Dismissed

Rekha Nair v. State of Chhattisgarh

Chhattisgarh HC2 Jan 2023WPS/44/2020

Case brief

AI extract

What is this about?

Departmental charge-sheets were challenged on grounds including Lok Aayog exoneration and pending criminal proceedings. The Court dismissed both petitions as premature, holding that the exoneration was recommendatory and criminal proceedings did not bar the enquiry. It left the merits open and directed a fair hearing.

What did the court decide?

Enquiry officer directed to afford a proper hearing and follow natural justice; if material showed his prior involvement, he was to decide whether to continue conducting the enquiry.

Rekha Nair Vs State of Chhattisgarh — Service and Employment | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Reserved on 14-09-2022

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Pronounced on 02-01-2023

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Writ Petition (S) No. 362 of 2020

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Rekha Nair D/o Shri Remakant Nair, Aged About 48 Years Posted As Subedar ( M ), At State Economic Offence Wing Raipur, R/o House No. 13, Maruti Solitair Kachna Road, Khamardih, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Home, Mahanadi Bhawan, Naya Raipur, District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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Director General Of Police, Chhattisgarh Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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Director General, Economic Offence Wing / Anti Corruption Bureau, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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Superintendent Of Police, Economic Offence Wing / Anti Corruption Bureau, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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Shri Ashok Joshi, Dy. S. P., Officer - In - Charge, Economic Offence Wing / Anti Corruption Bureau, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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---- Respondents

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WPS No. 44 of 2020

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Rekha Nair D/o Shri Remakantan Nair Aged About 48 Years Posted As Subedar (M), At State Economic Offence Wing Raipur R/o House No. 13, Maruti Sulitair Kachna Road, Khamhardih, Raipur District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Home, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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Director General Of Police Chhattisgarh Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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Director General Economic Offence Wing/ Anti Corruption Bureau, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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Superintendent Of Police Economic Offence Wing/ Anti Corruption Bureau, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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Shri Ashok Joshi Dy. S. P. Officer-In-Charge, Economic Offence Wing/ Anti Corruption Bureau, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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---- Respondents

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For Petitioner : Mr. Devershi Thakur, Advocate For State : Mr. Amrito Das, Dy. Advocate General

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Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER

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1. Since identical issues are involved in both the cases, both the petitions are being heard analogously and are being disposed of by this common order.

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1. The petitioner who was working as Subedar (Ministerial) in the State Economic Offence Wing, Raipur has filed Writ Petition (S) No. 362/2020 for quashment of charge-sheet dated 09.10.2019 (Annexure P/1), appointment of Dy. Superintendent of Police dated 11.11.2019 to conduct inquiry (Annexure P/2). In Writ Petition (S) No. 44/2020 the petitioner has prayed for quashment of charge-sheet dated 10.10.2019 (Annexure P/1), order dated 11.11.2019 (Annexure P/1) issued by the respondent No. 4 by which it has appointed Mr. Ashok Joshi, Dy. Superintendent of Police to conduct departmental inquiry against the petitioner.

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1. The brief facts as projected from petitions are that Petitioner was appointed by respondents initially to the post of Assistant Sub-Inspector with the erstwhile State of Madhya Pradesh and on reorganization of the State she opted for allocation of her services in State of Chhattisgarh and presently she is working as Subedar (M). She was serving with the respondents and with due permission of the respondent she has entered into financial transaction and her assets were duly informed to the respondents. It has been further contended that she sought permission to purchase house at Housing Board Raipur which was granted by the respondent on 13.2.2009. Petitioner's uncle sought permission to purchase house at Khamardih Raipur for which he has given Rs. 10 Lakhs through two Axis Bank cheques. But due to personal problem the uncle of the petitioner could not complete the sale transaction, as such she has moved an application for modification in the permission which was allowed on 19.02.2011. On certain changed condition she moved an application for purchase of house at Khamardih, Raipur which was approved by the respondent on 22.02.2011. The petitioner vide her letter

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dated 05.03.2011 has informed this fact that in the joint name of the petitioner along with her mother the house worth Rs. 25 Lakh was purchased out of which her mother has paid Rs. 15 lakh, the petitioner has paid Rs. 7 Lakh from GPF and Rs. 3 Lakhs were taken from friends and relatives. It has been contended that she has informed the department about purchase of the house by various letters. It has been further contented that the petitioner vide her letter dated 28.04.2011 has informed about LIC policy coverage. The premium is payable with the assistance of her mother and father. On 14.07.2011 petitioner’s mother executed a gift deed whereby residential and adjoining agricultural land was bequethed in favour of petitioner which was valued Rs. 20 Lakh and petitioner had annual income of Rs. 2-2.5 Lakhs from the said land. The petitioner has informed said information vide her letter dated 05.01.2012 and 26.02.2013 to the department. It has also been contended that petitioner has constructed the house after obtaining loan of Rs. 15 Lakh on the land which was purchased on 22.02.2011. The petitioner has also given detailed steps taken by her in the writ petition to justify her action and also contending the fact that these facts were duly intimated to the respondents and after getting proper permission from them, she has acted upon it.

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1. It has also been contended that petitioner’s father is duly filing its GST return and paying taxes. Petitioner's father is a regular income tax payee and had disclosed all the financial transactions relating to petitioner (giving loans) or purchasing the properties from his own resources and income. Petitioner's father is paying regular income tax and the sources of income, as also, information pertaining to movable and immovable property is duly disclosed in his returns. Similarly, petitioners mother is also a regular income tax payee and she has her own source of income which are duly reflected in the income tax returns submitted by her.

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1. It has been further contended that an anonymous complaint was made against petitioner in the year 2015. An enquiry was conducted by the Anti Corruption Bureau wherein it was found that petitioner’s assets were not disproportionate to her income. Another anonymous complaint was made against Shri Mukesh Gupta, IPS officer, wherein, wild and unsubstantiated allegations were also made with respect to petitioner. After registering an anonymous complaint, petitioner was issued with a

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show cause notice dated 03.11.2017 by the Lok Aayog, wherein, explanation was sought in respect of three properties. Petitioner submitted her reply on 01.12.2017, wherein, she categorically denied the allegation about three properties mentioned in show cause notice dated 07.11.2017.

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Further, petitioner asserted that entire allegation against made against her is false and deliberately made to malign her reputation. During pendency of aforesaid proceedings before the Lok Aayog, another anonymous complaint was filed against the petitioner on 19.02.2018 before Lok Aayog, which virtually amounts to serve character assassination and the same is politically motivated and deliberately made for extraneous consideration. Aforesaid complaint was tagged along with the prior anonymous complaint, which was registered before the Lok Aayog as No. 154/2017. On 09.01.2019, Pramukh Lok Aayog passed order in favour of petitioner holding that no misconduct is committed by petitioner within the meaning of section 2 (h) of 2002 Act and on the same date itself, another complaint was preferred against Shri Mukesh Gupta, wherein, wild, bald, reckless allegations were made against the petitioner and the same was addressed to the newly elected Chief Minister. Petitioner vide her letter dated 12.0.2019 addressed to the Chief Minister, pointed out that even in the past wild and reckless allegations were made against petitioner, which after due inquiry, were closed. Despite thereof, on the basis of another third anonymous complaint, respondents are entertaining the self-same allegations again. The said action of respondents adversely affects the petitioners dignity. The Respondents again issued a show cause notice dated 28.01.2019, whereby, petitioner was called upon to explain her sources of income and meet out the allegations of disproportionate assets without supplying the copy of the complaint or mentioning its details thereof. Petitioner vide her letter dated 30.01.2019 requested the respondents that copy of the complaint, which is referred to in the notice dated 28.01.2019 be made available to her and even in the past the self-same allegations were duly enquired. Awaiting the copy of complaint, petitioner vide letter dated 01.02.2019 submitted her objection the manner in which one after the another anonymous complaints on the self-same allegations are being entertained against petitioner. It was clarified that

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petitioner's parents are financially independent, as such, she should not have unnecessarily roped into malicious baseless complaints. It was also informed that Pramukh Lok Aayog has already dealt with the said issue and copy whereof, was enclosed for their perusal and necessary action. It is further contended by the petitioner that the alleged complaint was not made available to her. As such, petitioner on her own submitted an explanation giving details of her income and its sources vide 07.02.2019. Even in the said reply petitioner categorically requested respondents to furnish the copy of complaint.

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1. It has been further contended that the respondents registered FIR against Mr. Mukesh Gupta and Rajneesh Singh under section 166, 166 A(b), 167, 193, 194, 196, 201, 218, 466, 467, 471 and 120B of the IPC alongwith section 25 and 26 read with section 5 (2) of the Indian Telegraph Act on 07.02.2019. In the said FIR, petitioner's name is not mentioned. Again, the respondents have lodged another FIR dated 11.02.2019 against the same persons. The entire operation under the supervision of the then ADG, EOW/ ACB /Intelligence Mr. Mukesh Gupta and the then SP Shri Rajenesh Singh, petitioner was, during the said period, steno to Mr. Mukesh Gupta, who was vested with the authority to order call intercepts, and she was the system Administrator involved in the call intercepts. It is further contended that the period during which it is alleged to have been committed i.e. 2011 to January 2019, the provisions of Section13 (1) (b) of the PC Act was not available in the statute books prior to 26.07.2018, as such, for any offence which is alleged to have been committed prior to 26.07.2018, a public servant cannot be prosecuted or charged with newly substituted provisions. Further, Article 20 of the Constitution of India provides a protection that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence.

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1. It is contended that the respondent under political influence and for extraneous consideration lodged the FIR dated 27.02.2019 against petitioner under newly substituted provisions of section 13 (1) (b) read with section 13 (2) of the P.C. Act, 1988. Aforesaid action of respondent is per-se illegal as the offence which is alleged to have been committed is during the period March 2011 to 2019. Respondents in order to

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implicate the petitioner on the basis of unfounded facts and ignoring vital materials have arrived at a conclusion that there is rise of 111% of petitioners disproportionate assets. The entire exercise is politically motivated. The said computation is wholly contrary to record alleged to have been committed form the year 2011 onwards, in fact are the actions, which petitioner took after due sanction and permission of respondent and there has been no objections from the income tax department. From the income tax returns of petitioner, it is manifest that there has been disclosure of each financial transaction and source of income, in absence of any material to dislodge the facts and figures mentioned in petitioners ITRs, the respondent had lodged FIR No.8/2019 dated 27.02.2019 under Sec. 13(1)(b) rd/w Sec. 13(2) of the PC Act 1988 against her.

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1. Learned counsel for the petitioner would submit that the petitioner has challenged FIR No.8/2019, dated 27.02.2019 and had pleaded all the above facts and grounds in the petition numbered as W.P.(Cr) No. 182/2019. The Hon'ble High Court on 18.04.2019 has pleased to grant interim relief to the extent that no coercive steps shall be taken against the petitioner. He would further submit that impugned enquiry has been initiated on the basis of same sets of facts and charge sheet has been issued on 09.10.2019 (challenged in WPS No. 362/2020) wherein following charges have been levelled :-

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1. In Writ Petition (S) No. 44/2020 the petitioner has challenged the charge sheet dated 10.10.2019 wherein following charges have been levelled :-

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vipkjh Jherh js[kk ekstyh uk;j }kjk [kEgkjMhg- jk;iqj fLFkr ek:fr lkWfyVs;j IykV ua0 19 vkokl dks dz; djus ,oa blds Hkqxrku esa vius vk; ds L=ksr ds lac/k esa vius foHkkx dks tkucw>dj xyr tkudkjh nsdj v'kksHkuh; vkpj.k iznf'kZr fd;k x;k tks flfoy

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lsok ¼vkpj.k½ fu;e 1965 ds fu;e 3¼1½¼rhu½ ,oa iqfyl jsxqys'ku iSjk 64¼3½ dk mYya?ku gSA

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11)These departmental enquiries are being challenged by the petitioner on the following grounds:-

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(i) the petitioner has been subjected to triple jeopardy just to harass her,

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(ii) the charges levelled against the petitioner are vague in nature, (iii) Issues have already been dealt with by the Lok Aayog wherein she was already discharged, therefore, initiation of departmental inquiry is bad in law and is nothing but harassment to the petitioner. (iv) that the Enquiry Officer, Yogesh Sahu is already is aware of the facts of the case as he was himself involved in the initiation of the case.

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(v) the subject matter of charge-sheets has already been considered by this Hon'ble Court in Writ Petition (Cr) No. 182/2019 and vide order dated 18.04.2019 no coercive steps have been ordered as such, the enquiry itself is contemptuous action on part of the respondents and it is violation of Article 20(2) of the Constitution of India.

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(vi) the charges have been levelled against the petitioner that petitioner has committed misconduct as defined in the Civil Services (Conduct) Rules, 1965 3(1)(iii) read with para 64(3) of the Police Regulations whereas the petitioner has given all the details and also the transactions have been done with permission of the respondents. Despite well aware of the facts issuance of charge sheet is deliberate action on the part of the respondents to harass the petitioner, therefore, charge-sheets dated 09.10.2019 and 10.10.2019 and all subsequent orders deserve to be quashed by this Court.

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12) Learned counsel for the petitioner would submit that Chhattisgarh Lok Aayog Raipur vide order dated 09.10.2019 has closed the complaint after recording that finding that the alleged act committed by the petitioner does not fall within the ambit of misconduct as per Section 2(J) of the Lok Aayog Act 2002, therefore, the complaint is base less, accordingly, it has been dismissed.

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13) On the other hand opposing the submission, learned Additional Advocate General for the State would submit that report of the Lok Aayog is only recommendation and it is not binding upon the State. The State is free to

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take decision on the basis of the material available with them and merely charge-sheets have been issued therefore, interference at this stage is pre-mature and would pray for dismissal of the writ petitions.

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14) To substantiate his submission, the learned Additional Advocate General would refer to the judgment of Hon'ble Supreme Court in case of State of Punjab and Others vs Ajit Singh¹ wherein Hon'ble Supreme Court has held as under :-

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“3. We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. We are, however, of the view that the High Court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High Court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High Court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High Court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.”

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15) Learned Additional Advocate General for the State would further refer judgment of the Hon'ble Supreme Court in case of Union of Indian and Another vs Kunisetty Satyanarayana² wherein the Hon'ble Supreme Court has held as under :-

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“13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.

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14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice

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1 (1997) 11 SCC 368

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2 (2006) 12 SCC 28

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or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

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Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

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No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.”

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16) The writ petitions are not yet admitted and since a lengthy argument was heard in motion hearing the matter was reserved for order on 14.09.2022. From the above contentions raised by the petitioner and respondents the points to be determined by this Court are:

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(i) Whether the orders passed by the Lok Aayog prohibit the State to issue charge-sheet to the petitioner or not?

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(ii) Whether the writ Court at the stage of issuance of charge-sheet can interfere in the departmental enquiry and quash the chargesheets?

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17)To better understanding the submission made by the petitioner and the respondents with regard to the proceeding conducted by the Lok Aayog it is expedient for this Court to examine provisions of the Chhattisgarh Lok Aayog Adhiniyam, 2002. The Adhiniyam, 2002 has been enacted to make provisions for the appointment and functions of certain authorities for the inquiry into specific information of misconduct or complaint against certain Public Servants and for the matters connected therewith. Sub-section (b) of Section 2 of the Adhiniyam, 2002 defines “competent authority” and clause (v) of sub-section (b) of Section 2 defines “competent authority”, means in the case of any other public servant, such authority as may be prescribed by the Government. Sub-section (a) of Section 2 defines the term “action”. Section 9 provides procedure in respect of inquiries and Section 11 provides for reports of Lok Aayog. Sub-sections (1), (2) and (3) of Section 11 of the Adhiniyam, 2002 are relevant for the present case and it is appropriate to notice the said provisions which read as follows:-

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“ 11. Reports of Lok Aayog – (1) If after inquiry of any action in respect of which a complaint has been received the Lok Aayog is of the opinion that the complaint is established, it shall by a report in writing, communicate its findings and recommendations along with the relevant documents and other evidence to the competent authority. Explanation : - “Opinion of Lok Aayog” in relation to any complaint, including a decision, report, finding or conclusion thereon, means the opinion of the majority of its members.

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(2) The competent authority shall examine the report forwarded to it under sub-section (1) and intimate to the Lok Aayog within three months of the date of receipt of the report, the action taken or proposed to be taken thereon.

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(3) If the Lok Aayog is satisfied with the action taken or proposed to be taken on its recommendations, it shall close the case under information to the complainant, the public servant and the competent authority, and if in any case the Lok Aayog is of the opinion that the case so deserves, it may make a special report upon the case to the Governor and also inform the complainant.”

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18) From perusal of Section 11 it is clear that the report of Aayog is recommendatory in nature on the basis of which no punitive action can be taken by the competent authority as under the statue Chhattisgarh Civil Services (Conduct) Rules, 1965 or any other disciplinary rules as applicable under the case of charged public servant concerned. Procedure has been laid down by the competent authority with the recommendations of Lok Aayog. Therefore, the decision taken by the Lok Aayog that the petitioner has not committed any misconduct as defined in Section 2(j) of the Lok Aayog Adhinium, 2002 is not binding upon the State. The competent disciplinary authority on the basis of material available with him has issued charge – sheet to the petitioner. The correctness and truthfulness of allegation can be revealed only after evidence and material placed before the enquiry officer.

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19)The recommendation of the Lok Aayog is recommendatory in nature has been considered by the Hon'ble Division Bench this Court in Writ Appeal No. 24/10 (Lakshman Chaturvedi vs Chhattisgarh Lok Ayog, Raipur) decided on 29th March, 2010 wherein Hon’ble Division Bench has held as under:-.

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“4. In view of the above, there remains nothing to be adjudicated in this writ appeal. However, we feel that during the course of enquiry before the Lok Ayog. the Court should not interfere or monitor the proceedings and if any opinion is made by the Lok Ayog and the Government accepts the same and further takes

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any action by which the petitioner feels aggrieved, it is always open for him to take recourse of law. Therefore, in such situation, approaching the Court by filing a writ petition at an earlier stage would be a premature stage.”

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20) The word “recommendation” has been defined as under in various dictionaries:-

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In Black's Law Dictionary, Sixth Edition: - “Recommendation . In feudal law, a method of converting allodial land into feudal property. The owner of the allod surrendered it to the king or a lord, doing homage, and received it back as a benefice or feud, to hold to himself and such of his heirs as he had previously nominated to the superior. The act of one person in giving to another a favorable account of the character, responsibility, or skill of a third.

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Recommendationrefers to an action which is advisory in nature rather than one having any binding effect. People v. Gates, 41 C.A.3d 590, 116 Cal.Rptr. 172, 178.

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Letter of recommendation. A writing whereby one person certifies concerning another that he is of good character, solvent, possessed of commercial credit, skilled in his trade or profession, or otherwise worthy of trust, aid, or employment. It may be addressed to an individual or to whom it may concern, and is designed to aid the person commended in obtaining credit, employment, etc. See Letter of credit.”

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In Eleventh to Merriam-Webster's Edition , recommendation Collegiate means Dictionary, the act of recommending or something that recommends or expresses commendation.

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21) The Hon’ble Supreme Court in the matter of Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and others³ has examined the function of the Enquiry Commission constituted under the provisions of the Commissions of Enquiry Act, 1952, have held that function of the Commission is only recommendatory in nature, and observed as under: -

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“8... In the first place neither Parliament nor the Government has itself undertaken any inquiry at all. Parliament has made a law with respect to inquiry and has left it to the appropriate Government to set up a Commission of Inquiry under certain circumstances referred to in S. 3 of the Act. The Central Government, in its turn has, in exercise of the powers conferred on it by the Act, set up this Commission. It is, therefore, not correct to say that Parliament or the Government itself has undertaken to hold any inquiry. In the second place the conclusion that the last portion of cl. (10) is bad because it signifies that Parliament or the Government had usurped the functions of the judiciary appears to us, with respect, to be

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3 AIR 1958 SC 538 (1)

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inconsistent with the conclusion arrived at in a later part of the judgment that as the Commission can only make recommendations which are not enforceable proprio vigore there can be no question of usurpation of judicial functions. As has been stated by the High Court itself in the latter part of its judgment, the only power that the Commission has is to inquire and make a report recommendations. and embody therein its The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case and the elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by and under the American Constitution appears to us, ...”

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22) Likewise, in the matter of Justice Chandrashekaraiah (Retired) v. Janekere C. Krishna and others⁴ , Their Lordships of the Supreme Court while considering the provisions contained in the Karnataka Lokayukta Act, 1984 which contains pari materia provisions like subsection (1) of Section 11 of the Adhiniyam, 2002, have held in no uncertain terms that the Lokayukta or Upa-Lokayukta under the Act are established to investigate and report on allegations or grievances relating to the conduct of public servants and their functions are investigative in nature, and observed as under: -

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“37. The Lokayukta and Upa-Lokayukta while exercising powers under the Act, of course, is acting as a quasi-judicial authority but his functions are investigative in nature. ...” Their Lordships further held that the Lokayukta or Upalokayukta has no jurisdiction or power to implement its report and has further observed in paragraph 41 as under: -

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“41. ... The Lokayukta or Upa-Lokayukta, however, has no jurisdiction or power to direct the Governor or the Chief Minister to implement his 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

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4 (2013) 3 SCC 117

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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.”

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23)Thus, it appears that duty and function of the Lok Aayog after enquiry of any action in respect of the complaint received and investigated by him is recommendatory, precatory, advisory or directory in nature as it has to advise, counsel or suggest with certain course to be pursued or deposition made. The duty of the Lok Aayog is recommendatory in nature, is also reinforced from the Explanation attached to subsection (1) of Section 11 of the Adhiniyam, 2002, which states that “Opinion of Lok Aayog” in relation to any complaint, including a decision, report, finding or conclusion thereon, means the opinion of the majority of its members. Therefore, it is quite vivid that the Lok Aayog has to communicate its opinion to the competent authority over the conduct of the delinquent public servant after its investigation and in no case it can be the mandate or the order of the Lok Aayog to the competent authority.

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24)Thus, aforesaid scanning of the provisions of the Adhiniyam, 2002 would show that the role of the Chhattisgarh Lok Aayog under the Adhinium, 2002 is only advisory and recommendatory in character and concededly not an authority empowered to issue and enforce any order by itself except submitting a report to the competent authority for appropriate action. Therefore, the contention of the learned counsel for the petitioner that the Lok Aayog has already exonerated the petitioner, as such, issuance of charge-sheet is illegal cannot be accepted.

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1. Other submission of the learned counsel for the petitioner is that criminal case has already been registered and WP (CR) is pending therefore, on same set of charges conduction of enquiry is bad in law as the law has been well settled. The Hon'ble Supreme Court in case of Eastern Coalfields Limited and Others vs. Rabindra Kumar Bharti in Civil Appeal No. 2794/2022 decided on 7th April, 2022 has held as under :-

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“7. In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan 3 this Court noticed two different streams of judicial views: “21. There are evidently two lines of decisions of this Court

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operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] and G.M. Tank v. State of Gujarat [(2006) 5 SCC 446 : 2006 SCC (L&S) 1121] . However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh [(2006) 4 SCC 265 : 2006 SCC (L&S) 686] ), or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (see G.M. Tank [(2006) 5 SCC 446 : 2006 SCC (L&S) 1121] , Jasbir Singh v. Punjab & Sind Bank [(2007) 1 SCC 566 : (2007) 1 SCC (L&S) 401 : (2006) 11 Scale 204] 3 (2007) 9 SCC 755 7(CA No.2794 of 2022 @ SLP(C) No.12061/2021 and Noida Entrepreneurs' Assn. v. Noida [(2007) 10 SCC 385 : (2008) 1 SCC (Cri) 792 : (2008) 1 SCC (L&S) 672 : (2007) 2 Scale 131] , para 18).”

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We may notice a recent judgment in Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju and Another 4 wherein it was interalia held: -

¶109

“9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : 1996 SCC (L&S) 1455]”

¶110

We would notice that this is a case where there is a criminal appellant(s) case as against employer also the respondent. launched The disciplinary 4 (2019) 10 SCC 367 8(CA No.2794 of 2022 @ SLP(C) No.12061/2021 proceedings. It is undoubtedly true that this Court has taken the view that when

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the charges are identical and gives rise to complicated issues of the fact and law and evidence is the same, it may not be appropriate to proceed simultaneously in disciplinary proceedings, along with the criminal case. The rationale behind the principle largely is that the employee who is facing the disciplinary proceeding would necessarily have to take a stand. This in turn would amount to revealing his defense and therefore prejudice the employee in the criminal proceedings. No doubt, this Court has laid down that it is not an absolute embargo and the principle is one to be applied based on the facts of each case.”

¶113

1. Therefore, contention of the learned counsel for the petitioner that criminal case has already been registered and WPCR is pending therefore, on same set of charges conduction of enquiry is bad in law, cannot be accepted.

¶114

1. The contention raised by the learned counsel for the petitioner that Mr. Yogesh Sahu is the enquiry officer who is well aware of the facts, as such, his appointment is against the Priciple of Natural Justice, is also not acceptable at this juncutre unless the facts so pleaded by the petitioner in the eqnuiry with regard to the role played by Mr. Yogesh Sahu in the matter before his appointment as enquiry officer, this Court cannot quash the order appointing Mr. Yogesh Sahu as the enquiry officer. It is directed that in case the petitioner placed material before the enquiry officer about involvement of Yogesh Sahu in the matter he will himself take decision with regard to continuation of inquiry proceeding by him or not.

¶115

1. The point which raised by the learned counsel of the State that whether writ Court can examine the correctness of the charge sheet in the writ petition at this juncture or not, is now being examined.

¶116

1. The respondents have issued charge sheet to the petitioner which has been replied by the petitioner therefore, the case is currently at pre- mature stage even there are disputed facts which have to be ascertained only after examining the evidence, material placed on record by the petitioner as well as by the respondents, therefore, the writ petition at this stage, is not maintainable as there is no such condition is available which warrants interference by this Court while exercising its writ jurisdiction. This issue has come up for consideration before the Hon’ble Supreme Court in case of Secretary, Ministry of

¶117

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Defence and Others vs Prabhash Chandra Mirdha⁵ . Relevant paragraph is extracted below:-

¶119

“10. Ordinarily a writ application does not lie against a charge- sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court.

¶120

11. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority.

¶121

Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.”

¶122

30) In light of above stated factual and legal matrix of the case and also considering the judgment of the Hon’ble Supreme Court on the issue raised in this petition, the submission raised by learned counsel for the State that at this stage the writ petition is not maintainable, is deserves to be accepted. Accordingly, it is held that the writ petition challenging the charge sheet at this stage is not maintainable. Even the report given by the Lok Ayog exonerating the petitioner is only recommendatory in nature and the State has to take decision on the basis of material available with them. As such, the exoneration by the Lok Ayog does not escape the petitioner from departmental enquiry. The next submission of

¶123

5 (2012) 11 SCC 565

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the petitioner that since the criminal case already been registered, therefore, initiation of departmental enquiry is nothing but an abuse of process of law, cannot be considered as there is no bar to conduct departmental inquiry even if criminal case is pending. Thus, the writ petitions deserves to be dismissed and accordingly both the writ petitions are dismissed.

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31) It is made clear that this Court has not examined anything on the merit of the case, only considered the competency, jurisdiction of the authority and issue whether at the stage of issuance of charge-sheet writ petition is maintainable or not. The petitioner is at liberty to raise her all the objections in the departmental enquiry and it is directed that the enquiry officer will conduct enquiry in accordance with Principle of Natural Justice and Fair Play giving proper opportunity of hearing to the petitioner.

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Sd/(Narendra Kumar Vyas) Judge

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Deshmukh

Rekha Nair v. State of Chhattisgarh

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Rekha Nair v. State of Chhattisgarh

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