# OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP KUMAR PANIGRAHI AND OTHERS

- **Citation:** [2023] 2 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 2023-02-23
- **Case number:** Civil Appeal Nos.13841385 of 2023
- **Bench:** Ajay Rastogi, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/office-of-the-odisha-lokayukta-v-dr-pradeep-kumar-panigrahi-and-others-36850
- **Pages:** 22

## Headnote

Odisha Lokayukta Act, 2014 - s.20(1), 25, 28 - Order passed
by the appellant, in exercise of power conferred u/s.20(1), directing
to conduct preliminary inquiry against respondent no.1 - Set aside
by High Court -Held: High Court passed the impugned order setting
aside the order of the appellantwithout affording it an opportunity
of hearing and thus, is in violation of the principles of natural justice
- Even on merits, High Court completely overlooked s.20(1) that
empowers the Lokayukta, on receipt of a complaint, in its discretion
if intended to proceed and to hold any inquiry, can conduct
preliminary inquiry against a public servant by its wing or any other
agency - So far as the term 'any agency' is concerned, it clearly
manifests from s.25 which entrusts the power of superintendence to
the Lokayukta to exercise in such a manner so as to require any
agency, including the State Vigilance and Crime Branch - Also, u/
s.28 for the purpose of conducting any preliminary inquiry or
investigation, it is open for the Lokayukta to utilize the services of
any officer or organization or investigation agency of the
Government - Thus, in the present case, if the appellant conducted
a preliminary inquiry through an agency of the Government of which
reference has been made u/s.28 through the Directorate of Vigilance,
Cuttack, there is no legal infirmity committed by the appellant -
Decision-making process in conducting the preliminary inquiry was
within the scope and ambit of s.20(1)-Judgment of High Court and
the review order are set aside.
Administrative Law- Rule against Bias - Held: Rule against
bias ensures a fair procedure by excluding decision makers who
are tainted by bias - Under the rule, actual bias is disqualifying
even though it is prohibitively difficult to establish - Justice must
not only be done but must also appear to be done - In the present
case, the Officer who submitted the complaint was simply an
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informant and not the person interested, at the same time, preliminary
enquiry was conducted by a different officer not connected with
author of the complaint - Thus, the plea of bias is ill-founded -
Odisha Lokayukta Act, 2014.
Allowing the appeals, the Court
HELD: 1.1 The aim to the rule of natural justice is to secure
justice or to put it negatively, these rules can operate only in
areas not covered by any law validly made. Before any action
could have been taken by the Directorate of Vigilance in
conducting a preliminary enquiry, a writ petition was filed by
respondent no.1 before the High Court and on the first motion
stage, the High Court, without affording an opportunity of hearing
to the appellant, set aside the order dated 11th December, 2020
passed by the appellant for conducting a preliminary inquiry. The
Division Bench of the High Court has committed a manifest error
in passing of the order impugned while setting aside the order of
the appellant dated 11th December, 2020 to conduct a preliminary
inquiry against respondent no.1 in exercise of powers under
Section 20(1) of the Act, 2014 which is in violation of the principles
of natural justice. [Paras 25, 26, 27][572-F-H; 573-B-C]
1.2 Even on merits, the Division Bench has completely
overlooked Section 20(1) of the Act, 2014 that empowers the
Lokayukta, on receipt of a complaint, obviously after recording
satisfaction, in its discretion if intended to proceed and to hold
any inquiry, can conduct either a preliminary inquiry against a
public servant by its inquiry wing or any other agency to ascertain
whether there exists a prima facie case for proceeding in the
matter or hold investigation by any agency or authority
empowered under any law to investigate whether there exists a
prima facie case. So far as the term 'any agency' is concerned, it
clearly manifests from Section 25 of Chapter VIII which entrusts
the power of superintendence to the Lokayukta to exercise in
such a manner so as to require any agency, including the State
Vigilance and C

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[2023] 2 S.C.R.
 [2023] 2 S.C.R. 560
560
OFFICE OF THE ODISHA LOKAYUKTA
v.
DR. PRADEEP KUMAR PANIGRAHI AND OTHERS
(Civil Appeal No(s).1384-85 of 2023)
FEBRUARY 23, 2023
[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
Odisha Lokayukta Act, 2014 - s.20(1), 25, 28 - Order passed
by the appellant, in exercise of power conferred u/s.20(1), directing
to conduct preliminary inquiry against respondent no.1 - Set aside
by High Court -Held: High Court passed the impugned order setting
aside the order of the appellantwithout affording it an opportunity
of hearing and thus, is in violation of the principles of natural justice
- Even on merits, High Court completely overlooked s.20(1) that
empowers the Lokayukta, on receipt of a complaint, in its discretion
if intended to proceed and to hold any inquiry, can conduct
preliminary inquiry against a public servant by its wing or any other
agency - So far as the term 'any agency' is concerned, it clearly
manifests from s.25 which entrusts the power of superintendence to
the Lokayukta to exercise in such a manner so as to require any
agency, including the State Vigilance and Crime Branch - Also, u/
s.28 for the purpose of conducting any preliminary inquiry or
investigation, it is open for the Lokayukta to utilize the services of
any officer or organization or investigation agency of the
Government - Thus, in the present case, if the appellant conducted
a preliminary inquiry through an agency of the Government of which
reference has been made u/s.28 through the Directorate of Vigilance,
Cuttack, there is no legal infirmity committed by the appellant -
Decision-making process in conducting the preliminary inquiry was
within the scope and ambit of s.20(1)-Judgment of High Court and
the review order are set aside.
Administrative Law- Rule against Bias - Held: Rule against
bias ensures a fair procedure by excluding decision makers who
are tainted by bias - Under the rule, actual bias is disqualifying
even though it is prohibitively difficult to establish - Justice must
not only be done but must also appear to be done - In the present
case, the Officer who submitted the complaint was simply an
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informant and not the person interested, at the same time, preliminary
enquiry was conducted by a different officer not connected with
author of the complaint - Thus, the plea of bias is ill-founded -
Odisha Lokayukta Act, 2014.
Allowing the appeals, the Court
HELD: 1.1 The aim to the rule of natural justice is to secure
justice or to put it negatively, these rules can operate only in
areas not covered by any law validly made. Before any action
could have been taken by the Directorate of Vigilance in
conducting a preliminary enquiry, a writ petition was filed by
respondent no.1 before the High Court and on the first motion
stage, the High Court, without affording an opportunity of hearing
to the appellant, set aside the order dated 11th December, 2020
passed by the appellant for conducting a preliminary inquiry. The
Division Bench of the High Court has committed a manifest error
in passing of the order impugned while setting aside the order of
the appellant dated 11th December, 2020 to conduct a preliminary
inquiry against respondent no.1 in exercise of powers under
Section 20(1) of the Act, 2014 which is in violation of the principles
of natural justice. [Paras 25, 26, 27][572-F-H; 573-B-C]
1.2 Even on merits, the Division Bench has completely
overlooked Section 20(1) of the Act, 2014 that empowers the
Lokayukta, on receipt of a complaint, obviously after recording
satisfaction, in its discretion if intended to proceed and to hold
any inquiry, can conduct either a preliminary inquiry against a
public servant by its inquiry wing or any other agency to ascertain
whether there exists a prima facie case for proceeding in the
matter or hold investigation by any agency or authority
empowered under any law to investigate whether there exists a
prima facie case. So far as the term 'any agency' is concerned, it
clearly manifests from Section 25 of Chapter VIII which entrusts
the power of superintendence to the Lokayukta to exercise in
such a manner so as to require any agency, including the State
Vigilance and Crime Branch. [Paras 28, 29][573-D-E]
1.3 At the same time, under Section 28, for the purpose of
conducting any preliminary inquiry or investigation, it is open for
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
KUMAR PANIGRAHI
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the Lokayukta to utilize the services of any officer or organization
or investigation agency of the Government and, in the
circumstances, if the appellant in its judicious discretion and on
the facts and circumstances of the case, conduct a preliminary
inquiry through an agency of the Government of which reference
has been made under Section 28 through the Directorate of
Vigilance, Cuttack, there appears no legal infirmity being
committed by the appellant in the decision-making process in
conducting a preliminary inquiry whichwas within the scope and
ambit of Section 20(1) of the Act, 2014 and a manifest error was
committed by the Division Bench of the High Court while setting
aside the order of the appellant dated 11th December, 2020 to
conduct an inquiry against respondent no.1. [Para 30][573-F-H;
574-A]
1.4 Although this Court may not appreciate the action of
the appellant in taking further steps when there was stay of the
order impugned passed by this Court, but at the same time, an
opportunity was granted to the respondents as well to justify if
the action taken by the appellant is not in conformity with the
mandate of the Act, 2014, but from the written submissions placed
before this Court, no valid objection was found to have been
raised by the respondents which may call upon this Court to
interfere in furtherance of the action being taken by the appellant
after the preliminary inquiry report was submitted pursuant to
order dated 11th December, 2020.[Para 33][574-D-F]
1.5 The rule against bias is an essential component of
modern administrative law. The rule against bias ensures a fair
procedure by excluding decision-makers who are tainted by bias.
Under the rule, actual bias is disqualifying even though it is
prohibitively difficult to establish. The basic principle underlying
the time-tested rule is that justice must not only be done but
must also appears to be done. In the instant case, the complaint
was made by the Deputy Superintendent of Police of the
Directorate of Vigilance, who is, directly or indirectly, not
concerned with the complaint, he can be said to be an informant
to the office of the appellant and that apart, a preliminary inquiry
was conducted independently by a senior officer of the Directorate
of Vigilance, Additional Superintendent of Police who submitted
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his report of the preliminary inquiry. The question of bias in the
instant facts and circumstances does not arise at all. Further, if
the order of the appellant directing the Directorate of Vigilance
to conduct the preliminary inquiry in exercise of power under
Section 20(1) of the Act, 2014 has been set aside by the High
Court, obviously,the appellant is a person aggrieved and can
certainly question the legality/validity of the judgment of the High
Court impugned by invoking jurisdiction of this Court under
Article 136 of the Constitution.The judgment of the High Court
and the review order are set aside.[Paras 35, 37, 42 and 43][575C; 578-D-F; 581-B-D]
Ashok Kumar Yadav and others vs. State of Haryana
and others 1985 (4) SCC 417 : [1985] 1 Suppl. SCR
657; Mukesh Singh vs. State (Narcotic Branch of Delhi)
2020 (10) SCC 120 : [2020] 9 SCR 245- followed.
National Commission for Women vs. State of Delhi and
another 2010 (12) SCC 599 : [2010] 10 SCR 905; M.S.
Kazi vs. Muslim Education Society and others 2016 (9)
SCC 263 : [2016] 4 SCR 80 - held inapplicable.
A.K. Kraipak and others vs. Union of India and others
1969 (2) SCC 262 : [1970] 1 SCR 457 - relied on.
Case Law Reference
[1970] 1 SCR 457
relied on
Para 35
[1985] 1 Suppl. SCR 657
followed
Para 36
[2020] 9 SCR 245
followed
Para 37
[2010] 10 SCR 905
held inapplicable
Para 38
[2016] 4 SCR 80
held inapplicable
Para 38
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.13841385 of 2023.
From the Judgment and Order dated 03.02.2021 of the High Court
of Orissa at Cuttack in WP (C) No.3488 of 2021 and dated 05.04.2021
in RVWPET No.45 of 2021.
Ravindra Shrivastav, Sr. Adv., Arjun Garg, Aakash Nandolia, Ms.
Sagun Srivastava, Ms. Sanya Shukla, Devangna Singh, Advs. for the
Appellant.
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
KUMAR PANIGRAHI
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Pitamber Acharya, Sr. Adv., Apoorve Karol, Lakshay Sharma,
Mithu Jain, Shibashish Misra, Advs. for the Respondents.
The Judgment of the Court was delivered by
RASTOGI, J.
1. Leave granted.
2. The instant appeals are directed against the judgment dated 3rd
February, 2021 passed by the Division Bench of the High Court of Orissa
at Cuttack setting aside Order dated 11th December, 2020 passed by the
Odisha Lokayukta initiating to conduct a preliminary inquiry in exercise
of power conferred under Section 20(1) of the Odisha Lokayukta Act,
2014 (hereinafter being referred to as the "Act 2014") on a complaint
dated 9th December, 2020 received from Mr. Ranjan Kumar Das, Deputy
Superintendent of Police, Vigilance Cell Unit, Bhubaneswar indicating
the alleged corruption against respondent no. 1 who is the elected Member
of the Legislative Assembly of Gopalpur Constituency directing the
Directorate of Vigilance, Cuttack to conduct a preliminary inquiry and
submit a report to the Lokayukta.
3. The review petition filed at the instance of the appellant on the
premise that Odisha Lokayukta was never heard and no opportunity of
hearing has been afforded before passing of the impugned Order dated
3rd February, 2021 and it was in violation of the principles of natural
justice, came to be dismissed by passing a non-speaking Order dated 5th
April, 2021.
4. Respondent no. 1 is an elected Member of the Legislative
Assembly. Mr. Ranjan Kumar Das, the then Deputy Superintendent of
Police, Vigilance Cell Unit, Bhubaneswar, made a complaint dated 9th
December, 2020 indicating serious allegations of alleged corruption against
Member of the Odisha Legislative Assembly of Gopalpur Constituency.
Along with the complaint, supporting documents were also annexed.
The Odisha Lokayukta, after taking into consideration the contents of
the complaint and the supporting documents annexed thereto, in exercise
of power conferred under Section 20(1) of the Act, 2014 directed the
Directorate of Vigilance, Odisha, Cuttack to conduct a preliminary inquiry
against respondent no. 1 and submit a report within two months with a
further direction that the Directorate of Vigilance must ensure that during
preliminary inquiry, the mandate of Section 20(2) has to be complied
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with and further directed the Office of Lokayukta to make available all
the relevant record to the Directorate of Vigilance for compliance.
5. Immediately on a reference made by the Odisha Lokayukta by
its Order dated 11th December, 2020 directing the Directorate of Vigilance
to conduct a preliminary inquiry against respondent no. 1 and calling
upon the report, came to be challenged by respondent no. 1 by filing writ
petition before the High Court under Article 226 of the Constitution.
Although the Office of Lokayukta was impleaded as one of respondent
before the High Court but as informed to this Court, no notice was issued
to them and on the first date of hearing, without even affording opportunity
of hearing to the appellant to submit their written response, the Division
Bench of the High Court under Order dated 3rd February, 2021 proceeded
on the premise that entrusting Directorate of Vigilance to conduct
preliminary inquiry is not in terms of the mandate of Section 20(1) and
set aside the Order dated 11th December, 2020 with a liberty to the
Lokayukta to conduct preliminary inquiry, if so advised, against
respondent no. 1 by the inquiry wing of the Lokayukta with a further
liberty to proceed in conformity with the requirements of Sections 20(2)
and 20(3) after the preliminary report being furnished by the inquiry
wing of the Lokayukta.
6. A review filed by the Lokayukta against the Order impugned
dated 3rd February, 2021 came to be dismissed by a non-speaking order
dated 5th April, 2021 which is a subject matter of challenge in the appeals
before us.
7. Learned counsel for the appellant submits that the order
impugned dated 3rd February, 2021 is in violation of the principles of
nature justice and the finding has been recorded without affording an
opportunity of hearing to the appellant and that apart, it is not in conformity
with the mandate of Section 20(1) of the Act 2014.
8. Learned counsel further submits that Section 20(1) provides an
option to the Lokayukta, who, on receipt of a complaint, if order to hold
a preliminary inquiry against any public servant, may conduct either by
its enquiry wing or by any agency to ascertain as to whether there exists
any prima facie case for proceeding in the matter any further. If the
relevant provisions of the Act are being looked into, particularly Chapter
VIII of the Act 2014, any agency as referred to under Section 25 includes
the State Vigilance and Crime Branch for the purpose of conducting
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
KUMAR PANIGRAHI [AJAY RASTOGI, J.]
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preliminary inquiry or investigation, as the case may be, and that is further
strengthened by the procedure for conducting a preliminary inquiry or
investigation envisaged under Section 28 wherein it is open for the
Lokayukta to conduct preliminary inquiry or investigation through the
agency of the Government. In the given facts and circumstances, the
finding which has been recorded by the Division Bench of the High
Court that entrusting to conduct preliminary inquiry by the Directorate
of Vigilance under Order dated 11th December, 2020 is not in conformity
with the Act 2014, needs to be interfered with by this Court.
9. Learned counsel further submits that calling upon the inquiry
wing or any agency to conduct a preliminary inquiry is only for a limited
purpose to ascertain whether there exists prima facie case to proceed in
the matter. The Legislature was conscious of the fact that if it may
cause any prejudice to the incumbent against whom the prima facie
case has been registered and before any further action is being taken or
to make any recommendation to proceed either to conduct investigation
or initiate a departmental inquiry, it is incumbent upon the Lokayukta to
afford an opportunity of hearing to the public servant as referred to
under Sections 20(2) and 20(3) of the Act, 2014. A complete inbuilt
procedure has been prescribed under Chapter VII for conducting
preliminary inquiry and investigation within the powers of the Lokayukta.
Chapter VIII prescribes not only the purpose of conducting preliminary
inquiry and investigation but also in reaching to a final conclusion even at
the stage of registering of the charge-sheet as referred to under Section
20(8) of the Act, 2014.
10. Learned counsel further submits that no adverse or prejudicial
action was taken by the appellant in initiating to conduct a preliminary
inquiry under its Order dated 11th December 2020, thus the interference
made by the High Court, at this stage, in exercise of its jurisdiction under
Article 226 of the Constitution of India was neither valid nor justified.
11. Per contra, learned counsel for the respondents, on the other
hand, submits that a complaint was made by the Deputy Superintendent
of Police, Vigilance Cell, Bhubaneshwar dated 9th December, 2020, who
was the Officer of Directorate of Vigilance, Cuttack, Odisha, Cuttack
and direction was given to the Directorate of Vigilance, Odisha to conduct
a preliminary inquiry by Order dated 11th December, 2020, the decision
itself was in violation of the principles of natural justice. Once the
complaint was made by the officer of the Directorate of Vigilance, at
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least entrusting the preliminary inquiry to be conducted by another Officer
of the Directorate of Vigilance, may be senior in the ladder, was not
legally justified. The Officer of the Department has made a complaint
on 9th December, 2020 and other officer is called upon to conduct a
preliminary inquiry as stated that one cannot be a judge in its own cause
and that being the reason, the Division Bench of the High Court has
permitted the Lokayukta to conduct an inquiry by the inquiry wing of the
Lokayukta and administrative bias can't be ruled out of the Directorate
of Vigilance who is to conduct a preliminary inquiry.
12. Learned counsel further submits that since the respondents
were duly represented and the Advocate General of the State appeared
along with the State counsel, opportunity of hearing was afforded to the
appellant and plea of the principles of natural justice as prayed for by the
appellant being violated, in the facts and circumstances, does not hold
good. That apart, review petition came to be rightly dismissed as the
appellant failed to justify any manifest error being committed by the
Division Bench of the High Court under its Order dated 3rd February,
2021 which may call for our interference.
13. It may be noticed that while issuing notice by this Court on
23rd April, 2021, operation of the impugned order was stayed. In
furtherance of the stay granted by this Court, it is informed that the
appellant has proceeded further and after the preliminary inquiry report
being submitted to the Lokayukta by the Officer Shri P.K. Naik on 28th
May, 2021 and after affording opportunity of hearing to the appellant, a
detailed Order was passed by the Lokayukta under Section 20(3)(a)
dated 27th September, 2021 directing the Directorate of Vigilance to
carry out investigation. In furtherance thereof, Directorate of Vigilance
submitted a detailed report of investigation to the Lokayukta on 7th June,
2022, however, no further action has been initiated and awaiting orders
of this Court which is indicated in the order dated 24th June, 2022 placed
on record along with IA No. 89629 of 2022.
14. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
15. Before we proceed to examine the question raised in the instant
appeals, it may be apposite to first take a bird's eye view of the Scheme
of the Act, 2014.
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
KUMAR PANIGRAHI [AJAY RASTOGI, J.]
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16. The Act, 2014 has been enacted by the legislature of the State
of Odisha having been assented to by the President on the 16th January,
2015 with an object to provide for the establishment of the body of
Lokayukta for the State of Odisha to inquire into allegations of corruption
against public functionaries and for matters connected therewith or
incidental thereto. The Act is applicable to the public servants of the
State of Odisha serving in and outside the State and the public servants
under the control of Government of Odisha.
17. A 'complaint' has been defined under Section 2(d), and the
term 'preliminary inquiry' and 'public servant' under Sections 2(l) and
2(n) of the Act 2014 which are stated as follows:-
"2. (1) In this Act, unless the context otherwise requires,-
......
(d) "complaint" means a complaint, made in such form as may be
prescribed, alleging that a public servant has committed an offence
punishable under the Prevention of Corruption Act,1988;
......
(l) "preliminary inquiry" means an inquiry conducted under this
Act;
......
(n) "public servant" means a person referred to in clauses (a) to
(h) of sub-section (1) of section 14 but does not include a public
servant in respect of whom the jurisdiction is exercisable by any
court or other authority under the Army Act, 1950, the Air Force
Act, 1950, the Navy Act, 1957 and the Coast Guard Act, 1978 or
the procedure is applicable to such public servant under those
Acts;
.......".
18. Chapter VII prescribes the procedure in respect of preliminary
inquiry and investigation, the relevant part of which is reproduced as
under:-
"20. (1) The Lokayukta, on receipt of a complaint, if it decides to
proceed further, may order-
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(a) preliminary inquiry against any public servant by its Inquiry
Wing or any agency to ascertain whether there exists a prima
facie case for proceeding in the matter; or
(b) investigation by any agency or authority empowered under
any law to investigate, where there exists a prima facie case:
Provided that any investigation under this clause shall be
ordered only if in the opinion of the Lokayukta there is substantial
material relating to the existence of a prima facie case or any
earlier statutory investigation or enquiry regarding the same
complaint reveals that a prima facie case exists:
Provided further that before ordering an investigation under
this clause, the Lokayukta shall call for the explanation of the
public servant and views of the competent authority, so as to
determine whether there exists a prima facie case for investigation:
Provided also that a decision to order investigation under
this clause shall be taken by a bench constituted by the Chairperson
under section 16.
(2) During the preliminary inquiry referred to in sub-section (1),
the Inquiry Wing or any agency shall conduct a preliminary inquiry
and on the basis of material, information and documents collected,
seek the comments on the allegations made in the complaint from
the public servant and competent authority and after obtaining the
comments of the concerned public servant and competent authority,
submit, within sixty days from the date of receipt of the reference,
a report to the Lokayukta.
(3) A bench consisting of not less than three Members of the
Lokayukta shall consider every report received under sub-section
(2) from the Inquiry Wing or any agency and after giving an
opportunity of being heard to the public servant, decide as to
whether there exists a prima facie case, and make
recommendations to proceed with one or more of the following
actions, namely:
-
(a) investigation by any agency (including any special
investigation agency);
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
KUMAR PANIGRAHI [AJAY RASTOGI, J.]
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(b) initiation of the departmental proceedings or any other
appropriate action against the concerned public servant by the
competent authority;
(c) closure of the proceedings against the public servant and
take action to proceed against the complainant under section
46.
(4) The promotion and other service benefits of a public servant
mentioned in clauses (e) to (h) of sub-section (1) of section 14
shall not be affected until the public servant is put under suspension
on recommendation of the Lokayukta under section 32 or charge
sheet is filed after completion of investigation under clause (a) of
sub-section (3) or a charge memo is issued against the said public
servant in a disciplinary proceeding initiated on the recommendation
of the Lokayukta under clause (b) of sub-section (3).
(5) Every preliminary inquiry referred to in sub-section (1) shall
ordinarily be completed within a period of ninety days and for
reasons to be recorded in writing, within a further period of ninety
days from the date of receipt of the complaint.
(6) In case the Lokayukta decides to proceed to investigate into
the complaint, it shall, by order in writing, direct any investigating
agency (including any special agency) to carry out the investigation
as expeditiously as possible and complete the investigation within
a period of six months from the date of its order:
Provided that the Lokayukta, for the reasons to be recorded in
writing, may extend the said period by a further period not exceeding
six months at a time and for the maximum period of two years.
(7) Notwithstanding anything contained in section 173 of the Code
of Criminal Procedure, 1973, any investigating agency (including
any special agency) shall, in respect of cases referred to it by the
Lokayukta, submit the investigation report to the Lokayukta.
(8) A bench consisting of not less than three Members of the
Lokayukta shall consider every report received by it under
sub-section (7) from any investigating agency (including any special
agency) and may, decide as to-
(a) filing of charge-sheet or closure report before the Special
Court against the public servant;
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(b) initiating the departmental proceedings or any other
appropriate action against the concerned public servant by the
competent authority.
(9) The Lokayukta may, after taking a decision under sub-section
(8) on the filing of the charge sheet, direct its Prosecution Wing to
initiate prosecution in a Special Court in respect of cases
investigated by any investigating agency (including any special
agency).
....."
19. Section 20 provides an inbuilt mechanism laying down the
procedure to be followed in holding preliminary inquiry and investigation
which the Lokayukta, in the facts and circumstances, on receipt of a
complaint may decide - either order for conducting preliminary inquiry
against the public servant by its inquiry wing or any agency to ascertain
whether there exists a prima facie case for proceeding in the matter; or
direct to hold an investigation by any agency or authority empowered
under any law to investigate, to record its satisfaction whether there
exists a prima facie case.
20. Sub-sections (2), (3) and (4) provide the procedure which has
to be followed by the inquiry wing or any agency which has been asked
to ascertain the fact as to whether there exists prima facie case for
proceeding in the matter. Such report is placed before a Bench consisting
of not less than three members of the Lokayukta to consider the same
under sub-section (2) from the inquiry wing or any agency and after
affording an opportunity of being heard to the public servant, may
recommend to proceed with one or more of the actions as provided
under Clauses (a), (b) or (c) of sub-section (3) to hold departmental
action against the public servant. Sub-section (5) prescribes the time
schedule of 90 days under which preliminary inquiry has to be concluded.
Sub-section (6) provides the action to be taken to carry out the
investigation as expeditiously as possible and complete the investigation
within a period of six months. Under sub-section (7), notwithstanding
anything contained in Section 173 of the Code of Criminal Procedure,
1973, the investigating agency may submit the investigation report to the
Lokayukta. Sub-sections (8) and (9) provide the procedure to be followed
after investigating agency has submitted its report for taking further action.
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
KUMAR PANIGRAHI [AJAY RASTOGI, J.]
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21. Chapter VIII provides the power of the Lokayukta. Under
Section 25, the power of superintendence and direction over the
investigating agency including the State Vigilance and Crime Branch in
respect of the matters in so far as they relate to the investigation made
by such agency has been entrusted to Lokayukta.
22. Section 27 clarifies that for the purpose of any preliminary
inquiry, the inquiry wing of the Lokayukta holds powers of a civil Court,
under the Code of Civil Procedure, 1908 and any proceedings before
the Lokayukta shall be deemed to be a judicial proceeding within the
meaning of Section 193 of the Indian Penal Code, 1860.
23. Section 28 authorise the Lokayukta to conduct any preliminary
inquiry or investigation and utilize the services of any officer or
organization or investigation agency of the Government.
24. The Act, in fact, is a complete code putting in place the
procedure under which the Lokayukta under the Act, 2014 within its
territorial jurisdiction holds the authority to adopt a mechanism in reference
to public servants of the State of Odisha serving in and outside the State
and the public servants under the control of Government of Odisha to
inquire into allegations of corruption against the public functionaries and
for matters connected therewith or incidental thereto.
25. Mr. Ranjan Kumar Das, Deputy Superintendent of Police,
Vigilance Cell Unit, Bhubaneswar was not a person interested but as an
informant submitted a complaint against respondent no. 1 (MLA Gopalpur
Constituency) to Odisha Lokayukta regarding possession of
disproportionate assets and intentionally enriching himself illicitly adopting
mal-practices. On the said complaint being received, the appellant
directed the Directorate of Vigilance, Cuttack to conduct a preliminary
inquiry against respondent no.1 in exercise of his power under Section
20(1) of the Act, 2014 by an order dated 11th December, 2020. Before
any action could have been taken by the Directorate of Vigilance in
conducting a preliminary inquiry, a writ petition was filed by respondent
no.1 before the High Court and on the first motion stage, the High Court,
without affording an opportunity of hearing to the appellant, set aside the
order dated 11th December, 2020 passed by the appellant for conducting
a preliminary inquiry. The action of the Division Bench of the High Court
indeed was in violation of the principles of natural justice.
26. The aim to the rule of natural justice is to secure justice or to
put it negatively, these rules can operate only in areas not covered by
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any law validly made. The concept of natural justice, indeed, has
undergone a change with the passage of time, but still the time- tested
rules, namely, are (i) no one shall be a judge in his own case (Nemo
debet essse judex propria causa) and (ii) no decision shall be given
against a party without affording him a reasonable opportunity of hearing
(audi alteram partem). At the same time, action of the authority must
be held in good faith without bias and not arbitrary or unreasonable.
27. In the first instance, the Division Bench of the High Court has
committed a manifest error in passing of the order impugned dated 3rd
February, 2021 while setting aside the order of the appellant dated 11th
December, 2020 to conduct a preliminary inquiry against respondent
no.1 in exercise of powers under Section 20(1) of the Act, 2014 which is
in violation of the principles of natural justice.
28. Even on merits, the Division Bench has completely overlooked
Section 20(1) of the Act, 2014 that empowers the Lokayukta, on receipt
of a complaint, obviously after recording satisfaction, in its discretion if
intended to proceed and to hold any inquiry, can conduct either a
preliminary inquiry against a public servant by its inquiry wing or any
other agency to ascertain whether there exists a prima facie case for
proceeding in the matter or hold investigation by any agency or authority
empowered under any law to investigate whether there exists a prima
facie case.
29. So far as the term 'any agency' is concerned, it clearly
manifests from Section 25 of Chapter VIII which entrusts the power of
superintendence to the Lokayukta to exercise in such a manner so as to
require any agency, including the State Vigilance and Crime Branch.
30. At the same time, under Section 28, for the purpose of
conducting any preliminary inquiry or investigation, it is open for the
Lokayukta to utilize the services of any officer or organization or
investigation agency of the Government and, in the circumstances, if the
appellant in its judicious discretion and on the facts and circumstances
of the case, conduct a preliminary inquiry through an agency of the
Government of which reference has been made under Section 28 through
the Directorate of Vigilance, Cuttack, there appears no legal infirmity
being committed by the appellant in the decision-making process in
conducting a preliminary inquiry which, in our view, was within the scope
and ambit of Section 20(1) of the Act, 2014 and a manifest error was
committed by the Division Bench of the High Court while setting aside
OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEP
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the order of the appellant dated 11th December, 2020 to conduct an
inquiry against respondent no.1.
31. It is not a case of the respondents that respondent no.1 is not
a public servant or the Act, 2014 is not applicable to him or the Lokayukta
in its jurisdiction was not competent to conduct a preliminary inquiry
under Section 20(1) of the Act, 2014. In the given facts and
circumstances, the finding returned by the Division Bench of the High
Court under the judgment impugned, in our view, is not legally sustainable.
32. During the course of submissions made by the parties, it was
informed that after the stay was granted by this Court of the judgment
impugned dated 3rd February, 2021, the appellant has proceeded in
conducting further inquiry and actions are being taken after the Directorate
of Vigilance has submitted a preliminary inquiry report to the Lokayukta
under Section 20(3)(a) to carry out investigation and steps are taken by
the Directorate of Vigilance in summitting a report of investigation before
the appellant on 7th June, 2022.
33. Although we may not appreciate the action of the appellant in
taking further steps when there was stay of the order impugned passed
by this Court, but at the same time, we granted an opportunity to the
respondents as well to justify if the action taken by the appellant is not in
conformity with the mandate of the Act, 2014, but from the written
submissions placed before us, we do not find any valid objection being
raised by the respondents which may call upon this Court to interfere in
furtherance of the action being taken by the appellant after the preliminary
inquiry report was submitted pursuant to order dated 11th December,
2020. Still we leave it open to respondent no.1, if further action taken by
the appellant is not in conformity with law, he is at liberty to initiate
proceedings as admissible to him under the law.
34. So far as the objection raised by the respondents regarding
the action of conducting preliminary inquiry being bias for the reason
that the Deputy Superintendent of Police of the Directorate of Vigilance
has submitted a complaint and the appellant directed the Directorate of
Vigilance to conduct a preliminary inquiry by an order dated 11th
December, 2020, which, in fact, was conducted by a senior officer of
the Directorate of Vigliance i.e. Additional Superintendent of Police
Vigilance, Mr. P.K. Naik, who submitted a report to the appellant on 28th
May, 2021 is concerned, we are not persuaded with the submission of
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there being any bias on the part of the Directorate of Vigilance cell in
conducting preliminary inquiry for the reason that the Officer who
submitted a complaint was simply an informant and not the person
interested, at the same time, preliminary inquiry was conducted by a
different Officer not connected with author of the complaint, thus the
plea of bias was ill-founded. In our view, the principles of bias, even
remotely are not attracted in the facts and circumstances of the present
case.
35. The rule against bias is an essential component of modern
administrative law. The rule against bias ensures a fair procedure by
excluding decision-makers who are tainted by bias. Under the rule, actual
bias is disqualifying even though it is prohibitively difficult to establish.
The basic principle underlying the time-tested rule is that justice must
not only be done but must also appears to be done and this rule has
received wide recognition in several decisions of this Court and for our
consideration we take note of the judgment of this Court in A.K. Kraipak
and others vs. Union of India and others1, wherein in para 15 this
Court held as under:
"15. It is unfortunate that Naqishbund was appointed as one of
the members of the selection board. It is true that ordinarily the
Chief Conservator of Forests in a State should be considered as
the most appropriate person to be in the selection board. He must
be expected to know his officers thoroughly, their weaknesses as
well as their strength. His opinion as regards their suitability for
selection to the All-India Service is entitled to great weight. But
then under the circumstances it was improper to have included
Naqishbund as a member of the selection board. He was one of
the persons to be considered for selection. It is against all canons
of justice to make a man judge in his own cause. It is true that he
did not participate in the deliberations of the committee when his
name was considered. But then the very fact that he was a member
of the selection board must have had its own impact on the decision
of the selection board. Further admittedly he participated in the
deliberations of the selection board when the claims of his rivals
particularly that of Basu was considered. He was also party to
the preparation of the list of selected candidates in order of
preference. At every stage of his participation in the deliberations
11969 (2) SCC 262
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of the selection board there was a conflict between his interest
and duty. Under those circumstances it is difficult to believe that
he could have been impartial. The real question is not whether he
was biased. It is difficult to prove the state of mind of a person.
Therefore what we have to see is whether there is reasonable
ground for believing that he was likely to have been biased. We
agree with the learned Attorney General that a mere suspicion of
bias is not sufficient. There must be a reasonable likelihood of
bias. In deciding the question of bias we have to take into
consideration human probabilities and ordinary course of human
conduct. It was in the interest of Naqishbund to keep out his rivals
in order to secure his position from further challenge. Naturally
he was also interested in safeguarding his position while preparing
the list of selected candidates.
(emphasis added)
36. The aforesaid view was further considered by a Constitution
Bench of this Court in Ashok Kumar Yadav and others vs. State of
Haryana and others2 as under:
"16. We agree with the petitioners that it is one of the fundamental
principles of our jurisprudence that no man can be a judge in his
own cause and that if there is a reasonable likelihood of bias it is
"in accordance with natural justice and common sense that the
justice likely to be so biased should be incapacitated from sitting".
The question is not whether the judge is actually biased or in fact
decides partially, but whether there is a real livelihood of bias.
What is objectionable in such a case is not that the decision is
actually tainted with bias but that the circumstances are such as
to create a reasonable apprehension in the mind of others that
there is a likelihood of bias affecting the decision. The basic principle
underlying this rule is that justice must not only be done but must
also appear to be done and this rule has received wide recognition
in several decisions of this Court. It is also important to note that
this rule is not confined to cases where judicial power stricto sensu
is exercised. It is appropriately extended to all cases where an
independent mind has to be applied to arrive at a fair and just
decision between the rival claims of parties.