W.P.(C)/3342/2010 of CHETAN B SANGHI Vs R.N.BARARIA

IN THE HIGH COURT OF DELHI AT NEW DELHITO

Reserved on: October 20, 2010Decision on: November 22, 2010

W.P.(C) No. 1136 of 2010

R.K. SAXENA

Petitioner

Through: Mr. S.K. Dubey withMr. D. Abhinav Rao andMr. Jamal Akhtar, Advocates.

versus

RAVINDER BALWAM

Respondent

Through: Mr. Maninder Singh, Senior Advocatewith Ms. Priya Kumar, Advocate for Applicant inCM No. 4290 of 2010.Mr. K.B. Upadhyay with Mr. D.P. Singh,Advocates for Respondent.

WITH

WilCfC) No. 3342 of 2010

CRETAN B. SANGHI

Petitioner

Through; Mr. N. Waziri withMr. Shoaib Haider, Advocate.

versus

R.N. BARARIA

RespondentThrough:Mi*. ManinderSingh,SeniorAdvocatewith Ms. PriyaKumar,Advocatefor ApplicantinCM No. 13761 of 2010.Mr. K.B. UpadhyaywithMr. D.P. Singh,Advocates for Respondent.

AND

W.P.(C) No. 3345 of 2010

R.K. SAXENA

Petitioner

Through:Mr. S.K. DubeywithMr. D. AbhinavRao and Mr. Jamal Akhtar, Advocates.

versus

Signature Not Verified

B.K. SHARMA

RespondentThrough:Mr. ManinderSingh,SeniorAdvocatewithMs. PriyaKumar,Advocatefor Applicantin

Digitally Signed By:AMULYACertify that the digital file andphysical file have been compared andthe digital data is as per the physicalfile and no page is missing.

W.P.(C)Nos. 1136,3342&3345of2010

Poge1of21

CORAM:JUSTICE S. MURALIDHAR

1. Whether reporters of the local news papers

be allowed to see the judgment?No2. To be referred to the Reporter or not?Yes

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? Yes

JUDGMENT

22.11.2010

W.P.(C) Nos. 1136, 3342 and 3345 of 2010 & CM Nos. 4290, 6722, 6725.13760 & 13761 of 2010.

1. These three petitions involve the interpretation of Sections 2(m) (iv) and17 of the Delhi Lokayukta and Upalokayukta Act, 1995 ('DLAU Act').

Background

2. The background to these petitions is that Shri Ravinder Balwani (theRespondent in W.P.(C) No. 1136 of 2010) filed complaint before theLokayuktacomplainingof Shri R.K. Saxena(the Petitionerin W.P.(C)No.1136 of 2010) of misusinghis officialpositionas Director(Administrative)as well as Director(HR) of DelhiTranscoLtd. ('DTL') for personalbenefit.Balwani's specific case was that Saxena being the Director of DTL, acompanyowned by the Governmentof NationalCapitalTerritoryof Delhi('GNCTD')was 'publicfunctionary'withinthe meaningof Section2(m)(iv) of the DLAU Act.

3.In to the above Saxena took the that the response complaint pleaLokayuktahad no jurisdictionover Saxenaunder Section 17 of the DLALT

W.P.(C)Nos. 1136,3342&3345of2010

Act since Saxena was member of the Indian Administrative Services('IAS')and thatitwas in thatcapacityhe was sent on deputationto the DTLas Director(Administrative)&Director(HR). Saxena'scasewas thathe didnot lack immunityfromjurisdictionofthe Lokayuktaunder Section17 onlybecause he was Director of company owned by the GNCTD.

4. By an order datedFebruary 2010, the Lokayukta came to theconclusionthat the preliminaryobjection raised by Saxena was withoutmerit.It was heldthatthe provisionofSection17 couldnot be usedtodefeatthe provisionofSection2(m)(iv)ofthe DLAUAct unlessit was impossibleto effect reconciliationbetweenthe two provisions. The Lokayuktafoundthat it was possibleto reconcilethe two provisionsas aresultofwhich"onlythose Members of the Civil Services of the Union, who are appointedasChairman,Vice-Chairmanor ManagingDirectoror Memberofthe Boardof Directors in respect of Apex CooperativeSociety or any CooperativeSociety or Government Company, Local Authority, Corporation orCommissionor set the Governmentwouldbe coveredwithinthe Bodyup bydefinitionof 'publicfunctionary'but the other/remainingMembersof CivilServicewould be excludedfrom the said definition."In other words, theLokayukta held that once an IAS officer is appointed as Director of such IAS officer would loseunder Section 17 of thecompany immunityDLAU Act and wouldbe amenableto the jurisdictionofthe Lokayuktaforthe acts done by him in his capacityas Directorofsuchgovernmentownedcompany.

5. Aggrievedby the abovedecision,SaxenafiledWritPetition(C)No. 1136

of 2010 in this Court in which while directing notice to issue on 24*^?February2010, this Court stayedthe order dated S''" February2010 of theLokayukta.

6. The backgroundto the filingofWritPetition(C) No. 3345 of2010 is thatB.K.Sharma filed complaint against Saxena before the Lokayukta onsimilar lines as Balwani. The Lokayukta proceeded to entertain thecomplaint,notwithstandingthat Saxenaproducedbefore the Lokayuktatheorderdated24'*' February2010 passedby this Courtin WritPetition(C) No.1136 of 2010. The presentwrit petitionwas filed seeking stay of flirtherproceedings. While directingnotice to issue on 17^'' May 2010, this Courtstayedfurtherproceedingsin the complainttitled^^ShriB.K. Sharmav. ShriR.K. Saxena'' pendingbeforethe Lokayukta.

7. In WritPetition(C) No. 3342 of2010, the RespondentR.N. Barariafileda complaintagainstthe PetitionerChetanB. Sanghi,amemberof the IAS,who was servingon deputationas Chairman-cum-ManagingDirector,DelhiState Industrial and InfrastructureDevelopmentCorporation('DSIIDC')beforethe Lokayuktacomplainingof abusinghis positionfor improperandcorruptmotiveswithinthe meaningof Section2(b)(ii)ofthe DLAU ACT;The Lokayuktaproceededto entertainthe complaint and summoned therecordsand fixed adate for furtherhearing. Aggrievedby the noticedated13"' April 2010 and asubsequentorder dated 5^^ May 2010, passedby theLokayuktaby way ofentertainingthe complaint,WritPetition(C) No. 3342of 2010 was filed in this Court by ChetanB. Sanghi in which notice wasissued by this Court onMay 2010 and furtherproceedingsbeforethe

Lokayuktain the complaintfiled againstthe Petitionerby R.N. Barariawferestayed.

The common question

8. In all the three petitions, therefore, the common question that arisesconcernsthejurisdictionofthe Lokayuktato entertainthe complaintofthesePetitioners.In otherwords,thequestionis whetheron collectivereadingotSections2 (m) (iv) and 17 of the DLAU Act, the complaintsagainstthethreewritpetitionersweremaintainable?

Decision of this Court

9. The longtitleto the DLAUAct statesthat it is an Act "to make provisionfor the establishmentand functioningof the Institutionof Lokayuktatoinquire into the allegations against public functionaries in the NationalCapital Territory of Delhi and for matters connected therewith." Thebackgroundto the enactmentofthe DLAUAct was an InterimReportoftheAdministrativeReforms Commission('ARC')on "ProblemsofRedressofCitizens'Grievance^'.The ARC recommendedthattheauthorisedto persondischargethe functionsofthe Ombudsmanat the Centreshouldbe calledas'Lokpal' and his counterpartin the States be called as 'Lokayukta. InOfficeofLokayuktav. Govt. ofNCTofDelhi160(2009)DLThaDivisionBenchofthis Courtexplainedas under(DLT at p.6):

"theofthe Act is to ensurean object independentinvestigationof administrativeaction. If after inquiry into the allegations,Lokayukta is satisfiedthat such allegationis established,hemakesareportunderSection12(1)ofthe Act. Afterthe reportis submitted,the competentauthorityhas to examinethe reportand intimatethe action taken or proposedto be taken on theW.P.{C)Nos. 1136,3342&3345of2010^

basis of the reportwithinthe time prescribed.If the Lokayuktaor theis satisfied with the action taken or Upa-Lokayukta to be taken on the recommendationsorproposed findingscontained in the report, he shall close the case underinformation to the complainant, the public servant and thecompetentauthorityconcerned.But when he is not so satisfiedand if he considers that the case so deserves, he may make aspecial report to the LieutenantGovernorand also inform thecomplainant.The Lokayuktaand the Upalokayuktaunder Subsection(4) haveto presentannuallya consolidatedreporton theperformanceof their functionsunder the Act to the LieutenantGovernor.On receiptof specialreportunder sub-section(3),or the annual report under Sub-section (4), the LieutenantGovernor shall cause copy thereof together with anexplanatory memorandum to be laid before the LegislativeAssembly."

10. Keepingthe abovebackgroundin view,the provisionsofthe DLAUActmay be examined in some detail. The definitionof 'public functionaryunder Section2(m) reads as under:

"2.Definitions:- In thisAct,unlessthecontextotherwise requires -

(m) "Publicfunctionary"means personwho is or hasbeen at any time-

(i) the ChiefMinisteror Minister;

(ii) aMemberofLegislativeAssembly;

(iii) personhavingthe rank ofa Ministerbut shall notinclude Speaker and Deputy Speaker of the LegislativeAssembly;

(iv) Chairman,Vice-Chairmanor ManagingDirectoror Member of Board of Directors (by Whatever namethey be called)in respectof-

(1) an Apex Co-operative Society or any Co-

operative Society constitutedor registeredundefithe Delhi Co-operativeSocietiesAct, 1972, whichis subject to the control of the Government;

(2) GovernmentCompany within the meaningof Section 617 of the Companies Act, 1956,engaged in connection with the affairs, and isunderthecontroloftheGovernment;

(3) Local Authorityestablishedunder any lawin relation to Delhi;

providedthatthe provisionsofthis Act shallnot beapplicableto any authority of Local Authorityconstitutedunder an enactmentrelatable to EntryNo. 18 of the State List of the Seventh Schedule ofthe Constitution;

(4) Corporationengagedin connectionwith theaffairs, and under the control, of the Government;

(5) any Commission or body set up by theGovernment which is owned and controlled by it;

Member of theof Delhi as(v) MunicipalCorporationdefinedin clause2(27)ofthe MunicipalCorporationAct,1957 (as amendedin 1993)"

11. There can be no doubtthattheof officescoveredthe definition rangebyof 'publicfunctionary'under Section 2(m) is indeed wide. As far as thecompanies are concerned, the Chairman, Vice-Chairmanand ManagingDirector or Member of the Board of Directors are the persons fallingwithinthe ambitof'publicfunctionary'. If one were to go only by SectionW.P.(C)Nos.1136,3342&3345of2010Page7of21

2(m) DLAU Act, there would be no doubt whatsoeverthat the three wrPetitioners, in their capacity as Chairman and Managing Director ofcompaniesownedby the GNCTD wouldbe coveredwithinthe definitionof'publicfunctionary'.However,this is not the onlyprovisionthatis relevant.Section 17 of the DLAU Act reads as under:

"17. For the removal of doubts it is hereby declared thatnothing in this Act shall be construedto authorizetheLokayukta or an Upalokayukta to inquire into anallegation against -

(a) any memberofthe JudicialServiceswho is undertheadministrative control of the High Court under Article235 of the Constitution;

(b) any personwho is memberofa Civil ServiceoftheUnion or an All India Service or Civil Service of Stateor holds Civil post under the Union or State inconnection with the affairs of Delhi."

12. In the order dated 5'^ February2010, while negativingthe preliminaryobjection raised by R.K. Saxena, the Lokayukta interpreted Section 17DALAU Act as being 'non-obstanteclause.' The usual words associatedwith non-obstante clause are "notwithstandinganything containedin thisAct or any otherAct for the time inforce."However,Section17 DLAUActis ofa declaratorynature. Itunambiguouslydeclaresthat"notinginthis Actshall be construed to authorise the Lokayukta or the Upalokayukta" toenquireintothe allegationagainstan IAS officeror amemberofthejudicialservices under the administrativecontrol of the High Court.In effect.Section 17 is total prohibitionagainst the Lokayukta entertaininganyW.P.(C)Nos.1136,3342&3345of2010Page8of21

complaintagainstan IAS officeror amemberofthe judicialservices,thisCourt is, therefore,not able to concur with the Lokayuktain interpretingSection 17 DLAU Act as non-obstanteclause. The words "for the removalof doubts" precedingSection 17, underscoresthat it overridesanythingtothe contrarythat might be indicatedanywhere else in the DLAU Act andthis includes Section 2 (m) (iv). There is no ambiguitywhatsoeveraboutSection 17 DLAU Act. It is of declaratory nature which absolutelyprohibitsthe Lokayuktafrom enquiringinto an allegationagainst an IASofficer. Section 17 DLAU Act admits of no ambiguity and is plainly acompleteexceptionto Section2(m) (iv). Consequentlythereis no occasion,as partofan interpretativeexercise,to adopta 'purposive'construction(Seefor instanceGrid Corporationof OrissaLtd. v. Eastern Metalsand FerroAlloys2010 (2) SCALE 687). For the same reasonthere is also no warrantfor examiningif Section 17 shouldbe read subjectto Section2 (m) (iv) orreadwith it tobothIt isthat 'harmoniously' preserve provisions. possiblesuch questions might arise if this Court were required to examine,theconstitutionalvalidityofSection17. However,thatis not withinthe scopeofthe present proceedings or for that matter the proceedings before theLokayukta.13. It is tritethatthe powersand functionsofthe officeofthe Lokayuktaareto be found within the DLAU Act. The Lokayuktahas to interprettheprovisionsofthe DLAU Act as they occur. It is not withinthe scope oftheoftheto add to theofthe DLAU Act clausespowers Lokayukta provisionsor phrases that do not exist as has been done by the Lokayuktain theimpugned order dated 5'*^ February 2010. The Lokayukta has by an

W.P.(C)Nos. 1136,3342&3345of2010

interpretativeexercisecarved out further exceptionto Section 17 DLAUAct by holdingthat "a Chairman,Vice Chairman,ManagingDirector,etc."ofa governmentowned company,who continuesas memberofthe IAS,wouldcontinueto be 'publicfunctionary'withinthe meaningof Section2(m) (iv)DLAUAct to whomthe immunityunderSection17 DLAUAct willnot apply.In effectthe Lokayuktahas addeda furtherprovisoto Section17when none exists.

14. An IAS officer if appointed as Director of government company ondeputationby no means,ceasesto be an IAS officer. It wouldbe stretchingthe languageofSection2(m) to statethat despitethe totalprohibitionunderSection17 DLAU Act onthe Lokayuktaenquiringinto an allegationagainstan IAS officer, if such IAS officer is Directorof governmentownedhe will becomeamenableto theofthecompany, jurisdiction LokayuktabyvirtueofSection2(m) DLAU Act. Section2(m) is only definitionclauseand has necessarilyto be read alongwith Section17 to understandthe extentofexerciseofthe jurisdictionofthe Lokayuktaover an IAS officer. Ifthelegislative intent was that the IAS officer would lose immunity underSection 17 by virtue of becoming Director of government ownedcompany,thenthereshouldhavebeenaprovisoto Section17 to thateffect.All the provisionsofan enactmenthave to be giventheirfull meaning. It isnot possibleto read into certainprovisionscertainexceptionswhich do notexist.

15. It is not as if eitherMr. Barariaor Mr. Sharmaor Mr. Balwaniwouldhave no remedywhatsoeverfor redressaloftheircomplaints. They can still

pursuethe otherremediesavailableto them in accordancewith law. It is notas if the onlyremedy availableto them is underthe DLAUAct.

16. This Court is unable to concur with the view expressed by the Lokayuktaonthe interpretationof Section17 and Section2 (m) (iv) of the DLAU Act.In the considered view of this Court, in view of the total prohibition underSection 17 of the DLAU Act, the Lokayukta had no jurisdiction to enquireinto any allegationagainstthe Petitionerswho happenedto be at the relevantpointoftime membersofthe IAS and were on deputationtothe governmentownedcompaniesasDirectoror Chairmanand ManagingDirector.

17. Consequently,the impugnedorderdated 5"^ February2010 passedby theLokayuktain the complainttitled ''RavinderBalwani v. R.K. Saxena" isherebyset aside. The complaintis dismissedas beingnot maintainable.Forthe same reasons,the complaintstitled ''B.K. Sharma v. R.K.Saxena'"'and''RMBararia v. ChetanB. Sanghr pendingbeforethe Lokayuktaare alsodismissedasoutsidetheoftheofthe being scopejurisdiction Lokayukta.

18. The writare allowedbut in the circumstanceswith no orderas petitionsto costs.Theapplicationsare disposedof

The Lokayukta'sthree applications(CMNos. 4290, 13761 and 13760of2010)

19. Thesethreeapplicationsare by the Lokayukta,one in eachwritpetition,seekingthe peraiissionof this Courtto address argumentson the issue ofof theIn 5ofthein the first writjurisdiction Loiiayukta. para application

petitionby R.K.Saxena,the Lokayuktaexpressesa "concern"that "in thepresentwrit petitionthe endeavourof the petitionerappearsto be to curtailand restrict the functioningandjurisdictionof the Lokayukta in the areas inwhich it is entitled to operate by purportingto keep off large segmentof'Public Functionaries' who are otherwise subject to the jurisdiction of theLokayukta."A similarconcernis expressedin the other two applicationsinwhich the Lokayuktahas prayed for permissionfor "being impleadedas aparty"or to addressthe Courton the issueofjurisdiction.

20. Mr. Maninder Singh, learned Senior counsel appearing for theLokayulcta submitted that under the provisions of the DLAU Act, theLokayuktais performingan investigativefunctionand not an 'adjudicatory'function. The impugned order datedFebruary 2010 passed by the on his ownwas not to be construed as anLokayuktaruling jurisdictionexercise by the Lokayuktaof an 'adjudicatory'function; only where anauthoritydischarged'adjudicatory'functionswould the rule ofimpartialityget attracted.In otherwords, as long as the Lokayuktawas only performingan investigativefunctionunder the DLAU Act the Lokayuktacould not besaid to have ceasedto be impartialonly becausethe Lokayuktasoughtto beimpleadedand heardin apendingdisputebetweentwo partiesarisingout ofan orderpassedby the Lokayukta.Mr. Singhsubmittedthat in seekingto beheardin thesewritpetitionsin supportofhis own order,the Lokayuktawasperforminga 'duty' entrustedto him by the DLAU Act and was carryingforth the mandate of the DLAU Act. The Lokayuktawas only seekingtoassist the Court in interpretingthe provisions of the DLAU Act on animportantquestionof jurisdictionof the Lokayuktawhich would have

W.P.(CjNos.1136,3342&334Sof2010 '

Page12of21

bearingon complaintsof similarnaturein future.Mr. Singhsubmittedthatincouldwith one doing so the Lokayukta not be seen as aligninghimselfsideanothereven if beforethe were against Lokayuktathey partiesopposedto each other, and continue to be in the writ petitions. Mr. Singh submittedthat the office of the Lokayukta was occupied by person of considerablejudicial experience who was expected to act impartially and that thisimpartialitywould in no way be affectedby the filing of these applicationsseekingthatthe Lokayuktabe heardbeforethis Courtin supportofhis ownorder.

21. Mr.reliedthe decisionofthe DivisionBenchofthis Courtin SinghuponLokayuktav. Govt. of NCT of Delhi {supra). The said decisiondoes notdecide the issue of the locus of the Lokayukta to participate in proceedingsin whichthe orderof the Lokayuktais under challenge.However,accordingto Mr. Singh, the fact that this Courtentertaineda writ petitionfiled by theLokayuldato challengethe order of learned Single Judge of this Courtimpliedthatthis Courtrecognisedthe locusofthe Lokayuktato petitionthisCourt to be heard in matterwhich was being inquiredby him. Referencewas made by Mr. Singhto the decisionofthe SupremeCourtin InstitutionofA.P. Lokayuktav. T. RamaSubbaReddy (1997) 9SCC 42. One ofthefirstappealsin the batchin whichthe saiddecisionwas renderedwas by theLokayuktaof Andhra Pradesh challengingan order of the High Court ofAndhraPradesh.The said decisiondid not decidethe questionwhethertheLokayuktahad the locusstandito petitionthe High Courtor SupremeCourtin the samematterin whichthe Lokayuktahad takenaview. Still,according

to Mr. Singh, the locus standi was impliedly recognised by the SupremeCourt.

22. Learned counsel for the writ petitioners expressed reservations on thefiling of these applicationsby the Lokayukta.They submittedthat these hadto be viewed as abandonment by the Lokayukta of objectivity andimpartiality.They displayed "affection" of the Lokayukta to his point ofview which he wanted to support before this Court. They submitted thathaving passed the order dated 5'^ February 2010 taking view on thequestionof jurisdiction,the Lokayuktashould not be concernedwith whathappens to that order when challengedat the next level. Counsel for thesubmittedthattheneithernorcomplainants complainantssupported opposedthe applicationsof the Lokayukta.

23. This Court begins the discussionof the question raised with certainpreliminary observations.Usually when the decision of an authority ischallengedin awritpetitionby the personaggrieved,the authorityoughtnotto be made partyto such proceedings.This was explainedby the SupremeCourtinSavitriDevi v. DistrictJudge, Gorakhpur(1999)2 SCC577whereit observed: (SCC, pp 582-583)

"14. Before partingwith this case it is necessaryfor us to point outone aspectofthe matterwhichis ratherdisturbing.In the writpetitionfiled in the High Court as well as the SpecialLeave Petitionfiled inthis Court,the DistrictJudge, Gorakhpurand the 4'^ AdditionalCivilJudge (JuniorDivision)Gorakhpurare shown as respondentsand intheLeave Petition are shown as Specialthey contestingrespondents.one aspectofthe matterwhichis ratherdisturbing.In the writpetitionfiled in the High Court as well as the SpecialLeave Petitionfiled inthis Court,the DistrictJudge, Gorakhpurand the 4'^ AdditionalCivilJudge (JuniorDivision)Gorakhpurare shown as respondentsand intheLeave Petition are shown as Specialthey contestingrespondents.There was no necessity for impleading the judicial officers whoofthe matterin acivilwhenthe writwasofthe matterin acivilwhenthe writwasdisposedproceedingpetition

W.P.(C)Nos. 1136,3342&3345of2010

filed in the High Court; nor is there any justification for impleadingthem as parties in the Special Leave Petition and describing them ascontesting respondents. We do not approve of the course adopted bythe petitioner which would cause unnecessary disturbance to thefunctions of the concerned judicial officers. They cannot be in anyway equatedto the officialsof the Government.It is high timethat thepracticeof impleadingjudicial officersdisposingof civil proceedingsas parties to writ petitions under Article 226 of the ConstitutionofIndia or SpecialLeave Petitionsunder Article 136 of the Constitutionof India was stopped. We are strongly deprecating such practice."

The above decision was followed by this Court in UPSC v. Shiv Shambhu2008 IX AD (Del) 289 and Sat Prakash Rana v.The Lieutenant GovernorAIR 2010 Del 100.

24. To return to the present cases, the Lokayukta whose order is underchallenge by way of these applications is seeking to intervene or beimpleadedto be heard to supporthis order on the questionofjurisdiction.And while the prayeris opposedby one ofthe partiesto the disputebeforethe Lokayukta,the other neither supports nor opposes the prayer of the No has been cited where similar wasLokayukta. precedent requestentertainedby Court. The submissionis that since the decision of theLokayukta under challenge is not an instance of 'adjudication, theLokayukta is, by asking to be impleaded and heard, not abandoningimpartialityandneutrality.

25. Given the above submission,this Court is first requiredto examinethenature of the function thein his dischargedby Lokayukta decidinguponjurisdiction.The Lokayuktaperforms myriad functions, not all of whichW.P.{C)Nos.1136,3342&3345of2010Page15of21

partakethe characterofan 'adjudication'ofa dispute(lis).AdecisionoftheLokayukta,say, to terminatethe servicesof an employeecan be challengedbefore court and the Lokayuktawould have to defend such decision.Thewouldinthat instancebe bothaandtotheLokayukta necessary properpartydispute. In another role, the Lokayukta could frame its own rules ofprocedure.These couldbe challengedon the groundthatthey are ultravirestheoftheunderthe DLAUAct. In suchthe powers Lokayukta disputeagainwill be both aand There beLokayulcta necessary proper party. may yetanother instance where at the next level in the judicial hierarchy where adispute concerningthe powers and functionsofthe Lokayuktais involved,the courtin questionmay on its own requirethe Lokayuktato appearbeforethe court and assistit in the interpretativeexercise.However,the contextinthese cases is different. In none of these cases has the Lokayuktataken suomotu notice of any acts of corruption against any of the petitioners.Therefore,that contextneed not be examinedby this Court.Also, this Courthas notrequiredtheLokayuktato assistit.

26. When, as in each ofthe presentthree cases, complaintis filed beforethe Lokayuktaallegingthat person is guilty of corruption,there are two the and the areparties: complainant person complained against, theynecessarilyplaced in an adversarialpositionbefore the Lokayukta.In thecourse of the pendencyof such complaint,the Lokayuktamight be called to take adecision on several issues at the Forupon interlocutorystages.instance on theoflimitationand so on. preliminaryquestion jurisdiction,The decisionthatthetakeson these issuescannotbe termedas Lokayuktadischargeof apurely 'investigative'functionof the Lokayuktaunder the

DLAU Act. Such decision is an instance of exercise of an 'adjudicatory'function.

27. The test is fairly straightforward in the context where the personcomplainedagainst objectsto the jurisdictionof the Lokayuktato entertainthe complaint and the complainantnaturally contends to the contrary.Byacceptingthe contentionof one side and negativingthat of the other theLokayukta 'decides'the issue of jurisdiction in favour of one party andagainst another. It is decisionthereforein lis that is by its very natureadversarial. It cannot but be termed as an adjudication of that issue, althoughat preliminarystage.It is decisionamenabletojudicialreview.

28. Even assuming,as urged by learnedSenior counsel for the Lokayukta,that the order dated 5'*^ February2010 passed by the Lokayuktais not an'adjudication',it still does not relievethe Lokayuktafrom the duty to beseen to be impartialeven in the dischargeofsuch function.The backgroundto the enactment of the DLAU Act was the Report of the AdministrativeReformsCommissionon "Problemsof Redressof Citizens' Grievances".Inpara25 ofthe saidReportthe essentialqualitiesofthe officeofaLokPal orLokayuktawere identifiedthus:

"(a)They shouldbe demonstrablyindependentand impartial.

(d) Theirstatus shouldcomparewith the highestjudicialfunctionariesin

the country.

(e)..."

W.P.(C)Nos.1136,3342&3345of2010

That 'impartiality'figureshigh inthe listof desiredqualitiesof Lokayuktais an indication of the value attached to this feature which perhaps isessential of any fair and independent decision-making body.

29. The Preamble and other provisions of the DLAU Act reflect thelegislative intent that the office of Lokayukta should be occupied by awhose ofwouldlendperson weight judicialexperience by itself credibilityto the office and there could be no doubt about the impartiality of the personthat office. Since this office was entrustedwith tooccupying being powersinquire into complaints of corruption against high 'public functionaries'includingthe Chief Minister, the Ministers and the MLAs, apart for theChairman, Vice-Chairman and Managing Director of state ownedcorporations, it was to be handled with independence, sensitivity,competenceand impartiality.This was expectedto pervadeall the functionsdischargedby the Lokayuktanot restrictedto the actualdecision-makingin aUs.

30. The positionis explainedin some detail in 'AdministrativeLaw' by PPCraig(FifthEdition,Sweet&Maxwell,2003,pp 452-453):

"...Thevital point, broughtout forcefullyby Fuller,is thatjustas adjudicationis distinguishedby the form ofparticipationthatitconfers,so are othertypesofdecision making,andjustas thenature of adjudicationshapes the proceduresrelevant to itsdecisionalform, so do other speciesofdecisionmaking. Ninemodes of decision making are listed by Fuller; mediation;property;voting;custom;law officiallydeclared,adjudication,contract;managerialdirection;and resortto chance.as adjudicationis distinguishedby the form ofparticipationthatitconfers,so are othertypesofdecision making,andjustas thenature of adjudicationshapes the proceduresrelevant to itsdecisionalform, so do other speciesofdecisionmaking. Ninemodes of decision making are listed by Fuller; mediation;property;voting;custom;law officiallydeclared,adjudication,contract;managerialdirection;and resortto chance.

W.P.{C)Nos. 1136,3342&3345of2010

In each of these instances the relationship between the type ofdecision making, and the procedural rules, attendant thereon,can be presentedin the followingmanner.The proceduralruleswill be generated by, and will protect the integrity of, the typeof decision making in issue. For example, adjudication is onespecies of decisionmaking. The rule againstbias is generatedby this type of decisionmaking. It would be inconsistentwithour idea of what judging means to allow the decision to bemade by one who was biased.In this sense,the proceduralrule meanis there to protect the integrity of what we byadjudication.It is equallythe case that if we demand that anagency uses adjudicatoryprocess rights then we are indirectlyforcing it to make its decision by adjudicationrather than bysome other means.

The relevance of this can be simply stated. There may well be aresituations when the procedures modelled on adjudicationnot the most effective or appropriate, and where safeguardsdevelopedagainstthe backdropof differenttype of decisionmaking may be more efficaciousand apposite.The emergenceof fairnessmay help us towardsa realisationof this. The point

is well put by Macdonald:

'Rather than ask what aspects of adjudicativeprocedures can be grafted onto this decisionaltribunalsmust ask: what is theprocess reviewingnature of the processhere undertaken,what modeofparticipationby affectedpartiesis envisionedbysuch decisional and what process, specificproceduralguidelinesare necessaryto ensure theefficacy of that participationand the integrityoftheunderreview?'"process

31. The expectation,writ largein the DLAU Act, is thatthe Lokayuktawill

at all times be seen to be impartial,in the dischargeofthe myriadfunctions

of that office. Normally, once the Lokayuktahas taken decision in

pendingdispute,whether on the questionof jurisdictionor otherwise theW.P.{C]Nos. 1136,3342&3345of2010°

Lokayuktashould not seek to 'defend' such decisionwhen it is challengedbefore Court. It is possible in given case where the Lokayuktahas nottaken view one way or the other, and the question say on the jurisdictionand of thearises beforethe Court inwhere powers Lokayukta proceedingsthe Lokayukta's decisionis challenged,the Court can invitethe Lokayuktato address the Court on such question.But that is not the situation here. TheLokayuktais seeking permissionto be impleadedin order to be heard insupportofthe decisionthat has been challenged.The writ petitionerwho isaggrieved by the Lokayukta'sdecision and has therefore challenged it,suchforopposesrequestbytheLokayukta impleadment.

32. No authority can expect that its decisionswould not be vulnerabletochallenge. Fallibility is inherent to decision-makingat any level. Andultimately,in the appellateladder,the challengeto correctnessof decisionshas to stop somewhere.Justas the taskofchallengingadecision,renderedina Us at the interlocutoryor final stage, in the higher forum is left to thepersonaffectedby suchdecision,the taskofdefendingsuchdecisionshouldbe left to the party in whose favour such decisionhas been rendered.TheLokayukta, or for that matter any decision-maker,should not take thatburdenon itselfThe Lokayukta,as much as the partiesto the Us beforetheLokayukta, has to accept the final verdict of the higher forum on thecon-ectnessofhis decision.Thatis the unwrittenpremiseon whichthe entirehierarchicallegalsystemfunctions.In the consideredviewofthis Court,theLokayuktacannot, in the facts and circumstances,be 'impleaded' or bepermittedto be heard in the writ petitionsin supportof its orders underchallenge.

33. The applications are dismissed.

NOVEMBER 22, 2010

S. MURALIDHAR,J