TaxTMI 
TaxTMI 
2013 (1) TMI 866
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...., the order passed by the Governor of Karnataka, appointing Justice Chandrashekaraiah as Upa Lokayukta on 21.1.2012, was without consulting the Chief Justice of the High Court, the same was illegal. The High Court also issued various directions including the direction to the State and the Principal Secretary to the Governor to take steps for filling up the post of Upa Lokayukta in accordance with the directions contained in the judgment. Aggrieved by the Judgment of the High Court, these appeals have been preferred by Justice Chandrashekaraiah and the State of Karnataka. Facts 4. The notification dated 21.1.2012 issued in the name of the Governor was challenged by two practicing lawyers in public interest contending that the institution of Lokayukta was set up in the State for improving the standard of public administration by looking into complaints against administrative actions including cases of corruption, favouritism and official indiscipline in administrative machinery and if the Chief Minister's opinion has primacy, then it would not be possible for the institution to work independently and impartially so as to achieve the object and purpose of the Act. 5. The offi....
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....reasons and to the various provisions of the Act and submitted that the nature and functions of the office of Lokayukta or Upa Lokayukta are to carry out investigation and enquiries and the institution of Lokayukta, as such, does not form part of the judicial organ of the State. Learned senior counsel also submitted that the functions and duties of the institution of Lokayukta, as such, cannot be compared with the functions and duties of the Judiciary, Central Administrative Tribunals, State Administrative Tribunals or Consumer Disputes Redressal Forums etc. 10. Learned senior counsel, referring to the various provisions such as Sections 3, 7, 9 etc. of the Act, submitted that Lokayukta or Upa Lokayukta are appointed for the purpose of conducting investigations and enquiries and they are not discharging any judicial functions as such and their reports are only recommendatory in nature. Consequently, the Act never envisaged vesting any primacy on the views of the Chief Justice of the High Court in the matter of appointment of Lokayukta or Upa Lokayukta. In support of his contentions, reference was made to the various judgments of this Court, which we will discuss in the latter pa....
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....ned senior counsel, therefore, submitted that the High Court has committed a grave error in quashing the notification appointing Justice Chandrashekaraiah as Upa Lokayukta. Learned senior counsel submitted that the various directions given by the High Court in its judgment is in the realm of rule making which is impermissible in law. 13. Shri K.N. Bhat, learned senior counsel appearing for the respondents endorsed the various directions given by the High Court which according to him are of paramount importance considering the nature and functions to be discharged by Lokayukta or Upa Lokayukta in the State of Karnataka. Learned senior counsel pointed out that the institution of Lokayukta has been set up for improving the standards of public administration so as to examine the complaints made against administrative actions, including the cases of corruption, favouritism and official indiscipline in administrative machinery. Shri Bhat compared the various provisions of the Act with the similar legislations in other States and submitted that, so far as the Karnataka Act is concerned, there is a multi-member team of consultees and also there is no indication in the Act as to whose op....
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....th the Problems of Redress of Citizens' Grievances, namely: (1) the adequacy of existing arrangements for redress of grievances; and (2) the need for introduction of any new machinery for special institution for redress of grievances. The Commission after elaborate discussion submitted its report on 14.10.1966 to the Prime Minister vide letter dated 20.10.1966. 17. The Commission suggested that there should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States and another authority in each State and at the Centre for dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary. The Committee, in its report, has stated as follows: "21. We have carefully considered the political aspect mentioned above and while we recognize that there is some force in it, we feel that the Prime Minister's hands would be strengthened rather than weakened by the institution. In the first place, the recommendations of such an authority will save him from the unpleasant duty of invest....
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....ial. (b) Their investigations and proceedings should be conducted in private and should be informal in character. (c) Their appointment should, as far as possible, be non- political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favourtism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive Government. Bearing in mind these essential features of the institutions, the Commission recommend that the Lokpal be appointed at the Centre and Lokayaukta at the State level. The Lokayukta 36. So far as the Lokayukta is concerned, we envisage that he would be concerned with problems similar to those which would face the Lokpal in respect of Ministers and Secretaries though, in respect of action taken at subordinate levels of official hierarchy, he would in many cases have....
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....ations contained in this our Interim Report. That we are not alone in recognizing the urgency of such a measure is clear from the British example we have quoted above. We have no doubt that the working of the institution of Lokpal or Lokayukta that we have suggested for India will be watched with keen expectation and interest by other countries. We hope that this aspect would also be fully borne in mind by Government in considering the urgency and importance of our recommendation. Though its timing is very close to the next Election, we need hardly to assure the Government that this has had nothing to do with the necessity of making this interim report. We have felt the need of such a recommendation on merits alone and are convinced that we are making it not a day too soon." 18. Based on the above report, the following Bill was presented before the Karnataka Legislature which reads as follows:- "The Administrative Reforms Commission had recommended the setting up of the institution of Lokayukta for the purpose of appointment of Lokayukta at the state's level, to improve the standards of public administration, by looking into complaints against the administrative act....
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....e investigated are provided in Section 7 of the Act which is extracted hereunder for easy reference: "7. Matters which may be investigated by the Lokayukta and an Upalokayukta.- (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or specific approval of.- (i) the Chief Minister; (ii) a Minister or a Secretary; (iii) a member of the State Legislature; or (iv) any other public servant being a public servant of a class notified by the State Government in consultation with the Lokayukta in this behalf; in any case where a complaint involving a grievance or an allegation is made in respect of such action. (2) Subject to the provisions of the Act, an Upa-lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature, Secretary or other public servant referred to in sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upa-lokayukta, the su....
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....gainst becomes known to the complainant; or (d) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that he may entertain a complaint referred to in clauses (c) and (d) if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in those clauses. (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lokayukta or an Upa-lokayukta to question any administrative action involving the exercise of discretion except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised." 21. Section 9 of the Act pertains to provisions relating to 'complaints' and 'investigations' which is extracted hereunder: "9. Provisions relating to complaints and investigations.- (1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokayukta or an Upa-lokayukta. ....
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....ection 11 deals with the producing, recording, etc. of evidence for the purpose of investigation under the Act. Sub-sections (1) and (2) of Section 11 read as follows: "11. Evidence.- (1) Subject to the provisions of this section, for the purpose of any investigation (including the preliminary inquiry if any, before such investigation) under this Act, the Lokayukta or an Upa-lokahukta may require any public servant or any other person who, in his opinion, is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document. (2) For the purpose of any investigation (including the preliminary inquiry) the Lokayukta or Upa-lokayukta shall have all the powers of a Civil Court while trying a suit under that the Code of Civil Procedure Code, 1908, in respect of the following matters only:- a) summoning and enforcing the attendance of any person and examining him on oath; b) requiring the discovery and production of any document; c) receiving evidence on affidavits; d) requisitioning any public record or copy thereof from any Court or office; e) issuing commissions for the examination of w....
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....neither binds the Governor nor the State Legislature to accept the recommendations or findings of the incumbent, thereby ensuring no civil consequences follow from the direct action of the Lokayukta or Upa Lokayukta. Section 13 prescribes when a public servant would have to vacate office, which reads as follows: "13. Public servant to vacate office if directed by Lokayukta etc. (1) Where after investigation into a complaint the Lokayukta or an Upalokayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokayukta or the Upalokayukta shall make a declaration to that effect in his report under sub-section (3) of section 12. Where the competent authority is the Governor, State Government or the Chief Minister, it may either accept or reject the declaration. In other cases, the competent authority shall send a copy of such report to the State Government, which may either accept or reject the declaration. If it is not rejected within a period of three months from the date of receipt of the report, or the copy of the report, as the ca....
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....r sub-section (5) of Section 12 are only recommendatory. No civil consequence as such follows from the action of Lokayukta and Upa Lokayukta, though they can initiate prosecution before a competent court. I have extensively referred to the object and purpose of the Act and explained the various provisions of the Act only to indicate the nature and functions to be discharged by Lokayukta or Upa Lokayukta under the Act. 26. The Act has, therefore, clearly delineated which are the matters to be investigated by the Lokayukta and Upa Lokayukta. They have no authority to investigate on a complaint involving a grievance in respect of any action specified in the Second Schedule of the Act, which are as follows: a) Action taken for the purpose of powers investigating crimes relating to the security of the State. b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a Court or not. c) Action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers, except where the complaint alleges harassment or gross delay in meeting contractual obligations. ....
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....te of social Welfare and others (2002) 5 SCC 685, while dealing with the powers of the Election Commission of India under the Representation of the People Act, 1951 held that while exercising power under Section 29-A, the Commission acts quasi-judicially and passes quasi judicial orders. 31. The Court held that what distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions, under the relevant law, the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority. Noticing the above legal principles this Court held in view of the requirement of law that the Commission is to give decision only after making an enquiry, wherein an opportunity of hearing is to be given to the representative of the political party, the Election Commission is is required to act judicially. 32. Recently, in Automotive Tyre Manufactures Association v. Designated Authority and others (2011) 2 SCC 258, this Court examined the question whether the Designated Authority appointed by the Central ....
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....a Minister, then he has to resign from the post. Lokayukta or Upa Lokayukta, however, has no jurisdiction or power to direct the Governor or the Chief Minister to implement its report or direct resignation from the Office they hold, which depends upon the question whether the Governor or the Chief Minister, as the case may be, accepts the report or not. But when the Lokayukta or Upa Lokayukta, if after the investigation, is satisfied that the public servant has committed any criminal offence, prosecution can be initiated, for which prior sanction of any authority required under any law for such prosecution, shall also be deemed to have been granted. Nature of Appointment 35. We are, in this case, as already indicated, called upon to decide the nature and the procedure to be followed in the matter of appointment of Lokayukta or Upa Lokayukta under the Act for which I have elaborately discussed the intention of the legislature, objects and purpose of the Act and the nature and functions to be discharged by Lokayukta or Upa Lokayukta, its investigative nature, the consequence of its report etc. Section 3 of the Act deals with the appointment of Lokayukta and Upa Lokayukta, which....
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....ffice of a Judge of the Supreme Court of India or that of the Chief Justice of the High Court. The Governor, as per Section 3(2)(a), is empowered to appoint Lokayukta on the advice tendered by the Chief Minister, in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. It is, therefore, clear that all the above five dignitaries have to be consulted before tendering advice by the Chief Minister to the Governor of the State. 37. Section 3(2)(b) of the Act stipulates that, so far as the Upa Lokayukta is concerned, he shall be a person who has held the office of a Judge of the High Court and shall be appointed on the advice tendered by the Chief Minister. The Chief Minister has to consult the five dignitaries, the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Legislative Council and the Leader of Opposition in the Karnata....
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....thing in this sub-section shall be construed to authorize the Lokayukta to question any decision, finding, or recommendation of the Upa-Lokayukta. 40. ASSAM LOKAYUKTA AND UPA-LOKAYUKTAS ACT, 1985 Section 3 - Appointment of Lokayukta and Upa-Lokayuktas.- 1. For the purpose of conducting investigations in accordance with the provisions of the Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as Lokayukta and one or more persons to be known as Upa-Lokayukta or Upa-Lokayuktas: Provided that:- (a) The Lokayukta shall be appointed after consultation with the Chief Justice of the Gauhati High Court, the Speaker and the leader of the opposition in the Assam Legislative Assembly and if there be no such leader a person elected in this behalf by the members of the opposition in that house in such manner as the speaker may direct; (b) The Upa-Lokayukta or Upa-Lokayuktas shall be appointed after consultation with the Lokayukta Provided further that where the Speaker of the Legislative Assembly is satisfied that circumstances exists on account of which it is not practicable to consult the leader of the opposition in accordance with Cl(a) of the....
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....functioned at the level of a Secretary to the Government of India or the Chief Secretary to any State Government in India. Provided that the Pramukh Lokayukta shall have administrative control over the affairs of the Lok Aayog. (5) Governor shall, by warrant under his hand and seal, appoint the Pramukh Lokayukta and the Lokayukta, on the advice of the Chief Minister who shall consult the Chief Justice of the High Court of Chattisgarh and the Speaker of the Chattisgarh Legislative Assembly. (6) Every person appointed as a Pramukh Lokayukt or a L Lokayukt shall, before entering upon his office, take and subscribe before the Governor, or some person appointed in that behalf by him, an oath of affirmation in the form set out for the purpose in the First Schedule. (7) The Pramukh Lokayukt or the Lokayukt shall not hold any other office of trust or profit or be connected with any political party or carry on any business or practice any profession or hold any post in any society, including any cooperative society, trust, or any local authority, or membership of the Legislative Assembly of any State or of the Parliament. 43. DELHI LOKAYUKTA AND UPLOKAYUKTA ACT, 1995: Sect....
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....Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of the Opposition in the Legislative Assembly or if there be no such Leader a person elected in this behalf by the members of Opposition in that house in the manner as the Speaker may direct. (2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of the High Court. (3) Every person appointed as the Lokayukta shall, before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation in the form set out for the purpose in the First Schedule. 45. THE JHARKHAND LOKAYUKTA ACT, 2001 3. Appointment of Lokayukta- (1) For the purpose of conduction investigations in accordance with the provisions of this Act, the Governor shall by warrant under his hand and seal appoint a person to be known as the Lokayukta of Jharkhand; Provided that the Lokayukta shall be appointe....
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....ultation with the Speaker of the Legislative Assembly of the State and the Leader of Opposition in the Legislative Assembly of the State. (3) A person to be appointed as an Upa-Lok Ayukta shall be a person who holds or has held the office of a Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Speaker of the Legislative Assembly of the state and the leader of Opposition in the Legislative Assembly of the state. Provided that the Chief Justice of the High Court concerned shall be consulted, if a sitting judge is appointed as an Upa- Lok Ayukta. (4) A person appointed as Lok Ayukta or Upa-Lok Ayukta shall, before entering upon his office, make and subscribe, before the Governor or a person appointed by him in that behalf, an oath or affirmation in the form set out for the purpose in the First Schedule." 48. A brief survey of the above statutory provisions would show that State Legislatures of various States have adopted different eligibility criteria, method of selection, consultative procedures etc. in the matter of appointment of Lokayukta, Upa-Lokayukta in their respective States. For instance, in Andhra P....
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.... JUDGE/HIGH COURT JUDGES: 50. The views of the High Court has primacy in the matter of appointment of District Judges. Chandra Mohan v. State of U.P. 1967 (1) SCR 77 was a case relating to the appointment of District Judges wherein this Court had occasion to consider the scope of Articles 233-236 of the Constitution. Interpreting the word "consultation" in Article 233, this Court has taken the view that the exercise of power of appointment by the Governor is conditioned by his consultation with the High Court, meaning thereby the Governor can only appoint a person to the post of District Judge in consultation with the High Court. The purpose and object of consultation is that the High Court is expected to know better in regard to the suitability or otherwise of a person, belonging either to the judicial service or to the Bar, to be appointed as a district Judge. The duties enjoined on the Governor are, therefore, to make the appointment in consultation with the body which is the appropriate authority to give advice to him. In Chandramouleshwar Prasad v. Patna High Court (1969) 3 SCC 56, Justice Mitter J. while interpreting the Article 233 held "that the High Court is the body wh....
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.... President is obliged to consult the Chief Justice of India and the Governor of the State in addition to the Chief Justice of the High Court concerned. In the matter of appointment of Judges of the Supreme Court as well as that the High Courts, the opinion of the collegium of the Supreme Court of India has primacy. Judgments referred to above are primarily concerned with the appointment of District Judges in the subordinate judiciary, High Court Judges and the Supreme Court. Primacy to the executive is negatived, in view of the nature of functions to be discharged by them and to make the judiciary independent of the executive. APPOINTMENT TO THE CENTRAL AND STATE ADMINISTRATIVE TRIBUNALS 53. Central Administrative Tribunal as a Tribunal constituted under Article 323-A of the Constitution and is expected to have the same jurisdiction as that of the High Court. Such Tribunal exercises vast judicial powers and the members must be ensured absolute judicial independence, free from any executive or political interference. It is for this reason, sub-section (7) to Section 6 of the Administrative Tribunals Act, 1985 requires that the appointment of a member of the Tribunal cannot be ....
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.... Protection Act, 1986 'consultation' would not be with the collegium, but would rest only with the Chief Justice. In N. Kannadasan v. Ajoy Khose and others (2009) 7 SCC 1, this Court held that primacy must be with the opinion of the Chief Justice inter alia because the appointment is to a judicial post and in view of the peremptory language employed in the proviso to Section 16(1)(a) of the Consumer Protection Act, 1986. This Court held that the word "consultation" may mean differently in different situations depending on the nature and purpose of the Statute. 56. Judgments discussed above would indicate that the consultation is held to be mandatory if the incumbent to be appointed to the post is either a sitting or a retired judge who has to discharge judicial functions and the orders rendered by them are capable of execution. Consultation, it may be noted, is never meant to be a formality, but meaningful and effective and primacy of opinion is always vested with the High Court or the Chief Justice of the State High Court or the collegium of the Supreme Court or the Chief Justice of India, as the case may be, when a person has to hold a judicial office and discharge functions a....
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....ordinary sense. The words themselves do alone in such case best declare the intent of the lawgiver". In other words, when the language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself. Viscount Simonds, L.C. in Empror v. Benoarilal Sarma AIR 1945 PC 48 has said "in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used". Blackstone, in Commentaries on the Laws of England, Vol.1 page 59 has said "the most fair and rational method for interpreting a statute is by exploring the intention of the Legislature through the most natural and probable signs which are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reasons of the law. In Kanailal Sur v. Paramnidhi Sadhu Khan AIR 1957 SC 907, Justice Gajendragadkar stated that, "if the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object ....
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....bility and choosing a candidate from that source itself is sometimes difficult. The Governor cannot appoint a person who does not fall in that source and satisfies the other eligibility criteria. Contention was raised that since the source consists of persons who have held the office of the Judge of the Supreme Court or the Chief Justice of the High Court, the Chief Justice of the High Court would be in a better position to compare the merits and demerits of those candidates. I find it difficult to accept that contention. Apart from a person's competence, integrity and character as a judge, various other information have also to be gathered since the persons who fall in that source are retired judges. Government has its own machinery and system to gather various information about retired judges. The Chief Minister, it may be noted, cannot advise a name from that source without making a meaningful and effective consultation after disclosing the relevant materials. This, in my view, is a sufficient safeguard against arbitrary selection and advice. Further, as already noticed, the duties and functions of the Lokayukta or Upa Lokayukta are investigative in nature and their orders as su....
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.... the Chief Minister, the Chief Minister can advise any name from the names discussed to the Governor of the State for appointment of Upa Lokayukta under the Act. Appeals are allowed as above, with no order as to costs. ...................................J. (K.S. Radhakrishnan) New Delhi, January 11, 2013 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.197-199 OF 2013 [Arising out of SLP (Civil) Nos. 15658-15660 OF 2012] Mr. Justice Chandrashekaraiah (Retd.) ... Appellant Versus Janekere C. Krishna & Ors.etc. ... Respondents WITH CIVIL APPEAL Nos.200-202 OF 2013 [Arising out of SLP (Civil) Nos. 16512-16514 OF 2012] J U D G M E N T Madan B. Lokur, J. 1. Leave granted. 2. Brother Radhakrishnan has elaborately dealt with the issues raised - and I agree with his conclusions. Nevertheless, I think it necessary to express my views on the various issues raised. The issues raised: 3. My learned Brother has stated the material facts of the case and it is not necessary to repeat them. 4. The principal question for consideration is whether the appointment of Justice Chandrashekaraiah as an Upa-lokayukta was in accordance with the prov....
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....e tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. (3) A person appointed as the Lokayukta or an Upa-lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule." Whether the Upa-lokayukta a quasi-judicial authority: 7. Without intending to belittle the office of the Upa-lokayukta, it was submitted by learned counsel for the State of Karnataka (hereafter "the State") that the Upa-lokayukta is essentially required to investigate complaints and inquire into grievances brought before him. In this process, he may be exercising some quasi-judicial functions, but that does not make him a quasi-judicial authority. The significance of this submission lies in the further submission that if the Upa-lokayukta is not a quasi-judicial authority then the op....
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....s dealt with in Section 3 of the Act. This Section requires that the Upa-lokayukta must be with a person who has held the office of a judge of a High Court. The Upa- lokayukta is, therefore, expected to be impartial and having some (if not considerable) judicial experience and abilities. The reason for this, quite obviously, is that he would possibly be required to deal with complaints and grievances against public servants in the State. 12. Given the importance of the office of the Upa-lokayukta, he is appointed by the Governor of the State on the advice of the Chief Minister, in consultation with the Chief Justice of the High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. In other words, the appointment of the Upa-lokayukta is the concern of constitutional authorities of the State. 13. The oath of office taken by the Upa-lokayukta in terms of Section 3(3) of the Act is similar to the oath of office taken by a judge of a High Court under Schedule III to the Constitution. The onl....
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....wide though hierarchically circumscribed. 18. Section 9 of the Act relates to complaints and investigations thereon by an Upa-lokayukta. A complaint may be made to him in the form of a statement supported by an affidavit. If the Upa-lokayukta, after making a preliminary enquiry proposes to conduct an investigation in respect of the complaint, he shall follow the procedure provided in Section 9(3) of the Act which broadly conforms to the principles of natural justice by giving an opportunity to the public servant against whom the complaint is being investigated to offer comments on the complaint. 19. For the purposes of any enquiry or other proceedings to be conducted by him, an Upa-lokayukta is empowered by Section 10 of the Act to issue a warrant for search and seizure against any person or property. The warrant can be executed by a police officer not below the rank of Inspector of Police authorized by the Upa-lokayukta to carry out the search and seizure. The provisions of Section 10 of the Act also make it clear that the provisions of the Code of Criminal Procedure, 1973 relating to search and seizure shall apply. 20. By virtue of Section 11 of the Act, an Upa-lokayukta....
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....f the Act confers a decision-making obligation on the Upa-lokayukta in respect of grievances and complaints received by him. 24. Section 13 of the Act requires a public servant to vacate his office if so directed by the Upa-lokayukta if a declaration is made to that effect in a report under Section 12(3) of the Act. Even though the declaration may not be accepted, it does not whittle down the authority of the Upa-lokayukta. 25. Section 14 of the Act enables the Upa-lokayukta to prosecute a public servant and if such an action is taken, sanction to prosecute the public servant shall be deemed to have been granted by the appropriate authority. 26. The conditions of service of the staff of the Upa-lokayukta are referred to in Section 15 of the Act. They may be prescribed in consultation with the Lokayukta in such a manner that the staff may act without fear in the discharge of their functions. Section 15 of the Act also enables the Upa-lokayukta to utilize the services of any officer or investigating agency of the State or even of the Central Government, though with the prior concurrence of the Central Government or the State Government. Section 15(4) of the Act makes it clea....
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....can best be described as a sui generis quasi-judicial authority. 30. Reference by learned counsel for the State to Durga Shankar Mehta v. Thakur Raghuraj Singh and Others, [1955] 1 SCR 267 also does not take us much further in determining whether an Upa-lokayukta is a quasi- judicial authority or not. That case concerned, inter alia, the competency of an appeal on special leave under Article 136 of the Constitution from a decision of the Election Tribunal. In that case, it was clearly laid down that courts and tribunals are "constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions". 31. However, the issue is more specifically dealt with in Associated Cement Companies v. P.N. Sharma, 1965 (2) SCR 366. In that case, Kania, C.J. held: "It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed." 32. Similarly....
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.... tied up with the primacy of the views of the Chief Justice of the High Court. That in turn is tied up with not only maintaining the independence of the office but also of the Upa- lokayukta not being dependent on the Executive for the appointment. (i) View of the High Court: 36. The High Court was of the opinion that to maintain the independence of the office of the Lokayukta and the Upa-lokayukta under the Act, the recommendation for appointment to these offices must emanate only from the Chief Justice and only the name recommended by him should be considered. The High Court opined: "[T]he name of the Lokayukta and Upa-Lokayukta to be appointed has to necessarily emanate from a person who is not within their jurisdiction. The only person who is outside the ambit of Lokayukta is the Chief Justice and all other Constitutional authorities mentioned in the provision come within his jurisdiction. They will not have the right to suggest the name. Only the Chief Justice would have the right to suggest the name which, of course the other Constitutional authorities can consider. Though all of them are constitutional authorities, all of them cannot be placed on the same pedestal. ....
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.... is or has been a judge of the High Court. This Court held that for the purposes of initiating the proposal for appointment of the President of the State Commission, the Executive is expected to approach the Chief Justice of the High Court for suggesting a candidate for appointment. In other words, the Chief Justice should initiate the appointment process. Sarwan Singh Lamba was distinguished by observing that "[I]n the facts of that case, substantial compliance of the requirement of approval by the Chief Justice of India was found proved and, therefore, the appointments were valid." 39. The appointment of the President of the State Commission again came up for deliberation in Ashok Tanwar and Another v. State of Himachal Pradesh and Others, (2005) 2 SCC 104. However, in that case, the Constitution Bench did not comment on the view expressed in Ashish Handa that the Chief Justice of the High Court must initiate the process for appointment of the President of the State Commission and not the Executive of the State. The law laid down in Ashish Handa to this extent remained unchanged. However, Ashish Handa was overruled on the modality of the consultation process, which I will cons....
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.... bring it to the notice of the Chief Justice that there is a statutory judicial position lying vacant and that it needs to be filled up and to then request the Chief Justice to make a recommendation? No clear answer is available from the cited cases, but it does appear that the responsibility is of the Executive to inform the Chief Justice of the existence of a vacancy and to request him to recommend a suitable person for filling it up. However, this would not preclude the Chief Justice from initiating the appointment process, particularly in the event of the failure of the Executive to take necessary steps. 44. What would happen if the Executive, while initiating the process of appointment were to recommend the name of a person? Would it vitiate the process or would the process be only irregular? Again, no clear- cut answer is available. Sarwan Singh Lamba seems to suggest that the procedure would not be vitiated but would, at best, only be irregular. But, Ashok Tanwar seems to suggest, sub silentio, that the appointment procedure would be vitiated. 45. Would these principles laid down by this Court apply to initiating the process of appointment of the Upa-lokayukta under th....
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.... so by recommending only one person for appointment as the Upa- lokayukta. 47. I am, therefore, not in agreement with the High Court that the recommendation for appointing the Upa-lokayukta under the Act must emanate only from the Chief Justice and only the name recommended by him should be considered. To this extent, the decision of the High Court is set aside. It is made clear that this view does not apply to judicial appointments. Consultation in the appointment of an Upa-lokayukta: 48. What does 'consultation' occurring in Section 3(2)(b) of the Act postulate? Learned counsel for the State, as well as learned counsel for Justice Chandrashekaraiah and the writ petitioner in the High Court firstly referred to the above decisions of this Court to explain the meaning of 'consultation' in the context of the appointment process and secondly in the context of the issue whether the view of the Chief Justice of the Karnataka High Court would have primacy in the process of consultation. (i) View of the High Court: 49. The High Court gave a realistic meaning to 'consultation' generally and, in my opinion, specifically to the meaning of the word as occurring in Section 3(2)(....
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....ss: 50. Sarwan Singh Lamba did not deal with the issue of consultation, but Ashish Handa, Ashok Tanwar and Kannadasan did. That being so, reference may be made to the relevant portion of Section 16(1) of the Consumer Protection Act which relates to the President of the State Commission. This extract reads as follows:- "16. Composition of the State Commission.- (1) Each State Commission shall consist of- (a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President: Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court; (b) xxx" 51. It was observed in Ashish Handa that the function of the State Commission is primarily to adjudicate consumer disputes and therefore a person from the judicial branch is considered suitable for the office of the President of the State Commission under Section 16 of the Consumer Protection Act. Given this context, prior consultation with the Chief Justice of the High Court is obvious since the Chief Justice is the most appropriate person to know the suitability of the person to be appointed as the President o....
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....eferring to Union of India v. Sankalchand Himmatlal Seth, (1977) 4 SCC 193) that both the "consultor" and the "consultee" must have before them full and identical facts. 56. It follows from the decisions placed before us that there is a clear distinction between 'consultation' in the appointment of a judge of a superior court and 'consultation' in the appointment to a statutory judicial position. For the former, the Chief Justice must consult the collegium of judges, while it is not necessary for the latter. In both cases, consultation is mandatory. 57. The further question that arises is whether the law laid down in these decisions would be applicable to the appointment of an Upa-Lokayukta who is not a judicial or a constitutional authority but is a sui generis quasi-judicial authority? In my opinion, the answer to this question must be in the affirmative. 58. At this stage, it is necessary to mention that on a plain reading of Section 3(2)(b) of the Act, there can be no doubt that consultation with all the constitutional authorities, including the Chief Justice of the Karnataka High Court, is mandatory. There was no dispute on this - the controversy was limited to the me....
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.... Chief Justice recommended the name of Justice Rangavittalachar; the Speaker of the Legislative Assembly recommended Justice Chandrashekharaiah; the Chairman of the Legislative Council recommended Justice Chandrashekharaiah; the Leader of the Opposition in the Legislative Assembly recommended Justice Mohammed Anwar and Justice Ramanna; the Leader of the Opposition in the Legislative Council recommended Justice Mohammed Anwar and Justice Ramanna. Therefore, as many as four retired judges were recommended for appointment as Upa- lokayukta. It is not clear whether the names of all these judges were disclosed to all the constitutional authorities. The name of Justice Chandrashekharaiah was certainly not disclosed to the Chief Justice, as is evident from his letter dated 4th February 2012 wherein he stated four times that he was not consulted on the appointment of Justice Chandrashekharaiah. This is what he stated: "I was not consulted on the said name (Shri Justice Chandrashekaraiah) for the position of Karnataka Upa Lokayukta. ... ... ... "I had not recommended the name of Shri. Justice Chandrashekaraiah for consideration for appointment as Karnataka Upa Lokayukta. Thereafter, I....
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....nd to be accepted, the prior consultation is only directory. The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken be put to notice of the authority or the persons to be consulted; have the views or objections, take them into consideration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstances it amounts to an action 'after consultation'." 65. This conclusion must not be read in isolation but along with the other conclusions arrived at in IAS Association. This Court referred to 'prior consultation' in the context of the "subject of consultation" as mentioned in the first conclusion. This 'prior consultation' is not always mandatory. Then there is 'consultation' as a part of "fair procedure" as mentioned in the second conclusion. This is mandatory. Finally, there is the conclusion arrived at which is 'after consultation'. In some cases the 'consultor' may be bound to accept the conclusion arrived at and in some cases he may not. That is a matter of interpretation of the statute and the purpose of the con....
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....ect to the counter proposal without anything more, cannot be said to have been done after consultation." 69. On the facts of this case, I hold that there was no consultation between the Chief Minister and the Chief Justice on the appointment of Justice Chandrashekharaiah as an Upa-lokayukta. His appointment was, therefore, void ab initio. (v) Primacy of the view of the Chief Justice: 70. The High Court was of the opinion that primacy is required to be given to the view of the Chief Justice of the Karnataka High Court in the matter of the appointment of the Upa-lokayukta. In fact, it was said that since the Chief Justice is the best person to know the suitability or otherwise of a retired judge of a High Court. It was also said that, "Requesting the Chief Justice to suggest a name and on receipt of the same, ignoring the said name and tendering advice to the Governor to appoint somebody else, would make the consultation a farce." 71. In Ashok Tanwar the Constitution Bench did make a reference to the primacy of the Chief Justice of India in the context of the appointment of a judge of the superior court and noted that the Chief Justice is best equipped to know and assess ....
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....l appoint a person to be known as the Lokpal and one or more persons to be known as the Lokayukta or Lokayuktas: Provided that-- (a) the Lokpal shall be appointed after consultation with the Chief Justice of the High Court of Orissa and the Leader of the Opposition, if there is any; (b) the Lokayukta or Lokayuktas shall be appointed after consultation with the Lokpal. (2) A person shall not be qualified for appointment as- (a) (sic) unless he is or has been a Judge of the Supreme Court or of a High Court; (b) A Lokayukta unless he is qualified to be a Judge of a High Court." 75. This Court took the view that primacy is to be accorded to the opinion of the Chief Justice in the matter of appointment of the Lokpal since his opinion would be totally independent and he would be in a position to find out who is the most or more suitable for that office. It was also held that consultation with him is a sine qua non, and if there is a Leader of the Opposition then he "is also required to be consulted". But if there is no Leader of the Opposition, obviously consultation with him is not possible. This Court then said, "This would indicate nature of such consultation and ....
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....nstitutional authorities including the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Council and in the Karnataka Legislative Assembly would be reduced to a farce. It must be appreciated that these constitutional authorities also have an equal say in the executive governance of the State and there is nothing to suggest that their opinion should be subordinated to the opinion of the Chief Justice or that the Chief Justice can veto their views. On the other hand, since it is ultimately the Chief Minister who has to advice the Governor, it is he alone who has to take the final call and shoulder the responsibility of correctly advising the Governor in the matter of appointing the most suitable person as an Upa-lokayukta. 79. The mechanics of the working of a statute has to be decoded from the contents of the statute and the words used therein; otherwise there is a possibility of committing a serious error. If, as a general principle, it is held (as has been argued before us) that the view of the Chief Justice must have primacy over the views of everybody else, how would on....