16 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (D.B. HON'BLE SHRI P.K. JAISWAL & HON'BLE SHRI I.S. SHRIVASTAVA, J,J.) W.A. No. 355/2011 GUMAN SINGH DAMOR V/s. STATE OF MADHYA PRADESH & Anr. ******* Shri A.S. Garg, learned Senior counsel with Shri S. Prasad, learned counsel for the appellant. Shri Girish Desai, learned Dy. A.G. for the respondent No.1 – State. Shri Anand Soni, learned counsel for respondent No.2. ________________________________ W.A. No. 359/2011 ASHUTOSH AWASTHY V/s. STATE OF MADHYA PRADESH & Anr. ******* Shri A.K. Sethi, learned Senior counsel with Shri S.S. Sharma, learned counsel for the appellant. Shri Girish Desai, learned Dy. A.G. for the respondent No.1 – State. Shri Anand Soni, learned counsel for respondent No.2. __________________________________ W.A. No. 369/2011 RAJENDRA PRASAD SHARMA V/s. STATE OF MADHYA PRADESH & Anr. ***** 16 Ms. Vandana Kasrekar, learned counsel for the appellant. Shri Girish Desai, learned Dy. A.G. for the respondent No.1 – State. Shri Anand Soni, learned counsel for respondent No.2. O R D E R (10.8.2011) Per P.K. Jaiswal, J. All these three writ appeals under Section 2 (1) of Madhya Pradesh Uchcha Nyayalay (Khandpeeth Ko Appeal) Adhiniyam, 2005 are directed against the order dated 19.5.2011 passed by Single bench of this Court in W.P. No.7748/2008 (s), W.P. No.7593/2008 (s) and W.P. No.3806/2009 (s) by which writ petitions against the enquiry report dated 10.12.2008, the recommendatory report of Up-Lokayukt dated 15.12.2008 and letter dated 16.12.2008 issued by the Secretary of the second respondent – Lokayukt have been dismissed. 2. Appellant in writ appeal no.355/2011 is presently holding the post of Engineer-In-Chief, Public Health Engineering Department of the Government of M.P. At the relevant point of time, he was holding the post of Executive Engineer and was posted as 'Executive Engineer' in PHE Division, Khargone. 3. Appellant in Writ Appeal No.359/2011 is presently posted as Regional Manager, M.P. State Civil Supplies Corporation, Regional Office Indore. 4. Appellant in Writ Appeal No.369/2011 is retired from the post of Superintending Engineer in Public Health Engineering Department. At the relevant point of time (period for which allegations are made), the appellant was posted as 'Executive Engineer in PHD Division, Khandwah. 5. Common questions of law is involved in all these three writ appeals and as such they are heard together and are being decided by this Common order. 16 6. For the sake of convenience, the facts are taken from Writ Appeal No.355/2011. 7. On receiving the complaint against the appellant the respondent no.2 – Lokayukt directed to register the complaint under the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (for short 'the Adhiniyam') vide case no.28/102-2002-03 and directed to hold enquiry under the Adhiniyam vide order dated 5.7.2002. In compliance to the direction passed by the Lokayukt an enquiry of the said complaint was conducted by the Chief-Engineer posted in Lokayukt organization. After holding a preliminary enquiry a show cause notice was issued to the appellant on 8.8.2008 and thereafter, after considering the reply of the said show cause notice, the enquiry officer submitted the fact finding enquiry report dated 10.12.2008 before the Up-Lokayukt. The Up-Lokayukt on being satisfied that the allegation levelled against the appellant is duly established, communicated his recommendation to the first respondent. Feeling aggrieved by the recommendatory report of the Lokayukt and the direction issued by the Secretary of the Lokayukt, the appellants have filed three writ petitions on the ground that enquiry was conducted in violation to the principles of natural justice and no opportunity was granted to them to cross examine the witnesses who were examined before the Lokayukt organization and the statements of whom were recorded by the enquiry officer of the Lokayukt and as such the recommendation made by Up-Lokayukt on the basis of such enquiry report cannot be acted upon. It was also contended that the enquiry against the appellant was conducted by the person, who was junior to him in the seniority list and the said enquiry was conducted by the said officer contrary to the circulars issued by the Government of Madhya Pradesh from time to time. The next contention of the learned Senior counsel for the appellant was that the recommendatory note dated 15.12.2008 was sent by the Up-Lokayukt and the Secretary of the 16 Lokayukt has issued direction vide letter dated 16.12.2008 to the State Government to conduct departmental enquiry against the petitioner, which is violative of provisions contained in Section 12 of the Adhiniyam, as no mandatory direction to initiate the departmental inquiry could have been issued to the State Government. 8. On the other hand, the stand of the respondents that the complaint was received against the appellant that when he was posted as Executive Engineer in PHE Division Khargone, he had committed irregularities in purchasing of certain articles. While doing so he avoided procedure of calling tenders so that he can place the orders to the respective parties for purchase of material to the extent of Rs.25000/- which was within his limit. A complaint was made that he splited the requirements in a bunch of Rs.25000/- so as to bring it within his limit so that he can sanction the same without calling tenders. He ordered for purchasing the material from the firms of his choice and that too on the rates which were more than the rates prescribed by the M.P. Laghu Udyog Nigam. It would contend that there was no violation of any provision of the Adhiniyam and after preliminary enquiry a show cause notice was issued to the appellant who submitted his reply and thereafter, the impugned action has been taken which is in conformity with the provision contained in Section 12 of the Adhiniyam. 9. The learned writ court after appreciating the arguments of the learned counsel for the parties and after considering the provisions of Section 10, Section 12 and Section 13 of the Adhiniyam came to the conclusion that letter dated 16.12.2008 issued by the Secretary of the Lokayukt organization is not directory in nature and the same shall not be acted upon by the competent authority of the State Government mechanically and it shall be considered by the competent authority and appropriate decision shall be taken on it in conformity with the provisions contained in Section 12 of the Adhiniyam, with the 16 aforesaid observations all the three writ petitions were dismissed. 10. It has been contended by the learned Senior counsel for the appellant that Lokayukt appointed Shri B.K. Nayak, who was holding the designation as an enquiry officer. Shri Nayak is a officer holding the equal rank as the appellant and thus, he could not have been appointed as a enquiry officer. The officer giving fact finding enquiry report should be a officer superior in rank to the appellant and he alone can issue memo of charges, the enquiry report submitted by the said enquiry officer deserves to be set aside and the learned Single Judge without appreciating the said fact erred in dismissing the writ petitions. It would contend that under Section 10 of the Adhiniyam the Lokayukt or Up- Lokayukt decide the procedure to be followed for making enquiry and in doing so ensure that the principles of natural justice is satisfied. It is also submitted that under Section 10, 11 and 12 of the Adhiniyam there is no provision by which Lokayukt can delegate his power to the enquiry officer to conduct the enquiry on his behalf and submit the report. He lastly submitted that the Lokayukt or Up-Lokayukt conducts an investigation under the Adhiniyam, he shall after a copy of the complaint or statement of the grounds of investigation has been served on the public servant concerned, afford reasonable opportunity to him or his authorized representative to inspect or copy the affidavit of the complaint and other documents which may have been filed in support of such complaint, affidavit or statement. The respondent no.2 without complying the provision of Rule 16 of the M.P. Lokayukt Evam Up-Lokayukt (investigation) Rules, 1982 accepted the report of the enquiry officer and committed an error in directing the State Government to initiate the departmental enquiry against him and to take appropriate action against the appellant, thus, the entire action taken by the Lokayukt is in violation to the provisions of the Adhiniyam and learned Single Judge committed an error in dismissing the writ petition. 16 11. On the other hand, learned counsel for the respondents supported the impugned order of the writ Court and submitted that none of the provisions of the Adhiniyam nor any provision of Rules of 1982 have been violated and prayed for dismissal of the writ appeals. 12. We have heard learned counsel for the parties at length and perused the record. 13. Section 10 prescribes procedure in respect of making the enquiry. It reads thus:- “The Lokayukt or Up-Lokayukt shall in each case before it, decide the procedure to be followed for making enquiry and in so doing ensure that the principles of natural justice is satisfied.” Section 12 provides for report of Lokayukt and Up- Lokayukt after enquiry, which reads as under:- “12(1).- Reports of Lokayukt and Up- Lokayukt.- (1) If after enquiry into the allegations the Lokayukt or an Up- Lokayukt is satisfied that such allegation is established, he shall by report in writing communicate his findings and recommendations alongwith the relevant documents, materials and other evidence to the competent authority. (2) The competent authority shall examine the report forwarded to it under sub-section 93 and intimate, within three months of the date of receipt of the report, the Lokayukt or, as the case may be, the Up-Lokayukt, the action taken or proposed to be taken on the basis of the report. (3) If the Lokayukt or the Up-Lokayukt is satisfied with the action or proposed to be taken on his recommendations, he shall close the case under information of the complaint, the Public Servant and the 16 competent authority concerned. In any other case, if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complaint concerned. (4) The Lokayukt and the Up-Lokayukt shall present annually a consolidated report on the performance of their functions under this Act, to the Governor. (5) If any special report under sub -section (3) or the annual report under sub-section (4) any adverse comment is made against any public servant, such report shall also contain the substance of the defence adduced by such public servant and the comment made thereon by or on behalf of the State Government or department concerned of the State Government or the public authority concerned, and the case may be. (6) On receipt of a special order under- section (3), or the annual report under sub-section (4), the Governor shall cause a copy thereof together with an explanation memorandum to be laid before the State Legislative Assembly. (7) Subject to the provisions of Section 10, the Lokayukt may at his discretion make available from time to time, the substance of cases closed or otherwise disposed of by him or by an Up-Lokayukt, which may appear to him to be a general public, academic or professional interest, in such manner and to persons as he may deem appropriate.” Section 13 deals with the Staff of Likayukt and Up- Lokayukt, which reads thus:- (1) The Lokayukt may appoint, or 16 authorise an Up-Lokayukt or any officer subordinate to the Lokayukt or an Up-Lokayukt to appoint, officers and other employees to assist the Lokayukt and the Up-Lokayukt in the discharge of their functions under this Act. (2) The categories of officers and employees who may be appointed under sub-section (1), their salaries, allowances and their conditions of service and the administrative powers of the Lokayukt and Up-Lokayukt shall be such as may be prescribed, after consultation with the Lokayukt. (3) Without prejudice to the provisions of sub-section (1), the Lokayukt or an Up-Lokayukt may be purpose of conducting enquiries under this Act, utilize the services of - [(i) [Divisional Vigilance Committee] constituted under Section 13-A.] (ii) any officer investigation or agency of the State or Central Government with the concurrence of that Government; or (iii) any other person or agency. (4) The services of officers and employees, other than those appointed by the Lokayukt under sub-section (1) shall not be taken back before the expiry of the period of deputation by the concerned department without prior concurrence of the Lokayukt.” 14. Rule (2) (iv), Rule 11, 15 and 16 of the M.P. Lokayukt Evam Up-Lokayukt (Investigation) Rules, 1982 reads as under:- 16 “Investigation” means any enquiry or other proceeding in connection with the complaint, but does not include a preliminary enquiry. 11. Application of the Criminal Procedure Code.- The procedure prescribed in sub-section (i) of Section 340 of the Code of Criminal Procedure, 1973 (2 of 1974) shall be followed in respect of offences referred to in clause (b) of sub-section (i) of Section 195 of the said Code and complaint made under Section 340 of the said Code shall be signed by such officer of the Lokayukt as he may appoint for the purpose. 15. Powers to regulate proceedings and investigation.- The Lokayukt or Up-Lokayukt shall have the powers, subject to the provisions of the Act, to regulate the conduct of proceedings, investigations and enquiries in all matters not provided for in these rules. 16. Procedure to be adopted at the investigation.- When the Lokayukt or Up-Lokayukt conducts an investigation under the Act, he shall after a copy of the complaint or the statement of the grounds of the investigation has been served on the public servant concerned, afford reasonable opportunity to him or his authorized representative to inspect or copy the affidavit of the complainant and other documents which may have been filed in support of such complaint, affidavit or statement. 15. The procedure of enquiry is laid down in Section 10 and the Lokayukt has to “ensure that the principles of natural justice are satisfied”. The only method by which these principles can be satisfied is by issuing a show cause notice to the public servant for obtaining his explanation. 16. Reading of Section 12 will show that a report under the provision can be made only when after enquiry into the allegations the Lokayukt or an Up-Lokayukt is satisfied that such allegations are established he shall report in writing to the competent authority. 17. As per record the enquiry was completed on 8.8.2008. The show cause notice was issued to the appellant on 8.8.2008, on 27.9.08 16 after considering the reply the office of Lokayukt came to the conclusion that the prima facie case is made out against the appellant and submitted his report on 10.12.2008. Approval for issuance of show cause notice was granted by Up-Lokayukt on 8.8.2008. As per show cause notice the date for hearing was fixed on 11.9.2008. As per noting made by the Superintendent Engineer of the office of Lokayukt the appellant was absent on the said date and prayed for time to file his reply. His prayer was allowed. The appellant Shri G.S. Damor, filed his reply and vide letter dated 20.10.2008 prayed for personal hearing. Shri R.P. Sharma, the then Executive Engineer vide letter dated 10.9.2008 prayed for personal hearing. The Up-Lokayukt accepted his prayer and fixed the case for hearing on 10.11.2008. On 10.11.2008 the additional explanation dated 07.11.08 of appellant Shri G.S. Damor was taken on record. Shri R.P. Sharma, present in person before the Up-Lokayukt. On 11.11.2008, the respondent No.2 after considering the reply recommended the matter to the State Government for taking appropriate action against the appellant. Another appellant Shri Ashutosh Awasthy, the then Chief-Executive Officer, Jhilla Panchayat, Indore, gave his reply which was considered by the respondent No.2 and thereafter, matter was referred by recommending note to the State Government under the provisions of the Adhiniyam. 18. In the case in hand, the complaint was made under Rule 6 of Rules of 1982. After enquiry prima facie case has been made out against the appellant and, therefore, by order of Up-Lokayukt a show cause notice was issued to the appellant on 8.08.2008 (Annexure P/1) which reads as under:- yksd vk;qDr dk;kZy; e/;izns'k] yksd vk;qDr Hkou] Hkksiky dzekad @1484@fo@28@102@2002&03] Hkksiky] fnukad 08-08-08 16 izfr] Jh th0,l0 Mkekj] rRdk0 dk;Zikyu ;a=h] yksd LokLF; ;kaf=dh [k.M] [kjxksuA fo"k; %& izdj.k dzekad & o@28@102@2002&03 dkj.k crkvksa lwpukA fo"k;karxZr izdj.k esa yksdk;qDr laxBu }kjk dh xbZ tkWap esa layXu vfHkdFku i= esa n'kkZ, vuqlkj vkjksi izFken`"kV~;k :i ls vkids fo:) ik, x, gSA vr% ;fn bl fo"k; esa vki LIk"Vhdj.k nsuk pkgrs gSa] rks viuk Li"Vhdj.k nsuk pkgrs gS] rks viuk Li"Vhdj.k fnukad 09@09@2008 rd yksd vk;qDr dk;kZy; dks izLrqr djsa rFkk dkj.k crk,Wa fd D;ksa ugha vkids fo:) ;qfDr;qDr fof/klEer dk;Zokgh djus dh vuq'kalk yksdk;qDr ,oa mi yksdk;qDr vf/kfu;e dh /kkjk&12 ¼1½ ds varxZr l{ke vf/kdkjh dks izsf"kr dh tkosA bl laca/k esa ;fn vki O;fDrxr lquokbZ pkgrs gSa] rks ekuuh; mi yksdk;qDr egksn; ds le{k fnukad 11@09@2008 dks vijkUg 2%15 cts mifLFkr gksaA ;fn bl laca/k esa vki laxBu esa miyC/k vfHkys[k@tkudkjh dk voyksdu djuk pkgrs gSa] rks fdlh Hkh dk;Z fnol esa mifLFkr gksdj] dj ldrs gSaA fu/kkZfjr frfFk rd Li"Vhdj.k izLrqr u djus ;k O;fDrxr lquokbZ gsrq mifLFkr u gksus dh n'kk esa ;g ekuk tkosxk fd vkidks izdj.k esa laca/k esa dqN ugha dguk gS] ml fLFkfr esa dk;Zokgh vkidh vuqifLFkfr esa dh tkosxhA layXu %& vfHkdFku i= ekuuh;] mi&yksdk;qDr egksn; ds vkns'kkuqlkj ¼ch0ds0 uk;d½ eq[; vfHk;ark nwjHkk"k dz0 2540956 19. In the present appeal, the learned writ Court while dismissing the writ petition made the following observations which reads as under:- “14. Having regard to the aforesaid provisions, I find that none of the points urged on behalf of the petitioner 16 has any merit except the point that the Secretary of the second respondent – Lokayukt Organisation could not have directed the State Government to hold the departmental enquiry against the petitioner. 17. At this juncture, I deem it appropriate to refer the view expressed by Former Lokayukt Hon'ble Shri GP Singh, Chief Justice (retired) in his order / opinion dated 13.10.1992. His Lordship had clarified the position by opining that the practice to be followed for recommendations for departmental action in cases where cases are not found fit for prosecution. His Lordship had opined that it will be proper before report under section 12(1) is finalized to issue a notice to the public servant concerned to show cause why departmental action be not recommended. Again while elaborating the said order / opinion dated 13.10.1992 his Lordship vide order dated 15.07.1993 opined that :- “A reading of Sec. 12 will show that a report under that provision can be made only when after an enquiry into the allegations the Lokayukt is satisfied that such allegations are established. The procedure for enquiry is laid down in Sec. 10 and the Lokayukt has to “ensure that the principles of natural justice are satisfied.” The only method by which these principles can be satisfied is by issuing a show cause notice to the public servant for obtaining his explanation. Unless the public servant is given an opportunity to explain the conduct complained of, no report can be made u/s 12 of the Adhiniyam. It is true that the public servant concerned will get another opportunity when a departmental enquiry is held against him on the recommendation of the Lokayukt. But that cannot dilute the requirement prescribed by Sec. 10 of the Adhiniyam. Thus, the public servant has two 16 opportunities of explaining his conduct – one before the Lokayukt and another before the departmental authority.” 18. Thus in view of the opinion of Hon'ble Shri Justice G.P. Singh which can be a guiding factor and to which I fully agree in my considered view, the Lokayukt Organization has not committed any violation of principle of natural justice while conducting the enquiry and submitting the recommendatory note to the competent authority of the State Government. On the other hand, the required procedure of giving show cause notice before making the report under section 12(1) of the Adhiniyam is found to have been duly complied with. 19. In Guruji Seva Nyas, Indore vs. State of M.P. and others (supra) on which strong reliance has been placed by learned counsel for the petitioner the facts are different. In that case on receiving a complaint against allotment of plots by the Indore Development Authority (for short IDA) to the – Guruji Seva Nyas, Indore the Lokayukt sought some explanation from IDA. Thereafter without issuing show cause notice to the Guruji Seva Nyas, in whose favour the allotment of plots was made, vide order dated 7.05.2008 the Lokayukt directed the IDA to cancel the allotment of plots made in favour of Guruji Seva Nyas. In such circumstances, the learned Single Judge had quashed the said order dated 7.05.2008 and requested the Lokayukt to look into the complaint once again if so desired and after holding an appropriate enquiry into the matter and after affording an opportunity to all the affected parties submit a report as per section 12(1) of the Adhiniyam. Whereas in this case, the show cause notice was issued to the petitioner himself and after considering his reply of the said show cause notice the enquiry report was prepared and submitted before the Up-Lokayukt who after satisfying that the allegation is established, by 16 making report in writing communicated his finding and recommendation to the competent authority of the State Government as per section 12(1) of the Adhiniyam. In the circumstances, the reliance of the petitioner on Guruji Seva Nyas, Indore vs. State of M.P. and others (supra) is wholly misplaced. 20. In view of the aforesaid, recording the stand taken by the learned counsel appearing for the second respondent that the letter dated 16.12.2008 (Annexure P-6) issued by the Secretary of the Lokayukt Organization is not directory in nature and also the stand of the learned Deputy Government Advocate that the same shall not be acted upon by the competent authority of the State Government mechanically and it shall be considered by the competent authority and appropriate decision shall be taken on it in confirmation with the provisions contained in section 12 of the Adhiniyam, in my considered view, the petition deserves to be and is hereby dismissed, with no orders as to costs. 20. In the case in hand, the proceedings taken were in order and in consonance with principles of natural justice. The respondent No.2 by issuing show cause notice to the appellant on 8.8.2008 satisfied the principles of natural justice. The conclusion of the fact finding report of the respondent No.2 is arrived at after giving a fair opportunity to the appellant. Before passing the fact finding enquiry a reasonable opportunity was accorded to the appellant. Appellant in writ appeal No. 369/2011 gave his personal appearance before the office of respondent No.2. The appellant-Shri G.S. Damor, filed his reply and thereafter, at his request, time was granted to file additional reply and thereafter, an additional reply filed by the appellant was taken on record and after considering the same the impugned action has been taken against him and, therefore, it cannot be said that the principles of natural justice has been violated by not giving oral hearing to the 16 appellant. As per notice oral hearing was given to all of them, but the some of the aggrieved person personally appeared before the Lokayukt and submitted reply and defended the action. Thus, the contention advanced by the learned counsel for the appellant is misconceived and we are of the view that learned Single Judge has not committed any error in dismissing the writ petition. We are also of the view that respondent No.2 has not violated the principles of natural justice while enquiring into the matter and submitted the fact finding report to State Government for taking appropriate action against the appellant. The said direction made in consonance with the