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TMI Blog2010 (11) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... well as Director (HR) of Delhi Transco Ltd. ('DTL') for personal benefit. Balwani's specific case was that Saxena being the Director of DTL, a company owned by the Government of National Capital Territory of Delhi ('GNCTD') was a 'public functionary' within the meaning of Section 2(m)(iv) of the DLAU Act. 3. In response to the above complaint Saxena took the plea that the Lokayukta had no jurisdiction over Saxena under Section 17 of the DLAU Act since Saxena was a member of the Indian Administrative Services ('IAS') and that it was in that capacity he was sent on deputation to the DTL as Director (Administrative) and Director (HR). Saxena's case was that he did not lack immunity from jurisdiction of the Lokayukta under Section 17 only because he was a Director of a company owned by the GNCTD. 4. By an order dated 5th February 2010, the Lokayukta came to the conclusion that the preliminary objection raised by Saxena was without merit. It was held that the provision of Section 17 could not be used to defeat the provision of Section 2(m)(iv) of the DLAU Act unless it was impossible to effect reconciliation between the two provisions. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 5th May 2010, passed by the Lokayukta by way of entertaining the complaint, Writ Petition (C) No. 3342 of 2010 was filed in this Court by Chetan B. Sanghi in which notice was issued by this Court on 14th May 2010 and further proceedings before the Lokayukta in the complaint filed against the Petitioner by R.N. Bararia were stayed. The common question 8. In all the three petitions, therefore, the common question that arises concerns the jurisdiction of the Lokayukta to entertain the complaint of these Petitioners. In other words, the question is whether on a collective reading of Sections 2(m)(iv) and 17 of the DLAU Act, the complaints against the three writ petitioners were maintainable? Decision of this Court 9. The long title to the DLAU Act states that it is an Act to make provision for the establishment and functioning of the Institution of Lokayukta to inquire into the allegations against public functionaries in the National Capital Territory of Delhi and for matters connected therewith. The background to the enactment of the DLAU Act was an Interim Report of the Administrative Reforms Commission ('ARC') on Problems of Redress of Citizens' Grievanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or registered under the Delhi Co-operative Societies Act, 1972, which is subject to the control of the Government; (2) a Government Company 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 Authority established under any law in relation to Delhi; provided that the provisions of this Act shall not be applicable to 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 Corporation engaged in connection with 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 Municipal Corporation of Delhi as defined in Clause 2(27) of the Municipal Corporation Act, 1957 (as amended in 1993) 11. There can be no doubt that the range of offices covered by the definition of 'public functionary' under Section 2(m) is indeed wide. As far as the companies are concerned, the Chairman, Vice-Chairman and Managing Director or a Member of the Board of Directors ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2(m)(iv). Consequently there is no occasion, as part of an interpretative exercise, to adopt a 'purposive' construction (See for instance Grid Corporation of Orissa Ltd. v. Eastern Metals and Ferro Alloys 2010 (2) Scale 687. For the same reason there is also no warrant for examining if Section 17 should be read subject to Section 2(m)(iv) or read 'harmoniously' with it to preserve both provisions. It is possible that such questions might arise if this Court were required to examine the constitutional validity of Section 17. However, that is not within the scope of the present proceedings or for that matter the proceedings before the Lokayukta. 13. It is trite that the powers and functions of the office of the Lokayukta are to be found within the DLAU Act. The Lokayukta has to interpret the provisions of the DLAU Act as they occur. It is not within the scope of the powers of the Lokayukta to add to the provisions of the DLAU Act clauses or phrases that do not exist as has been done by the Lokayukta in the impugned order dated 5th February 2010. The Lokayukta has by an interpretative exercise carved out a further exception to Section 17 DLAU Act by holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. The complaint is dismissed as being not maintainable. For the same reasons, the complaints titled B.K. Sharma v. R.K. Saxena and R.N. Bararia v. Chetan B. Sanghi pending before the Lokayukta are also dismissed as being outside the scope of the jurisdiction of the Lokayukta. 18. The writ petitions are allowed but in the circumstances with no order as to costs. The applications are disposed of. The Lokayukta's three applications (C.M. Nos. 4290, 13761 and 13760 of 2010) 19. These three applications are by the Lokayukta, one in each writ petition, seeking the permission of this Court to address arguments on the issue of jurisdiction of the Lokayukta. In para 5 of the application in the first writ petition by R.K. Saxena, the Lokayukta expresses a concern that in the present writ petition the endeavour of the petitioner appears to be to curtail and restrict the functioning and jurisdiction of the Lokayukta in the areas in which it is entitled to operate by purporting to keep off a large segment of 'Public Functionaries' who are otherwise subject to the jurisdiction of the Lokayukta. A similar concern is expressed in the other two applications in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the order of a learned Single Judge of this Court implied that this Court recognised the locus of the Lokayukta to petition this Court to be heard in a matter which was being inquired by him. Reference was made by Mr. Singh to the decision of the Supreme Court in Institution of A.P. Lokayukta v. T. Rama Subba Reddy (1997) 9 SCC 42. One of the first appeals in the batch in which the said decision was rendered was by the Lokayukta of Andhra Pradesh challenging an order of the High Court of Andhra Pradesh. The said decision did not decide the question whether the Lokayukta had the locus standi to petition the High Court or Supreme Court in the same matter in which the Lokayukta had taken a view. Still, according 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 applications by the Lokayukta. They submitted that 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 5th Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Lokayukta, the other neither supports nor opposes the prayer of the Lokayukta. No precedent has been cited where a similar request was entertained by a Court. The submission is 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 impartiality and neutrality. 25. Given the above submission, this Court is first required to examine the nature of the function discharged by the Lokayukta in deciding upon his jurisdiction. The Lokayukta performs myriad functions, not all of which partake the character of an 'adjudication' of a dispute (lis). A decision of the Lokayukta, say, to terminate the services of an employee can be challenged before a court and the Lokayukta would have to defend such decision. The Lokayukta would in that instance be both a necessary and proper party to the dispute. In another role, the Lokayukta could frame its own rules of procedure. These could be challenged on the ground that they are ultra vires the powers of the Lokayukta under the DLAU Act. In such dispute again the Lokayukta will be both a necessary and proper party. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s' Grievances . In para 25 of the said Report the essential qualities of the office of a Lok Pal or Lokayukta were identified thus: (a) They should be demonstrably independent and impartial. (b) ... (c) ... (d)Their status should compare with the highest judicial functionaries in the country. (e) ... That 'impartiality' figures high in the list of desired qualities of 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 person whose weight of judicial experience would by itself lend credibility to the office and there could be no doubt about the impartiality of the person occupying that office. Since this office was being entrusted with powers to inquire into complaints of corruption against high 'public functionaries' including the 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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and the integrity of the process under review?' 31. The expectation, writ large in the DLAU Act, is that the Lokayukta will at all times be seen to be impartial, in the discharge of the myriad functions of that office. Normally, once the Lokayukta has taken a decision in a pending dispute, whether on the question of jurisdiction or otherwise, the Lokayukta should not seek to 'defend' such decision when it is challenged before a Court. It is possible in a given case where the Lokayukta has not taken a view one way or the other, and the question say on the jurisdiction and powers of the Lokayukta arises before the Court in proceedings where the Lokayukta's decision is challenged, the Court can invite the Lokayukta to address the Court on such question. But that is not the situation here. The Lokayukta is seeking permission to be impleaded in order to be heard in support of the decision that has been challenged. The writ petitioner who is aggrieved by the Lokayukta's decision and has therefore challenged it, opposes such request by the Lokayukta for impleadment. 32. No authority can expect that its decisions would not be vulnerable to challenge. Fallibi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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