments of this Court, which we will discuss in the latter part of the judgment. Learned senior counsel submitted that the judgment delivered by the High Court holding that the views of the Chief Justice has primacy relates to cases pertaining to appointment of the Judges of the Supreme Court and High Courts, appointment of the President of State Consumer Forum, Central Administrative Tribunal and so on and the ratio laid down in those judgments is inapplicable while interpreting Section 3(2)(a) and (b) of the Act. Learned senior counsel also submitted that the reasoning of the High Court that there should be specific consultations with regard to the names suggested by the Governor with the Chief Justice, is unsustainable in law. Shri P.V. Shetty also submitted that the expression 'consultation' cannot be understood to be consent of the constitutional authorities as contemplated in the section.

12. Learned senior counsel submitted that the Chief Minister advised the name of Justice Chandrashekaraiah, suggested by some of the Consultees to the Governor who appointed him as Upa Lokayukta. Learned senior counsel submitted that assuming that the Chief Justice had not been consulted, the views of the Chief Minister had primacy and the Governor rightly accepted the advice of the Chief Minister and appointed Justice Chandrashekaraiah as Upa Lokayukta. Learned senior counsel submitted that in any view the failure to consult the Chief Justice would not vitiate the decision making process, since no primacy could be attached to the views of the Chief Justice. Learned senior counsel, therefore, submitted that the High Court has committed a grave error in quashing the notification appointing Justice Chandrashekaraiah as Upa Lokayukta. Learned senior counsel submitted that the various directions given by the High Court in its judgment is in the realm of rule making which is impermissible in law.

13. Shri K.N. Bhat, learned senior counsel appearing for the respondents endorsed the various directions given by the High Court which according to him are of paramount importance considering the nature and functions to be discharged by Lokayukta or Upa Lokayukta in the State of Karnataka. Learned senior counsel pointed out that the institution of Lokayukta has been set up for improving the standards of public administration so as to examine the complaints made against administrative actions, including the cases of corruption, favouritism and official indiscipline in administrative machinery. Shri Bhat compared the various provisions of the Act with the similar legislations in other States and submitted that, so far as the Karnataka Act is concerned, there is a multi-member team of consultees and also there is no indication in the Act as to whose opinion should prevail over others. Considerable reliance was placed on the judgment of this Court in Justice K.P. Mohapatra v. Sri Ram Chandra Nayak and Ors. (2002) 8 SCC 1, wherein this Court has taken the view that the opinion of the Chief Justice has got primacy which is binding on the State. Learned senior counsel submitted that the conduct and functions to be discharged by Lokayukta or Upa Lokayukta are apparent, utmost importance has to be given in seeing that unpolluted administration of the State is maintained and maladministration is exposed. Learned senior counsel submitted that the functions of the Karnataka Lokayukta are identical to that of Lokpal of Orissa and that the principle laid down in that judgment would also apply while interpreting Sections 3(2)(a) and (b) of the Act.

14. Learned senior counsel submitted that the primacy has to be given to the views expressed by the Chief Justice, not because the persons appointed are discharging judicial or quasi-judicial functions but the source from which the persons are advised for appointment consists of former judges of the Supreme Court and Chief Justices of High Courts and judges of the High Courts in the matter of appointment of Upa Lokayukta. Learned senior counsel submitted that the Chief Justice of the High Court, therefore, would be in a better position to know about suitability of the persons to be appointed to the posts since they were either former judges of the Supreme Court or Chief Justices of the High Courts or judges of the HighCourts.

15. Let us examine the various contentions raised at the bar after delving into the historical setting of the Act. Historical Setting

16. The President of India vide notification No. 40/3/65-AR(P) dated05.01.1966 appointed the Administrative Reforms Commission for addressing "Problems of Redress of Citizens' Grievances" inter alia with the object for ensuring the highest standards of efficiency and integrity in the public services, for making public administration a fit instrument for carrying out the social and economic policies of the Government and achieving social and economic goals of development as also one responsive to people. The Commission was asked to examine the various issues including the Problems of Redress of Citizens' Grievances. One of the terms of reference specifically assigned to the Commission required it to deal with the Problems of Redress of Citizens' Grievances, namely: (1) the adequacy of existing arrangements for redress of grievances; and (2) the need for introduction of any new machinery for special institution for redress of grievances. The Commission after elaborate discussion submitted its report on14.10.1966 to the Prime Minister vide letter dated 20.10.1966.

17. 17. The Commission suggested that there should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States and another authority in each State and at the Centre for dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary. The Committee, in its report, has stated as follows: "21. We have carefully considered the political aspect mentioned above and while we recognize that there is some force in it, we feel that the Prime Minister's hands would be strengthened rather than weakened by the institution. In the first place, the recommendations of such an authority will save him from the unpleasant duty of investigation against his own colleagues. Secondly, it will be possible for him to deal with the matter without the glare of publicity which often vitiates the atmosphere and affects the judgment of the general public. Thirdly, it would enable him to avoid internal pressures which often help to shield the delinquent.

What we have said about the Prime Minister applies mutatis mutandis to Chief Minister. Cases of corruption: 23. Public opinion has been agitated for a long time over the prevalence of corruption in the administration and it is likely that cases coming up before the independent authorities mentioned above might involve allegations or actual evidence of corrupt motive and favourtism. We think that this institution should deal with such cases as well, but where the cases are such as might involve criminal charge or misconduct cognizable by a Court, the case should be brought to the notice of the Prime Minister or the Chief Minister, as the case may be. The latter would then set the machinery of law in motion after following appropriate procedures and observing necessary formalities. The present system of Vigilance Commissions wherever operative will then become redundant and would have to be abolished on the setting up of the institution. Designation of the authorities of the institution: 24. We suggest that the authority dealing with complaints against Ministers and Secretaries to Government may be designated "Lokpal" and the other authorities at the Centre and in the States empowered to deal with complaints against other officials may be designated "Lokayukta". A word may be said about our decision to include Secretaries actions along with those of Ministers in the jurisdiction of the Lokpal.

We have taken this decision because we feel that at the level at which Ministers and Secretaries function, it might often be difficult to decide where the role of one functionary ends and that of the other begins. The line of demarcation between the responsibilities and influence of the Minister and Secretary is thin; in any case much depends on their personal equation and personality and it is most likely that in many a case the determination of responsibilities of both of them would be involved. 25. The following would be the main features of the institutions of Lokpal and Lokayukta:-

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 favourtism.

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.

g. They should not look forward to any benefit or pecuniary advantage from the executive Government. Bearing in mind these essential features of the institutions, the Commission recommend that the Lokpal be appointed at the Centre and Lokayaukta at the State level.

The Lokayukta 36. So far as the Lokayukta is concerned, we envisage that he would be concerned with problems similar to those which would face the Lokpal in respect of Ministers and Secretaries though, in respect of action taken at subordinate levels of official hierarchy, he would in many cases have to refer complainants to competent higher levels. We, therefore, consider that his powers, functions and procedures may be prescribed mutatis mutandis with those which we have laid down for the Lokpal. His status, position, emoluments, etc. should, however, be analogous to those of a Chief Justice of a High Court and he should be entitled to have free access to the Secretary to the Government concerned or to the Head of the Department with whom he will mostly have to deal to secure justice for a deserving citizen.

Where he is dissatisfied with the action taken by the department concerned, he should be in a position to seek a quick corrective action from the Minister or the Secretary concerned, failing which he should be able to draw the personal attention of the Prime Minister or the Chief Minster as the case may be. It does not seem necessary for us to spell out here in more detail the functions and powers of the Lokayukta and the procedures to be followed by him. Constitutional amendment-whether necessary? 37. We have carefully considered whether the institution of Lokpal will require any Constitutional amendment and whether it is possible for the office of the Lokpal to be set up by Central Legislation so as to cover both the Central and State functionaries concerned.

We agree that for the Lokpal to be fully effective and for him to acquire power, without conflict with other functionaries under the Constitution, it would be necessary to give a constitutional status to his office, his powers, functions, etc. We feel, however, that it is not necessary for Government to wait for this to materialize before setting up the office. The Lokpal, we are confident, would be able to function in a large number of cases without the definition of his position under the Constitution. The Constitutional amendment and any consequential modification of the relevant statute can follow. In the meantime, Government can ensure that the Lokpal or Lokayukta is appointed and takes preparatory action to set up his office, to lay down his procedures, etc., and commence his work to such extent as he can without the constitutional provisions.

We are confident that the necessary support will be forthcoming from the Parliament. Conclusion. 38. We should like to emphasise the fact that we attach the highest importance to the implementation, at an early date, of the recommendations contained in this our Interim Report. That we are not alone in recognizing the urgency of such a measure is clear from the British example we have quoted above. We have no doubt that the working of the institution of Lokpal or Lokayukta that we have suggested for India will be watched with keen expectation and interest by other countries. We hope that this aspect would also be fully borne in mind by Government in considering the urgency and importance of our recommendation. Though its timing is very close to the next Election, we need hardly to assure the Government that this has had nothing to do with the necessity of making this interim report. We have felt the need of such a recommendation on merits alone and are convinced that we are making it not a day too soon.

18. "Based on the above report, the following Bill was presented beforethe Karnataka Legislature which reads as follows:- "The Administrative Reforms Commission had recommended the setting up of the institution of Lokayukta for the purpose of appointment of Lokayukta at the state's level, to improve the standards of public administration, by looking into complaints against the administrative actions, including cases of corruption, favouritism and official indiscipline in administrative machinery. One of the election promises in the election manifesto of the Janata 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. The public servants who are covered by the Act include :-

1. Chief Minister;

2. all other Ministers and Members of the State Legislature;

3. all officers of the State Government;

4. Chairman, Vice Chairman 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 per cent 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 the 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 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 be transferred to the Lokayukta." The Bill became an Act with some modifications as the KarnatakaLokayukta Act, 1984.Relevant Provisions.

19. The matters which have to be investigated are provided in Section 7of the Act which is extracted hereunder for easy reference: "7. Matters which may be investigated by the Lokayukta and an Upalokayukta.-

a. Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or specific approval of.-

i. the Chief Minister;

ii. a Minister or a Secretary;

iii. a member of the State Legislature; or

iv. any other public servant being a public servant of a class notified by the State Government in consultation with the Lokayukta in this behalf; in any case where a complaint involving a grievance or an allegation is made in respect of such action.

b. Subject to the provisions of the Act, an Upa-lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature, Secretary or other public servant referred to in sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upa-lokayukta, the subject of a grievance or an allegation. (2-A) Notwithstanding anything contained in sub-sections (1) and (2), the Lokayukta or an Upa-lokayukta 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.

c. Where two or more Upa-lokayuktas are appointed under this Act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act: Provided that no investigation made by an Upa-lokayukta under this Act, and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.

d. Notwithstanding anything contained in sub-sections (1) to (3), when an Upa-lokayukta is unable to discharge his functions owing to absence, illness or any other cause, his function may be discharged by the other Upa-lokayukta, if any, and if there is no other Upa- lokayukta by the Lokayukta.

20. "Few matters are not subjected to the investigation of Lokayukta orUpa Lokayukta which is provided in Section 8 of the Act, which is also extracted hereunder for easy reference: "8. Matters not subject to investigation.-

(1) Except as hereinafter provided, the Lokayukta or an Upa-lokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action, -

(a) if such action relates to any matter specified in the Second Schedule; or

(b) if the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any Tribunal, Court Officer or other authority and has not availed of the same.

(2) The Lokayukta or an Upa-lokayukta shall not investigate, -

(a) any action in respect of which a formal and public enquiry has been ordered with the prior concurrence of the Lokayukta or an Upalokayukta, as the case may be;

(b) any action in respect of a matter which has been referred for inquiry, under the Commission of Inquiry Act, 1952 with the prior concurrence of the Lokayukta or an Upalokayukta, as the case may be;

(c) any complaint involving a grievance made after the expiry of a period of six months from the date on which the action complained against becomes known to the complainant; or

(d) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that he may entertain a complaint referred to in clauses (c) and (d) if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in those clauses.

(3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lokayukta or an Upa-lokayukta to question any administrative action involving the exercise of discretion except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised.

21. "Section 9 of the Act pertains to provisions relating to 'complaints' and 'investigations' which is extracted hereunder: "9. Provisions relating to complaints and investigations.-

(1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokayukta or an Upa-lokayukta.

(2) Every complaint shall be made in the form of a statement supported by an affidavit and in such forms and in such manner as may be prescribed.

(3) Where the Lokayukta or an Upa-lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he.-

(a) shall forward a copy of the complaint 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;

(4) Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held either in public or in camera, as the Lokayukta or the Upa-lokayukta, as the case may be, considers appropriate in the circumstances of the case.

(5) The Lokayukta or the Upa-lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation, if in his opinion.- (a) the complaint is frivolous or vexatious or is not made in good faith;

(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or

(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail such remedies. (6) In any case where the Lokayukta or an Upa-lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons there for and communicate the same to the complainant and the public servant concerned.

(7) The conduct of an investigation under this Act against a Public servant in respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to the investigation.

22. "Section 10 empowers Lokayukta or Upa Lokayukta to exercise certain powers in relation to search and seizure. It says that the provisions ofthe Code of Criminal Procedure, relating to search and seizure, would apply only for the limited purpose of investigation carried out by the incumbent, in consequence of information in his possession, while investigating into any grievance, allegation against any administrative action.

23. Section 11 deals with the producing, recording, etc. of evidence for the purpose of investigation under the Act. Sub-sections (1) and (2) of Section 11 read as follows:

"11. Evidence.-

(1) Subject to the provisions of this section, for the purpose of any investigation (including the preliminary inquiry if any, before such investigation) under this Act, the Lokayukta or an Upa-lokahukta may require any public servant or any other person who, in his opinion, is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.

(2) For the purpose of any investigation (including the preliminary inquiry) the Lokayukta or Upa-lokayukta shall have all the powers of a Civil Court while trying a suit under that the Code of Civil Procedure Code, 1908, in respect of the following matters only:-

a) summoning and enforcing the attendance of any person and examining him on oath; b) requiring the discovery and production of any document; c) receiving evidence on affidavits; d) requisitioning any public record or copy thereof from any Court or office;

e) issuing commissions for the examination of witnesses or documents;

f) such other matters as may be prescribed."Sub-section (3) of Section 11 provides for applicability of Section 193 of the Indian Penal Code (Punishment for false evidence), for proceedings before the Lokayukta or Upa Lokayukta, while exercising its powers conferred under sub-section (2) of Section 11, and only for that limited extent is considered a judicial proceeding.

24. Section 12 deals with the reports of Lokayukta which essentially deals with the following aspects:

i) The Lokayukta or Upa Lokayukta can sent a report with certain recommendations and findings as envisaged in sub section (1) and (3) of Section 12.

ii) Under sub section (2) of Section 12, the competent authority is required to intimate or cause to intimate the Lokayukta or the Upa Lokayukta on the action taken on the report as provided under sub section (1) of Section 12, within 1 month.

iii) Failure to intimate the action taken on the report submitted under section (1) has not been dealt with specifically, however if in the opinion of Lokayukta / Upa Lokayukta satisfactory action is not taken by the competent authority under Section 12(2), he is at liberty to send a 'Special report' to the governor as provided for under sub section (5) of Section 12.

iv) Findings and recommendations to be given by the Lokayukta or Upa- lokayukta under sub section 3 of Section 12, include those as contemplated under Section 13 of the Act.

v) Sub-section (4) of Section 12 requires the competent authority to examine the report forwarded under sub-section (3), within three months and intimate the Lokayukta or the Upa Lokayukta on the action taken or proposed to be taken on the basis of the report.

vi) Failure to intimate the action taken on the report submitted under section (3) has not been dealt with specifically, however if in the opinion of Lokayukta / Upa Lokayukta, satisfactory action taken is not taken by the competent authority under Section 12(4), he is at liberty to send a 'Special report' to the governor as provided for under sub section (5) of Section 12. vii) If any Special Report as contemplated under sub-section (5) is received and the annual report of the Lokayukta under sub section (6), would have to be laid before each house of the State legislature along with an explanatory note of the Governor.

viii) It is important to note that the act neither binds the Governor nor the State Legislature to accept the recommendations or findings of the incumbent, thereby ensuring no civil consequences follow from the direct action of the Lokayukta or Upa Lokayukta. Section 13 prescribes when a public servant would have to vacate office, which reads as follows: "13. Public servant to vacate office if directed by Lokayukta etc. (1) Where after investigation into a complaint the Lokayukta or an Upalokayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokayukta or the Upalokayukta shall make a declaration to that effect in his report under sub-section (3) of section 12. Where the competent authority is the Governor, State Government or the Chief Minister, it may either accept or reject the declaration. In other cases, the competent authority shall send a copy of such report to the State Government, which may either accept or reject the declaration.

If it is not rejected within a period of three months from the date of receipt of the report, or the copy of the report, as the case may be, it shall be deemed to have been accepted on the expiry of the said period of three months. (2) If the declaration so made is accepted or is deemed to have been accepted, the fact of such acceptance or the deemed acceptance shall immediately be intimated by Registered post by the Governor, the State Government or the Chief Minister if any of them is the competent authority and the State Government in other cases then, notwithstanding anything contained in any law, order, notification, rule or contract of appointment, the public servant concerned shall, with effect from the date of intimation of such acceptance or of the deemed acceptance of the declaration, (i) if the Chief Minister or a Minister resign his office of the Chief Minister, or Minister, as the case may be. (ii) If a public servant falling under items (e) and (f), but not falling under items (d) and (g) of clause (12) of section 2, be deemed to have vacated his office: and (iii) If a public servant falling under items (d) and (g) of clause (12) of section 2, be deemed to have been placed under suspension by an order of the appointing authority. Provided that if the public servant is a member of an All India Service as defined in section 2 of the All India Services Act, 1951 (Central Act 61 to 1951) the State Government shall take action to keep him under suspension in accordance with the rules or regulations applicable to his service." Section 14 deals with the initiation of prosecution which reads as follows:

"14. Initiation of prosecution.- If after investigation into any complaint the 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."Investigative in nature

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 Lokayuktaor Upa Lokayukta under the Act.

26. The Act has, therefore, clearly delineated which are the matters to be investigated by the Lokayukta and Upa Lokayukta. They have no authority to investigate on a complaint involving a grievance in respect of any action specified in the Second Schedule of the Act, which are as follows: a) Action taken for the purpose of powers investigating crimes relating to the security of the State. b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a Court or not. c) Action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers, except where the complaint alleges harassment or gross delay in meeting contractual obligations. d) Action taken in respect of appointments, removals, pay, discipline, superannuation or other matters relating to conditions of service of public servants but not including action relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. e) Grant of honours and awards.

27. Further if the complainant has or had any remedy by way of appeal, revision, review or other proceedings before any tribunal, court officer or other authority and has not availed of the same, the Lokayukta and Upa Lokayukta shall not conduct any investigation under the Act, in other words, they have to act within the four corners of the Act.

28. The Act has also been enacted to make provision for making enquiries by the Lokayukta and Upa Lokayukta into the administrative action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution, taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka, including any omission or commission in connection with or arising out of such actionetc.

29. Lokayukta or Upa Lokayukta under the Act are established to investigate and report on allegations or grievances relating to the conduct of public servants which includes the Chief Minister; all other Minister and members of the State Legislature; all officers of the State Government; Chairman, Vice Chairman of Local Authorities, Corporations, owned or controlled by the State Government, a company in which not less than fifty one per cent 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.

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 there under. This Court in Indian National Congress (I) v. Institute of social Welfare and others (2002) 5SCC 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 passesquasi judicial orders.

31. The Court held that what distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions, under the relevant law, the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority. Noticing the above legal principles this Court held in view of the requirement of law that the Commission is to give decision only after making an enquiry, wherein an opportunity of hearing is to be given to the representative of the political party, the Election Commission is required to act judicially.

32. Recently, in Automotive Tyre Manufactures Association v. Designated Authority and others (2011) 2 SCC 258, this Court examined the question whether the Designated Authority appointed by the Central Government under Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped Articles and for Determination of Injury)Rules, 1995 (1995 Rules) for conducting investigation, for the purpose of levy of anti dumping duty in terms of Section 9-A of the Customs Act, 1962,is functioning as an administrative or quasi judicial authority. The Court after examining the scheme of the Tariff Act read with 1995 Rules and the nature of functions to be discharged by the Designated Authority took the view that the authority exercising quasi-judicial functions is bound to act judicially. Court noticed that the Designated Authority determines the rights and obligations of the "interested parties" by applying objective standards based on the material/information/evidence presented by the exporters, foreign producers and other "interested parties" by applying the procedure and principles laid down in the 1995 Rules.

33. Provisions of Sections 9, 10 and 11 clearly indicate that Lokayuktaand Upa Lokayukta are discharging quasi-judicial functions while conducting the investigation under the Act. Sub-section (2) of Section 11 of the Act also states that for the purpose any such investigation, including the preliminary inquiry Lokayukta and Upa Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure ,1908, in the matter of summoning and enforcing the attendance of any person and examining him on oath. Further they have also the power for requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commissions for examination of witnesses of documents etc. Further, sub-section (3) of Section 11 stipulates that any proceedings before the Lokayukta and Upa Lokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. Therefore, Lokayukta and Upa Lokayukta, while investigating the matters are discharging quasi-judicial functions, though the nature of functions is investigative. Consequence of the report

34. The Governor of the State, acting in his discretion, if accepts the report of the Lokayukta against the Chief Minister, then he has to resign from the post. So also, if the Chief Minister accepts such a report against a Minister, then he has to resign from the post. Lokayukta or Upa Lokayukta, however, has no jurisdiction or power to direct the Governor or the Chief Minister to implement its report or direct resignation from the Office they hold, which depends upon the question whether the Governor or the Chief Minister, as the case may be, accepts the report or not. But when the Lokayukta or Upa Lokayukta, if after the investigation, is satisfied that the public servant has committed any criminal offence, prosecution can be initiated, for which prior sanction of any authority required under any law for such prosecution, shall also be deemed to have been granted. Nature of Appointment

35. We are, in this case, as already indicated, called upon to decide the nature and the procedure to be followed in the matter of appointment of Lokayukta or Upa Lokayukta under the Act for which I have elaborately discussed the intention of the legislature, objects and purpose of the Act and the nature and functions to be discharged by Lokayukta or Upa Lokayukta, its investigative nature, the consequence of its report etc. Section 3 of the Act deals with the appointment of Lokayukta and Upa Lokayukta, which reads as follows: 3. Appointment of Lokayukta and Upa-lokayukta- (1) For the purpose of conducting investigations and enquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-lokayukta or Upa-lokayuktas. (2)(a) A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. (b) A person to be appointed as an Upa-lokayukta shall be a person who has held the office of the Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the opposition in the Karnataka Legislative Council and the Leader of the opposition in the Karnataka Legislative Assembly. (3) A person appointed as the Lokayukta or an Upa-lokayukta shall, before entering upon his office, make and subscribe before the Governor, or some person appointed in that behalf of him, an oath or affirmation in the form set out for the purpose in the First Schedule.

36. "36. The purpose of appointment of Lokayukta or Upa Lokayukta is clearly spelt out in Section 3(1) of the Act which indicates that it is for the purpose of conducting investigation and enquiries in accordance with the provisions of the Act. The procedure to conduct investigation has been elaborately dealt with in the Act. The scope of enquiry is however limited, compared to the investigation that is only to the ascertainment of the truth or falsehood of the allegations. The power has been entrusted by the Act on the Governor to appoint a person to be known as Lokayukta and one or more persons to be known as Upa Lokayukta and Upa Lokayuktas. The person to be appointed as Lokayukta shall be a person who has held the office of a Judge of the Supreme Court of India or that of the Chief Justice of the High Court. The Governor, as per Section 3(2)(a), is empowered to appoint Lokayukta on the advice tendered by the Chief Minister, in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. It is, therefore, clear that all the above five dignitaries have to be consulted before tendering advice by the Chief Minister to the Governor of the State.

37. Section 3(2)(b) of the Act stipulates that, so far as the Upa Lokayukta is concerned, he shall be a person who has held the office of a Judge of the High Court and shall be appointed on the advice tendered by the Chief Minister. The Chief Minister has to consult the five dignitaries, the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Legislative Council and the Leader of Opposition in the Karnataka Legislative Assembly. Therefore, for the purpose of appointment of Lokayukta or Upa Lokayukta all the five consultees are common. The appointment has to be made by the Governor on the advice tendered by the Chief Minister in consultation with those five dignitaries. Legislations in few other States.-

38. Legislatures in various States have laid down different methods of appointment and eligibility criteria's for filling up the post of Lokayukta and Upa-Lokayuktas, a comparison of which would help us to understand the intention of the legislature and the method of appointment envisaged.

39. ANDHRA PRADESH LOKAYUKTA ACT, 1983 Section 3 - Appointment of Lokayukta and Upa-Lokayukta: (1) For the purpose of conducting investigation in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-Lokayukta or Upa-Lokayuktas: Provided that,- (a) the person to be appointed as the Lokayukta shall be a Judge or a retired Chief Justice of a High Court; (b) the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court concerned; (c) the Upa-Lokayukta shall be appointed from among the District Judges of Grade I, out of a panel of five names forwarded by the Chief Justice of the High Court of Andhra Pradesh. (2) In the Andhra Pradesh Lokayukta and Upa -Lokayukta Act, 1983 (hereinafter referred to as the principal Act) for sub-section (2) of Section 3, the following shall be substituted, namely:- (i) Every person appointed to be the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor an oath or affirmation according to the form set out for the purpose in the First Schedule. (ii) Every person appointed to be the Upa-Lokayukta shall, before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation according to the form setout for the purpose in the First Schedule. (3) The Upa-Lokayukta shall function under the administrative control of the Lokayukta and in particular, for the purpose of convenient disposal of investigations under this Act, the Lokayukta may issue such general or special directions, as he may consider necessary, to the Upa-Lokayukta: Provided that nothing in this sub-section shall be construed to authorize the Lokayukta to question any decision, finding, or recommendation of the Upa-Lokayukta.

40. ASSAM LOKAYUKTA AND UPA-LOKAYUKTAS ACT, 1985 Section 3 - Appointment of Lokayukta and Upa-Lokayuktas.-

1. For the purpose of conducting investigations in accordance with the provisions of the Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as Lokayukta and one or more persons to be known as Upa-Lokayukta or Upa-Lokayuktas: Provided that:-

(a) The Lokayukta shall be appointed after consultation with the Chief Justice of the Gauhati High Court, the Speaker and the leader of the opposition in the Assam Legislative Assembly and if there be no such leader a person elected in this behalf by the members of the opposition in that house in such manner as the speaker may direct;

(b) The Upa-Lokayukta or Upa-Lokayuktas shall be appointed after consultation with the Lokayukta Provided further that where the Speaker of the Legislative Assembly is satisfied that circumstances exists on account of which it is not practicable to consult the leader of the opposition in accordance with Cl(a) of the preceding proviso he may intimate the Governor the name of any other member or the opposition in the Legislative Assembly who may be consulted under that clause instead of the leader of the opposition.

(2) Every person appointed as the Lokayukta or Upa-Lokayukta shall before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule.

(3) The Upa-Lokayuktas shall be subject to the administrative control of the Lokayukta and, in particular, for the purpose of convenient disposal of investigations under this Act, the Lokayukta may issue such general or special direction, as he may consider necessary to the Upa-Lokayukta Provided that nothing in this sub-section shall be construed to authorize the Lokayukta to question any finding, conclusion or recommendation of an Upa Lokayukta.

41. THE BIHAR LOKAYUKTA ACT, 1973: 3. Appointment of Lokayukta.- (1) For the purpose of conduction investigations in accordance with the provisions of this Act the Governor shall by warrant under his hand and shall appoint a person to be known as the Lokayukta of Bihar; Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the Patna High Court and the Opposition in the State Legislative Assembly or if there be no such leader a person elected in this behalf by the Opposition in the State Legislative Assembly in such manner as the Speaker may direct. (2) The person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by the Governor, an oath or affirmation in the form set out for the purposes in the First Schedule.

42. CHHATTISGARH LOK AAYOG ADHYADESH, 2002 3. Constitution of Lok Aayog:-

(1) There shall be a Lok Aayog for the purpose of conducting inquiries in accordance with the provisions of this Ordinance.

(2) The Lok Aayog shall consist of two members, one to be known as the Pramukh Lokayukt, and the other as the Lokayukt.

(3) The Pramukh Lokayukt shall be a person who has been a Judge of a High Court or has held a judicial officer higher than that of a Judge of a High Court.

(4) The Lokayukta shall be a person with experience in administrative and quasi-judicial matters, and shall have functioned at the level of a Secretary to the Government of India or the Chief Secretary to any State Government in India. Provided that the Pramukh Lokayukta shall have administrative control over the affairs of the Lok Aayog.

(5) Governor shall, by warrant under his hand and seal, appoint the Pramukh Lokayukta and the Lokayukta, on the advice of the Chief Minister who shall consult the Chief Justice of the High Court of Chattisgarh and the Speaker of the Chattisgarh Legislative Assembly.

(6) Every person appointed as a Pramukh Lokayukt or a L Lokayukt shall, before entering upon his office, take and subscribe before the Governor, or some person appointed in that behalf by him, an oath of affirmation in the form set out for the purpose in the First Schedule.

(7) The Pramukh Lokayukt or the Lokayukt shall not hold any other office of trust or profit or be connected with any political party or carry on any business or practice any profession or hold any post in any society, including any cooperative society, trust, or any local authority, or membership of the Legislative Assembly of any State or of the Parliament.

43. DELHI LOKAYUKTA AND UPLOKAYUKTA ACT, 1995: Section 3 - Appointment of Lokayukta and Uplokayukta.

(1) For the purpose of conducting investigations and inquiries in accordance with the provisions of this Act, the Lieutenant Governor shall, with the prior approval of the President, appoint a person to be known as the Lokayukta and one or more persons to be known as Upalokayukta; Provided that-

(a) the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court of Delhi and the Leader of the Opposition in the Legislative Assembly and if there be no such leader, a person selected in this behalf by the Members of the Opposition in that House in such manner as the Speaker may direct;

(b) the Upalokayukta shall be appointed in consultation with the Lokayukta.

2) A person shall not be qualified for appointment as- (a) the Lokayukta, unless he is or has been Chief Justice of any High Court in India, or a Judge of a High Court for seven years; (b) an Upalokayukta, unless he is or has been a Secretary to the Government or a District Judge in Delhi for seven years or has held the post of a Joint Secretary to the Government of India.

3. Every person appointed as Lokayukta or Upalokayukta shall, before entering upon his office, make and subscribe before the Lieutenant Governor or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule.

4. The Upalokayukta shall be subject to the administrative control of the Lokayukta and in particular, for the purpose of convenient disposal of investigations under this Act, the Lokayukta may issue such general or special directions as he may consider necessary to the Upalokayukta and may withdraw to himself or may, subject to the provisions of Section 7, make over any case from himself to an Upalokayukta or from one Upalokayukta to another Upalokayukta for disposal Provided that nothing in this sub-section shall be construed to authorize the Lokayukta to question any finding, conclusion, recommendation of an Upalokayukta.

44. GUJARAT LOKAYUKTA ACT, 1986 Section 3 - Appointment of Lokayukta-

1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall by warrant under his hand and seal appoint a person to be known as the Lokayukta; Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of the Opposition in the Legislative Assembly or if there be no such Leader a person elected in this behalf by the members of Opposition in that house in the manner as the Speaker may direct.

(2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of the High Court.

(3) Every person appointed as the Lokayukta shall, before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation in the form set out for the purpose in the First Schedule.

45. THE JHARKHAND LOKAYUKTA ACT, 2001 3. Appointment of Lokayukta-

(1) For the purpose of conduction investigations in accordance with the provisions of this Act, the Governor shall by warrant under his hand and seal appoint a person to be known as the Lokayukta of Jharkhand; Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the Jharkhand High Court, Ranchi and the Leader of the Opposition in the State Legislative Assembly or if there be no such leader a person elected in this behalf by the Members of the Opposition in the State Legislative Assembly in such manner as the Speaker may direct.

(2) The person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by the Governor, an oath or affirmation in the form set out for the purposes in the First Schedule.

46. HARYANA LOKAYUKTA ACT, 2002: Section 3 - Appointment of Lokayukta-

(1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor, shall, by warrant, under his hand and seal, appoint a person to be known as the Lokayukta: Provided that the Lokayukta shall be appointed on the advice of the Chief Minister who shall consult the Speaker of Haryana Legislative Assembly, Leader of Opposition and the Chief Justice of India in case of appointment of a person who is or has been a Judge of the Supreme Court or Chief Justice of the High Court, and Chief Justice of the Punjab and Haryana High Court in case of appointment of a person who is or has been a Judge of a High Court. Provided further that the result of consultation shall have persuasive value but not binding on the Chief Minister.

(2) A notification by the State Government about the consultation having been held as envisaged in sub-section (1) shall be conclusive proof thereof.

(3) Every person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by him, an oath of affirmation in the form set out for the purpose in the Schedule.

47. KERALA LOK AYUKTA ACT, 1999 Section 3 - Appointment of Lok Ayukta and Upa-Lok Ayuktas-

1) For the purpose of conducting investigations and inquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as Lok Ayukta and two other persons to be known as Upa-Lok Ayuktas.

(2) A person to be appointed as Lok Ayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister, in consultation with the Speaker of the Legislative Assembly of the State and the Leader of Opposition in the Legislative Assembly of the State.

(3) A person to be appointed as an Upa-Lok Ayukta shall be a person who holds or has held the office of a Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Speaker of the Legislative Assembly of the state and the leader of Opposition in the Legislative Assembly of the state. Provided that the Chief Justice of the High Court concerned shall be consulted, if a sitting judge is appointed as an Upa- Lok Ayukta.

(4) A person appointed as Lok Ayukta or Upa-Lok Ayukta shall, before entering upon his office, make and subscribe, before the Govern