Dharamvir Malik vs State of Haryana

Rameshwar Singh Malik, J.—The present writ petition is directed against the order dated 3.4.2013 (Annexure P-1) passed by the

Lokayukta, Haryana-respondent No. 2 and consequential proceedings initiated by the Director General, Secondary Education, Haryana-

respondent No. 3. The brief facts of the case are that a complaint was received by the Lokayukta, Haryana against the petitioner alleging that the

petitioner, while working as Principal, Govt. Senior Secondary School, misappropriated an amount of Rs. 2,77,112/- on account of electricity

bills, whereas the said amount had already been paid by his predecessors. An enquiry was slated to be conducted against the petitioner.

Forwarding a copy of the complaint, vide letter dated 22.9.2011 to the Director, Secondary Education, Haryana, the Lokayukta, Haryana, asked

him to look into the matter and furnish his report on the complaint. In response to the above said communication dated 22.9.2011, respondent No.

3 vide letter dated 19.1.2012 furnished report of Sh. D.N. Yadav, Deputy Director, intimating the Lokayukta, Haryana that two allegations stood

proved against the petitioner, whereas the third allegation was stated to have not been proved. The enquiry officer had concluded that the

petitioner had committed serious irregularities. During the proceedings before the Lokayukta, Haryana, another report dated 13.2.2013 was

submitted by the Director General, Secondary Education, Havana-respondent No. 3 intimating that departmental proceedings cannot be initiated

against the petitioner because the incident had taken place more than 4 years ago and the delinquent had retired from government service.

However, it was further intimated that in view of the embezzlement of huge amount at the hands of the petitioner, criminal proceedings have been

asked to be initiated against him and in that regard, letter had already been written to the Superintendent of Police, Panipat, for taking action. In

view of the above said reports received from respondent No. 3, the Lokayukta disposed of the above said complaint, vide impugned report dated

3.4.2013, with the recommendation to the competent authority to ensure registration of a criminal case against the petitioner, who has allegedly

misappropriated the government funds, while in service. Consequently, FIR No. 685 dated 24.6.2013 under Sections 420/409 IPC Police

Station, Panipat City, came to be registered against the petitioner.

Feeling aggrieved against the report dated 3.4.2013 (Annexure P-1) passed by Lokayukta, Haryana, petitioner has approached this court by

way of instant petition, seeking a writ in the nature of Certiorari for quashing the impugned report and consequential proceedings initiated by

respondent No. 3.

Learned counsel for the petitioner raised the following three arguments. Firstly, he submits that respondent No. 3 was not competent to initiate

the proceedings against the petitioner. Secondly, he submits that there was no reference from the Government u/s 8 of the Haryana Lokayukta

Act, 2002 (for short the Act) and the Lokayukta was not competent to entertain the complaint against the petitioner u/s 10 of the Act. The third

argument raised by learned counsel for the petitioner was that the impugned report dated 3.4.2013 (Annexure P-1) issued by the Lokayukta was

only recommendatory in nature and the competent authority was required to apply its independent mind before taking any action on such a report.

Learned counsel for the petitioner raised another argument alleging violation of Section 23(1) of the Act, as another complaint against the petitioner

was already pending before the Government. He finally prays for setting aside the impugned report and consequential proceedings initiated by

respondent No. 3, by allowing the present writ petition. To Substantiate his arguments, learned counsel for the petitioner also relies upon two

judgments of this court reported as Jatt Ram Vs. Punjab State Human Rights Commission and Another, and Rajinderpal Vs. State of Punjab, .

Having heard the learned counsel for the petitioner at considerable length, after careful perusal of the record of the case and giving thoughtful

consideration to the contentions raised, this court is of the considered opinion that present one is a case wherein no interference is warranted at the

hands of this court, while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one,

which are being recorded hereinafter.

Taking the first argument first, the Lokayukta has issued the impugned report dated 3.4.2013 to the competent authority. Thereafter, it was for

the competent authority to proceed further, in accordance with law. It is pertinent to note here that the Lokayukta, being fully aware about the

scope of its jurisdiction, has not issued any direction, as such. Only a report was issued, which was recommendatory in nature. Further, learned

counsel could not point out as to why respondent No. 3 was not competent to initiate the proceedings. Thus, the first argument raised by the

learned counsel for the petitioner is misconceived and does not deserve acceptance.

The second argument raised by learned counsel for the petitioner is equally fallacious for the reason that if the Lokayukta was not competent to

entertain any complaint, Section 10 of the Act would become redundant. Sections 8 and 10 of the Act are independent of each other. Section 8

deals with the reference received by the Lokayukta from the government, whereas u/s 10 of the Act, the Lokayukta is competent to entertain the

complaint moved by any person.

Complete procedure has been provided under the Act. The preamble of the Haryana Lokayukta Act, 2002, reads as under:--

An Act to provide for the appointment and function of a Lokayukta for enquiry and investigation into the allegations and grievances against public

servants and for matters connected therewith.

It would be further appropriate to refer to the objects and reasons, which necessitated the State Legislature to repeal the Haryana Lokayukta

Act, 1997 and to enact the present Act of 2002. The statement of objects and reasons, read as under:--

Statement of Objects and Reasons - The necessity of this institution of Lokayukta was realised by the State of Haryana and the Haryana

Lokayukta Act, 197 was passed. However, this act was found wanting to fulfil the purpose for which it was enacted. After repealing this Act, an

expert Committee was constituted to examine the subject and to make suggestions for introducing a Bill to enact the law on the appointment and

working of the Lokayukta.

The Lokayukta will enquire into allegations or grievances made against a public servant including past and present members of Council of

Ministers, MLAs, Chairman/Vice chairman of Zila Parishad/Panchayat Samiti, Mayor/Senior Deputy Mayor/Deputy Mayor of the Municipal

Corporation(s), President/Vice President of Municipal Council/Committee, Chairman/Vic e Chairman or a Member/Director of Statutory or Non-

Statutory Companies/Corporations/Apex Cooperative Institutions or Boards under the State Government, Vice Chancellor/Pro Vice-Chancel for

of the Universities.

The Lokayukta shall be a person who is or has been a Judge of the Supreme Court or a Chief Justice or a judge of a High Court in India.

With a view to ensuring that the Lokayukta is able to act independently and discharge his functions without fear or favour the Bill provides that the

Lokayukta shall not be removed from his office except on the grounds of proved misconduct or incapacity as per the provision of the Judges

(Inquiry) Act, 1968 and after an address by the State Vidhan Sabha supported by a majority of the total membership of the House and a majority

of not less than two thirds of the members present and voting.

Keeping in view the above said object of the Act, when the provisions of Sections 8 and 10 of the Act are read together for the purpose of their

harmonious interpretation, U becomes clear that Sections 8 and 10 operate independently of each other, in their respective field of operation.

Giving due respect to the legislative intent behind the object of framing this piece of legislation, this court feels No. hesitation to hold that the

contention raised by the learned counsel for the petitioner in this regard deserves rejection and the same is hereby rejected.

The third argument raised by learned counsel for the petitioner that the impugned report issued by the Lokayukta was only recommendatory in

nature, merit acceptance. Learned counsel for the petitioner was right in submitting that even after receipt of the report from the Lokayukta the

competent authority was required to apply its independent mind before taking any action on such a report. However, learned counsel for the

petitioner failed to point out, as to how the competent authority did not apply its independent mind before taking appropriate action on the

impugned report.

In this regard, it would be appropriate to refer to the concluding part of the FIR at page 47 of the paper book and the same reads as under:--

On receipt of an application bearing No. 1608 dated 26.2.2013 through post in the police station City Panipat a case u/s 409/420 IPC has been

registered and the copies of the FIR alongwith original application is being sent to I/C Police Post Tehsil Camp Panipat for investigation. The

remaining copies of FIR are being sent to the service of higher officers.

A bare reading of the above said part of the FIR (Annexure P-2) would make it crystal clear that the registration of above said FIR was not

the result of impugned consequential proceedings initiated by respondent No. 3 after receipt of the impugned report (Annexure P-1) issued by

Lokayukta. The reason is obvious and that is clear from the record that the FIR (Annexure P-2) came to be registered on an application bearing

No. 1608 dated 26.2.2013, whereas the impugned report came to be issued much later i.e. on 3.4.2013, in this view of the matter, the above said

argument raised by learned counsel for the petitioner, also falls flat.

Similarly, the last argument raised on behalf of learned counsel for the petitioner has been found to be misplaced. A bare perusal of the

impugned report dated 3.4.2013 (Annexure P-1) issued by the Lokayukta would show that at every stage of the proceedings, the responsible

officers of the State were associated. The opening sentence of the impugned report would show that Sh. Sajjan Kumar, D.S.P. State Vigilance

Bureau, Rohtak was present alongwith other another official from the office of respondent No. 3.

In this view of the matter, it is unhesitatingly held that once the responsible officers of the State Government were attending the proceedings

before the Lokayukta, provisions of Section 23(1) of the Act would stand complied with. Further, it is not the case of the petitioner that he had

been exonerated by another competent authority of the State Government in the similar complaint. Above all, no prejudice of any kind in this

regard has been shown to have been caused to the petitioner.

So far as the judgments relied upon by learned counsel for the petitioner are concerned, the same are of no help to the petitioner, being clearly

distinguishable on facts. Admittedly, both the judgments relied upon by learned counsel for the petitioner were rendered by this court under

Protection of Human Rights Act, 1993, wherein the orders passed by Punjab State Human Rights Commission were under challenge. Further, it is

the settled proposition of law that peculiar facts of each case are to be seen, examined and appreciated first, before applying any codified or

judge-made law thereto. Sometimes, the difference of one additional fact or circumstance can make, the world of difference, as held by the

Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, .

During the course of arguments, learned counsel for the petitioner also submitted that the FIR (Annexure P-2) being the direct result of

consequential proceedings initiated by respondent No. 3, pursuant to the impugned report dated 3.4.2013, it was also liable to be quashed. This

submission of the learned counsel for the petitioner has also been found to be without any force, it being even beyond the scope of prayer made

herein. The prayer in the present writ petition made by the-petitioner, reads as under:--

(i) issuance of a writ in the nature of certiorari quashing the report/order dated 3.4.2013 (P-1) passed by the Hon''ble Lokayukta, Haryana under

the Haryana Lokayukta Act 2002 and consequential for setting aside all proceedings which have been initiated by the Director General, Secondary

Education, Haryana, Education Department.

Reading of the above said prayer clause would show that the petitioner has intentionally avoided the prayer for quashing of the FIR (Annexure

P-2), probably keeping the scope open for quashing of the FIR by way of separate appropriate proceedings. Further, as noticed above, the FIR

(Annexure P-2) has not been even found to have been registered as a direct result of the impugned report dated 3.4.2013, because it had been

registered on receipt of an application bearing No. 1608 dated 26.2.2013.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the

considered view that the present writ petition is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference

has been made out. Resultantly, the instant writ petition stands dismissed.