IN THE HIGH COURT OF DELHI AT NEW DELHI TO Reserved on: October 20, 2010 Decision on: November 22, 2010 W.P.(C) No. 1136 of 2010 R.K. SAXENA Petitioner Through: Mr. S.K. Dubey with Mr. D. Abhinav Rao and Mr. Jamal Akhtar, Advocates. versus RAVINDER BALWAM 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. WITH WilCfC) No. 3342 of 2010 CRETAN B. SANGHI Petitioner Through; Mr. N. Waziri with Mr. Shoaib Haider, Advocate. © versus R.N. BARARIA Respondent Through:Mi*. ManinderSingh,SeniorAdvocate with Ms. PriyaKumar,Advocatefor Applicantin CM No. 13761 of 2010. Mr. K.B. UpadhyaywithMr. D.P. Singh, Advocates for Respondent. AND W.P.(C) No. 3345 of 2010 R.K. SAXENA Petitioner Through:Mr. S.K. DubeywithMr. D. Abhinav Rao and Mr. Jamal Akhtar, Advocates. versus B.K. SHARMA Respondent Through:Mr. ManinderSingh,SeniorAdvocate withMs. PriyaKumar,Advocatefor Applicantin W.P.(C)Nos. 1136,3342&3345of2010 Poge1of21 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 CM No. 13760 of 2010. Mr. K.B. Upadhyay with Mr. D.P. Singh, Advocates for Respondent. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of the local news papers be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes JUDGMENT 22.11.2010 W.P.(C) Nos. 1136, 3342 and 3345 of 2010 & CM Nos. 4290, 6722, 6725. 13760 & 13761 of 2010. 1. These three petitions involve the interpretation of Sections 2(m) (iv) and 17 of the Delhi Lokayukta and Upalokayukta Act, 1995 ('DLAU Act'). Background 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 Lokayuktacomplainingof Shri R.K. Saxena(the Petitionerin W.P.(C)No. 1136 of 2010) of misusinghis officialpositionas Director(Administrative) as well as Director(HR) of DelhiTranscoLtd. ('DTL') for personalbenefit. Balwani's specific case was that Saxena being the Director of DTL, a companyowned by the Governmentof NationalCapitalTerritoryof Delhi ('GNCTD')was a 'publicfunctionary'withinthe meaningof Section2(m) (iv) of the DLAU Act. 3. In response to the above complaint Saxena took the plea that the Lokayuktahad no jurisdictionover Saxenaunder Section 17 of the DLALT W.P.(C)Nos. 1136,3342&3345of2010 Page2 of21 . © Act since Saxena was a member of the Indian Administrative Services ('IAS')and thatitwas in thatcapacityhe was sent on deputationto the DTL as Director(Administrative)&Director(HR). Saxena'scasewas thathe did not lack immunityfromjurisdictionofthe Lokayuktaunder Section17 only because he was a Director of a company owned by the GNCTD. 4. By an order dated February 2010, the Lokayukta came to the conclusionthat the preliminaryobjection raised by Saxena was without merit.It was heldthatthe provisionofSection17 couldnot be usedtodefeat the provisionofSection2(m)(iv)ofthe DLAUAct unlessit was impossible to effect reconciliationbetweenthe two provisions. The Lokayuktafound that it was possibleto reconcilethe two provisionsas aresultofwhich"only those Members of the Civil Services of the Union, who are appointedas Chairman,Vice-Chairmanor ManagingDirectoror a Memberofthe Board of Directors in respect of Apex CooperativeSociety or any Cooperative Society or Government Company, Local Authority, Corporation or Commissionor Body setup by the Governmentwouldbe coveredwithinthe definitionof 'publicfunctionary'but the other/remainingMembersof Civil Servicewould be excludedfrom 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 immunityunder Section 17 of the DLAU Act and wouldbe amenableto the jurisdictionofthe Lokayuktafor the acts done by him in his capacityas Directorofsuchgovernmentowned company. 5. Aggrievedby the abovedecision,SaxenafiledWritPetition(C)No. 1136 W.P.(C)Nos. 1136,3342&3345of2010 Page 3 of 21 V © of 2010 in this Court in which while directing notice to issue on 24*^? February2010, this Court stayedthe order dated S''" February2010 of the Lokayukta. 6. The backgroundto the filingofWritPetition(C) No. 3345 of2010 is that B.K.Sharma filed a complaint against Saxena before the Lokayukta on similar lines as Balwani. The Lokayukta proceeded to entertain the complaint,notwithstandingthat Saxenaproducedbefore the Lokayuktathe orderdated24'*' February2010 passedby this Courtin WritPetition(C) No. 1136 of 2010. The presentwrit petitionwas filed seeking stay of flirther proceedings. While directingnotice to issue on 17^'' May 2010, this Court stayedfurtherproceedingsin the complainttitled^^ShriB.K. Sharmav. Shri R.K. Saxena'' pendingbeforethe Lokayukta. 7. In WritPetition(C) No. 3342 of2010, the RespondentR.N. Barariafiled a complaintagainstthe PetitionerChetanB. Sanghi,amemberof the IAS, who was servingon deputationas Chairman-cum-ManagingDirector,Delhi State Industrial and InfrastructureDevelopmentCorporation('DSIIDC') beforethe Lokayuktacomplainingof abusinghis positionfor improperand corruptmotiveswithinthe meaningof Section2(b)(ii)ofthe DLAU ACT; The Lokayuktaproceededto entertainthe complaint and summoned the recordsand fixed adate for furtherhearing. Aggrievedby the noticedated 13"' April 2010 and asubsequentorder dated 5^^ May 2010, passedby the Lokayuktaby way ofentertainingthe complaint,WritPetition(C) No. 3342 of 2010 was filed in this Court by ChetanB. Sanghi in which notice was issued by this Court on May 2010 and furtherproceedingsbeforethe Page 4 of 21 :P.(C)Nos. 1136,3342&3345of2010 W. n Lokayuktain the complaintfiled againstthe Petitionerby R.N. Barariawfere stayed. The common question 8. In all the three petitions, therefore, the common question that arises concernsthejurisdictionofthe Lokayuktato entertainthe complaintofthese Petitioners.In otherwords,thequestionis whetheron a collectivereadingot 0 Sections2 (m) (iv) and 17 of the DLAU Act, the complaintsagainstthe threewritpetitionersweremaintainable? I Decision of this Court 9. The longtitleto the DLAUAct statesthat it is an Act "to make provision for the establishmentand functioningof the Institutionof Lokayuktato inquire into the allegations against public functionaries in the National ^ Capital Territory of Delhi and for matters connected therewith." The backgroundto the enactmentofthe DLAUAct was an InterimReportofthe AdministrativeReforms Commission('ARC')on "ProblemsofRedressof Citizens'Grievance^'.The ARC recommendedthatthe personauthorisedto dischargethe functionsofthe Ombudsmanat the Centreshouldbe calledas 'Lokpal' and his counterpartin the States be called as 'Lokayukta. In OfficeofLokayuktav. Govt. ofNCTofDelhi160(2009)DLThaDivision Benchofthis Courtexplainedas under(DLT at p.6): "the objectofthe Act is to ensurean independentinvestigation of administrativeaction. If after inquiry into the allegations, Lokayukta is satisfiedthat such allegationis established,he makesareportunderSection12(1)ofthe Act. Afterthe report is submitted,the competentauthorityhas to examinethe report and intimatethe action taken or proposedto be taken on the W.P.{C)Nos. 1136,3342&3345of2010 ^ basis of the reportwithinthe time prescribed.If the Lokayukta or the Upa-Lokayuktais satisfied with the action taken or proposed to be taken on the recommendationsor findings contained in the report, he shall close the case under information to the complainant, the public servant and the competentauthorityconcerned.But when he is not so satisfied and if he considers that the case so deserves, he may make a special report to the LieutenantGovernorand also inform the complainant.The Lokayuktaand the Upalokayuktaunder Sub section(4) haveto presentannuallya consolidatedreporton the performanceof their functionsunder the Act to the Lieutenant Governor.On receiptof a specialreportunder sub-section(3), or the annual report under Sub-section (4), the Lieutenant Governor shall cause a copy thereof together with an explanatory memorandum to be laid before the Legislative Assembly." 10. Keepingthe abovebackgroundin view,the provisionsofthe DLAUAct may be examined in some detail. The definitionof 'public functionary under Section2(m) reads as under: "2. Definitions: - In this Act, unless the context otherwise requires - (m) "Publicfunctionary"means a personwho is or has been at any time- (i) the ChiefMinisteror a Minister; (ii) aMemberofLegislativeAssembly; (iii) a personhavingthe rank ofa Ministerbut shall not include Speaker and Deputy Speaker of the Legislative Assembly; (iv) a Chairman,Vice-Chairmanor ManagingDirector or a Member of a Board of Directors (by Whatever name they be called)in respectof- (1) an Apex Co-operative Society or any Co- W.P.(C)Nos. 1136,3342&3345of2010 ,, ^^9^6of21 operative Society constitutedor registeredundefi the Delhi Co-operativeSocietiesAct, 1972, which is subject to the control of the Government; (2) a GovernmentCompany within the meaning of Section 617 of the Companies Act, 1956, engaged in connection with the affairs, and is under the control of the Government; (3) a Local Authorityestablishedunder any law in relation to Delhi; providedthatthe provisionsofthis Act shallnot be applicableto 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 Corporationengagedin connectionwith the affairs, and under the control, of the Government; (5) any Commission or body set up by the Government which is owned and controlled by it; (v) a Member of the MunicipalCorporationof Delhi as definedin clause2(27)ofthe MunicipalCorporationAct, 1957 (as amendedin 1993)" 11. There can be no doubtthatthe rangeof officescoveredbythe definition of 'publicfunctionary'under Section 2(m) is indeed wide. As far as the companies are concerned, the Chairman, Vice-Chairmanand Managing Director or a Member of the Board of Directors are the persons falling withinthe ambitof'publicfunctionary'. If one were to go only by Section W.P.(C)Nos.1136,3342&3345of2010 Page7of21 2(m) DLAU Act, there would be no doubt whatsoeverthat the three wr Petitioners, in their capacity as Chairman and Managing Director of companiesownedby the GNCTD wouldbe coveredwithinthe definitionof 'publicfunctionary'.However,this is not the onlyprovisionthatis 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 construedto authorizethe Lokayukta or an Upalokayukta to inquire into an allegation against - (a) any memberofthe JudicialServiceswho is underthe administrative control of the High Court under Article 235 of the Constitution; (b) any personwho is a memberofa Civil Serviceofthe Union or an All 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. In the order dated 5'^ February2010, while negativingthe preliminary objection raised by R.K. Saxena, the Lokayukta interpreted Section 17 DALAU Act as being a 'non-obstanteclause.' The usual words associated with a non-obstante clause are "notwithstandinganything containedin this Act or any otherAct for the time inforce."However,Section17 DLAUAct is ofa declaratorynature. Itunambiguouslydeclaresthat"notinginthis Act shall be construed to authorise the Lokayukta or the Upalokayukta" to enquireintothe allegationagainstan IAS officeror amemberofthejudicial services under the administrativecontrol of the High Court. In effect. Section 17 is a total prohibitionagainst the Lokayukta entertainingany W.P.(C)Nos.1136,3342&3345of2010 Page8of21 complaintagainstan IAS officeror amemberofthe judicialservices,this Court is, therefore,not able to concur with the Lokayuktain interpreting Section 17 DLAU Act as a non-obstanteclause. The words "for the removal of doubts" precedingSection 17, underscoresthat it overridesanythingto the contrarythat might be indicatedanywhere else in the DLAU Act and this includes Section 2 (m) (iv). There is no ambiguitywhatsoeverabout Section 17 DLAU Act. It is of a declaratory nature which absolutely ^ prohibitsthe Lokayuktafrom enquiringinto an allegationagainst an IAS officer. Section 17 DLAU Act admits of no ambiguity and is plainly a completeexceptionto Section2(m) (iv). Consequentlythereis no occasion, as partofan interpretativeexercise,to adopta 'purposive'construction(See for instanceGrid Corporationof OrissaLtd. v. Eastern Metalsand Ferro Alloys2010 (2) SCALE 687). For the same reasonthere is also no warrant for examiningif Section 17 shouldbe read subjectto Section2 (m) (iv) or 0 read 'harmoniously'with it to preserveboth provisions.It is possiblethat such questions might arise if this Court were required to examine,the constitutionalvalidityofSection17. However,thatis not withinthe scopeof the present proceedings or for that matter the proceedings before the Lokayukta. 13. It is tritethatthe powersand functionsofthe officeofthe Lokayuktaare to be found within the DLAU Act. The Lokayuktahas to interpretthe provisionsofthe DLAU Act as they occur. It is not withinthe scope ofthe powersofthe Lokayuktato add to the provisionsofthe DLAU Act clauses or phrases that do not exist as has been done by the Lokayuktain the impugned order dated 5'*^ February 2010. The Lokayukta has by an W.P.(C)Nos. 1136,3342&3345of2010 ® interpretativeexercisecarved out a further exceptionto Section 17 DLAU Act by holdingthat "a Chairman,Vice Chairman,ManagingDirector,etc." ofa governmentowned company,who continuesas a memberofthe IAS, wouldcontinueto be a 'publicfunctionary'withinthe meaningof Section2 (m) (iv)DLAUAct to whomthe immunityunderSection17 DLAUAct will not apply.In effectthe Lokayuktahas addeda furtherprovisoto Section17 when none exists. 14. An IAS officer if appointed as a Director of a government company on deputationby no means,ceasesto be an IAS officer. It wouldbe stretching the languageofSection2(m) to statethat despitethe totalprohibitionunder Section17 DLAU Act onthe Lokayuktaenquiringinto an allegationagainst an IAS officer, if such IAS officer is a Directorof a governmentowned company,he will becomeamenableto the jurisdictionofthe Lokayuktaby virtueofSection2(m) DLAU Act. Section2(m) is only a definitionclause and has necessarilyto be read alongwith Section17 to understandthe extent ofexerciseofthe jurisdictionofthe Lokayuktaover an IAS officer. Ifthe legislative intent was that the IAS officer would lose immunity under Section 17 by virtue of becoming a Director of a government owned company,thenthereshouldhavebeenaprovisoto Section17 to thateffect. All the provisionsofan enactmenthave to be giventheirfull meaning. It is not possibleto read into certainprovisionscertainexceptionswhich do not exist. 15. It is not as if eitherMr. Barariaor Mr. Sharmaor Mr. Balwaniwould have no remedywhatsoeverfor redressaloftheircomplaints. They can still W.P.(C)Nos. 1136,3342&3345of2010 © op pursuethe otherremediesavailableto them in accordancewith law. It is not as if the onlyremedy availableto them is underthe DLAUAct. 16. This Court is unable to concur with the view expressed by the Lokayukta onthe interpretationof Section17 and Section2 (m) (iv) of the DLAU Act. In the considered view of this Court, in view of the total prohibition under Section 17 of the DLAU Act, the Lokayukta had no jurisdiction to enquire ^ into any allegationagainstthe Petitionerswho happenedto be at the relevant pointoftime membersofthe IAS and were on deputationtothe government ownedcompaniesasDirectoror Chairmanand ManagingDirector. 17. Consequently,the impugnedorderdated 5"^ February2010 passedby the Lokayuktain the complainttitled ''RavinderBalwani v. R.K. Saxena" is herebyset aside. The complaintis dismissedas beingnot maintainable.For the same reasons,the complaintstitled ''B.K. Sharma v. R.K.Saxena'"'and ''RMBararia v. ChetanB. Sanghr pendingbeforethe Lokayuktaare also dismissedas beingoutsidethe scopeofthejurisdictionofthe Lokayukta. 18. The writ petitionsare allowedbut in the circumstanceswith no orderas to costs.Theapplicationsare disposedof The Lokayukta'sthree applications(CMNos. 4290, 13761 and 13760of 2010) 19. Thesethreeapplicationsare by the Lokayukta,one in eachwritpetition, seekingthe peraiissionof this Courtto address argumentson the issue of jurisdictionof the Loiiayukta.In para 5ofthe applicationin the first writ W.P.IQNos. 1136,3342&3345of2010 petitionby R.K.Saxena,the Lokayuktaexpressesa "concern"that "in the presentwrit petitionthe endeavourof the petitionerappearsto be to curtail and restrict the functioningandjurisdictionof the Lokayukta in the areas in which it is entitled to operate by purportingto keep off a large segmentof 'Public Functionaries' who are otherwise subject to the jurisdiction of the Lokayukta."A similarconcernis expressedin the other two applicationsin which the Lokayuktahas prayed for permissionfor "being impleadedas a © party"or to addressthe Courton the issueofjurisdiction. 20. Mr. Maninder Singh, learned Senior counsel appearing for the Lokayulcta submitted that under the provisions of the DLAU Act, the Lokayuktais performingan investigativefunctionand not an 'adjudicatory' function. The impugned order dated February 2010 passed by the Lokayuktaruling on his own jurisdictionwas not to be construed as an ^ exercise by the Lokayuktaof an 'adjudicatory'function; only where an authoritydischarged'adjudicatory'functionswould the rule ofimpartiality get attracted.In otherwords, as long as the Lokayuktawas only performing an investigativefunctionunder the DLAU Act the Lokayuktacould not be said to have ceasedto be impartialonly becausethe Lokayuktasoughtto be impleadedand heardin apendingdisputebetweentwo partiesarisingout of an orderpassedby the Lokayukta.Mr. Singhsubmittedthat in seekingto be heardin thesewritpetitionsin supportofhis own order,the Lokayuktawas performinga 'duty' entrustedto him by the DLAU Act and was carrying forth the mandate of the DLAU Act. The Lokayuktawas only seekingto assist the Court in interpretingthe provisions of the DLAU Act on an importantquestionof jurisdictionof the Lokayuktawhich would have a W.P.(CjNos.1136,3342&334Sof2010 ' Page12of21 bearingon complaintsof a similarnaturein future.Mr. Singhsubmittedthat in doing so the Lokayuktacould not be seen as aligninghimselfwith one side againstanothereven if beforethe Lokayuktathey were partiesopposed 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 act impartially and that this impartialitywould in no way be affectedby the filing of these applications ^ seekingthatthe Lokayuktabe heardbeforethis Courtin supportofhis own order. 21. Mr. Singhrelieduponthe decisionofthe DivisionBenchofthis Courtin Lokayuktav. Govt. of NCT of Delhi {supra). The said decisiondoes not decide the issue of the locus of the Lokayukta to participate in proceedings in whichthe orderof the Lokayuktais under challenge.However,according to Mr. Singh, the fact that this Courtentertaineda writ petitionfiled by the Lokayuldato challengethe order of a learned Single Judge of this Court impliedthatthis Courtrecognisedthe locusofthe Lokayuktato petitionthis Court to be heard in a matterwhich was being inquiredby him. Reference was made by Mr. Singhto the decisionofthe SupremeCourtin Institution ofA.P. Lokayuktav. T. RamaSubbaReddy (1997) 9SCC 42. One ofthe firstappealsin the batchin whichthe saiddecisionwas renderedwas by the Lokayuktaof Andhra Pradesh challengingan order of the High Court of AndhraPradesh.The said decisiondid not decidethe questionwhetherthe Lokayuktahad the locusstandito petitionthe High Courtor SupremeCourt in the samematterin whichthe Lokayuktahad takenaview. Still,according W.P.(C)Nos. 1136,3342&3345of2010 ^ c © to Mr. Singh, the locus standi was impliedly recognised by the Supreme Court. 22. Learned counsel for the writ petitioners expressed reservations on the filing of these applicationsby the Lokayukta.They submittedthat 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 5'^ February 2010 taking a view on the questionof jurisdiction,the Lokayuktashould not be concernedwith what happens to that order when challengedat the next level. Counsel for the complainantssubmittedthatthe complainantsneithersupportednor opposed the applicationsof the Lokayukta. 23. This Court begins the discussionof the question raised with certain preliminary observations.Usually when the decision of an authority is challengedin awritpetitionby the personaggrieved,the authorityoughtnot to be made a partyto such proceedings.This was explainedby the Supreme CourtinSavitriDevi v. DistrictJudge, Gorakhpur(1999)2 SCC577where it observed: (SCC, pp 582-583) "14. Before partingwith this case it is necessaryfor us to point out one aspectofthe matterwhichis ratherdisturbing.In the writpetition filed in the High Court as well as the SpecialLeave Petitionfiled in this Court,the DistrictJudge, Gorakhpurand the 4'^ AdditionalCivil Judge (JuniorDivision)Gorakhpurare shown as respondentsand in the SpecialLeave Petitionthey are shown as contestingrespondents. There was no necessity for impleading the judicial officers who disposedofthe matterin acivilproceedingwhenthe writpetitionwas W.P.(C)Nos. 1136,3342&3345of2010 © nA 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 judicial officers. They cannot be in any way equatedto the officialsof the Government.It is high timethat the practiceof impleadingjudicial officersdisposingof civil proceedings as parties to writ petitions under Article 226 of the Constitutionof India or SpecialLeave Petitionsunder Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice." The above decision was followed by this Court in UPSC v. Shiv Shambhu 2008 IX AD (Del) 289 and Sat Prakash Rana v.The Lieutenant Governor AIR 2010 Del 100. 24. To return to the present cases, the Lokayukta whose order is under challenge by way of these applications is seeking to intervene or be impleadedto be heard to supporthis order on the questionofjurisdiction. And while the prayeris opposedby one ofthe partiesto the disputebefore the Lokayukta,the other neither supports nor opposes the prayer of the Lokayukta. No precedent has been cited where a similar request was entertainedby a Court. The submissionis that since the decision of the Lokayukta under challenge is not an instance of 'adjudication, the Lokayukta is, by asking to be impleaded and heard, not abandoning impartialityandneutrality. 25. Given the above submission,this Court is first requiredto examinethe nature of the function dischargedby the Lokayuktain decidingupon his jurisdiction.The Lokayuktaperforms myriad functions, not all of which W.P.{C)Nos.1136,3342&3345of2010 Page15of21 ch partakethe characterofan 'adjudication'ofa dispute(lis).Adecisionofthe Lokayukta,say, to terminatethe servicesof an employeecan be challenged before a court and the Lokayuktawould have to defend such decision.The Lokayuktawouldinthat instancebe botha necessaryand properpartytothe dispute. In another role, the Lokayukta could frame its own rules of procedure.These couldbe challengedon the groundthatthey are ultravires the powersofthe Lokayuktaunderthe DLAUAct. In such disputeagainthe ^ Lokayulctawill be both a necessaryand proper party. There may be yet another instance where at the next level in the judicial hierarchy where a dispute concerningthe powers and functionsofthe Lokayuktais involved, the courtin questionmay on its own requirethe Lokayuktato appearbefore the court and assistit in the interpretativeexercise.However,the contextin these cases is different. In none of these cases has the Lokayuktataken suo motu notice of any acts of corruption against any of the petitioners. Therefore,that contextneed not be examinedby this Court.Also, this Court has notrequiredtheLokayuktato assistit. 26. When, as in each ofthe presentthree cases, a complaintis filed before the Lokayuktaallegingthat a person is guilty of corruption,there are two parties: the complainant and the person complained against, they are necessarilyplaced in an adversarialpositionbefore the Lokayukta.In the course of the pendencyof such complaint,the Lokayuktamight be called upon to take adecision on several issues at the interlocutorystages. For instance on the preliminaryquestionof jurisdiction,limitationand so on. The decisionthatthe Lokayuktatakeson these issuescannotbe termedas a dischargeof apurely 'investigative'functionof the Lokayuktaunder the Page 16 of 21 © '.p.(C)Nos. 1136,3342&3345of2010 W. DLAU Act. Such a decision is an instance of exercise of an 'adjudicatory' function. 27. The test is fairly straightforward in the context where the person complainedagainst objectsto the jurisdictionof the Lokayuktato entertain the complaint and the complainantnaturally contends to the contrary.By acceptingthe contentionof one side and negativingthat of the other the Lokayukta 'decides' the issue of jurisdiction in favour of one party and against another. It is a decisionthereforein a lis that is by its very nature adversarial. It cannot but be termed as an adjudication of that issue, although at a preliminarystage.It is a decisionamenabletojudicialreview. 28. Even assuming,as urged by learnedSenior counsel for the Lokayukta, that the order dated 5'*^ February2010 passed by the Lokayuktais not an 0 'adjudication',it still does not relievethe Lokayuktafrom the duty to be seen to be impartialeven in the dischargeofsuch function.The background to the enactment of the DLAU Act was the Report of the Administrative ReformsCommissionon "Problemsof Redressof Citizens' Grievances".In para25 ofthe saidReportthe essentialqualitiesofthe officeofaLokPal or Lokayuktawere identifiedthus: "(a)They shouldbe demonstrablyindependentand impartial. (b)... (c)... (d) Theirstatus shouldcomparewith the highestjudicialfunctionariesin the country. (e)..." W.P.(C)Nos.1136,3342&3345of2010 Pagel7of21 That 'impartiality'figureshigh inthe listof desiredqualitiesof a Lokayukta is an indication of the value attached to this feature which perhaps is essential of any fair and independent decision-making body. 29. The Preamble and other provisions of the DLAU Act reflect the legislative intent that the office of Lokayukta should be occupied by a personwhose weight of judicialexperiencewould by itselflend credibility to the office and there could be no doubt about the impartiality of the person occupyingthat office. Since this office was being entrustedwith powers to inquire into complaints of corruption against high 'public functionaries' includingthe Chief Minister, the Ministers and the MLAs, apart for the Chairman, Vice-Chairman and Managing Director of state owned corporations, it was to be handled with independence, sensitivity, competenceand impartiality.This was expectedto pervadeall the functions dischargedby the Lokayuktanot restrictedto the actualdecision-makingin a Us. 30. The positionis explainedin some detail in 'AdministrativeLaw' by PP Craig(FifthEdition,Sweet&Maxwell,2003,pp 452-453): "...Thevital point, broughtout forcefullyby Fuller,is thatjust as adjudicationis distinguishedby the form ofparticipationthat itconfers,so are othertypesofdecision making,andjustas the nature of adjudicationshapes the proceduresrelevant to its decisionalform, so do other speciesofdecisionmaking. Nine modes of decision making are listed by Fuller; mediation; property;voting;custom;law officiallydeclared,adjudication, contract;managerialdirection;and resortto chance. W.P.{C)Nos. 1136,3342&3345of2010 ^ n In each of these instances the relationship between the type of decision making, and the procedural rules, attendant thereon, can be presentedin the followingmanner.The proceduralrules will be generated by, and will protect the integrity of, the type of decision making in issue. For example, adjudication is one species of decisionmaking. The rule againstbias is generated by this type of decisionmaking. It would be inconsistentwith our idea of what judging means to allow the decision to be made by one who was biased.In this sense,the proceduralrule is there to protect the integrity of what we mean by adjudication.It is equallythe case that if we demand that an agency uses adjudicatoryprocess rights then we are indirectly forcing it to make its decision by adjudicationrather than by some other means. The relevance of this can be simply stated. There may well be situations when the procedures modelled on adjudication are not the most effective or appropriate, and where safeguards developedagainstthe backdropof a differenttype of decision making may be more efficaciousand apposite.The emergence of fairnessmay help us towardsa realisationof this. The point is well put by Macdonald: 'Rather than ask what aspects of adjudicative procedures can be grafted onto this decisional process reviewingtribunalsmust ask: what is the nature of the processhere undertaken,what mode ofparticipationby affectedpartiesis envisionedby such a decisional process, and what specific proceduralguidelinesare necessaryto ensure the efficacy of that participationand the integrityof theprocessunderreview?'" 31. The expectation,writ largein the DLAU Act, is thatthe Lokayuktawill at all times be seen to be impartial,in the dischargeofthe myriadfunctions of that office. Normally, once the Lokayuktahas taken a decision in a pendingdispute,whether on the questionof jurisdictionor otherwise the W.P.{C]Nos. 1136,3342&3345of2010 ° Lokayuktashould not seek to 'defend' such decisionwhen it is challenged before a Court. It is possible in