OFFICE OF THE ODISHA LOKAYUKTA versus DR. PRADEEP KUMAR PANIGRAHI AND OTHERS on 23 February 2023

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SUPREME COURT REPORTS

[2023] 2 S.C.R.

AOFFICE OF THE ODISHA LOKAYUKTA

v.

DR. PRADEEP KUMAR PANIGRAHI AND OTHERS

(Civil Appeal No(s).1384-85 of 2023)

BFEBRUARY 23, 2023

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Odisha Lokayukta Act, 2014 – s.20(1), 25, 28 – Order passedby the appellant, in exercise of power conferred u/s.20(1), directingto conduct preliminary inquiry against respondent no.1 – Set asideCby High Court –Held: High Court passed the impugned order settingaside the order of the appellantwithout affording it an opportunityof hearing and thus, is in violation of the principles of natural justice– Even on merits, High Court completely overlooked s.20(1) thatempowers the Lokayukta, on receipt of a complaint, in its discretionDif intended to proceed and to hold any inquiry, can conductpreliminary inquiry against a public servant by its wing or any otheragency – So far as the term ‘any agency’ is concerned, it clearlymanifests from s.25 which entrusts the power of superintendence tothe Lokayukta to exercise in such a manner so as to require anyagency, including the State Vigilance and Crime Branch – Also, u/Es.28 for the purpose of conducting any preliminary inquiry orinvestigation, it is open for the Lokayukta to utilize the services ofany officer or organization or investigation agency of theGovernment – Thus, in the present case, if the appellant conducteda preliminary inquiry through an agency of the Government of whichFreference has been made u/s.28 through the Directorate of Vigilance,Cuttack, there is no legal infirmity committed by the appellant –Decision-making process in conducting the preliminary inquiry waswithin the scope and ambit of s.20(1)–Judgment of High Court andthe review order are set aside.

GAdministrative Law– Rule against Bias – Held: Rule againstbias ensures a fair procedure by excluding decision makers whoare tainted by bias – Under the rule, actual bias is disqualifyingeven though it is prohibitively difficult to establish – Justice mustnot only be done but must also appear to be done – In the presentcase, the Officer who submitted the complaint was simply anH

informant and not the person interested, at the same time, preliminaryenquiry was conducted by a different officer not connected withauthor of the complaint – Thus, the plea of bias is ill-founded –Odisha Lokayukta Act, 2014.

Allowing the appeals, the Court

HELD: 1.1 The aim to the rule of natural justice is to securejustice or to put it negatively, these rules can operate only inareas not covered by any law validly made. Before any actioncould have been taken by the Directorate of Vigilance inconducting a preliminary enquiry, a writ petition was filed byrespondent no.1 before the High Court and on the first motionstage, the High Court, without affording an opportunity of hearingto the appellant, set aside the order dated 11th December, 2020passed by the appellant for conducting a preliminary inquiry. TheDivision Bench of the High Court has committed a manifest errorin passing of the order impugned while setting aside the order ofthe appellant dated 11th December, 2020 to conduct a preliminaryinquiry against respondent no.1 in exercise of powers underSection 20(1) of the Act, 2014 which is in violation of the principlesof natural justice. [Paras 25, 26, 27][572-F-H; 573-B-C]

1.2 Even on merits, the Division Bench has completelyoverlooked Section 20(1) of the Act, 2014 that empowers theLokayukta, on receipt of a complaint, obviously after recordingsatisfaction, in its discretion if intended to proceed and to holdany inquiry, can conduct either a preliminary inquiry against apublic servant by its inquiry wing or any other agency to ascertainwhether there exists a prima facie case for proceeding in thematter or hold investigation by any agency or authorityempowered under any law to investigate whether there exists aprima facie case. So far as the term ‘any agency’ is concerned, itclearly manifests from Section 25 of Chapter VIII which entruststhe power of superintendence to the Lokayukta to exercise insuch a manner so as to require any agency, including the StateVigilance and Crime Branch. [Paras 28, 29][573-D-E]

1.3 At the same time, under Section 28, for the purpose ofconducting any preliminary inquiry or investigation, it is open for A

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Athe Lokayukta to utilize the services of any officer or organizationor investigation agency of the Government and, in thecircumstances, if the appellant in its judicious discretion and onthe facts and circumstances of the case, conduct a preliminaryinquiry through an agency of the Government of which referencehas been made under Section 28 through the Directorate ofBVigilance, Cuttack, there appears no legal infirmity beingcommitted by the appellant in the decision-making process inconducting a preliminary inquiry whichwas within the scope andambit of Section 20(1) of the Act, 2014 and a manifest error wascommitted by the Division Bench of the High Court while settingCaside the order of the appellant dated 11th December, 2020 toconduct an inquiry against respondent no.1. [Para 30][573-F-H;574-A]

1.4 Although this Court may not appreciate the action ofthe appellant in taking further steps when there was stay of theDorder impugned passed by this Court, but at the same time, anopportunity was granted to the respondents as well to justify ifthe action taken by the appellant is not in conformity with themandate of the Act, 2014, but from the written submissions placedbefore this Court, no valid objection was found to have beenraised by the respondents which may call upon this Court toEinterfere in furtherance of the action being taken by the appellantafter the preliminary inquiry report was submitted pursuant toorder dated 11th December, 2020.[Para 33][574-D-F]

1.5 The rule against bias is an essential component ofmodern administrative law. The rule against bias ensures a fairFprocedure by excluding decision-makers who are tainted by bias.Under the rule, actual bias is disqualifying even though it isprohibitively difficult to establish. The basic principle underlyingthe time-tested rule is that justice must not only be done butmust also appears to be done. In the instant case, the complaintGwas made by the Deputy Superintendent of Police of theDirectorate of Vigilance, who is, directly or indirectly, notconcerned with the complaint, he can be said to be an informantto the office of the appellant and that apart, a preliminary inquirywas conducted independently by a senior officer of the Directorateof Vigilance, Additional Superintendent of Police who submittedH

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his report of the preliminary inquiry. The question of bias in theinstant facts and circumstances does not arise at all. Further, ifthe order of the appellant directing the Directorate of Vigilanceto conduct the preliminary inquiry in exercise of power underSection 20(1) of the Act, 2014 has been set aside by the HighCourt, obviously,the appellant is a person aggrieved and cancertainly question the legality/validity of the judgment of the HighCourt impugned by invoking jurisdiction of this Court underArticle 136 of the Constitution.The judgment of the High Courtand the review order are set aside.[Paras 35, 37, 42 and 43][575-C; 578-D-F; 581-B-D]

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Ashok Kumar Yadav and others vs. State of Haryanaand others 1985 (4) SCC 417 : [1985] 1 Suppl. SCR657; Mukesh Singh vs. State (Narcotic Branch of Delhi)2020 (10) SCC 120 : [2020] 9 SCR 245– followed.

National Commission for Women vs. State of Delhi andanother 2010 (12) SCC 599 : [2010] 10 SCR 905; M.S.Kazi vs. Muslim Education Society and others 2016 (9)SCC 263 : [2016] 4 SCR 80 – held inapplicable.

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A.K. Kraipak and others vs. Union of India and others1969 (2) SCC 262 : [1970] 1 SCR 457 – relied on.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1384-1385 of 2023.

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From the Judgment and Order dated 03.02.2021 of the High Courtof Orissa at Cuttack in WP (C) No.3488 of 2021 and dated 05.04.2021in RVWPET No.45 of 2021.

Ravindra Shrivastav, Sr. Adv., Arjun Garg, Aakash Nandolia, Ms.Sagun Srivastava, Ms. Sanya Shukla, Devangna Singh, Advs. for theAppellant.

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APitamber Acharya, Sr. Adv., Apoorve Karol, Lakshay Sharma,Mithu Jain, Shibashish Misra, Advs. for the Respondents.

The Judgment of the Court was delivered by RASTOGI, J.

B1. Leave granted.

2. The instant appeals are directed against the judgment dated 3[rd]February, 2021 passed by the Division Bench of the High Court of Orissaat Cuttack setting aside Order dated 11[th] December, 2020 passed by theOdisha Lokayukta initiating to conduct a preliminary inquiry in exerciseCof power conferred under Section 20(1) of the Odisha Lokayukta Act,2014 (hereinafter being referred to as the “Act 2014”) on a complaintdated 9[th] December, 2020 received from Mr. Ranjan Kumar Das, DeputySuperintendent of Police, Vigilance Cell Unit, Bhubaneswar indicatingthe alleged corruption against respondent no. 1 who is the elected Memberof the Legislative Assembly of Gopalpur Constituency directing theDDirectorate of Vigilance, Cuttack to conduct a preliminary inquiry andsubmit a report to the Lokayukta.

3. The review petition filed at the instance of the appellant on thepremise that Odisha Lokayukta was never heard and no opportunity ofhearing has been afforded before passing of the impugned Order datedE3[rd] February, 2021 and it was in violation of the principles of naturaljustice, came to be dismissed by passing a non-speaking Order dated 5[th]April, 2021.

4. Respondent no. 1 is an elected Member of the LegislativeAssembly. Mr. Ranjan Kumar Das, the then Deputy Superintendent ofFPolice, Vigilance Cell Unit, Bhubaneswar, made a complaint dated 9[th]December, 2020 indicating serious allegations of alleged corruption againstMember of the Odisha Legislative Assembly of Gopalpur Constituency.Along with the complaint, supporting documents were also annexed.The Odisha Lokayukta, after taking into consideration the contents ofthe complaint and the supporting documents annexed thereto, in exerciseGof power conferred under Section 20(1) of the Act, 2014 directed theDirectorate of Vigilance, Odisha, Cuttack to conduct a preliminary inquiryagainst respondent no. 1 and submit a report within two months with afurther direction that the Directorate of Vigilance must ensure that duringpreliminary inquiry, the mandate of Section 20(2) has to be compliedH

with and further directed the Office of Lokayukta to make available allthe relevant record to the Directorate of Vigilance for compliance.

5. Immediately on a reference made by the Odisha Lokayukta byits Order dated 11[th] December, 2020 directing the Directorate of Vigilanceto conduct a preliminary inquiry against respondent no. 1 and callingupon the report, came to be challenged by respondent no. 1 by filing writpetition before the High Court under Article 226 of the Constitution.Although the Office of Lokayukta was impleaded as one of respondentbefore the High Court but as informed to this Court, no notice was issuedto them and on the first date of hearing, without even affording opportunityof hearing to the appellant to submit their written response, the DivisionBench of the High Court under Order dated 3[rd] February, 2021 proceededon the premise that entrusting Directorate of Vigilance to conductpreliminary inquiry is not in terms of the mandate of Section 20(1) andset aside the Order dated 11[th] December, 2020 with a liberty to theLokayukta to conduct preliminary inquiry, if so advised, againstrespondent no. 1 by the inquiry wing of the Lokayukta with a furtherliberty to proceed in conformity with the requirements of Sections 20(2)and 20(3) after the preliminary report being furnished by the inquirywing of the Lokayukta.

6. A review filed by the Lokayukta against the Order impugneddated 3[rd] February, 2021 came to be dismissed by a non-speaking orderdated 5[th] April, 2021 which is a subject matter of challenge in the appealsbefore us.

7. Learned counsel for the appellant submits that the orderimpugned dated 3[rd] February, 2021 is in violation of the principles ofnature justice and the finding has been recorded without affording anopportunity of hearing to the appellant and that apart, it is not in conformitywith the mandate of Section 20(1) of the Act 2014.

8. Learned counsel further submits that Section 20(1) provides anoption to the Lokayukta, who, on receipt of a complaint, if order to holda preliminary inquiry against any public servant, may conduct either byits enquiry wing or by any agency to ascertain as to whether there existsany prima facie case for proceeding in the matter any further. If therelevant provisions of the Act are being looked into, particularly ChapterVIII of the Act 2014, any agency as referred to under Section 25 includesthe State Vigilance and Crime Branch for the purpose of conducting AB

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Apreliminary inquiry or investigation, as the case may be, and that is furtherstrengthened by the procedure for conducting a preliminary inquiry orinvestigation envisaged under Section 28 wherein it is open for theLokayukta to conduct preliminary inquiry or investigation through theagency of the Government. In the given facts and circumstances, thefinding which has been recorded by the Division Bench of the HighBCourt that entrusting to conduct preliminary inquiry by the Directorateof Vigilance under Order dated 11[th] December, 2020 is not in conformitywith the Act 2014, needs to be interfered with by this Court.

9. Learned counsel further submits that calling upon the inquirywing or any agency to conduct a preliminary inquiry is only for a limitedCpurpose to ascertain whether there exists prima facie case to proceed inthe matter. The Legislature was conscious of the fact that if it maycause any prejudice to the incumbent against whom the prima faciecase has been registered and before any further action is being taken orto make any recommendation to proceed either to conduct investigationDor initiate a departmental inquiry, it is incumbent upon the Lokayukta toafford an opportunity of hearing to the public servant as referred tounder Sections 20(2) and 20(3) of the Act, 2014. A complete inbuiltprocedure has been prescribed under Chapter VII for conductingpreliminary inquiry and investigation within the powers of the Lokayukta.Chapter VIII prescribes not only the purpose of conducting preliminaryEinquiry and investigation but also in reaching to a final conclusion even atthe stage of registering of the charge-sheet as referred to under Section20(8) of the Act, 2014.

10. Learned counsel further submits that no adverse or prejudicialaction was taken by the appellant in initiating to conduct a preliminaryFinquiry under its Order dated 11[th] December 2020, thus the interferencemade by the High Court, at this stage, in exercise of its jurisdiction underArticle 226 of the Constitution of India was neither valid nor justified.

11. Per contra, learned counsel for the respondents, on the otherhand, submits that a complaint was made by the Deputy SuperintendentGof Police, Vigilance Cell, Bhubaneshwar dated 9[th] December, 2020, whowas the Officer of Directorate of Vigilance, Cuttack, Odisha, Cuttackand direction was given to the Directorate of Vigilance, Odisha to conducta preliminary inquiry by Order dated 11[th] December, 2020, the decisionitself was in violation of the principles of natural justice. Once theHcomplaint was made by the officer of the Directorate of Vigilance, at least entrusting the preliminary inquiry to be conducted by another Officerof the Directorate of Vigilance, may be senior in the ladder, was notlegally justified. The Officer of the Department has made a complainton 9[th] December, 2020 and other officer is called upon to conduct apreliminary inquiry as stated that one cannot be a judge in its own causeand that being the reason, the Division Bench of the High Court haspermitted the Lokayukta to conduct an inquiry by the inquiry wing of theLokayukta and administrative bias can’t be ruled out of the Directorateof Vigilance who is to conduct a preliminary inquiry.

12. Learned counsel further submits that since the respondentswere duly represented and the Advocate General of the State appearedalong with the State counsel, opportunity of hearing was afforded to theappellant and plea of the principles of natural justice as prayed for by theappellant being violated, in the facts and circumstances, does not holdgood. That apart, review petition came to be rightly dismissed as theappellant failed to justify any manifest error being committed by theDivision Bench of the High Court under its Order dated 3[rd] February,2021 which may call for our interference.

13. It may be noticed that while issuing notice by this Court on23[rd] April, 2021, operation of the impugned order was stayed. Infurtherance of the stay granted by this Court, it is informed that theappellant has proceeded further and after the preliminary inquiry reportbeing submitted to the Lokayukta by the Officer Shri P.K. Naik on 28[th]May, 2021 and after affording opportunity of hearing to the appellant, adetailed Order was passed by the Lokayukta under Section 20(3)(a)dated 27[th] September, 2021 directing the Directorate of Vigilance tocarry out investigation. In furtherance thereof, Directorate of Vigilancesubmitted a detailed report of investigation to the Lokayukta on 7[th] June,2022, however, no further action has been initiated and awaiting ordersof this Court which is indicated in the order dated 24[th] June, 2022 placedon record along with IA No. 89629 of 2022.

14. We have heard learned counsel for the parties and with theirassistance perused the material available on record.

15. Before we proceed to examine the question raised in the instantappeals, it may be apposite to first take a bird’s eye view of the Schemeof the Act, 2014.

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A16. The Act, 2014 has been enacted by the legislature of the Stateof Odisha having been assented to by the President on the 16[th] January,2015 with an object to provide for the establishment of the body ofLokayukta for the State of Odisha to inquire into allegations of corruptionagainst public functionaries and for matters connected therewith orincidental thereto. The Act is applicable to the public servants of theBState of Odisha serving in and outside the State and the public servantsunder the control of Government of Odisha.

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17. A ‘complaint’ has been defined under Section 2(d), and theterm ‘preliminary inquiry’ and ‘public servant’ under Sections 2(l) and2(n) of the Act 2014 which are stated as follows:-C

“2. (1) In this Act, unless the context otherwise requires,—

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(d) “complaint” means a complaint, made in such form as may beprescribed, alleging that a public servant has committed an offenceDpunishable under the Prevention of Corruption Act,1988; ……

(l) “preliminary inquiry” means an inquiry conducted under thisAct; E……

(n) “public servant” means a person referred to in clauses (a) to(h) of sub-section (1) of section 14 but does not include a publicservant in respect of whom the jurisdiction is exercisable by anycourt or other authority under the Army Act, 1950, the Air ForceFAct, 1950, the Navy Act, 1957 and the Coast Guard Act, 1978 orthe procedure is applicable to such public servant under thoseActs;

…….”.

18. Chapter VII prescribes the procedure in respect of preliminaryGinquiry and investigation, the relevant part of which is reproduced asunder:- “20. (1) The Lokayukta, on receipt of a complaint, if it decides toproceed further, may order—

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(a) preliminary inquiry against any public servant by its InquiryWing or any agency to ascertain whether there exists a primafacie case for proceeding in the matter; or (b) investigation by any agency or authority empowered underany law to investigate, where there exists a prima facie case:

Provided that any investigation under this clause shall beordered only if in the opinion of the Lokayukta there is substantialmaterial relating to the existence of a prima facie case or anyearlier statutory investigation or enquiry regarding the samecomplaint reveals that a prima facie case exists:

Provided further that before ordering an investigation underthis clause, the Lokayukta shall call for the explanation of thepublic servant and views of the competent authority, so as todetermine whether there exists a prima facie case for investigation:

Provided also that a decision to order investigation underthis clause shall be taken by a bench constituted by the Chairpersonunder section 16.

(2) During the preliminary inquiry referred to in sub-section (1),the Inquiry Wing or any agency shall conduct a preliminary inquiryand on the basis of material, information and documents collected,seek the comments on the allegations made in the complaint fromthe public servant and competent authority and after obtaining thecomments of the concerned public servant and competent authority,submit, within sixty days from the date of receipt of the reference,a report to the Lokayukta.

(3) A bench consisting of not less than three Members of theLokayukta shall consider every report received under sub-section(2) from the Inquiry Wing or any agency and after giving anopportunity of being heard to the public servant, decide as towhether there exists a prima facie case, and makerecommendations to proceed with one or more of the followingactions, namely:

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(a) investigation by any agency (including any specialinvestigation agency); A

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(b) initiation of the departmental proceedings or any otherappropriate action against the concerned public servant by thecompetent authority; A

(c) closure of the proceedings against the public servant andtake action to proceed against the complainant under section46.

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(4) The promotion and other service benefits of a public servantmentioned in clauses (e) to (h) of sub-section (1) of section 14shall not be affected until the public servant is put under suspensionon recommendation of the Lokayukta under section 32 or chargeCsheet is filed after completion of investigation under clause (a) ofsub-section (3) or a charge memo is issued against the said publicservant in a disciplinary proceeding initiated on the recommendationof the Lokayukta under clause (b) of sub-section (3).

(5) Every preliminary inquiry referred to in sub-section (1) shallDordinarily be completed within a period of ninety days and forreasons to be recorded in writing, within a further period of ninetydays from the date of receipt of the complaint.

(6) In case the Lokayukta decides to proceed to investigate intothe complaint, it shall, by order in writing, direct any investigatingEagency (including any special agency) to carry out the investigationas expeditiously as possible and complete the investigation withina period of six months from the date of its order:

Provided that the Lokayukta, for the reasons to be recorded inwriting, may extend the said period by a further period not exceedingFsix months at a time and for the maximum period of two years.

(7) Notwithstanding anything contained in section 173 of the Codeof Criminal Procedure, 1973, any investigating agency (includingany special agency) shall, in respect of cases referred to it by theLokayukta, submit the investigation report to the Lokayukta.

G(8) A bench consisting of not less than three Members of theLokayukta shall consider every report received by it undersub-section (7) from any investigating agency (including any specialagency) and may, decide as to—

(a) filing of charge-sheet or closure report before the SpecialHCourt against the public servant; (b) initiating the departmental proceedings or any otherappropriate action against the concerned public servant by thecompetent authority.

(9) The Lokayukta may, after taking a decision under sub-section(8) on the filing of the charge sheet, direct its Prosecution Wing toinitiate prosecution in a Special Court in respect of casesinvestigated by any investigating agency (including any specialagency).

…..”

19. Section 20 provides an inbuilt mechanism laying down theprocedure to be followed in holding preliminary inquiry and investigationwhich the Lokayukta, in the facts and circumstances, on receipt of acomplaint may decide - either order for conducting preliminary inquiryagainst the public servant by its inquiry wing or any agency to ascertainwhether there exists a prima facie case for proceeding in the matter; ordirect to hold an investigation by any agency or authority empoweredunder any law to investigate, to record its satisfaction whether thereexists a prima facie case.

20. Sub-sections (2), (3) and (4) provide the procedure which hasto be followed by the inquiry wing or any agency which has been askedto ascertain the fact as to whether there exists prima facie case forproceeding in the matter. Such report is placed before a Bench consistingof not less than three members of the Lokayukta to consider the sameunder sub-section (2) from the inquiry wing or any agency and afteraffording an opportunity of being heard to the public servant, mayrecommend to proceed with one or more of the actions as providedunder Clauses (a), (b) or (c) of sub-section (3) to hold departmentalaction against the public servant. Sub-section (5) prescribes the timeschedule of 90 days under which preliminary inquiry has to be concluded.Sub-section (6) provides the action to be taken to carry out theinvestigation as expeditiously as possible and complete the investigationwithin a period of six months. Under sub-section (7), notwithstandinganything contained in Section 173 of the Code of Criminal Procedure,1973, the investigating agency may submit the investigation report to theLokayukta. Sub-sections (8) and (9) provide the procedure to be followedafter investigating agency has submitted its report for taking further action.

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A21. Chapter VIII provides the power of the Lokayukta. UnderSection 25, the power of superintendence and direction over theinvestigating agency including the State Vigilance and Crime Branch inrespect of the matters in so far as they relate to the investigation madeby such agency has been entrusted to Lokayukta.B22. Section 27 clarifies that for the purpose of any preliminaryinquiry, the inquiry wing of the Lokayukta holds powers of a civil Court,under the Code of Civil Procedure, 1908 and any proceedings beforethe Lokayukta shall be deemed to be a judicial proceeding within themeaning of Section 193 of the Indian Penal Code, 1860.

23. Section 28 authorise the Lokayukta to conduct any preliminaryCinquiry or investigation and utilize the services of any officer ororganization or investigation agency of the Government.

24. The Act, in fact, is a complete code putting in place theprocedure under which the Lokayukta under the Act, 2014 within itsterritorial jurisdiction holds the authority to adopt a mechanism in referenceDto public servants of the State of Odisha serving in and outside the Stateand the public servants under the control of Government of Odisha toinquire into allegations of corruption against the public functionaries andfor matters connected therewith or incidental thereto.

25. Mr. Ranjan Kumar Das, Deputy Superintendent of Police,EVigilance Cell Unit, Bhubaneswar was not a person interested but as aninformant submitted a complaint against respondent no. 1 (MLA GopalpurConstituency) to Odisha Lokayukta regarding possession ofdisproportionate assets and intentionally enriching himself illicitly adoptingmal-practices. On the said complaint being received, the appellantdirected the Directorate of Vigilance, Cuttack to conduct a preliminaryFinquiry against respondent no.1 in exercise of his power under Section20(1) of the Act, 2014 by an order dated 11[th] December, 2020. Beforeany action could have been taken by the Directorate of Vigilance inconducting a preliminary inquiry, a writ petition was filed by respondentno.1 before the High Court and on the first motion stage, the High Court,Gwithout affording an opportunity of hearing to the appellant, set aside theorder dated 11[th] December, 2020 passed by the appellant for conductinga preliminary inquiry. The action of the Division Bench of the High Courtindeed was in violation of the principles of natural justice.

26. The aim to the rule of natural justice is to secure justice or toput it negatively, these rules can operate only in areas not covered byH

any law validly made. The concept of natural justice, indeed, hasundergone a change with the passage of time, but still the time- testedrules, namely, are (i) no one shall be a judge in his own case (Nemodebet essse judex propria causa) and (ii) no decision shall be givenagainst a party without affording him a reasonable opportunity of hearing(audi alteram partem). At the same time, action of the authority mustbe held in good faith without bias and not arbitrary or unreasonable.

27. In the first instance, the Division Bench of the High Court hascommitted a manifest error in passing of the order impugned dated 3[rd]February, 2021 while setting aside the order of the appellant dated 11[th]December, 2020 to conduct a preliminary inquiry against respondentno.1 in exercise of powers under Section 20(1) of the Act, 2014 which isin violation of the principles of natural justice.

28. Even on merits, the Division Bench has completely overlookedSection 20(1) of the Act, 2014 that empowers the Lokayukta, on receiptof a complaint, obviously after recording satisfaction, in its discretion ifintended to proceed and to hold any inquiry, can conduct either apreliminary inquiry against a public servant by its inquiry wing or anyother agency to ascertain whether there exists a prima facie case forproceeding in the matter or hold investigation by any agency or authorityempowered under any law to investigate whether there exists a primafacie case.

29. So far as the term ‘any agency’ is concerned, it clearlymanifests from Section 25 of Chapter VIII which entrusts the power ofsuperintendence to the Lokayukta to exercise in such a manner so as torequire any agency, including the State Vigilance and Crime Branch.

30. At the same time, under Section 28, for the purpose ofconducting any preliminary inquiry or investigation, it is open for theLokayukta to utilize the services of any officer or organization orinvestigation agency of the Government and, in the circumstances, if theappellant in its judicious discretion and on the facts and circumstancesof the case, conduct a preliminary inquiry through an agency of theGovernment of which reference has been made under Section 28 throughthe Directorate of Vigilance, Cuttack, there appears no legal infirmitybeing committed by the appellant in the decision-making process inconducting a preliminary inquiry which, in our view, was within the scopeand ambit of Section 20(1) of the Act, 2014 and a manifest error wascommitted by the Division Bench of the High Court while setting aside AB

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Athe order of the appellant dated 11[th] December, 2020 to conduct aninquiry against respondent no.1.

31. It is not a case of the respondents that respondent no.1 is nota public servant or the Act, 2014 is not applicable to him or the Lokayuktain its jurisdiction was not competent to conduct a preliminary inquiryBunder Section 20(1) of the Act, 2014. In the given facts andcircumstances, the finding returned by the Division Bench of the HighCourt under the judgment impugned, in our view, is not legally sustainable.

32. During the course of submissions made by the parties, it wasinformed that after the stay was granted by this Court of the judgmentCimpugned dated 3[rd] February, 2021, the appellant has proceeded inconducting further inquiry and actions are being taken after the Directorateof Vigilance has submitted a preliminary inquiry report to the Lokayuktaunder Section 20(3)(a) to carry out investigation and steps are taken bythe Directorate of Vigilance in summitting a report of investigation beforethe appellant on 7[th] June, 2022.D

33. Although we may not appreciate the action of the appellant intaking further steps when there was stay of the order impugned passedby this Court, but at the same time, we granted an opportunity to therespondents as well to justify if the action taken by the appellant is not inconformity with the mandate of the Act, 2014, but from the writtenEsubmissions placed before us, we do not find any valid objection beingraised by the respondents which may call upon this Court to interfere infurtherance of the action being taken by the appellant after the preliminaryinquiry report was submitted pursuant to order dated 11[th] December,2020. Still we leave it open to respondent no.1, if further action taken byFthe appellant is not in conformity with law, he is at liberty to initiateproceedings as admissible to him under the law.

34. So far as the objection raised by the respondents regardingthe action of conducting preliminary inquiry being bias for the reasonthat the Deputy Superintendent of Police of the Directorate of VigilanceGhas submitted a complaint and the appellant directed the Directorate ofVigilance to conduct a preliminary inquiry by an order dated 11[th]December, 2020, which, in fact, was conducted by a senior officer ofthe Directorate of Vigliance i.e. Additional Superintendent of PoliceVigilance, Mr. P.K. Naik, who submitted a report to the appellant on 28[th]May, 2021 is concerned, we are not persuaded with the submission ofH

there being any bias on the part of the Directorate of Vigilance cell inconducting preliminary inquiry for the reason that the Officer whosubmitted a complaint was simply an informant and not the personinterested, at the same time, preliminary inquiry was conducted by adifferent Officer not connected with author of the complaint, thus theplea of bias was ill-founded. In our view, the principles of bias, evenremotely are not attracted in the facts and circumstances of the presentcase.

35. The rule against bias is an essential component of modernadministrative law. The rule against bias ensures a fair procedure byexcluding decision-makers who are tainted by bias. Under the rule, actualbias is disqualifying even though it is prohibitively difficult to establish.The basic principle underlying the time-tested rule is that justice mustnot only be done but must also appears to be done and this rule hasreceived wide recognition in several decisions of this Court and for ourconsideration we take note of the judgment of this Court in A.K. Kraipakand others vs. Union of India and others[1], wherein in para 15 thisCourt held as under:

“15. It is unfortunate that Naqishbund was appointed as one ofthe members of the selection board. It is true that ordinarily theChief Conservator of Forests in a State should be considered asthe most appropriate person to be in the selection board. He mustbe expected to know his officers thoroughly, their weaknesses aswell as their strength. His opinion as regards their suitability forselection to the All-India Service is entitled to great weight. Butthen under the circumstances it was improper to have includedNaqishbund as a member of the selection board. He was one ofthe persons to be considered for selection. It is against all canonsof justice to make a man judge in his own cause. It is true that hedid not participate in the deliberations of the committee when hisname was considered. But then the very fact that he was a memberof the selection board must have had its own impact on the decisionof the selection board. Further admittedly he participated in thedeliberations of the selection board when the claims of his rivalsparticularly that of Basu was considered. He was also party tothe preparation of the list of selected candidates in order ofpreference. At every stage of his participation in the deliberations AB

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Aof the selection board there was a conflict between his interestand duty. Under those circumstances it is difficult to believe thathe could have been impartial. The real question is not whether hewas biased. It is difficult to prove the state of mind of a person.Therefore what we have to see is whether there is reasonableground for believing that he was likely to have been biased. WeBagree with the learned Attorney General that a mere suspicion ofbias is not sufficient. There must be a reasonable likelihood ofbias. In deciding the question of bias we have to takeintoconsideration human probabilities and ordinary course of humanconduct. It was in the interest of Naqishbund to keep out his rivalsCin order to secure his position from further challenge. Naturallyhe was also interested in safeguarding his position while preparingthe list of selected candidates.

36. The aforesaid view was further considered by a ConstitutionDBench of this Court in Ashok Kumar Yadav and others vs. State ofHaryana and others[2]as under:

“16. We agree with the petitioners that it is one of the fundamentalprinciples of our jurisprudence that no man can be a judge in hisown cause and that if there is a reasonable likelihood of bias it isE“in accordance with natural justice and common sense that thejustice likely to be so biased should be incapacitated from sitting”.The question is not whether the judge is actually biased or in factdecides partially, but whether there is a real livelihood of bias.What is objectionable in such a case is not that the decision isFactually tainted with bias but that the circumstances are such asto create a reasonable apprehension in the mind of others thatthere is a likelihood of bias affecting the decision. The basic principleunderlying this rule is that justice must not only be done but mustalso appear to be done and this rule has received wide recognitionin several decisions of this Court. It is also important to note thatGthis rule is not confined to cases where judicial power stricto sensuis exercised. It is appropriately extended to all cases where anindependent mind has to be applied to arrive at a fair and justdecision between the rival claims of parties. Justice is not thefunction of the courts alone; it is also the duty of all those who are H21985 (4) SCC 417

OFFICE OF THE ODISHA LOKAYUKTA v. DR. PRADEEPKUMAR PANIGRAHI [AJAY RASTOGI, J.]

expected to decide fairly between contending parties. The strictstandards applied to authorities exercising judicial power are beingincreasingly applied to administrative bodies, for it is vital to themaintenance of the rule of law in a Welfare State where thejurisdiction of administrative bodies is increasing at a rapid pacethat the instrumentalities of the State should discharge theirfunctions in a fair and just manner. This was the basis on whichthe applicability of this rule was extended to the decision-makingprocess of a selection committee constituted for selecting officersto the Indian Forest Service in A.K. Kraipak v. Union of India[(1969) 2 SCC 262]. What happened in this case was that oneNaqishbund, the acting Chief Conservator of Forests, Jammu andKashmir was a member of the Selection Board which had beenset up to select officers to the Indian Forest Service from thoseserving in the Forest Department of Jammu and Kashmir.Naqishbund who was a member of the Selection Board was alsoone of the candidates for selection to the Indian Forest Service.He did not sit on the Selection Board at the time when his namewas considered for selection but he did sit on the Selection Boardand participated in the deliberations when the names of his rivalofficers were considered for selection and took part in thedeliberations of the Selection Board while preparing the list of theselected candidates in order of preference. This Court held thatthe presence of Naqishbund vitiated the selection on the groundthat there was reasonable likelihood of bias affecting the processof selection. Hegde, J. speaking on behalf of the Court counteredthe argument that Naqishbund did not take part in the deliberationsof the Selection Board when his name was considered, by saying:

“But then the very fact that he was a member of the SelectionBoard must have had its own impact on the decision of theSelection Board. Further admittedly he participated in thedeliberations of the Selection Board when the claims of hisrivals ... was considered. He was also party to the preparationof the list of selected candidates in order of preference. Atevery stage of his participation in the deliberations of theSelection Board there was a conflict between his interest andduty.... The real question is not whether he was biased. It isdifficult to prove the state of mind of a person. Therefore whatwe have to see is whether there is reasonable ground for AB

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believing that he was likely to have been biased.... There mustbe a reasonable likelihood of bias. In deciding the question ofbias we have to take into consideration human probabilitiesand ordinary course of human conduct.”

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This Court emphasised that it was not necessary to establish biasBbut it was sufficient to invalidate the selection process if it couldbe shown that there was reasonable likelihood of bias. Thelikelihood of bias may arise on account of proprietary interest oron account of personal reasons, such as, hostility to one party orpersonal friendship or family relationship with the other. Wherereasonable likelihood of bias is alleged on the ground of relationship,Cthe question would always be as to how close is the degree ofrelationship or in other words, is the nearness of relationship sogreat as to give rise to reasonable apprehension of bias on thepart of the authority making the selection.”

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37. In the instant case, the complaint was made by the DeputySuperintendent of Police (Mr. Ranjan Kumar Das) of the Directorate ofVigilance, who is, directly or indirectly, not concerned with the complaint,he can be said to be an informant to the office of the appellant and thatapart, a preliminary inquiry was conducted independently by a seniorEofficer of the Directorate of Vigilance, Additional Superintendent ofPolice, Mr. P.K. Naik, who submitted his report of the preliminary inquiryon 28[th] May, 2021, the question of bias in the instant facts andcircumstances does not arise at all and that apart, the Constitution Benchof this Court recently in Mukesh Singh vs. State (Narcotic Branch ofFDelhi)[3], while examining the question as to whether in case investigationis conducted by the police officer who himself is a complainant is thetrial stands vitiated and the accused is entitled to acquittal and afterexamining the scheme of the Code, finally answered the reference asunder:

G“13. From the above discussion and for the reasons stated above,we conclude and answer the reference as under:

13.1. (I) That the observations of this Court in Bhagwan Singhv. State of Rajasthan [(1976) 1 SCC 15], Megha Singh v. Stateof Haryana [(1996) 11 SCC 709] and State v. Rajangam [(2010)

H3 2020 (10) SCC 120

15 SCC 369] and the acquittal of the accused by this Court on theground that as the informant and the investigator was the same, ithas vitiated the trial and the accused is entitled to acquittal are tobe treated to be confined to their own facts. It cannot be said thatin the aforesaid decisions, this Court laid down any generalproposition of law that in each and every case where the informantis the investigator there is a bias caused to the accused and theentire prosecution case is to be disbelieved and the accused isentitled to acquittal.

13.2. (II) In a case where the informant himself is the investigator,by that itself cannot be said that the investigation is vitiated on theground of bias or the like factor. The question of bias or prejudicewould depend upon the facts and circumstances of each case.Therefore, merely because the informant is the investigator, bythat itself the investigation would not suffer the vice of unfairnessor bias and therefore on the sole ground that informant is theinvestigator, the accused is not entitled to acquittal. The matterhas to be decided on a case-to-case basis. A contrary decision ofthis Court in Mohan Lal v. State of Punjab [(2018) 17 SCC 627]and any other decision taking a contrary view that the informantcannot be the investigator and in such a case the accused is entitledto acquittal are not good law and they are specifically overruled.”

38. We are of the considered view that there was no element ofbias in conducting a preliminary inquiry in the instant case and the objectionraised by the respondents stands overruled.

39. The further objection raised by the respondents is in referenceto the locus standi of the appellant in filing appeal in this Court and insupport of his submission, counsel placed reliance on the judgments ofthis Court in National Commission for Women vs. State of Delhi andanother[4]and M.S. Kazi vs. Muslim Education Society and others[5].In our considered view, the submission is wholly bereft of merit for thereason that the action of the appellant initiated pursuant to order dated11[th] December, 2020 for conducting a preliminary inquiry in exercise ofpowers conferred under Section 20(1) of the Act, 2014 was a subject 4 2010 (12) SCC 599

5 2016 (9) SCC 263

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Amatter of challenge before the High Court at the instance of respondentno.1 and if that is being interfered with and the action of the appellant isbeing set aside under the impugned judgment dated 3[rd] February, 2021,the appellant, indeed, was a person aggrieved and has a locus standi toquestion the action interfered with by the Division Bench of the HighCourt and the only remedy available with the appellant is to question theBorder of the Division Bench of the High Court by filing an special leavepetition in this Court under Article 136 of the Constitution.

40. The judgment in National Commission for Women (supra)on which the respondents have placed reliance was a case where incriminal trial, in the first instance held by the trial Court, the accusedCwas convicted and on appeal being preferred by him, was later acquittedby the competent Court of jurisdiction and obviously appeal could bepreferred against the order of acquittal either by the prosecution i.e. theState Government or the victim, under Section 378 of the Code of CriminalProcedure, 1973, but either of the party has not preferred any appealDand it was the National Commission for Women who approached thisCourt by filing a special leave petition under Article 136 of the Constitutionand this Court still has ventured to examine the appeal preferred by theCommission on merits, but observed that the special leave to appeal atthe instance of the appellant – National Commission for Women, is notmaintainable and obviously at least the National Commission for WomenEwas not a person aggrieved and it has no locus to object the order passedby the competent court of jurisdiction.

41. At the same time, the judgment of this Court in M.S. Kazi(supra) was a case where the teacher was terminated by a minorityinstitution after conducting a disciplinary inquiry. As the matter travelledFto the High Court under Article 226/227 of the Constitution and at thisstage the Division Bench of the High Court observed that since theTribunal is not a party respondent who was the Administrator beforewhom the dispute inter se between the parties i.e. the teacher and theminority institution was examined, the objection was sustainable, stillGthat objection was turned down by this Court as referred in para 9 andheld that it is the person aggrieved who has to pursue his or her remedyavailable under the law and in the case on hand the person aggrievedinvoked the jurisdiction of the Tribunal, but the Tribunal was not anecessary party to the proceedings for the reason that the lis was betweenteacher and the minority institution and accordingly, this Court held thatH

the High Court has committed an error in dismissing the letters patentappeal on the ground that it was not maintainable in the absence ofTribunal being a party respondent.

42. Both the judgments relied upon are not even remotelyconcerned with the facts and circumstances of the present case. To sayin other words, if the order of the appellant directing the Directorate ofVigilance to conduct the preliminary inquiry in exercise of power underSection 20(1) of the Act, 2014 dated 11[th] December, 2020 has been setaside by the High Court, obviously, the appellant is a person aggrievedand can certainly question the legality/validity of the judgment of theHigh Court impugned by invoking jurisdiction of this Court under Article136 of the Constitution.

43. Consequently, the appeals succeed and are accordinglyallowed. The judgment of the High Court dated 3[rd] February, 2021 andthe review order dated 5[th] April, 2021 are hereby set aside. No costs.

44. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeals allowed.

(Assisted by : Roopanshi Virang, LCRA)

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