THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P. NO. 10492 OF 2000 Date of Disposal: 27.8.2009 Between: C. Raghupati …Petitioner and Upalokayukta and another …Respondents THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P. NO. 10492 OF 2000 ORDER: (Per Hon’ble Sri Justice Vilas V. Afzulpurkar) 1. The petitioner in this writ petition is Joint Commissioner of Endowments, and he worked as Executive Officer of Sri Raja Rajeshwari Swamy Temple, at Vemulawada, Karimnagar district during the relevant period from 24.1.1994 to 18.3.1996. It is stated in the writ affidavit that on 17.11.1995 a complaint, purported to have been written in the name of Sreenadha Rao, leveling 23 allegations of corruption against the petitioner, was addressed to the then Chief Minister and its copies were were marked to the Endowments Minister, Commissioner of Endowments, Lok Ayukta, Director of CB CID, Director of ACB, Principal Secretary, Revenue and vigilance office of Endowments for necessary action. It is alleged that the office of the Chief Minister directed the Commissioner of Endowments to make necessary enquiry into the matter. Additional Commissioner enquired into the allegations and the Commissioner of Endowments sent a report to the office of Chief Minister along with covering letter dated 12.2.1996 and also to the Government along with covering letter dated 16.7.1996. Thereafter the Registrar of Lok Ayukta and Upa-Lokayukta addressed two letters dated 20.8.1996, one to the Additional Commissioner calling upon him to send the enquiry report and another to the Commissioner asking for the necessary files. In reply thereto, the Commissioner is alleged to have informed the office of the Lokayukta and Upa-Lokayukta under his reply dated 23.9.1996 that the allegations were already enquired into departmentally and the enquiry report was submitted to the Chief Minister and to the Government. However, the Upa-Lokayukta issued a notice dated 30.10.1998 to the petitioner in Form No. VII under Rule 6 (4) of the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 calling for his comments with respect to the allegation Nos. 1, 2, 6, 9, 11, 13, 14, 15 and 22 regarding which the Upa-Lokayukta had proposed to conduct investigation. The petitioner replied to the said notice, on 25.11.1998 denying all the allegations leveled against him as baseless, particularly stating that the alleged complainant is a fictitious person. Thereafter on 9.12.1998 a copy containing ten allegations was served on the petitioner and an order was passed by Upa- Lokayukta on 29.12.1998 rejecting his request to drop the proceedings. It is alleged that the Upa-Lokayukta conducted investigation and passed orders on 14.5.1999 finding the petitioner not guilty of the allegation Nos. 8 and 9 and guilty of the allegation Nos. 1 to 7 and 10 and recommended punishment of stoppage of two increments with cumulative effect and recovery of Rs.9360/-. A copy of the said recommendations was sent to the Commissioner of Endowments for necessary action and the Commissioner, in turn, under his proceedings dated 23.6.1999, accepted the recommendations and passed orders against the petitioner confirming the recommendations of the Upa-Lokayukta. Questioning the invocation of jurisdiction of Lokayukta and consequential orders passed by the Commissioner of Endowments, this writ petition has been filed. 2. We have heard Sri R. Narsimha Reddy, learned counsel appearing for the petitioner and Sri M.V.S. Suresh Kumar, learned standing counsel appearing for 1st respondent-Lokayukta and also learned Government Pleader appearing for 2nd respondent. 3. Learned counsel for the petitioner has contended that the very subject matter of the allegations having been emanated from the anonymous complaint by a fictitious person, no such person was ever examined nor his existence was proved. Secondly, he contends that the allegations, which were communicated to the petitioner, and the investigation made by the Upa-Lokayukta and its findings on some allegations, which, according to it, were substantiated, do not conform to the requirement of ‘allegation’ as defined under Section 2 (b) of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 (for short “the Act”). He has taken us to each of the allegations and the findings of Upa-Lokayukta to demonstrate that none of the said allegations can be said to fall within the parameters of the jurisdiction of Upa- Lokayukta. He, therefore, contends that the action taken by the Upa-Lokayukta and the consequential action of the Commissioner of Endowments has resulted in imposition of serious punishment on the petitioner and which deserves to be interfered with in this writ petition. 4. Sri M.V.S. Suresh Kumar, learned standing counsel appearing for 1st respondent-Lokayukta contends that the action of the Upa-Lokayukta is justified under the definition of ‘action’ under Section 2 (a) of the Act. He submits that there were serious allegations against the petitioner and therefore the action taken by the Upa- Lokayukta is clearly warranted and it is within its jurisdiction under Section 7 of the Act. 5. We have considered the aforesaid contentions and before we deal with the same, it is necessary to notice the allegations made in the complaint which are as follows, “ALLEGATION NO.1: That on the basis of the resolution passed by the Trust Board to get the broken portion of the retaining wall situated on the eastern side of the temple tank, though 75% of the work of construction of the wall was done by the Department, you in violation of the said resolution stopped the remaining work and entrusted it to the brother of one of the Trust Board Member and made payment to him and thereby violated the departmental rules and regulations and the provisions of financial code. ALLEGATION NO.2: That you have purchased 72 fans at Rs.630/- each from a local person, though the value of each fan was Rs.325/- only, instead of purchasing the fans from the firms from whom quotations were obtained earlier and thereby misused your official position. ALLEGATION NO.3: That you purchased electrical goods worth lakhs of Rupees without calling for tenders, from Naveena Electricals, Kareemnagar and without obtaining permission from the Commissioner and thereby violated the rules and misused your official position. ALLEGATION NO.4: That you entrusted the work of construction of drainage at Parvathipuram, Vemulawada to Sri Gangisetti Sambaiah, without calling for open tenders and thereby violated the rules and regulations. ALLEGATION NO.5: That you approved the orders irregularly appointing Sri Gattu Krishnaiah, who was working as cook in the Devasthanam as Lingam Washer and without obtaining the approval of Commissioner and thereby misused your official position. ALLEGATION NO.6: That you have appointed on compassionate grounds S. Ramesh as N.M.R. s/o Saggu Rajaiah who retired from service on medical grounds, in violation of rules and regulations and during ban period as his two brothers are working (sons of Rajaiah) and thereby you have misused your official position. ALLEGATION NO.7: That you have permitted Smt. R. Narasamma to retired from service on medical invalidation grounds and appointed her son R. Chandramouli even though her another son by name R. Laxman is working as Record Assistant in Devasthanam and even though there was ban for appointment of N.M.R. and without obtaining prior approval of the Commissioner and thereby you have not only violated the rules and regulations but also misused your official position. ALLEGATION NO.8: That though the post of Assistant Engineer has been lapsed in the year 1991 you promoted Sri Rameshwar Rao as Assistant Engineer in violation of the rules and regulations and thereby you have misused your official position. ALLEGATION NO.9: That though the Commissioner of Endowments accorded sanction for the repairs of the body of Devasthanam’s Lorry only, on the pretext of getting engine of the said lorry repaired, you made additional payments in violation of rules and without obtaining the permission from the Commissioner and thereby you have violated rules and misused your official position. ALLEGATION NO.10: That though P. Srinivas working as N.M.R. in the Devasthanam was caught red handed by the staff while he was committing theft of Rs.300/- from Devasthanam’s Hundi and he was placed under suspension, instead of reporting the matter to police to take criminal action against him you took him to duty in violation of the rules and regulations.” 6. Allegation Nos. 1 to 7 and 10 have been held to be established, whereas allegation Nos. 8 and 9 have not been held established. The findings of the Upa-Lokayukta on each of those allegations are as follows, FINDINGS ON ALLEGATION NO.1: “………More so when in June, ‘94 resolution was passed whereas labour contract was given in October, ’94 for which there is time lag of two months. That being so as regards this allegations, it is clearly established that the public servant violated the procedure envisaged in Article 173 of A.P. Financial Code. Hence the allegation is that regard is established.” FINDINGS ON ALLEGATION NO.2: “……….In view of the above discussion I hold that this allegation has been established. As regards the financial loss, the sum of Rs.9,360/- it shall be recovered from the public servant. The competent authority shall also initiate necessary disciplinary action against the then P.A. for obtaining quotation from local firm after calling for quotations from four firms but three firms of which lowest quotation submitted by the Crompton Greaves was put up for approval. Without rejecting the lowest quotation among three companies, the P.A. obtained lowest quotation locally.” FINDINGS ON ALLEGATION NO.3: “………..Since he purchased the electrical material from the authorized dealer, but the lapse on the part of the public servant being that he ought to have got the estimate sanctioned by the Commissioner for the purchase of electrical material and since the Executive Officer has no official power to make the purchases to the extent of Rs.1,49,675/- without sanction from the commissioner. To that extent this allegation is proved against the public servant.” FINDINGS ON ALLEGATION NO.4: “……….While dealing with the allegation Nos.1, I have already quoted Article-173 of A.P. Financial Code, the Executive Officer i.e., Public servant should have executed this work also departmental by engaging N.M.R.S. only. But he obtained the quotations for labour charges and got executed the work by supply of the material departmentally which is contrary to the rules. For the reasons stated by me while dealing with the allegation No.1 which equally apply here also. I hold that this allegation has been established against the public servant to that extent.” FINDINGS ON ALLEGATION NO.5: “…………When earlier the request of the public servant was rejected by the Commissioner for giving Krishnaiah the time scale by appointing him as a Lingam washer from the post of cook when there was no feeder channel, the action of the public servant cannot be justified and the irregular appointment cannot be justified in the manner in which the public servant submitted his justification in the comments submitted by him referred to by me earlier. Hence I hold that this allegation is also established to the extent stated above.” FINDINGS ON ALLEGATION NO.6: “………When Ramesh was stopped who was already working as N.M.R. how can he be continued in the place of his father during the pendency of which Rajaiah died. When there was a ban on recruitment he ought not to have appointed Ramesh. In that view of the matter this allegation is also proved against the public servant as stated above.” FINDINGS ON ALLEGATION NO.7: “………As regards the contention of the learned counsel for the public servant about non-applicability of the provisions of Act-2 of 1994 and the subsequent further amendment made by Act 27 of 1998 for the reasons stated by me while dealing with the allegation relating to the appointment of S. Ramesh equally applies in this case also. Therefore, that submission is not accepted. Hence I hold that this allegation is also established.” FINDINGS ON ALLEGATION NO.8: “………As his promotion was given ‘in’ the existing vacancy by the E.O. who was competent to the promotion and T. Rameshwara Rao was fully qualified and being senior most, I do not find any irregularity or illegality in the public servant giving him the said promotion. Hence I hold that this allegation is not established.” FINDINGS ON ALLEGATION NO.9: “………When the public servant submitted proposals for additional budget for the year 1994-95 it included the sum of Rs.2,25,000/-. The Commissioner in hs Rc. No. A3/16189/95 dt. 31.3.95 sanctioned Rs.2,35,000/- under the budget head lorry repairs in the supplemental budget in the year 1994-95. That being so, this allegation is not established.” FINDINGS ON ALLEGATION NO.10: “……The E.O. the public servant herein being persuaded by the Chairman of the Temple and so he was forced to take him on duty cannot be a justification for his action as a person with bad antecedent cannot be appointed or taken back into service. Hence this allegation is proved against the public servant.” Recommendations by Upa-Lokayukta are as follows: “……Taking into consideration the nature of the irregularities committed by the public servant in respect of the allegations which are proved, for the reasons stated by me in this order, as there was no material that the public servant has received monetary consideration in committing these irregularities, I feel that ends of justice would be met by suggesting the punishment of stoppage of two (2) increments with cumulative effect, besides ordering recovering of Rs.9,360/- ………” 7. A reading of the allegations and the findings thereon would clearly show that none of the allegations except the allegation No.2 can be said to fall within the requirement of definition of ‘allegation’ under Section 2 (b) of the Act. Section 2 (b) of the Act reads as under, “2 (b) "allegation" in relation to a public servant means any affirmation that such public servant, (i) has abused his position as such, to obtain any gain or favour to himself or to any other person, or to cause undue harm or hardship to any other person; (ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motive and thereby caused to the State or any member or section of the public; or (iii) is guilty of corruption, or lack of integrity in his capacity as such Public servant; 8. It is to be noticed that in order to constitute an allegation under the above provision, the public servant must have abused his position to obtain any gain or favour to himself or to any other person, or to cause undue harm or hardship to any other person. The abuse of position must be linked with gain or favour to the public servant himself or any other person or undue harm or hardship to any other person and the public servant must have been actuated in the discharge of his functions by improper or corrupt motive and thereby caused to the State or any member or section of the public. Both the said ingredients must be satisfied in order to justify action under the Act with respect to an allegation. The word ‘allegation’ as defined under the Act is, therefore, specifically couched by the legislature in a language which makes it mandatory that the twin ingredients are necessary to be fulfilled. The existence and satisfaction of such essential ingredients therefore amounts to an existence of jurisdictional fact for exercise of the power under the Act. In the present case admittedly Section 2 (b) (iii) is not attracted as no allegation of corruption or lack of integrity is found. In this regard, it is necessary to notice that the allegation No.2, referred to above, and the findings thereon, which were reached against the petitioner, at best, would fall under Section 2 (b) (i) and (ii) of the Act. It is evident from the recommendations of the Upa-Lokayukta himself that the conclusion against the petitioner on the allegation No.2 was reached on the ground that the 72 fans were purchased locally at the rate of Rs.630/- each which caused a loss of Rs.9360/- to the funds of Devasthanam. The aforesaid finding is in ignorance of the fact that the price for each fan quoted by other three companies in the quotations was higher than the price of Rs.630/- at which rate 72 fans were purchased locally by the petitioner. Crompton Greaves quoted Rs.602.14 for each fan plus 14.48% APGST, Polar International Limited quoted Rs.832-00 for each fan including all taxes, whereas Hindusthan Dealers Limited quoted Rs.780/- for each fan including all taxes. Apparently the Upa-Lokayukta proceeded on the footing that the Crompton Greaves quoted Rs.602.14 for each fan, but the petitioner purchased the fans at the rate of Rs.630/- per fan locally causing loss to the institution. It is clear and apparent that the sales tax component of 14.48 APGST to the price of Rs.602.14 per fan quoted by Crompton Greaves was lost sight of the Upa-Lokayukta while assessing as to whether the petitioner purchased the fans at a cheaper rate or higher rate. If the sales tax component is added to the price of Rs.602.14 quoted by Crompton Greaves, the price of each fan would be upto Rs.690/-. The assessment of the Upa-Lokayukta in the impugned order that the petitioner has caused loss of Rs.9360/- to the Devasthanam by making purchase of fans from a local dealer at higher rate is, therefore, factually incorrect and consequently finding of financial loss reached by the Upa-Lokayuktha is contrary to the record available to it. So far as other allegations are concerned, as is noticed above, no loss to the department or institution as such is alleged or established and even assuming that they are mere violations of the departmental rules and circulars, they do not fall within the definition of ‘allegation’ warranting an order by the Upa- Lokayukta of the above nature and consequently therefore the jurisdictional facts are clearly absent in the present case. Consequently the action and the enquiry undertaken and the recommendations made by the Upa- Lokayukta and consequential action by the Government are clearly unsustainable. 9. The learned counsel for the petitioner has relied upon a decision of this Court reported in S. Jagadeswar Vs.The Lok Ayukta of Andhra Pradesh and Ors. [1] wherein this Court interpreted the words ‘action’ and ‘allegation’ as defined under Section 2 (a) and (b) under paras 5 and 6 which are as follows, “5. Section 7 of the Act makes it clear that the investigation contemplated is only of an "action". "Action" has been defined in Section 2(a) of the Act as "action taken by a public servant in the discharge of his functions as such public servant, by way of decision, recommendation or finding or in any other manner, and includes any omission and commission in connection with or arising out of such action; and all other expressions connecting action shall be construed accordingly". It is clear that 'action' contemplates a specified act to have been committed warranting investigation. Of course, a specified act may also include series of acts, but it is clear that "action" does not mean a complaint in a general way but must refer to some specific event about which the allegation is made or alleged. 6. Section 7 of the Act further makes it clear that what is to be investigated is an allegation in respect of an action whether or not a complaint is made of such allegation. "Allegation" is defined in Section 2(b) of the Act as fellows: "(b) "allegation" in relation to a public servant means any affirmation that such public servant,- (i) has abused his position as such, to obtain any gain or favour to himself or to any other person, or to cause undueharm or hardship to any other person; (ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motive and thereby caused loss to the State or any member or section of the public; or (iii) is guilty of corruption, or lack of integrity in his capacity as such Public servant." A reading of the definition makes it further clear that the allegation has to be about some particular act which may be either a commission or omission but never a vague submission or a generalised one. Section 9 of the Act prescribes the manner in which the complaint are made saying that every complaint shall be made in such form and shall be accompanied by such affidavits as may be prescribed. The complaint has to relate, under the section, to an allegation in respect of any action. The procedure as outline in Section 10 of-the Act stipulates a preliminary investigation by the Lok Ayukta or the Upa- Lok Ayukta to arrive at the conclusion of the necessity to conduct an investigation under the Act. Section 10(2)(a) of the Act provides that the preliminary verification is to be conducted in private and that particularly the identity of the complainant and the public servant to be affected by the preliminary verification is not to be disclosed. After making the preliminary verification if the complaint is accepted for investigation, the procedure for making the investigation is to be followed by forwarding a copy of the complaint, or when there is no complaint and it is a suo motu action, a statement of the grounds for initiation of the action to the public servant concerned for his comments. Section 11 of the Act also vests in the Lok Ayukta or the Upa-Lok Ayukta the power, inter alia, to record evidence in connection with the investigation. Another rider to the entertainment of the complaint is a bar provided under Section 8(2) of the Act directing no complaint to be entertained after six years from the date of the action complained against. That only fortifies the conclusion that the investigation contemplated under the Act is only of a specific complaint, or even suo motu, of an allegation in respect of any particular action of the officer complained against.” 10. It would also substantiate that the word ‘action’ defined under Section 2 (a) of the Act has necessarily to be in connection with and to be read along with definition of ‘allegation’ and is not as if mere action without proving an allegation is sufficient. The contention of the learned counsel for 1st respondent in that respect is, therefore, not sustainable. 11. This Court, while admitting the writ petition on 24.7.2000, had passed an interim order declining to grant stay of punishment, but stayed the recovery of amount till further orders. 12. In the result, the writ petition is allowed and the impugned order and consequential orders are set aside. The petitioner is entitled to restoration of annual grade increments and also consequential benefits. However, there shall be no order as to costs. ________________________ JUSTICE V. ESWARAIAH _______________________________ JUSTICE VILAS V. AFZULPURKAR Dt. 27.8.2009 KR [1] 1996 (4) ALT 1072