IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: October 20,2010 Decision on: November 22,2010 R.K. SAXENA W.P.(C) No. 1136 of 2010 Through: Mr. S.K. Dubey with N4r. D. Abhinav Rao and Mr. Jamal Akhtar. Advocates. VETSUS RAVINDERBALWANI WITH W.P.(O No. 3342 of 2010 CHETAN B. SANGHI Through: Mr. N. Waziri with Mr. Shoaib Haider, Advocate. VETSUS ..... Respondent Through: Mr. Maninder Singh, Senior Advocate with Ms. Priya Kumar, Advocate for Applicant in CM No. 4290 of 2010. Mr. K.B. Upadhyay with Mr. D.P. Singh, Advocates for Respondent. ..... Petitioner ..... Petitioner VEISUS R.N. BARARIA ..... ResPondent Through: Mr. Maninder Singh, Senior Advocate with Ms. Priya Kumar, Advocate for Applicant in CM No. 13761of 2010. Mr. K.B. Upadhyay with Mr. D.P. Singh, Advocates for Respondent. R.K. SAXENA ..... Petitioner Through: Mr. S.K. Dubey with Mr. D. Abhinav Rao and Mr. Jamal Akhtar, Advocates. B.K. SIIARMA ..... ResPondent Through: Mr. Maninder Singh, Senior Advocate with Ms. Priya Kumar, Advocate for Appticant itr No.3345 of2010 W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 7 of 27 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 'Sr CM No. 13760 of 2010. N4r. K.B. Upadhyay with Mr. D.P. Singh, Advocates for ResPondent. CORAM: JI]STICE S. MURALIDHAR 1. Whether reporters of the local news papers be allowed to see the judgment? No To be referred to the Reporter or not? Yes Whether the judgment should be reported in the Digest? Yes JUDGMENT 22.LL.2010 W.P.(C) Nos. 1136. 3342 and 3345 of 2010 & CM Nos. 4290. 6722. 6725. 13760 & 13761 of2010. 1. These three petitions involve the interpretation of Sections 2(m) (iv) and 17 of the Delhi Lokayukt a andUpalokayukta Act, 1995 ('DLAU Act'). Bockground -i 2. The background to these petitions is that Shri Ravinder Balwani (the Respondent in W.P.(C) No. 1136 of 2010) filed a complaint before the Lokayukta complaining of Shri R.K. Saxena (the Petitioner in W.P.(C) No. 1136 of 2010) of misusing his official position as Director (Administrative) as well as Director (HR) of Delhi Transco Ltd. ('DTL') for personal benefit. Balwani's specific case was that Saxena being the Director of DTL, a company owned by the Government of National Capital Territory of Delhi ('GNCTD') was a 'public functionary' within the meaning of Section 2(m) (iv) of the DLAU Act. 3. In response to the above complaint Saxena took the plea that the Lokayukta had no jurisdiction over Saxena under Section L7 of the DLAU w.P.(c) Nos. 7735, 9342 & 3345 of 2010 Page 2 of 27 2. aJ. ,a, N Act since Saxena was a member of the Indian Administrative Services \ (,IAS') and that it was in that capacity he was sent on deputation to the DTL as Director (Administrative) & Director (HR). Saxena's case was that he did not lack immunity from jurisdiction of the Lokayukta under Section 17 only because he was a Director of a company owned by the GNCTD. 4. By an order dated 5'h February 2010, the Lokayukta came to the conclusion that the preliminary objection raised by Saxena was without merit. It was held that the provision of Section 17 could not be used to defeat the provision of Section 2(m)(iv) of the DLAU Act unless it was impossible to effect reconciliation between the two provisions. The Lokayukta found that it was possible to reconcile the two provisions as a result of which "only those Members of the Civil Services of the lJnion, who are appointed as chairman, vice-chairman or Managing Director or a Member of the Board of Directors in respect of Apex Cooperative Society or any Cooperative Society or Government Company, Local Authority, Corporation or Commission or Body set up by the Government would be covered within the definition of 'public functionary' but the other/remaining Members of Civii Service would be excluded from the said definition." In other words, the Lokayukta held that once an IAS officer is appointed as Director of a company such IAS officer would lose immunity under Section 17 of the DLAU Act and would be amenable to the jurisdiction of the Lokayukta for the acts done by hirn in his capacity as Director of such government owneci colnpany. 5. Aggrieved by the above decision, Saxena filed Writ Petition (C) No' LI36 W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 3 ol 2i { \\ of 2010 in this Court in which while directing notice to issue on 24tt' February 2010, this Court stayed the order dated 5th February 2010 of the Lokayukta. 6. The background to the filing of Writ Petition (C) No. 3345 of 2010 is that B.K.Shalna filed a complaint against Saxena before the Lokayukta on similar lines as Balwani. The Lokayukta proceeded to entertain the complaint, notwithstanding that Saxena produced before the Lokayukta the order dated 24'h February 2010 passed by this Court in Writ Petition (C) No- 1136 of 2010. The present writ petition was filed seeking stay of further proceedings. While directing notice to issue on 17th May 2010, this Court stayed fui1her proceedings in the complaint titled "Shri B.K. Sharma v. Slri R.K. Ssxena" pending before the Lokayukta. I .InWrit Petition (c) No. 3342 of 2010, the Respondent R.N. Bararia filed a complaint against the Petitioner Chetan B. Sanghi, a member of the IAS, who was serving on deputation as Chairman-cum-Managing Director, Delhi S!.ate Industrial and Infrastructure Development Corporation ('DSIIDC') before the Lokayukta complaining of abusing his position for improper and coryupt motives within the meaning of Section 2(bxii) of the DLAU ACT: The Lokayukta proceeded to entertain the complaint and summoned the records and fixed a date for fuither hearing. Aggrieved by the notice dated 13th April 2010 and a subsequent order dated 5th May 2010, passed by the Lokayukta by way of entertaining the complaint, Writ Petition (C) No' 3342 of 2010 was filed in this court by chetan B. Sanghi in which notice was issued by this Court on 14th May 2010 and further proceedings before the W.P.(C) Nos. 7736, gg42 & 3345 of 2070 Page 4 of 27 v R.N. Bararia were Lokayukta in the complaint filed against the Petitioner by stayed. The common question 8. In all the three petitions, therefore, the common question that arises concerrs the jurisdiction of the Lokayukta to enteftain the complaint of these petitioners. In other words, the question is whether on a collective reading of Sections 2 (m) (iv) and 17 of the DLAU Act, the complaints against the three writ petitioners were rnaintainable? Decision of this Court 9. The long title to the DLAU Act states that it is an Act "to make provision for the establishment and functioning of the Institution of Lokayukta to inquire into the allegations against public functionaries in the National Capital Territory of Delhi and for matters connected therewith." The background to the enactment of the DLAU Act was an Interim Report of the Administrative Reforms Commission ('ARC') ot "Problems of Redress of Citizens, Grievances". The ARC recommended that the person authorised to discharge the functions of the Ombudsman at the Centre should be called as ,Lokpal' and his counterpart in the States be called as 'Lokayukta'. In office of Lokayuktu v. Govt. of NCT of Dethi 160 (2009) DLT /, a Division Bench of this Court explained as under (DLT at p'6): . ,.the object of the Act is to ensure an independent investigation of administrative action. If after inquiry into the allegations, Lokayukta is satisfied that such allegation is established, he makes a repoft under Section l2(I) of the Act. After the repott is submitted, the competent authority has to examine the repoft and intimate the action taken or proposed to be taken on the Page 5 of 27 W.P.(C) Nos. 7736, 3342 & 3345 of 2070 basis of the repoft within the time prescribed. If the Lokayukta or the Upa-Lokayukta is satisfied with the action taken or proposed to be taken on the recolnmendations or findings contained in the report, he shall close the case under infonnation to the complainant, the public servant and the competent authority concerned. But when he is not so satisfied and if he considers that the case so deserves, he may make a special report to the Lieutenant Governor and also inform the complainant. The Lokayukta and the Upalokayukta under Sub- section (4) have to present annually a consolidated report on the performance of their functions under the Act to the Lieutenant Governor. On receipt of a special report under sub-section (3), or the annual report under Sub-section (4), the Lieutenant Governor shall cause a copy thereof together with an 9 explanatory memorandum to be laid before the Legislative Assembly." 10. Keeping the above background in view, the provisions of the DLAU Act may be examined in some detail. The definition of 'public functionary' under Section 2(m) reads as under: "2. Definitions: - In this Act, unless the context otherwise requires - (m) "Public functionary" means a person who is or has been at arry time- (i) the Chief Minister or a Minister; (ii) a Member of Legislative Assernbly; (iii) a person having the rank of a Minister but shall not include Speaker and Deputy Speaker of the Legislative Assembly; (i") a Chairman, Vice-Chairman or Managing Director or a Member of a Board of Directors (by whatever name they be called) in resPect of - (1) an APex W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Co-operative SocietY or any Co- Page 6 of 27 \\ operative Society constituted or registered under the Delhi Co-operative Societies Act, 1972, which is subject to the control of the Government; (2) a Government Company within the meaning of Section 617 of the Companies Act, L956, engaged in connection with the affairs, and is under the control of the Government; (3) a Local Authority established under any law in relation to Delhi; provided that the provisions of this Act shall not be applicable to any authority of a Local Authority constituted under an enactment relatable to Entry No.18 of the State List of the Seventh Schedule of the Constitution; (4) a Corporation engaged in connection with the affairs, and under the control, of the Government; (5) any Cornmission or body set up by the Government which is owned and controlled by it; (,r) u Member of the Municipal corporation of Delhi as defined in clause 2(27) of the Municipal Corporation Act, 1957 (as amended in 1993)" 11. There can be no doubt that the range of offices covered by the definition of 'public functionary' under Section 2(m) is indeed wide. As far as the companies are concerned, the Chairman, Vice-Chairman and Managing Director or a Member of the Board of Directors are the persons falling within the ambit of 'public functionary'. If one were to go only by Section W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 7 of 27 /(v 2(*) DLAU Act, there would be no doubt whatsoever that the three writ Petitioners, in their capacity as Chairman and Managing Director of companies owned by the GNCTD would be covered within the definition of .public functionary'. However, this is not the only provision that is relevant. Section 17 of the DLAU Act reads as under: ,,17. For the removal of doubts it is hereby declared that nothing in this Act shall be construed to authorize the Lokayukta or an Upalokayukta to inquire into an allegation against - (a) any member of the Judicial services who is under the administrative control of the High Court under Article 235 of the Constitution; (b) any person who is a member of a civil service of the Union or an A11 India Service or Civil Service of a State or holds a Civil post under the Union or a State in connection with the affairs of Delhi." 12.Inthe order dated 5th February 20t0, while negativing the preliminary objection raised by R.K. Saxena, the Lokayukta interpreted Section 17 DALAU Act as being a 'non-obstante clause.' The usual words associated with a non-obstante clause are "notwithstanding anything contained in this Act or any other Act for the time in force." However, Section 17 DLAU Act is of a declaratory nature. It unambiguously declares that "noting in this Act shall be construed to authorise the Lokayukta or the Upalokayukta" to enquire into the allegation against an IAS officer or a member of the judicial services under the administrative control of the High Court. In effect, Section 17 is a total prohibition against the Lokayukta entertaining any W.P.(C) Nos. 7736, gg42 & gg45 of lO70 Page 8 of 27 \p This complaint against an IAS officer or a member of the judicial services. Court is, therefore, not able to concur with the Lokayukta in interpreting Section 17 DLAU Act as a non-obstante clause. The words "for the removal of doubts" preceding Section 17, underscores that it overrides anything to the contrary that might be indicated anywhere else in the DLAU Act and this includes Secti on 2 Qn) (iv). There is no ambiguity whatsoever about Section I7 DLAU Act. It is of a declaratory nature which absolutely prohibits thb Lokayukta from enquiring into an allegation against an IAS officer. Section 17 DLAU Act admits of no ambiguity and is plainly a cornplete exception to Section 2 (m) (iv). Consequently there is no occasion, as part of an interpretative exercise, to adopt a 'puqposive' construction (See for instan ce Gritl Corporation of Orissa Ltd. v. Esstern Metsls snd Ferro Altoys 2010 (2) SCALE 68n. For the same reason there is also no warrant for examining if Section 17 should be read subject to Section 2 (m) (iv) or read 'harmoniously' with it to preserve both provisions. It is possible that such questions might arise if this Court were required to examine the constitutional validity of Section 17. However, that is not within the scope of the present proceedings or for that matter the proceedings before the Lokavukta. 13. It is trite that the powers and functions of the office of the Lokayukta are to be found within the DLAU Act. The Lokayukta has to interpret the provisions of the DLAU Act as they occur. It is not within the scope of the powers of the Lokayukta to add to the provisions of the DLAU Act clauses or phr.ases that do not exist as has been done by the Lokayukta in the impugned order dated 5'h February 2010. The Lokayukta has by an W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 9 of 27 / d \'/ interpretative exercise carved out a further exception to Section 17 DLAU Act by holding that "a Chairman, Vice Chairman, Managing Director, etc.'3 of a goverrunent owned company, who continues aS a member of the IAS; would continue to be a 'public functionary' within the meaning of Section 2 (m) (iv) DLAU Act to whom the immunity under Section 17 DLAU Act will not apply. In effect the Lokayukta has added a further proviso to Section 17 when none exists. 14. An IAS officer if appointed as a Director of a government company on deputation by no means, ceases to be an IAS officer. It would be stretching the language of Section 2(m) to state that despite the total prohibition undei: Section 17 DLAU Act on the Lokayukta enquiring into an allegation against an IAS officer, if such IAS officer is a Director of a government owned colnpany, he will become amenable to the jurisdiction of the Lokayukta by virlue of Section 2(m) DLAU Act. Section 2(m) is only a definition clause and has necessarily to be read along with Section 17 to understand the extent of exercise of the jurisdiction of the Lokayukta over an IAS officer. If the legislative intent was that the IAS officer would lose immunity under Section I7 by virtue of becoming a Director of a govefirment owned company, then there should have been a proviso to Section 17 to that effect. All the provisions of an enactment have to be given their full meaning. It is not possible to read into certain provisions cerlain exceptions which do not exist. 15. It is not as if either Mr. Bararia or Mr. Sharma or Mr. Balwani would have no remedy whatsoever for redressal of their complaints. They can stili W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 70 of 27 I I IT\ \ pursue the other remedies available to them in accordance with law. It is not as if the only remedy available to them is under the DLAU Act. 16. This Court is unable to concur with the view expressed by the Lokayukta on the interpretation of Section 17 andsection 2 (m) (iv) of the DLAU Act. In the considered view of this Court, in view of the total prohibition under Section 17 ofth'e DLAU Act, the Lokayukta had no jurisdiction to enquire into any allegation against the Petitioners who happened to be at the relevant point of time members of the IAS and were on deputation to the government owned companies as Director or Chairman and Managing Director' 17. Consequently, the impugned order dated 5'h February 20t0 passed by the Lokayukta in the complaint titled "Rsvincler Balwani v- R-K. Ssxenct' is hereby set aside. The complaint is dismissed as being not maintainable. For the same reasons, the complaints titled "8.K. Sharmu v. R.K.Ssxena" arrd ,,R.N.Barsria v. Chetan B. Sanghf' pending before the Lokayukta are also disrnissed as being outside the scope of the jurisdiction of the Lokayukta' 18. The writ petitions are allowed but in the circumstances with no order as to costs. The applications are disposed of' The Lokayukta's three applicutions (CM No$ 4290, 13761 and 13760 oJ' 2010) 19. These three applications are by the Lokayukta' one in each writ petition; seeking the permission of this Court to address arguments on the issue of jurisdiction of the Lokayukta. In para 5 of the application in the first writ W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 77 of 27 s n the petition by R.K.Saxena, the Lokayukta expresses a "concern" that "i present writ petition the endeavour of the petitioner appeafs to be to curtaii and restrict the functioning and jurisdiction of the Lokayukta in the areas in which it is entitled to operate by purporting to keep off a large segment of 'Public Functionaries' who are otherwise subject to the jurisdiction of the Lokayukta." A similar concern is expressed in the other two applications in which the Lokayukta has prayed for permission for "being impleaded as a party,, or to address the Court on the issue ofjurisdiction. 20. Mr. Maninder Singh, leamed Senior counsel appearing for the Lokayukta submitted that under the provisions of the DLAU Act, the Lokayukta is performing an investigative function and not an 'adjudicatory' function. The impugned order dated 5th February 2010 passed by the Lokayukta ruling on his own jurisdiction was not to be construed as an exercise by the Lokayukta of an 'adjudicatory' function; only where an authority discharged 'adjudicatory' functions would the rule of impartiality get attracted. In other words, as long as the Lokayukta was only performing an investigative function under the DLAU Act the Lokayukta could not be said to have ceased to be impartial only because the Lokayukta sought to be impleaded and heard in a pending dispute between two parties arising out of an order passed by the Lokayukta. Mr. Singh submitted that in seeking to be heard in these writ petitions in supporl of his own order, the Lokayukta was performing a 'duty' entrusted to him by the DLAU Act and was carrying forth the mandate of the DLAU Act. The Lokayukta was only seeking to assist the Court in interpreting the provisions of the DLAU Act on an important question of jurisdiction of the Lokayukta which would have a W.P.(C)'Nos. 7736, 3342 & 3345 o/'2070 Page 72 of 27 bearing on complaints of a similar nature in future. Mr. Singh submi in doing so the Lokayukta could not be seen as aligning himself with one side against another even if before the Lokayukta they were parties opposecl to each other, and continue to be in the writ petitions. Mr. Singh submitted that the office of the Lokayukta was occupied by a person of considerable judicial experience who was expected to aci- impar-tially and that thiS impartiality would in no way be affected by the filing of these applications seeking that the Lokayukta be heard before this Court in support of his own order. 2I.Mr. Singh relied upon the decision of the Division Bench of this Court in Lokayukta v. Govt. of NCT of Dethi (supra). The said decision does not decide the issue of the locus of the Lokayukta to participate in proceedings in which the order of the Lokayukta is under challenge. However, according to Mr. Singh, the fact that this Court enteftained a writ petition filed by the Lokayukta to challenge the order of a learned Single Judge of this Court implied that this Court recognised the locus of the Lokayukta to petition this Court to be heard in a matter which was being inquired by hirn. Reference was made by Mr. Singh to the decision of the Supreme Court in Institution of A.P. Lokayukta v. T. Roma subba Reddy (1997) 9 SCC 42. One of the first appeals in the batch in which the said decision was rendered'was by the Lokayulcta of Andhra Pradesh challenging an order of the High Court of Andhra pradesh. The said decision did not decide the question whether the Lokayukta had the locus standi to petition the High Court or Supreme Coutt in the satne matter in which the Lokayukta had taken a view. Still, according Page 73 of 27 f tted that W.P.(C) Nos. 7736, 3342 & 3345 of 2070 il to Mr. Singh, the locus standi was impliedly recognised by the Supreme Cour1. 22. Leamed counsel for the writ petitioners expressed reservations on the filing of these applications by the Lokayukta. They subrnitted that these had to be viewed as abandonment by the Lokayukta of objectivity and impartiality. They displayed "affection" of the Lokayukta to his point of view which he wanted to support before this Court. They submitted that having passed the order dated 5th February 2010 taking a view on the question of jurisdiction, the Lokayukta should not be concerned with what happens to that order when challenged at the next level. Counsel for the complainants submitted that the complainants neither supporled nor opposed the applications of the Lokayukta. 23. This Court begins the discussion of preliminary observations. Usually when challenged in a writ petition by the person aggrieved, the authority ought not to be made a party to such proceedings. This was explained by the Supreme Court rn Savitri Devi v. District Jutlge, Gorakhpur (1999) 2 SCC 577 wherc it observed: (SCC, pp 582-583) "14. Before parting with this case it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the Special Leave Petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division) Gorakhpur afe shown as respondents and in the SpecialLeave Petition they are shown as contesting respondents' There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was the the question raised with certain decision of an authoritY is W.P.(C) Nos. 7736, 3342 & 3345 of 2070 Page 74 of 27- / filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition and describing them as contesting respondents. we do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the concerned judiciat officers. They