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2020 Supreme(Pat) 364
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
Bipin Bihari Singh - Petitioners
Versus
The State of Bihar - Respondents
Civil Writ Jurisdiction Case No.18053 of 2019
Decided On : 03-06-2020
For the Petitioners: Mr. Sunil Kumar Singh, Adv. Mr.Rakesh Narayan Singh, Adv.
Mr. Kanhaiya Pandey, Adv.
For the Respondents: Mr. Ravi Verma, AC to GP-4
Headnote:
Bihar Lokayukta Act, 2011 – Sections 27, 28A, 29 and 38 – Jurisdiction of Lokayukta to issue direction to competent authority to take disciplinary action against a Government Servant – Lokayukta has no jurisdiction, acting on a complaint containing grievance of maladministration beyond submitting a report to competent authority, as defined under Section 2(d) of Act, prescribing manner in which injustice or undue hardship has to be remedied or redressed – It is expected of competent authority to examine report and inform Lokayukta, action taken or proposed to be taken on the basis of report – In view of clear language used in Section 28A of Act, Lokayukta does not have any jurisdiction to issue any direction to competent authority – Lokayukta does not have any other jurisdiction at all under the Act when matter is on the basis of a complaint raising a grievance of maladministration – In case a recommendation is made by Lokayukta in exercise of power under Section 27 of Act, competent authority is obliged to initiate disciplinary proceeding against delinquent public servant accused of committing offence under Prevention of Corruption Act, 1988 and forward its comment on report including action taken or proposed to be taken thereon, to Chairperson of Lokayukta within six months of initiation of such disciplinary proceeding – Impugned order passed by Judicial Member of Lokayukta suffers from inherent jurisdictional error – Institution of Lokayukta must remind itself purpose of its constitution and its own limitations, while exercising its powers and discharging its duties and functions under Act of 2011 – It cannot act beyond provisions of Act which has constituted it – Lokayukta is certainly not a super executive empowered to supervise/ control functionings of executive and issue commandments to various functionaries asking them to discharge their duties in a particular manner – Lokayukta does not have any power of judicial review over administrative action, akin to powers of High Court under Article 226 of Constitution of India – There is absolutely no material in nature of any allegation that petitioner did indulge in any corrupt activity or that he did anything for his personal gain to harm others – Impugned order passed by Judicial Member, Lokayukta set aside. (Paras 14, 21, 25, 26, 28 and 29)
Administrative Law – Void Orders – Decision sans jurisdiction is non est – A direction issued by any statutory body, howsoever high said body may be, cannot be allowed to be sustained, for, anything done in excess of jurisdiction is void ab initio – Impugned order passed by Judicial Member of Lokayukta suffers from inherent jurisdictional error – Absence of jurisdiction in a statutory body goes to root of matter, which, if absent, cannot be conferred, even with consent of contesting parties – A decision rendered by any statutory body without jurisdiction is inoperative – If a statutory authority assumes to act in a case over which law does not give it authority, proceeding and adjudication will be altogether void – An authority has jurisdiction of any subject matter if, by law of its organization, it has authority to take cognizance of, try and determine cases of that description and not otherwise. (Paras 26 and 27)
C.A.V. JUDGMENT :
This writ application, preferred under Article 226 of the Constitution of India raises a legal question, whether the institution of Lokayukta under Section 3 of Bihar Lokayukta Act, 2011 (hereinafter referred to as the “Act of 2011”) has the jurisdiction to issue direction to the ‘competent authority’ within the meaning of the Act, to take disciplinary action against a Government Servant, exercising its powers under Sections 27, 28A, 29 and 38 of the Act, on the basis of a complaint containing grievance of maladministration, in the absence of any specific finding of corruption or lack of integrity against the Government servant.
2. An order passed by the learned Judicial Member, Lokayukta, Bihar dated 04.04.2019, in 5/Lok (Rajaswa) 148/2011 (Sri Nand Kishore Paswan vs. Collector, Patna) has been challenged in the present writ application whereby following direction has been issued :-
“In such a situation while rejecting the explanation of Sri Bipin Bihari Singh the Registrar, Co-operative Societies being the appointing authority in consultation with an assistance of the office of the Collector, Patna, the controlling authority is hereby directed to initiate a departmental proceeding for major punishment and ensure its completion within the prescribed time framed and fixed by the government.”
3. I have heard Mr. Sunil Kumar Singh, learned counsel for the petitioner duly assisted by Mr. Rakesh Narayan Singh and Mr. Kanhaiya Pandey, learned Advocates. I have also heard Mr. Ravi Verma, learned AC to GP-4, representing the State of Bihar, at length. Despite valid service of notice of the present writ application respondent no. 7 (Lokayukta, Bihar through its Secretary), has chosen not to appear in the present proceeding, for reasons best known to the said respondent.
4. To begin with, instead of referring to the statutory provisions under the Act of 2011 for examining the powers and functions of Lokayukta under the Act, I have considered it apt to refer to certain essential facts of the case, which emerge out of the impugned order itself.
5. The petitioner was functioning as Circle Officer, Pandarak when in the month of May, 2011 the office of Lokayukta, Bihar received a complaint signed by 55 villagers to the following effect :-
Subject : Regarding closure of Paniauta (place of source of water) Sir,
We are permanent residents of Panchayat Raj, Dabhawan of Pandarak Block under the district of Patna. By constructing houses on the Gairmazarua common way (separate), the people have obstructed the Paniauta (place of source of water), which goes to the river Khatta in the north, from Kadimpur Mahal Police Station No. 09-304 South Dhariwa Tar, due to which the farmers are facing difficulties for want of water, Khatta may be dug upto Dhariwa Tar, from north to south and proper legal action may be taken against the people, who have encroached Gairmazarua common way(separate) so that the farmers of that place would be able to visit their fields and the farmers may be protected from starvation and unemployment.
6. Be it noted that Act of 2011 came into force with effect from 23.12.2011, repealing the earlier Bihar Lokayukta Act, 1973. The repeal and savings clause contained in Section 59 of the Act of 2011 reads as under :-
“59(2) Notwithstanding such repeal anything done or any action taken in exercise of the powers conferred by or under the said Bihar Lokayukta Act, 1973 shall be deemed to have been done or taken in the exercise of powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action taken.”
7. There is, thus, no scope of any doubt that an action taken in exercise of the Act of 1973 could be treated to have been done in exercise of the present Act, as if the Act were in force on the day on which the action was taken under the earlier Act. It is evident from the complaint of the said 55 persons, english translation of which has been quoted at page 4 of t
