Disposed

Dharmendra Kumar v. The State of Bihar

Patna HC6 Dec 2021CWJC/3599/2020

Case brief

AI extract

What is this about?

The Lokayukta directed cessation of municipal Group D daily-wage employment to enforce outsourcing. The Court held that continuation of employment fell outside its jurisdiction, set aside the order and declared consequential actions void. The petition and associated applications were disposed of.

What did the court decide?

The Lokayukta's order dated 28.11.2019 was set aside as non-est; all actions taken in furtherance of it were declared void.

Dharmendra Kumar Vs The State of Bihar — Corruption | Patna HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3599 of 2020

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Dharmendra Kumar, Son of Balmukund Ram, Resident of Near Sain Baba Mandir, New Godown Jheel Ganj, Gaya, P.S.- Gaya Town, District- Gaya.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary, Urban Development and Housing Department, Bihar, Patna.

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The Deputy Secretary, Urban Development and Housing Department, Bihar, Patna.

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The Additional Secretary, Office of the Lokayukt, Bihar, Kautilya Marg, Patna-1.

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The District Magistrate, Gaya.

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The Chairman, Gaya Municipal Corporation, Gaya.

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The Executive Officer, Gaya Municipal Corporation, Gaya.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Ranjeet Kumar, Advocate Mr. Kundan Kumar, Advocate Ms. Vagisha Pragya Vacaknavi, Amicus Curiae For the Respondent/s : Mr. Pawan Kumar, AC to AG Mr. Rabindr Kumar Priyadarshi, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 06-12-2021

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The following issues arise for consideration:-

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What is the role and scope of the institution of Lokayukta envisaged under the provision of the Bihar Lokayukta Act, 2011?

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Does the power and scope of the Act permit the Lokayukta to take up service matters?

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Whether termination of service of a group of employees, a measure undertaken by the Lokayukta, can be seen in the vision laid down for such institution?

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In the present case, the Hon’ble Member (Judicial) Lokayukta passed an order dated 28.11.2019 in a case bearing Case No. 1/Lok/ (Urban Development)/31/2010, titled as Md. Saifuddin v. Mayor Municipal Corporation, relevant paragraphs are reproduced hereinbelow:

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“Having regard to the fact that the aforementioned Government policy for outsourcing the services of Group ‘D’ employees is useful both for streamlining the functioning of the Municipal bodies as also for reducing corruption in such municipal bodies, it has to be held that each of the Municipal body which has not outsourced the services of group ‘D’ employees despite the direction issued by the Government has some agenda for subverting the aforesaid Government policy.

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Let it be kept in mind that the engagement of group-‘D’ employees on daily wage basis is a perennial source of corruption as has also been found by the Institution of Lokayukta in course of enquiry even in Darbhanga Municipal Corporation on the basis of which this enquiry was started and during the course of enquiry the Government came out with this policy for outsourcing group ‘D’ services by all Municipal bodies. Thus, the Municipal Bodies which have not till date have outsourced group ‘D’ services will submit an explanation to the Institution of Lokayukta for not complying the Government decision. Such of the Municipal bodies which have not outsourced group ‘D’ services will also be under an obligation to submit a report both to the Government and also to the Institution of Lokayukta as to how many daily wage employees are being engaged by such Municipal bodies and why should a direction be not issued for stopping this practice from the month of April, 2020. It is made clear to such Municipal bodies including Patna Municipal Corporation and Muzaffarpur Municipal Corporation that even in the event of non-submission of a report as directed above, an order would be passed restraining

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the engagement of any group ‘D’ employees with effect from 01.04.2020.

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It goes without saying that the Government in the meantime shall also take necessary steps for getting the policy of outsourcing group ‘D’ services by all Municipal bodies implemented in letter and spirit and submit an action taken report on 03.02.2020 when further enquiry and hearing of this case shall be taken up in presence of all who are present today.

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Before parting with this order it is made clear to the Municipal Commissioner and the city Manager of Darbhanga Municipal Corporation that failure on their part to outsource group ‘D’ services in a way will put a question mark on their administrative ability inasmuch as Darbhanga Municipal Corporation has been given time for a period more than a year to outsource the services of group ‘D’ employees as would appear from the orders dated 29.10.2018, 07.02.2019, 27.02.2019, 01.04.2019 and 10.07.2019. On all these dates prayer of Darbhanga Municipal Corporation for extending time limit for outsourcing group ‘D’ services was allowed and the time for work being taken from the daily wagers was extended from date to date and finally it was recorded in the last order dated 10.07.2019 that it would be the last extension of Group ‘D’ employees working in Darbhnaga Municipal Corporation and if the Government policy of outsourcing the Group ‘D’ services is not implemented in letter and spirit within next three months, the Institution of Lokayukta will be constrained to vacate the order on the ground of repeated extension of continuation of present Group ‘D’ employees.

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Thus, when a prayer has been made again today for continuance of the interim order of allowing Darbhanga Municipal Corporation to continue with the daily wager employees on the ground that one of the e-tenders has been republished in which the last date for opening is 31.12.2019. It is made clear that if the Darbhanga Municipal Corporation fails to outsource group ‘D’ services on or before 31.01.2020 its prayer for any further extension shall not be entertained by the Institution of Lokayukta.

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Put up this case for further enquiry and hearing on 03.02.2020 when all present today shall again remain present.

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Let a copy of this order be sent to the Principal Secretary, Urban Development and Housing Department, Patna, as well as to Sri Kumar Devendra Projjawal, Deputy Secretary, Urban Development and Housing Department, Patna and to Sri Nagmani Singh, City Manager, Darbhanga Municipal Corporation by e- mail. On receipt of a copy of this order Mr. Projjawal will get it circulated to all the Executive Officers of 142 Municipal bodies for its compliance in letter and spirit.”

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(Emphasis supplied)

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In furtherance of the order of the Hon’ble Member (Judicial) Lokayukta, Bihar, the Additional Secretary of the Office of the Lokayukta, Bihar, communicated the order to Deputy Secretary, Urban Development and Housing Department, Bihar vide letter dated 09.12.2019 to ensure its compliance. Consequently, the Special Secretary of the Urban Development and Housing Department issued direction to all the Municipal Commissioner throughout the State of Bihar, including Gaya Municipal Corporation, to stop taking services on daily wages of Group 'D' employees.

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These employees belonging to Group ‘D’ service include individuals who predominantly belong to the category of Sweepers. The evident result of this decision was that now the entire Gaya Municipal Corporation, a national tourist place, is completely flooded with garbage.

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This writ petition was filed on 15.02.2020 on the following grounds:

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The order issued by the Member (Judicial) of Lokayukta, Bihar in restraining the daily wages employee of Gaya

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Municipal Corporation is completely arbitrary, without jurisdiction and de hors the mandate of Lokayukta Act. 2. That the Hon’ble Member (Judicial) of Lokayukta, Bihar, Patna overstepped his jurisdiction by directing the authority concerned to implement its order.

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6. In the counter filed on behalf of respondent Nos. 1 and 2 , namely the State of Bihar through the Principal Secretary, Urban Development and Housing Department, Bihar, Patna and the Deputy Secretary, Urban Development and Housing Department, Bihar, Patna through Project Officer cum Deputy Director, Urban Development and Housing Department, Government of Bihar, it is stated in paragraph 6 thereof that the issue raised by the petitioner has been considered by the Department in totality and considering the fact and circumstances of the case a letter contained in Memo no.454 dated 03/02/2020 was issued by the Department under signature of Deputy Secretary, Urban Development and Housing Department, Bihar, Patna to all the Municipal Local Bodies whereby and whereunder the earlier Departmental letter contained in Memo No.406 dated 28/01/2020 issued to all the Municipal Local Bodies in compliance of the order of Hon'ble Lokayukta, Bihar for restraining the services of Group-D employees from outsourcing had been stayed till 31.03.2020.

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7. Further, it is stated that vide letter no.1430 dated 30/03/2020, the outsourcing service facilities of Group-D employees of Municipal Local Bodies was extended till 01/06/2020 due to Covid-19 pandemic

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lockdown. The said service facility of outsourcing was further extended till 01/09/2020 vide letter no.1869 dated 29/05/2020 issued by the Urban Development and Housing Department, Bihar, Patna. Further letter contained in letter no.3603 dated 12/10/2020 has also been issued by the Department to the Municipal Commissioner, Darbhanga, giving a copy to all the Municipal Local Bodies for extending outsourcing service benefit of Group-D employee till March 2021 and further to maintain the status quo in the matter in compliance of the order dated 28/05/2020 passed by the Hon'ble High Court in CWJC No.5713 of 2020 (Bihar Local Bodies Employee Federation and Ors Vs. The State of Bihar & Ors). The outsourcing services of Group-D employees are still continued.

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8. The order dated 28.05.2020 passed in CWJC No.5713 of 2020 (Bihar Local Bodies Employee Federation and Ors Vs. The State of Bihar & Ors) in toto reads as under:-

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“This application has been placed for consideration by the order of the Hon’ble the Chief Justice through virtual court proceeding.

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One interlocutory application has also been filed in this case to place on record the developments which have taken place during the pendency of this writ application. Prayer has been made to allow the petitioners to amend the writ application and grant interim relief.

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Mr. Yogesh Chandra Verma learned Senior Counsel joined the proceeding for the petitioners. Mr. Pankaj Kumar learned Standing Counsel No. 12 has appeared on behalf of the State, but he cannot argue the matter as, according to him, the

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brief of this case has not been made available to him till now from the office of the learned Advocate General.

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This Court finds that it is a fresh case and was listed yesterday also. Today, the Non-availability of the file to the learned counsel for the State has been sought to be made the reason for seeking adjournment in the matter.

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Mr. Pankaj Kumar, learned counsel has requested to fix the case in the next week either on 02.06.2020 or 03.06.2020. This court made it clear that he should either argue the matter tomorrow or in view of the prayer of the petitioners this Court in order to save the subject matter of the lis, would grant an interim order of status quo as on today.

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Mr. Pankaj Kumar has still prayed for listing the matter in the next week.

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Mr. Yogesh Chandra Verma, learned Senior Counsel informed this Court that the impugned orders are likely to effect about 25 thousand of daily wages workers/scavengers and they will be removed from their job with effect from 01.06.2020. In order to save the subject matter of the lis while accepting the prayer of learned counsel for the State to fix the matter on 03.06.2020, this Court directs that till next date the impugned orders shall not be given effect to and the status quo as on today shall be maintained.

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Let the State file a counter affidavit to the writ application as well as to the interlocutory application.

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List this matter on 03.06.2020.”

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( Emphasis supplied)

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In the endeavour to decide on the issues raised, it is pertinent to understand the formation of the institution of Lokayukta, its functions and the law that governs its actions.

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Historical Background

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The genesis of an Indian constitutional ombudsman was in the 1960's. The term Lokpal was coined and an Administrative Reforms

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Commission, “ARC Interim Report” was formed in 1966. The ARC suggested a dual structure, a Lokpal at the Center and a Lokayukta at the State Level. Its area of function was discussed in the ARC Interim Report as:- “The Lokpal will have the power to investigate an administrative act done by or with the approval of a Minister or a Secretary to Government at the Centre or in the State, if a complaint is made against such an act by a person who is affected by it and who claims to have suffered an injustice on that account.”

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Regarding the Lokayukta, the ARC Interim Report stated in Para 36 that “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 to refer complainants to competent higher levels. We, therefore, consider that his powers, functions and procedures may be prescribed mutatis mutandis with those which we have laid down for the Lokpal.”

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Commenting upon the need for such institutions, the report

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noted;

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“These institutions are, generally a supplement to the Parliamentary control, independent of any political affiliations, outside the normal administrative hierarchy, and free from the formalism, publicity and delays associated with governmental machinery. They work unobtrusively to remove the sense of injustice from the mind of the adversely affected citizen and yet

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uphold in a very large measure the prestige and authority of the administration, instilling public confidence in its efficiency and faith in its working and introducing a proper perspective of it in the mind of the public. Our analysis of the situation in our own country convinces us that a reform in all these directions is required as a sine qua non of democratic functioning and as an essential pre-requisite of the progress and prosperity on which the fulfilment of our democracy depends.”

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The Law

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The Preamble to the 2013 Act, termed as the Lokpal and Lokayuktas Act passed both Houses of Parliament after numerous attempts contain as under-

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“An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

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WHEREAS the Constitution of India established a Democratic Republic to ensure justice for all;

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AND WHEREAS India has ratified the United Nations Convention Against Corruption;

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AND WHEREAS the Government's commitment to clean and responsive governance has to be reflected in effective bodies to contain and punish acts of corruption;

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NOW, THEREFORE, it is expedient to enact a law, for more effective implementation of the said Convention and to provide for prompt and fair investigation and prosecution in cases of Corruption.”

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The 77th Report of the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice

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issued by Rajya Sabha noted the legislative intent behind bringing the Lokpal and Lokayuktas Act, 2013 as under:

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“Lokpal and Lokayuktas Act, 2013 was enacted to setup an independent and empowered anti corruption institution, namely, Lokpal at union level and for making enabling provision for establishment of Lokayukta for States for prompt inquiry and investigation into allegation of corruption by public functionaries and to fulfil the obligations of our country under the United Nations Convention Against Corruption (UNCAC). The Lokpal and Lokayuktas Act, 2013 came into force w.e.f. 16th January, 2014.”

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The Bihar Lokayukta Act, 2011 (Bihar Act) preceded the central law by two years. The importance of Lokayukta in our State cannot be overlooked under the Bihar Act. The Preamble of the Act is as follows-

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“An Act to provide for establishment of Lokayukta institution, its powers and functions and for expeditious investigation and prosecution relating to allegations involving corruption against public servants of all grades.”

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16. The relevant provisions of the Bihar Act are reproduced

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below for ready reference-

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2. Definitions .-

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“2 (b) “allegation” in relation to a public servant means any affirmation that such public servant-

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(i) Has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person.

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(ii) Was actuated in the discharge of the functions as such public servant by personal interest or improper, corrupt motives, or

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(iii) Is guilty of corruption or lack of integrity in his capacity as such public servant;”

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(ii) “mal administration ” means action taken or purporting to have been taken in the exercise of administrative functions in any case-

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(a) where such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory, or

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(b) where there has been negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay.”

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“16. Jurisdiction of Lokayukta. - (1) Subject to other provisions of this Act, Lokayukta shall inquire into any matter involved in, or arising from, or connected with any allegation or grievance against any public servant made in the complaint in respect of the following, namely:

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(a) any person who is or has been a Chief Minister of the State,

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(b) any person who is or has been a Minister of the State,

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(d) every officer referred to in clause (m) of Section 2,

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(e) every officer referred to in clause (m) of section 2 who on deputation or on transfer to foreign service is in the service or pay of –

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(i) any Local Authority , Local Self Government including the Panchayti Raj Institutions and the Urban Local Bodies;

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(ii) any Corporation (not being the local authority) established by or under the State Act and owned or controlled by the State Government;

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(iii) any Government Company within the meaning of section 617 of the Companies Act, 1956 (Act I of 1956) in which not less than fifty-one percent of the paid up share capital is held by the State Government of any Company which is a subsidiary of a company capital is held by the State Government;

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(iv) any Society registered under the Societies Registration Act, 1860 (Act 21 of 1860) which is subject to the control

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of the State Government and which is notified by the State Government in this behalf in the Official Gazette;

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(f) every Head or his Deputy by whatever designation he may be known and other employees of Local Authority, the Local Self Government including the Panchayati Raj Institutions and the Urban Local Bodies, the Corporation, the Government company or a Society or Association of Persons or Trust or Non-Governmental Organizations (whether registered under any law for the time being in force or not) having received a donation of more than Rs. five lakhs from any other source including foreign sources. or any other institution or organization or authority, subsidized or being given grant by the State Government or receiving payment of more than the prescribed amount from the Government.

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(g) any Chairperson or Member or Officer {referred to in clause (e) of sub-section (1)} or equivalent / above in any body / Board / Corporation / Authority / Company / Society / Autonomous Body (by whatever name called) established or constituted under an Act of State Legislature or wholly and partly financed by the State Government or controlled by it,

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Provided that no investigation or prosecution shall be initiated without obtaining permission from a full bench of Lokayukta against; persons named in clause (a), (b) & (C) of subsection(1) of Section 16 of the Act.

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(2) The Lokayukta may inquire into any act or conduct of any person other than those referred to in sub-section (1) of section 16, if such person is associated with the allegation of corruption under the Prevention of Corruption Act, 1988.”

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(Emphasis supplied)

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“ 28A. Reports of Lokayukta .-(1) If, after investigation of any action in respect of which a complaint involving a grievance has been or can be or could have been made, the Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, the Lokayukta shall, by a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue

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hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.

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(2) The competent authority shall examine the report forwarded to it under subsection (1) and intimate within three months of the date of receipt of the report, to the Lokayukta, the action taken or proposed to be taken on the basis of the report.

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(3) If the Lokayukta is satisfied with the action taken or proposed to be taken on its recommendations or findings referred to in subsection (1), it shall close the case under information to the complainant, the public servant and the competent authority concerned; but where it is not so satisfied and if it considers that the case so deserves, it may make a special report upon the case to the Governor and also inform the complainant concerned.

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(4) The Lokayukta may, at his discretion, make available from time to time, the substance of cases closed or otherwise disposed of by him which may appear to him to be of general public, academic or professional interest in such manner and to such persons as he may deem appropriate.”

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(Emphasis supplied)

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“38. Other power and function .—Lokayukta shall have also following functions and powers:-

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(a) If the Lokayukta prima facie is satisfied on the basis of preliminary inquiry of investigation that a lease, license, permission, contract or agreement was obtained by corrupt means including misfeasance, misrepresentation, fraud and coercion, it shall recommend cancellation or modification of the lease, license, permission, contract or agreement and it may also recommend blacklisting of firm, company, contractor or any other person involved in act of corruption. The above said recommendations shall be complied by the public authority or be rejected by him within a month of receipt of recommendation.

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(b) If the Lokayukta in course of any investigation is satisfied that any preventive action is necessary in public interest to prevent the ongoing incident of corruption it may make recommendation to the public authority concerned either to stay the implementation enforcement of any decision or

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take any such action as is recommended by the Lokayukta. The aforesaid recommendation shall be complied by public authority or be rejected by him within fifteen days of receipt of recommendation.

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(c) to monitor the investigation of offences under Prevention of Corruption Act ,1988 involving any act of corruption, for the cases initiated on behalf of the Lokayukta.

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(d) to initiate prosecution before a Special Court established under the Prevention of Corruption Act, 1988 and the Bihar Special Courts Act, 2009, for the cases initiated on behalf of the Lokayukta.

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(e) to appoint prosecutors and Senior Counsels under Prevention of Corruption Act,1988 or under the Bihar Special Court Act, 2009 or under this Act, for the cases initiated on behalf of Lokayukta.

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(f) to get the Investigating Officer trained in modern methods of scientific investigation.

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(g) to enquire modern equipments necessary for proper investigation.

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(h) to receive complaints against any officer or staff of Lokayukta.

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(i) to ensure the integrity of its functionaries and impose punishments of dismissal, removal and reduction in rank.”

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(Emphasis supplied)

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The very Preamble of the Principal Act indicates the

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importance of Lokayukta in our State. Its role and responsibility are in guiding the State and the judiciary against corruption in our society. Section 16 of the Bihar Lokayukta Act, 2011 concerning the Jurisdiction of the Lokayukta makes clear in light of the Preamble that inquiry to be made by the Lokayukta, has to be a matter involved in, arising out of or connected with, an allegation or grievance, against any public servant,

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and that has to be, as dictated by the scheme of the Lokpal/Lokayukta Institution as well as the governing legislation, in connection to Corruption.

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Expounding on the legislative intent behind Lokayukta Acts, the Hon’ble Apex Court held in Institution of A.P. Lokayukta/UpaLokayukta v. T. Rama Subba Reddy,(1997) 9 SCC 42 as under:-

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“17. Before parting with these matters, it may be necessary to note that the legislative intent behind the enactment is to see that the public servants covered by the sweep of the Act should be answerable for their actions as such to the Lokayukta who is to be a Judge or a retired Chief Justice of the High Court and in appropriate cases to the Upa-Lokayukta who is a District Judge of Grade 1 as recommended by the Chief Justice of the High Court, so that these statutory authorities can work as real ombudsmen for ensuring that people's faith in the working of these public servants is not shaken. These statutory authorities are meant to cater to the need of the public at large with a view to seeing that public confidence in the working of public bodies remains intact. When such authorities consist of high judicial dignitaries it would be obvious that such authorities should be armed with appropriate powers and sanctions so that their orders and opinions do not become mere paper directions. The decisions of Lokayukta and Upa-Lokayukta, therefore, must be capable of being fully implemented. These authorities should not be reduced to mere paper tigers but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved by the disciplinary authorities concerned. When we turn to Section 12, sub-section (3) of the Act, we find that once the report is forwarded by the Lokayukta or Upa-Lokayukta recommending the imposition of penalty of removal from the office of a public servant, all that is provided is that it should be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making him ineligible

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for being elected to any office etc. Even if it may be lawful for the Government to act on such recommendation, it is nowhere provided that the Government will be bound to comply with the recommendation of the Lokayukta or Upa-Lokayukta. The question may arise in a properly-instituted public interest litigation as to whether the provision of Section 12(3) of the Act implies a power coupled with duty which can be enforced by a writ of mandamus by the High Court or by writ of any other competent court but apart from such litigations and uncertainty underlying the results thereof, it would be more appropriate for the legislature itself to make a clear provision for due compliance with the report of Lokayukta or Upa-Lokayukta so that the public confidence in the working of the system does not get eroded and these institutions can effectively justify their creation under the statute.”

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While reflecting on the role played by the Lokayukta, Radhakrishnan, J. wrote in Justice Chandrashekharaih (Retired)

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versus Janekere C. Krishna & Ors. (2013) 3 SCC 117, as under :-

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“19. 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 dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary.”

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The Supreme Court referred to passages of the above referred ARC Interim report, reproducing its para 25 as under-

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“25. The following would be the main features of the institutions of Lokpal and Lokayukta:-

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(a) They should be demonstrably independent and impartial.

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(b) Their investigations and proceedings should be conducted in private and should be informal in character.

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(d) Their status should compare with the highest judicial functionaries in the country.

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(e)They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.

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(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.

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(g) They should not look forward to any benefit or pecuniary advantage from the executive Government.”

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We reproduce with profit what was said in an earlier judgment by Hon’ble Mr. Justice Chakradhari Sharan Singh, a Single Judge of this Court, in CWJC 18053 of 2019 , titled as Bipin Bihari Singh vs The State Of Bihar, decided on 03.06.2020 -

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“26. There is no gainsaying that a decision sans jurisdiction is non est. A direction issued by any statutory body, howsoever high the said body may be, cannot be allowed to be sustained, for, anything done in excess of jurisdiction is void ab initio. The impugned order passed by learned Judicial Member of Lokayukta suffers from inherent jurisdictional error. It is settled legal principle which needs no reiteration that absence of jurisdiction in a statutory body goes to the root of the matter, which, if absent, cannot be conferred, even with the consent of the contesting parties. A decision rendered by any statutory body without jurisdiction is inoperative.

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27. If a statutory authority assumes to act in a case over which the law does not give it authority, the proceeding and adjudication will be altogether void. An authority has jurisdiction of any subject matter if, by the law of its organization, it has authority to take cognizance of, try, and determine cases of that description and not otherwise. (See A Treatise on the Constitutional Limitations by THOMAS M. COOLEY).

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28. Before I conclude, I need to observe that the institution of Lokayukta must remind itself the purpose of its constitution and its own limitations, while exercising its powers and discharging its duties and functions under the Act of 2011. It cannot act beyond the provisions of the Act which has constituted it. The Lokayukta is certainly not a super executive empowered to supervise/ control functionings of the executive and issue commandments to various functionaries asking them to discharge their duties in a particular manner. Further, the Lokayukta does not have any power of judicial review over administrative action, akin to the powers of the High Court under Article 226 of the Constitution of India.”

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21. The Spirit of the Act emanates from the desire to curb corruption which has had a vice like grip on our society and this institution is a big step in that direction.

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22. While the Court appreciates the vision of the Lokayukta, this action of having ordered the total sum removal of Group D employees, in the considered view of this Court, cannot be found within the letter,

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much less spirit of the law. The language of the Act is unambiguous with respect to the clear and cogent connection to curbing corruption being a necessity when the Lokayukta takes any action. Although the Hon'ble Member (Judicial) notes in his order that employing Group D people is a perennial source of corruption, no report of the investigation undertaken is on record

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23. Termination of people from service falls squarely within the area of service jurisprudence, which cannot be found within the powers of Lokayukta. With the lack of a comprehensive report presenting the situation as noted by the Hon'ble Member (Judicial), this action cannot be said to be within the bounds of law. Section 28A of the Act reproduced above makes it clear that where, upon investigation, the Lokayukta finds injustice to have been meted out, it shall submit a written report to the relevant authorities who are to consider the report within three months from its date and submit a report concerning the action taken or proposed to be taken on such report. If the Lokayukta is unsatisfied, it may make a special report to the Governor.

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24. Having recourse to the legislative intent behind the institution of Lokayukta, and the words employed by the legislature in the governing statute, the observations of Member (Judicial), Lokayukta Bihar, concerning requiring an explanation to be furnished in reference to non-compliance with government policy, or an order restraining

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engagement of Group 'D' daily wage employees post a specified date, do not find favour of the language. The institution and its functioning is intrinsically connected to the presence of corruption, and even though, as stated in the order passed on 28.11.19, instances may have been found, it is for the Lokayukta to recommend to the relevant authorities that certain action may be taken in accordance with the provisions of Section 38(1) (a), but a direct order to restrain employment cannot be countenanced in law.

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25. All issues are answered accordingly.

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26. In light of the discussion above, we set aside the order dated 28.11.2019 passed by Hon’ble Member (Judicial) Lokayukta, Bihar (Annexure-1) and, further in light of the affidavit filed by the respondent Nos.1 and 2; namely, the State of Bihar through the Principal Secretary, Urban Development and Housing Department, Bihar, Patna and the Deputy Secretary, Urban Development an Housing Department, Bihar, Patna through Project Officer cum Deputy Director, Urban Development and Housing Department, Government of Bihar, this petition and any associated interlocutory applications stand disposed of with the following directions:-

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1) The order dated 28.11.2019 passed by the learned Member

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(Judicial), Lokayukta, Bihar, in Case No.1/Lok/(Urban

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Patna High Court CWJC No.3599 of 2020 dt.06-12-2021 21/21

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Development)/31/2010 Md. Surfuddin v. Mayor Municipal Commissioner, is non-est in law.

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2) The questions relating to continuation of employment of Group 'D' or any other service falls outside the jurisdiction of the Institution of Lokayukta, Bihar, Patna .

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3) Any action taken, therefore, in furtherance of the impugned order is void.

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27. This Court records its appreciation for the assistance rendered by. Ms. Vagisha Pragya Vacaknavi, Amicus Curiae, and learned counsel associated with the matter.

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28. This order be communicated to the authorities concerned.

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(Sanjay Karol, CJ)

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( S. Kumar, J)

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Sujit/

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AFR/NAFR	AFR
CAV DATE
Uploading Date	17.12.2021
Transmission Date

Dharmendra Kumar v. The State of Bihar

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Dharmendra Kumar v. The State of Bihar

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