C. RANGASWAMAIAH AND ORS.

A v.

KARNATAKA LOKAYUKTA AND ORS.

JULY 21, 1998

[K. VENKATASWAMI AND M. JAGANNADHA RAO, JJ.] B

Service Law :

Karnataka Lokayukta Act, 1984 : Section 15. c Deputation-Police Officers sent on-Status of-Held : A person continues to remain an employee of the lending authority with which the relationship of master and servant remains until it is terminated-Hence, police officers sent on deputation to Lokayukta by State Government continue to remain as public servants of the State Government as long as they are not absorbed in the Lokayukta.

Deputation-Additional functions-Entrustment of-By lending authority--Police officers of the State sent on deputation to Lokayukta were entrusted with additional functions under S. 17 of the Prevention of Co"uption Act, 1988-Legality of-Held : Normally, leading authority should not entrust E extra duties to its employees sent on deputation-But such extra duties are legal if they are entrusted by virtue of statutory powers and not objected to by the borrowing authority-Hence, entrustment of additional functions to police officers being under statutory powers is within the jurisdiction of State Government-Prevention of Corruption of Act, 1988, S.17.

F Deputation--Employees sent on-To Lokayukta -Extra work- Entrustment of-By leading authority-Validity of-Held: State Government should inform the Lokayukta of its desire to entrust extra work to its employees sent on deputation-But for good reasons if the Lokayukta objects to such extra work but if State Governmef!t insists on such entrustment the Lokayukta G can direct the employees on deputation not to take up such extra work-But once the Lokayukta has not objected to such entrustment of work, it should not raise objection when these employees are halfway through the extra work-However, the public servants against whom investigations were going on have no right to raise such objection-Karna/aka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and Employees) Rules H 837

A 1988, R. 3 and Sch I and fl. ' "' Posts-{; reation of-By administrative order-Validity-New post of Director General of Police, Lokayukta created by administrative order without amending the recruitment Rules to include the said post in the Lokayukta cadre-Held : Still the said post created in the Lokayukta Police Wing B' intended to be and must be treated as part of the staff of the Lokayukta in the Police Wing-Therefore, while ihe Police Wing in the Lokayukta is under the general overall control of the Director General of Police, still the staff .. and the Director General himself are under the administrative and disciplinary f

control of the Lokayukta. c The State Government entrusted the functions of investigation under Section 17 of the Prevention of Corruption Act, 1988 to the Police officers of the State on deputation with the Lokayukta under Section 15(1) of the Karnataka State Lokayukta Act, 1984. The State Government also created the post of Director General of Police by an Administrative order without

D including the said post in the Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and the Employees) Rules, 1988.

The petitioners, against whom investigation was going on, filed a writ petition before the High Court challenging the aforesaid directions, which was dismissed. Hence this Special leave Petition.

E The following points arose before this Court:

(l) Was it permissible for the State Government to create the post of Director General of Police, Lokayukta by way of an administrative order though the said post was not included in the relevant rules of recruitment of the staff of the Lokayukta? If permissible can it be said that the said

F officer was independent and outside the administrative and disciplinary control of the Lokayukta?

(2) Is the entrustment off unctions under the Prevention of Corruption Act, 1988 by the Government to the police officers on deputation with the Lokayukta without jurisdiction?

(3) In what manner can the provisions of Section 17 of the Prevention of Corruption Act, 1988 anil Section 15 of the Karnataka Lokayukta Act, 1984 be harmonised? ,_ ( 4) rs the further investigation in the present cases to be continued by

the police officers on deputation to the Lokayukta?

H Dismissing the Petition, this Court

C.RANGASWAMAIAHv.KARNATAKALOKAYUKTA 839

A HELD: 1.1 The police officers of the State on deputation continue to A remain as public servants in-the service of the State Government, as long as they are not absorbed in the Lokayukta. The legal position is absolutely unassailable because the State has merely lent the services of these officers to the Lokayukta and the officers continue to be employees of the State. In spite of the deputation of these officers with the Lokayukta the relationship of master and servant between the State and these officers does not stand B terminated. (850-E-F)

State of Punjab v. Inder Singh, (1997) 6SSC 372, relied on.

1.2. Normally, in respect of officers sent on deputation by the State to another authority, the leading authority should not, after deputation of its C officers, entrust extra duties concerning the s2id lending authority to such officers without the consent of the borrowing authority. If, however, such action is taken by the lending authority by virtue of statutory powers and such a course is not objected to by the borrowing authority, it cannot be said that the entrustment is without jurisdiction. From a jurisdictional angle, the entrustment being under statutory powers of the Sate traceable to Section D 17 of the Pevention of Corruption Act, 1988 the same cannot be said to be outside the jurisdiction the State Government. May be, if it is done without consulting the Lokayukta and obtaining its consent, it can only be treated as an issue between the State and the Lokayukta and is none of the concern of those public servants against whom these police officers on deputation are E conducting the investigation. Such entrustment of duties has statutory backing and obviously also the tacit approval of the Lokayukta. Once there is such tacit approval of the Lokayukta, the writ petitioners cannot have any grievance that the Lokayukta ought not to have permitted such a course.

[851-A-D)

>; 2.1. In order to harmonise the powers of the Government under the F Prevention of Corruption Act, 1988 and of the Lokayukta under the Kamataka state lokayukta Act, 1984 it must be held that if the State Government wants to entrust such extra work to the officers on deputation with the Lokayukta, it can certainly inform the Lokayukta of its desire to do so. If the Lokayukta agrees to such entrustment, there will be no problem. But if for good reasons G the Lokayukta thinks that such entrustment of work by the State Government is likely to affect its functioning or is likely to affect its independence, it can certainly inform the State Government accordingly. In case the State Government does not accept the view point of the Lokayukta, then it will be open to the Lokayukta-Having regard to the need to preserve its independence and effective functioning to take action under Section 15(4) H

A (read with Section 15(2) of the Lokayukta Act) and direct that these officers on deputation in its police wing will not take up any such work entrusted to them by the State Government. Of course, it is expected that the Sate Government and the Lokayukta will avoid any such unpleasant situations but will act reasonably in their respective spheres. [851-G-H)

B 2.2. But once the Lokayukta has, as in the present case, not objectedat the threshold - to such entrustment of work by the State Government to the officers on deputation, then it will not normally be reasonable for the Lokayukta to object to said entrustment when these officers are half-way through the extra work. Such withdrawal by the Lokayukta at a later stage C might create various administrative problems and will only help the public servants against whom investigation is being done to raise unnecessary legal issues. Of course, in the present case, it is not the Lokayukta which has raised any objection but it is the public servants - against whom the investigation is going on - who have raised objections. They cannot raise objections if the Lokayukta has not raised any objection at the threshold.

D The above will take care of the independence and effective working of the Lokayukta and at the same time will enable the State if need be, to exercise its statutory powers under Section 17 of the Prevention of Corruption Act,

-1988. [852-8-D)

Institute of A.P. Lokayukta v. T. Ramasubba Reddy, [1997) 9 SCC 42, E relied on.

Gokaraju Ranga Raju v. State of A.P., [1981) 3 SCC 132, referred to.

3.1. Though the post of Director General of Pplice was created by an administrative order and the Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and Employees) Rules, 1988 were not F amended to bring the said post into the cadre under the Lokayukta, still the said post created in the Lokayukta Police wing was intended to be and must be treated as a part of the staff of Lokayukta in the Police wing.[849-D-E)

3.2. Therefore, while the Police wing in the Lokayukta is under the G general and overall control of the Director General of Police, still, the staff and the Director General himself are under the administrative and disciplinary control of the Lokayukta. [849-G)

CIVIL APPELLATE JURISDICTION: Special Leave petition Nos. 8758-8764 of 1998.

H From the Judgment and Order dated 18.3.98 of the Kamataka High Court

. • ANGASWAMAIAH v. KARNATAKA LOKAYUKTA [M. JAGANNADHA RAO, J.) 841

in W.P. No. 24215, 32653, 33388, 27056, 27361, 33852 and 4361of1998.

Gopal Subramaniam and Ms. Kiran Suri for the Petitioners.

The Judgment of the Court was delivered by

JAGANNADHA RAO, J. On the last day before summer vacation, B namely, 14. 5 .I 998, we dismissed these Special Leave Petition at the stage of admission and stated that we shall pass a reasoned order later. We are passing that order now.

These seven special leave petitions have been preferred against the common Judgment of the Karnataka High Court in Writ Petition Nos.24215/ C 97, 32653/97, 33388/97, 27056197, 27361197, 33852197 and4361/98. The judgment, in fact, disposed of several other writ petitions also and in addition considered the correctness of the judgment dated 12.8.1997 of a learned Single Judge of that Court rendered in Writ Petition No. 17819 of 1994 against which Writ Appeals Nos. 5081197 and 5071/97 were respectively preferred by the petitioner D therein and the State of Karnataka.

The point raised in these SLPs is whether the investigation under section 17 of the Prevention of Corruption Act, 1988 entrusted by the State of Kamataka to the Police Officers of the State having the requisite rank could still be said to be vitiated because of the fact that the said officers were on E deputation to the police wing of the Kamataka State Lokayukta at the relevant time?

The facts of the case are as follows: The petitioners before us filed writ petitions contending that the police officers on deputation with the Lokayukta could not have been entrusted with the investigation under section 17 of the F Prevention of Corruption Act, 1988. In writ petition 17819/94 filed earlier by another public servant which went before a learned single Judge of that Court, the same questions were raised. A learned single Judge of that Court while however rejecting the contention of the Writ Petitioner in writ petition No. 17819/94 that the police officers sent on deputation to the Lokayukta to G 'assist' the said authority under section 15(1) of the Karnataka State Lokayukta Act, 1984 would cease to be police officers for purposes of section 17 of the Prevention of Corruption Act, 1988, held that the petition was liable to be partly allowed on the basis of the following reasoning. The learned Judge held that in view of section 15(2) of the Lokayukta Act which required the staff of the Lokayukta to act without 'fear' in the discharge of their functions H

A and section 15(4) of the said Actwhich vested 'administrative and disciplinary control' of the staff in the Lokayukta, -the independence of the Lokayukta as an autonomous body would be affected if the police officers on deputation with the Lokayukta were entrusted with functions of investigation under section 17 of the Prevention of Corruption Act, 1988 and that, therefore, such officers should not have been asked to conduct any such investigation. The B learned Single Judge, however, sustained the investigation already made, by invoking the de facto doctrine laid down by the Supreme Court in Gokaraju Ranga Raju V. State of Andhra Pradesh, (1981] 3 sec 132. Question arose as to the position of the post of Director General of Police in the Lokayukta created w.e.f. 21.12.92 which post was however not included in the rules C governing the Lokayukta and to the effect of another notification dated 22.12.92 issued by the State Government under section 17 of the Prevention of Corruption Act, 1988 designating all the Inspectors of Police, Karnataka Lokayukta to be police officers for purposes of the proviso to section 17 of the said Act. The learned Judge held that the latter notification in so far as it placed the said officers under the 'general and overall control and supervision' D of the Director General, Bureau of Investigation, Lokayukta, Bangalore - rather than under the Lokayukta - as was the position under an earlier notification dated 2.11.1992 which had vested such control and supervision in the Lokayukta -was bad inasmuch as it jeopardised the independence of the Lokayukta, particularly when the post of Director General of the Bureau E of Investigation, Lokayukta was not included among the posts listed in the Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service of the Officers and the Employees) Rules, 1988. The learned Judge also held that the notification dated 22.12.1992 mentioned above designating the Inspectors of Police who were on deputation in the Kamataka Lokayukta to be police officers under section 17 of the Prevention of Corruption Act, 1988 and that F the notification dated 26.5.1986 issued under section 2(s) of the Crirr.inal procedure Code, 1973 whereby Offices of the Lokayukta throughout the State were declared as Police stations respect of jurisdiction mentioned against each of them - could not be of any help to the State inasmuch as those police officers on deputation in the police wing of the Lokayukta could not have G been asked to undertake any functions other than those of 'assisting' the Lokayukta as specified in section 15(1) of the Lokayukta Act, 1984. In the result, the learned Single Judge directed that, from the stage at which the investigation stood under the Prevention of Corruption Act, 1988, as on the date of the Judgement, the Police Wing/Bureau of investigation of the Lokayukta 'shall cease' all investigations but that this would not, however, H prevent the said agency from transferring the cases for farther investigation

. ANGASWAMAIAH v. KARNA TAKA LOKA YUK TA [M. JAGANNADHA RAO, J.) 843

and appropriate action to any other agency competent to investigate the A same. So far as the investigation which was already made by the police officers of the Bureau was concerned, - though it was sustained under the de facto doctrine, - it was still observed that the same would be subject to the right of the concerned public servants to prove that prejudice was caused to them on account of the entrustment of the investigation to such officers who were on deputation. The writ petition No. 17819of1994 was allowed to B the extent stated above.

The said writ petition having been partly allowed as stated above - both the petitioner therein and the State filed Writ Appeals as stated earlier. Other officers like the petitioners in these SLPs who filed fresh writ petitions - had C their writ petitions clubbed with the said Writ Appeals.

The Division Bench dismissed the writ petitions filed by the petitioners as also the writ Appeal of the writ petitioner in writ petition 17819 of 1994 and allowed the Writ Appeal filed by the State. It held that even after deputation, there could be a "dual" role on the part of the police officers in their functions, D namely, functions under the Lokayukta and functions in discharge of the duties entrusted to them by the State of Karnataka, under the Prevention of Corruption Act, 1988. It, however, held reversing the view of the learned Single Judge that the notification dated 22.12.1992 issued under section 17 of the Prevention of Corruption Act, 1988 designating all Inspectors on deputation E in. the Lokayukta as officers competent for purposes of section 17 of that Act and the notification dated 26.5.1986 issued under section 2(s) of the Code of Criminal Procedure designating all offices of the Lokayukta in the State as Police stations - indicated that these police officer's though on deputation, were entrusted with these powers of investigation, by virtue of statutory powers, The Division Bench further held that though the Director General of F Police newly attached w.e.f. 21.11.92 to the Bureau of Investigation of Lokayukta by way of an administrative order of the Government was to be in control and supervision of the police staff in the Lokayukta and though the said post of Director General of Police was not - by appropriate amendment of the recruitment rules of the Lokayukta staff - included in the cadre of posts in the police wing of the Lokayukta - still it had to be taken that the said Directot G General of Police was under the administrative and disciplinary control of the Lokayukta and therefore the above notification dated 22.12.1992 could not be treated as invalid or as jeopardising the independence of the Lokayukta. It also held that the appointment of the said Director General and the notification placing the Police Officers of the Lokayukta uncjer his control did not amount H

A to divesting the powers of the Lokayukta in relation to these police officers nor to vesting the said powers only in the Director General of Police. It observed that dual functions could be performed by these officers in relation to the two Acts, namely the Prevention of Corruption Act and the Lokayukta Act and such a situation of dual control could not be said to be alien to criminal jurisprudence concerning investigation of crimes. In other words, B these officers who were of the requisite rank as per section 17 of the Prevention of Corruption Act, 1988 could not be said to be incompetent to investigate into offences assigned to them under that Act by the competent authority by virtue of statutory powers under Section 17 thereof or to the extent not excluded by the Lokayukta. The Division Bench, therefore, held that the C further investigation against the petitioners could be continued through the police officers on deputation with the Lokayukta.

We have also to refer to an Office Memorandum dated 2.9.1997 issued by the Lokayukta after the judgment of the learned Single Judge. The Lokayukta issued Office Memorandum dated 2.9.1997 to the effect that in view of the D judgment in the writ petition, all police officers in charge of police stations of the Lokayukta, could take cognizance and investigate offences punishable under the Prevention of Corruption Act, 1988 and the !PC but that keeping in view Section 17 of the Prevention of Corruption Act, 1988, they were to obtain necessary orders from the respective Superintendents of Police, attached E to the Lokayukta - who in their tum would report to the Lokayukta or Upa

Lokayukta, as the case may be - with reference to their respective jurisdictions through the Inspector General of Police (except in trap cases). The Memorandum stated that the report of the police officers should be submitted to the Lokayukta or Upa Lokayukta, as the case may be, through the !GP

immediately after such action was taken in the proceedings. It further stated F that the !GP would place the FIR, the evidence collected and the final investigation report before the Lokayukta and that before filing charge sheet for prosecution or filing closure reports, orders of the Lokayukta or Upa Lokayukta - as the case may be -would have to be obtained. The validity of this Memorandum, therefore, fell for consideration before the Division Bench G in the light of the other findings given by the Division Bench reversing the opinion of the learned single Judge.

In regard to the above Memorandum of the Lokayukta dated 2.9.97, the Division Bench held that it was issued by the Lokayukta only in view of the judgment of the learned Single Judge and Govt. notification dated 20.8.97, to H overcome the difficulties faced by the police officers in the Lokayukta. The

C. RANGASWAMAIAH 1. KARNATAKA LOKA YUK TA [M. JAGANNADHA RAO, J.] 845

Office Memorandum purported to have been issued under section 15(4) of the A ...

Karnataka Lokayukta Act. The Bench held that the Lokayukta had no authority statutorily delegated to it to issue such an office Memorandum. The Bench held that, in the light of the views expressed in the judgment of the Division Bench that the Director General attached to the Lokayukta was to be trea\ed as under the administrative control of the Lokayukta, the memorandum had B become 'redundant' and 'unworkable.' Even otherwise the Court would have no hesitation to set aside the same on ground of want of jurisdiction or as

... being in excess of jurisdiction of the Lokayukta. The Division Bench, however,

-;, clarified that the setting aside of the said Memorandum did not mean that the Lokayukta had no administrative and disciplinary control over the police officers on deputation. It held that in case the Lokayukta directed a police c officer 'not to proceed in relation to a case', such a police officer could not venture to initiate investigation. A direction not to go ahead with entire duties entrusted to him by the Government under the Prevention of Corruption Act, 1988 could be given by the Lokayukta only under specified and exceptional circumstances such as - when there was "excess load of work" in the Lokayukta D which might not consequently leave adequate time for investigation of offences being investigated by the Lokayukta. These exceptions, the Bench held, were not exhaustive and there could well be other situations where the Lokayukta could direct its officers not to take up the extra work entrusted to them by the State under the Prevention of Corruption Act, 1988. The Division Bench thus allowed the Writ Appeal filed by the State and dismissed the Writ E Appeal of the petitioner in W.P. 17819of1994 and dismissed the writ petitions filed by the petitioners before us.

It was contended in these special leave petitions before us by the learned senior counsel for the petitioners Sri Gopal Subramanyam that the F Division Bench erred in dismissing the writ petitions filed by the petitioners, that the entire investigation under the Prevention of Corruption Act so far conducted by the police officers of the Lokayukta must be treated as illegal and that the entrustment of the remaining investigation to these officers could not be permitted. In other words, it was contended that the entire proceedings must be quashed.

Before giving our reasons for dismissal of these special leave petitions

q"' we may state that we are here conscious of the fact that the writ petitioner in writ petition No. 17819/1994 out of which the two writ appeals arose before the High Court is not before us. But inasmuch as the fresh writ petitions filed by the petitioners who are now before us have been disposed of by a H

A common judgment alongwith the writ appeals, it has not become possible to avoid consideration of the reasons given by the learned Single Ju'dge in writ petition No. 17819/1994.

The following points arise for consideration:

B (I) Was it permissible for the State Government to create the post of

Director General of Police, Lokayukta by way of an administrative order of 21.12.1992 though the said post was not included in the relevant rules of recruitment of the staff of the Lokayukta? If permissible, can it be said that the said officer was independent and outside the administrative and disciplinary control of the Lokayukta?

(2) Is the entrustment of functions under the Prevention of Corruption Act, 1988 by the Government to the police officers on deputation with the Lokayukta without jurisdiction?

(3) In what manner can the provisions of section 17 of the Prevention D of Corruption Act, 1988 and section 15 of the Karnataka Lokayukta Act, 1984 be harmonised?

( 4) Is the further investigation in the present cases to be continued by the police officers on deputation to the Lokayukta?

Point 1:-

At the outset, it is necessary to refer briefly to the provisions of the Prevention of Corruption Act, 1988, and of the Karnataka State Lokayukta Act, 1984 in so far as they are relevant and to certain notifications adverted F to by the parties before the High Court.

Section 17 of the Prevention of Corruption Act, 1988 states that notwithstanding anything contained in the Code of Criminal Procedure 1973 (Act 2 of 1974), no police officer below the rank (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police, (b) in the metropolitan G area of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan areas notified as such under sub-section (I) of Section 8 of the Code of Criminal Procedure, J 973(Act 2 of 1924), of an Assistant Commissioner of Police or a police officer of equivalent rank, shall, investigate any offence punishable under that Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest without H a warrant. The first proviso to Section 17 states that when a police officer of

C. RANGASWAMA!AHv. KARNATAKA LOKAYUKTA[M. JAGANNADHA RAO, J] 847

a rank below the rank of an Inspector of police can take similar action. The A second proviso states that if the offence is one under clause ( e) of subsection ( 1) of section 13 namely, dealing with possession of assets disproportionate to the known sources of income of the public servant, then such an offence shall not be investigated without the orders of a police officer

not below the rank of Superintendent of Police.

We shall next refer to Section 15 of the State Lokayukta Act, 1984, which deals with the mode of recruitment of staff of the Lokayukta. Section

15 of the Act reads as follows:

"Section 15: Staff of Lokayukta. etc.: (1) There shall be such officers and employees as may be prescribed to assist the Lokayukta and the C Upa Lokayukta or the Upa Lokayukta in the discharge of their functions under this Act.

(2) The categories recruitment and conditions of service of the officers and employees referred to in sub-section (I) including special conditions as may be necessary for enabling them to act without fear D in the discharge of their functions, shall be such as may be prescribed in consultation with the Lokayukta.

(3) Without prejudice to the provisions of sub-section (I), the Lokayukta or an Upa Lokayukta may, for the purpose of conducting investigations under this Act utilise the services of

(a) any officer or investigating agency of the State Government; or

(aa) any officer or investigating agency of the Central Government with the prior concurrence of the Central Government; or

(b) any other agency.

(4) The officers and other employees referred to in sub-section (I) shall be under the administrative and disciplinary control of the

Lokayukta: G

Provided that when Lokayukta is. unable to discharge his functions owing to absence, illness or any other cause, the Upa Lokayukta or if there are more than one Upa Lokayukta or if there are more than one Upa Lokayukta, the senior among them may discharge the functions of the Lokayukta under this sub-section".

A It will be noticed from the above provisions that the staff of the Lokayukta is to "assist" the Lokayukta and Upa Lokayukta in the discharge of their functions as stated in section 15(1) and that the staff is to function without "any fear" in the discharge of their duties as stated in section 15(2).

The staff is to be under the administrative and disciplinary jurisdiction of the B Lokayukta as stated in section 15(4).

Under the rule making power conferred on it by section 23 of the Lokayukta Act, 1984, the State of Karnataka has framed rules for recruitment of the staff in the Lokayukta called the Karnataka Lokayukta (Cadres, Recruitment and Conditions of Service of the Officers and Employees) Rules, C 1988. Rule 3 thereof provides for the strength and composition of the staff of the Lokayukta and states that the staff shall be recruited as detailed in the First Schedule of the Rules. Rule 4 of the Rules prescribes the method of recruitment and the minimum qualifications therefor. The first Schedule divides the staff into three wings" (i) Administrative and Enquiry Wing (ii) Police Wing and (iii) General Wing. The number of posts in each wing is also D specified. So far as the Police Wing is concerned, it is to compris~ of one !GP,

one Dy. IG, three Superintendents of Police, three non-JPS Superintendents of Police, eleven Dy. Superintendents of Police, apart from 24 Inspectors of Police and an equal number of Sub-Inspectors of Police besides Head.

Constables and Drivers, etc. The Second Schedule to the Rules provides for E the method of recruitment, according to which so far as staff in the Police Wing of the Lokayukta is concerned, it has to be appointed by deputation from the Karnataka State Police Service. The only condition is that the Inspector General of Police, Deputy Inspector General of Police (except the Superintendents of Police) have to be JPS Officers.

F We shall next refer to the relevant notifications which were referred to in the High Court. We have a notification dated 22.12.92 issued by the State Government under Section 17 of the Prevention of Corruption Act, 1988 (issued in modification of an earlier notification dated 2.11.1992) designating all Inspectors of Police on deputation with the Karnataka Lokayukta to be G police officers for the purposes of section 17 of the Prevention of Corruption

Act, 1988 but subject to the "general and overall control and supervision" of the Director General, Bureau of Investigation, Lokayukta, Bangalore. Under the previous notification dated 2.11.1992. the said control and supervision of the police officers was vested with the Lokayukta. On 21.12.1992, the Government of Kamataka created a post of Director General, Bureau of H Investigation, Lokayukta, in the rank of an Additional Director General of

C RANGASWAMAIAH v. KARNATAKA LOKA YUK TA [M. JAGANNADHA RAO, J.l 849

... ..

Police and then issued the notification dated 22.12.1992 above referred to A vesting the control of the police staff in the Lokayukta with the general and overall control of the said Director General of Police. There is also a notification dated 26.5.1986 issued under section 2(s) of the Code of Criminal Procedure,

1973 declaring offices of the Lokayukta as police stations and authorising Inspectors of Police therein to conduct investigations under the Prevention B of Corruption Act, 1988.

• The above are the relevant provisions of the Central and State Acts, the ... rules and notifications .

We may first deal ith the crucial question as to whether the Director c General of Police in the Office of the Lokayukta who is to supervise the work of the police officers on deputation in the Lokayukta is independent of the Lokayukta and is out side the administrative and disciplinary control of the Lokayukta. We agree with the Division Bench when it took the view, - differing from the learned Single Judge, - that though the newly created post of Director General of Police in the Office of the Lokayukta was created on D 21.12.1992 by an administrative order and the relevant recruitment rules of the staff of the Lokayukta were not amended to bring the said post into the cadre under the Lokayukta, still the said post created in the Lokayukta, Police Wing was intended to be and must be treated as part of the staff of Lokayukta in the police wing. It is well-settled that administrative orders even creating posts can be issued so long as they are not inconsistent with rules, that is E to say, as long as there is no prohibition in the statutory rules for creation of such posts. The learned single Judge's view that the independence of the Lokayukta was under threat was mainly based upon his decision that the post of the Director General created on 21.12.1992 was outside the control of the Lokayukta. This view, in our opinion, is not correct for the reasons mentioned F # above . •

Therefore, while it is true that as per the notification dated 21.11.1992 issued by the Government, the police wing in the Lokayukta is to be under the general and overall control cf the said Director General of Police, still, in our opinion, the said staff and, for that matter, the Director General himself G are under the administrative and disciplinary control of the Lokayukta. This result even if it is not achieved by the express language of section 15(4) is

-"\. ... achieved by the very fact that the Director General's post is created in the office of the Lokayukta. By creating the said post of Director General of Police in the Office of the Lokayukta and keeping the police wing rherein under control and supervision of the said Director General, the State of Kamataka, H

A in our opinion, did not intend to remove the police wing or the said Director General from the administrative and disciplinary jurisdiction of the Lokayukta nor did the State intend to interfere with the independent functioning of the Lokayukta and its police staff. The modification of the earlier notification

dated 2.11.1992 was, in our opinion, necessitated on account of the creation B of the post of the Director General in the office of the Lokayukta. Nor was

the notification intended to divest the Lokayukta of his powers and to vest the said powers only in the Director General. For the aforesaid reasons, the

Memorandum dated 2.9.1997 issued by the Lokayukta after the judgment of the learned Single Judgr has become redundant as held by the Division Bench. Thus the main argument relating to the threat to the independence of C the Lokayukta which appealed to the learned Single Judge stands rejected.

Point 2:

The next question is whether when the State Government had' sent the D police officers on deputation to the Lokayukta, it was permissible for the Government to entrust them with additional duties under the Prevention of Corruption Act, 1988?

The learned Single Judge as well as the Division Bench are one, as already stated, in accepting that the police officers of the State on deputation E continue to remain as public servants in the service of the State Government, . as along as they are not absorbed in the Lokayukta. This legal p<;>sition is absolutely unassailable because the State of Karnataka has merely lent the services of these officers to the Lokayukta and the officers continue to be employees of the State. Inspite of the deputation of these officers with the

F Lokayukta the relationship of master and servant between the State of _c.

Karnataka and these officers does not stand terminated State of Punjab v. lnder Singh, [1997] 6 SCC 372.

There is no dispute that though these officers are on deputation they G are otherwise of the requisite rank as contemplated by section 17 of the

Prevention of Corruption Act, 1988 and that other formalities under that Act are satisfied for entrustment of duties under the Prevention of Corruption Ac!,

1988. Question is whether these police officers of the State can be invested with powers of investigation under section 17 of the Prevention of Corruption Act, 1988 by the Stated under its statutory powers traceable to the same H section?

C. RANGASWAMAIAH v. KARNATAKA LOKA YUKTA [M. JAGANNADHA RAO, J J 851

It is true that normally, in respect of officers sent on deputation by the A State to another authority, the lending authority should not, after deputation of its officers, entrust extra duties concerning the said lending authority to such officers without the consent of the borrowing authority. If, however, such action is taken by the lending authority by virtue of statutory powers and such a course is not objected to by the borrowing authority, can it be B said that the entrustment is without jurisdiction? In our opinion, from a jurisdictional angle, the entrustment being under statutory powers of the

State traceable to section 17 of the Prevention of Corruption Act, 1988 the same can not be said to be outside the jurisdiction of the State Government.

May be, if it is done without consulting the Lokayukta and obtaining its consent, it can only be treated as an issue between the State and the Lokayukta C and is none of the concern of those public servants against whom these police officers on deputation are conducting the investigation. Such entrustment of duties has statutory backing and obviously also the tacit approval of the Lokayukta. Once there is such tacit approval of the Lokayukta, the writ petitioners can not have any grievance that the Lokayukta ought not D to have permitted such a course.

Point 3 and 4:

As stated by the Division Bench, situations might arise where the Government might like to entrust such duties to the police officers on deputation E but the Lokayukta might feel that such entrustment would affect the independent working of the Lokayukta or add unreasonably to the workload of the officers on deputation in the office of the Lokayukta. The question is as to how to harmonise the powers of the Government under the Central Act and of the Lokayukta under the State Act. Points 3 and 4 deal with the balancing of the respective powers of the State Government and the Lokayukta. F

In our view, if the State Government wants to entrust such extra work to the officers on deputation with the Lokayukta, if can certainly inform the Lokayukta of its desire to do so. If the Lokayukta agrees to such entrustment, there will be no problem. But if for good reasons the Lokayukta thinks that G such entrustment of work by the State Government is likely to~ affect its functioning or is likely to affect its independence, it can certainly inform the

....,..,.

State Government accordingly. In case the State Government does not accept the view point of the Lokayukta, then it will be open to the Lokayukta, - having regard to the need to preserve its independence and .effective functioning to take action under section 15(4) {read with section 15(2)} and H

A direct that these officers on deputation in its police wing will not take up any such work entrusted to them by the State Government. Of course, it is expected that the State Government and the Lokayukta will avoid any such unpleasant situations but will act reasonably in their respective spheres.

But once the Lokayukta has, as in the present case, not objected, - at B the threshold - to such entrustment of work by the State Government to the officers on deputation, then it.will not normally be reasonable for the Lokayukta to object to said entrustment when these officers are half-way through the extra work. Such withdrawal by the Lokayukta at a latter stage might create various administrative problems and will only help the public servants against C whom investigation is being done to raise unnecessary legal issues. Of

course, in the present case, it is not the Lokayukta which has raised any objection but it is the public servants - against whom the investigation is going on - who have raised objections. As already stated, they cannot raise objections if the Lokayukta has not raised any objections at the threshold.

The above, in our view, will take care of the independence and effective D working of the Lokayukta and at the sametime will enable ·.;.e State of Karnataka if need be, to exercise its statutory powers under section 17 of the Prevention of Corruption Act, 1988.

In the matters before us, as already stated, there has been no objection by the Lokayukta at the initial stage of the entrustment of work under section E 17 of the Central Act to these police officers on deputation. It is therefore not possible to interdict the further investigation by these officers at this stage at the instance of the public , servants. As stated above, if no objection has come from the Lokayukta at the time of initial entrustment, it is certainly not permissible for the public servants against wliom the investigation is being p done, to raise objection. The Division Bench was right in holding that the Memorandum dated 2.9.1997 issued by the Lokayukta is, in fact, purely consequential to the judgment of the learned Single Judge and in declaring the same to be invalid and also redundant.

We may, however, add that if instead of deputation of police officers G from the Government, any other solution can be found~ that is a matter to be decided amicably between the State Government and the Lokayukta, - keeping in view the independence of the Lokayukta and its effective functioning as matters of utmost importance.

Before parting with the case, we may reiterate what this Court stated H recently in connection with the independence of the Lokayukta in a case

... ...

C. RANGASWAMAIAH v. KARNATAKA LOKA YUKTA [M. JAGANNADHA RAO,!.] 853

arising under the corresponding statute from Andhra Pradesh, in Institute of A A.P. Lokayukta etc. v. T Ramasubba Reddy, (1997] 9SCC 42 (at page 42):

V.S.S.

"The legislative intent behind the enactment is to see that the public servants covered by the sweep of the Act should be answerable for their actions as such to the Lokayukta who is to be a Judge or a retired Chief Justice of the High court and in appropriate cases to the B Upa-Lokayukta who is a District Judge of Grade I as recommended by the Chief Justice of the High Court, so that these statutory authorities can work as real ombudsmen for ensuring that people's faith in the working of these public servants is not shaken. The statutory authorities are meant to cater to the need of the public at large with C a view to seeing that public confidence in the working of public bodies remains intact. When such authorities consist of high judicial dignitaries it would be obvious that such authorities should be armed with appropriate powers and sanctions so that their orders and opinion's do not become mere paper directions. The decisions of Lokayukta and Upa-Lokayukta; therefore, must be capable of being fully implemented. D these authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the disciplinary authorities concerned."

For the aforesaid reasons, the special leave petitions are dismissed.

Petitions dismissed.