Delhi Lokayukta has filed an appeal before a division bench of the Delhi HC, challenging single judge order of Nov 22, 2010 (Murlidhar J. in W.P. (C) Nos. 1136 and 3342 of 2010 & W.P. (C) No. 3345 of 2010), that the Lokayukta has no jurisdiction to probe IAS officers as they enjoy immunity under Delhi Lokayukta Act. The case involved corruption complaints against 3 IAS officers.
The Delhi Lokayukta and Upalokayukta Act, 1995 make provision for the establishment and functioning of the Institution of Lokayukta to inquire into the allegations against public functionaries in the National Capital Territory of Delhi.
public functionary' under Section 2(m) reads as under:
2. Definitions: - In this Act, unless the context otherwise require "Public functionary" means a person who is or has been at any time-
(i) the Chief Minister or a Minister;
(ii) a Member of Legislative Assembly;
(iii) a person having the rank of a Minister but shall not include Speaker and Deputy Speaker of the Legislative Assembly;
(iv) a Chairman, Vice-Chairman or Managing Director or a Member of a Board of Directors (by Whatever name they be called) in respect of-
(1) an Apex Co-operative Society or any Co- operative Society constituted or registered under the Delhi Co-operative Societies Act, 1972, which is subject to the control of the Government;
(2) a Government Company within the meaning of Section 617 of the Companies Act, 1956, engaged in connection with the affairs, and is under the control of the Government;
(3) a Local Authority established under any law in relation to Delhi; provided that the provisions of this Act shall not be applicable to any authority of a Local Authority constituted under an enactment relatable to Entry No. 18 of the State List of the Seventh Schedule of the Constitution;
(4) a Corporation engaged in connection with the affairs, and under the control, of the Government;
(5) any Commission or body set up by the Government which is owned and controlled by it;
(v) a Member of the Municipal Corporation of Delhi as defined in Clause 2(27) of the Municipal Corporation Act, 1957 (as amended in 1993)
However Under Sec 17 of the Act,there is a complete prohibition on the Lokayukta or an Upalokayukta to inquire into an allegation against:
(a) any member of the Judicial Services who is under the administrative control of the High Court under Article 235 of the Constitution;
(b) any person who is a member of a Civil Service of the Union or an All India Service or Civil Service of a State or holds a Civil post under the Union or a State in connection with the affairs of Delhi. If the complaint is not hit on jurisdictional issues under Sec 17, after inquiry into the allegations, Lokayukta is satisfied that such allegation is established, he makes a report under Section 12(1) of the Act. After the report is submitted, the competent authority has to examine the report and intimate the action taken or proposed to be taken on the basis of the report within the time prescribed. If the Lokayukta or the Upa-Lokayukta is satisfied with the action taken or proposed to be taken on the recommendations or findings contained in the report, he shall close the case under information to the complainant, the public servant and the competent authority concerned. But when he is not so satisfied and if he considers that the case so deserves, he may make a special report to the Lieutenant Governor and also inform the complainant. The Lokayukta and the Upalokayukta under Subsection (4) have to present annually a consolidated report on the performance of their functions under the Act to the Lieutenant Governor. On receipt of a special report under Sub-section (3), or the annual report under Sub-section (4), the Lieutenant Governor shall cause a copy thereof together with an explanatory memorandum to be laid before the Legislative Assembly
In the present case the Lokayukta found that it was possible to reconcile the two provisions as a result of which "only those Members of the Civil Services of the Union, who are appointed as Chairman, Vice-Chairman or Managing Director or a Member of the Board of Directors in respect of Apex Cooperative Society or any Cooperative Society or Government Company, Local Authority, Corporation or Commission or Body set up by the Government would be covered within the definition of 'public functionary' but the other/remaining Members of Civil Service would be excluded from the said definition." In other words, the Lokayukta held that once an IAS officer is appointed as Director of a company such IAS officer would lose immunity under Section 17 of the DLAU Act and would be amenable to the jurisdiction of the Lokayukta for the acts done by him in his capacity as Director of such government owned company.
However the writ court was of the view that an IAS officer if appointed as a Director of a government company on deputation by no means, ceases to be an IAS officer. It would be stretching the language of Section 2(m) to state that despite the total prohibition under Section 17 DLAU Act on the Lokayukta enquiring into an allegation against an IAS officer, if such IAS officer is a Director of a government owned company, he will become amenable to the jurisdiction of the Lokayukta by virtue of Section 2(m) DLAU Act. Section 2(m) is only a definition clause and has necessarily to be read along with Section 17 to understand the extent of exercise of the jurisdiction of the Lokayukta over an IAS officer. If the legislative intent was that the IAS officer would lose immunity under Section 17 by virtue of becoming a Director of a government owned company, then there should have been a proviso to Section 17 to that effect. All the provisions of an enactment have to be given their full meaning. It is not possible to read into certain provisions certain exceptions which do not exist.
This writ Court thus was unable to concur with the view expressed by the Lokayukta on the interpretation of Section 17 and Section 2(m)(iv) of the DLAU Act ruling that "...In the considered view of this Court, in view of the total prohibition under Section 17 of the DLAU Act, the Lokayukta had no jurisdiction to enquire into any allegation against the Petitioners who happened to be at the relevant point of time members of the IAS and were on deputation to the government owned companies as Director or Chairman and Managing Director...". Readers can view the full judgement here
OUR COMMENTS
In arriving at the conclusion it is obvious that The Lokayukta interpreted Section 17 DALAU Act as being a 'non-obstante clause.' The usual words associated with a non-obstante clause are "notwithstanding anything contained in this Act or any other Act for the time in force." However, Section 17 DLAU Act is of a declaratory nature. It unambiguously declares that "noting in this Act shall be construed to authorise the Lokayukta or the Upalokayukta" to enquire into the allegation against an IAS officer or a member of the judicial services under the administrative control of the High Court. In effect, Section 17 is a total prohibition against the Lokayukta entertaining any complaint against an IAS officer or a member of the judicial services. The words "for the removal of doubts" preceding Section 17, underscores that it overrides anything to the contrary that might be indicated anywhere else in the DLAU Act and this includes Section 2(m)(iv). There is no ambiguity whatsoever about Section 17 DLAU Act. It is of a declaratory nature which absolutely prohibits the Lokayukta from enquiring into an allegation against an IAS officer. Section 17 DLAU Act admits of no ambiguity and is plainly a complete exception to Section 2(m)(iv). Consequently the observation of the writ court that there is no occasion, as part of an interpretative exercise, to adopt a 'purposive' construction is correct.(See for instance Grid Corporation of Orissa Ltd. v. Eastern Metals and Ferro Alloys 2010 (2) Scale 687. For the same reason there is also no warrant for examining if Section 17 should be read subject to Section 2(m)(iv) or read 'harmoniously' with it to preserve both provisions. It is possible that such questions might arise if this Court were required to examine the constitutional validity of Section 17. However, that was not within the scope of the present proceedings or for that matter the proceedings before the Lokayukta.
Image from here
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