OFFICE OF THE ODISHA LOKAYUKTA VERSUS DR. PRADEEP KUMAR PANIGRAHI AND OTHERS

OFFICE OF THE ODISHA LOKAYUKTA VERSUS DR. PRADEEP KUMAR PANIGRAHI AND OTHERS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO(S).                   OF 2023

(Arising out of SLP(Civil) No(s). 6261­6262 of 2021)

OFFICE OF THE ODISHA

LOKAYUKTA ….APPELLANT(S)

VERSUS

DR. PRADEEP KUMAR PANIGRAHI

AND OTHERS ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. The instant appeals are directed against the judgment dated

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rd February, 2021 passed by the Division Bench of the High Court

of Orissa at Cuttack setting aside Order dated 11th December, 2020

passed by the Odisha Lokayukta initiating to conduct a preliminary

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inquiry in exercise of power conferred under Section 20(1) of the

Odisha Lokayukta Act, 2014(hereinafter being referred to as the

“Act 2014”) on a complaint dated 9th December, 2020 received from

Mr.Ranjan Kumar Das, Deputy Superintendent of Police, Vigilance

Cell Unit, Bhubaneswar indicating the alleged corruption against

respondent   no.   1   who   is   the   elected   Member   of   the   Legislative

Assembly   of   Gopalpur   Constituency   directing   the   Directorate   of

Vigilance, Cuttack to conduct a preliminary inquiry and submit a

report to the Lokayukta.

3. The review petition filed at the instance of the appellant on the

premise   that   Odisha   Lokayukta   was   never   heard   and   no

opportunity   of   hearing   has   been   afforded   before   passing   of   the

impugned Order dated 3rd February, 2021 and it was in violation of

the principles of natural justice, came to be dismissed by passing a

non­speaking Order dated 5th April, 2021.

4. Respondent   no.   1   is   an   elected   Member   of   the   Legislative

Assembly.     Mr.   Ranjan   Kumar   Das,   the   then   Deputy

Superintendent of Police, Vigilance Cell Unit, Bhubaneswar, made a

complaint dated 9th December, 2020 indicating serious allegations

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of   alleged   corruption   against   Member   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 of the complaint and

the supporting documents annexed thereto, in exercise of power

conferred   under   Section   20(1)   of   the   Act,   2014   directed   the

Directorate of Vigilance, Odisha, Cuttack to conduct a preliminary

inquiry against respondent no. 1 and submit a report within two

months with a further direction that the Directorate of Vigilance

must   ensure   that   during   preliminary   inquiry,   the   mandate   of

Section 20(2) has to be complied with and further directed the

Office of Lokayukta to make available all the relevant record to the

Directorate of Vigilance for compliance.

5. Immediately on a reference made by the Odisha Lokayukta by

its Order dated 11th  December, 2020 directing the Directorate of

Vigilance to conduct a preliminary inquiry against respondent no. 1

and calling upon the report, came to be challenged by respondent

no. 1 by filing writ petition before the High Court under Article 226

of   the   Constitution.     Although   the   Office   of   Lokayukta   was

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impleaded   as   one   of   respondent   before   the   High   Court   but   as

informed to this Court, no notice was issued to them and on the

first date of hearing, without even affording opportunity of hearing

to   the   appellant   to   submit   their   written   response,   the   Division

Bench of the High Court under Order dated 3rd  February, 2021

proceeded on the premise that entrusting Directorate of Vigilance to

conduct   preliminary   inquiry   is   not   in   terms   of   the   mandate   of

Section 20(1) and set aside the Order dated 11th  December, 2020

with a liberty to the Lokayukta to conduct preliminary inquiry, if so

advised,   against   respondent   no.   1   by   the   inquiry   wing   of   the

Lokayukta with a further liberty to proceed in conformity with the

requirements   of   Sections   20(2)   and   20(3)   after   the   preliminary

report being furnished by the inquiry wing of the Lokayukta.

6. A review filed by the Lokayukta against the Order impugned

dated 3rd February, 2021 came to be dismissed by a non­speaking

order dated 5th April, 2021 which is a subject matter of challenge in

the appeals before us.

7. Learned   counsel   for   the   appellant   submits   that   the   order

impugned dated 3rd February, 2021 is in violation of the principles

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of   nature   justice   and   the   finding   has   been   recorded   without

affording an opportunity of hearing to the appellant and that apart,

it is not in conformity with the mandate of Section 20(1) of the Act

2014.

8. Learned counsel further submits that Section 20(1) provides

an option to the Lokayukta, who, on receipt of a complaint, if order

to   hold   a   preliminary   inquiry   against   any   public   servant,   may

conduct either by its enquiry wing or by any agency to ascertain as

to whether there exists any prima facie case for proceeding in the

matter any further.  If the relevant provisions of the Act are being

looked into, particularly Chapter VIII of the Act 2014, any agency as

referred to under Section 25 includes the State Vigilance and Crime

Branch   for   the   purpose   of   conducting   preliminary   inquiry   or

investigation, as the case may be, and that is further strengthened

by   the   procedure   for   conducting   a   preliminary   inquiry   or

investigation envisaged under Section 28 wherein it is open for the

Lokayukta to conduct preliminary inquiry or investigation through

the   agency   of   the   Government.     In   the   given   facts   and

circumstances, the finding which has been recorded by the Division

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Bench of the High Court that entrusting to conduct preliminary

inquiry   by   the   Directorate   of   Vigilance   under   Order   dated   11th

December, 2020 is not in conformity with the Act 2014, needs to be

interfered with by this Court.

9. Learned counsel further submits that calling upon the inquiry

wing or any agency to conduct a preliminary inquiry is only for a

limited purpose to ascertain whether there exists prima facie case

to proceed in the matter.  The Legislature was conscious of the fact

that if it may cause any prejudice to the incumbent against whom

the prima facie case has been registered and before any further

action is being taken or to make any recommendation to proceed

either to conduct investigation or initiate a departmental inquiry, it

is   incumbent   upon   the   Lokayukta   to   afford   an   opportunity   of

hearing to the public servant as referred to under Sections 20(2)

and 20(3) of the Act, 2014.  A complete inbuilt procedure has been

prescribed under Chapter VII for conducting preliminary inquiry

and investigation within the powers of the Lokayukta. Chapter VIII

prescribes not only the purpose of conducting preliminary inquiry

and investigation but also in reaching to a final conclusion even at

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the stage of registering of the charge­sheet as referred to under

Section 20(8) of the Act, 2014.

10. Learned counsel further submits that no adverse or prejudicial

action   was   taken   by   the   appellant   in   initiating   to   conduct   a

preliminary inquiry under  its Order dated 11th  December 2020,

thus the interference made by the High Court, at this stage, in

exercise of its jurisdiction under Article 226 of the Constitution of

India was neither valid nor justified.

11. Per contra, learned counsel for the respondents, on the other

hand,   submits   that   a   complaint   was   made   by   the   Deputy

Superintendent of Police, Vigilance Cell, Bhubaneshwar dated 9th

December, 2020, who was the Officer of Directorate of Vigilance,

Cuttack, Odisha, Cuttack and direction was given to the Directorate

of  Vigilance, Odisha to conduct a  preliminary  inquiry by  Order

dated 11th  December, 2020, the decision itself was in violation of

the principles of natural justice.  Once the complaint was made by

the officer of the Directorate of Vigilance, at least entrusting the

preliminary   inquiry   to   be   conducted   by   another   Officer   of   the

Directorate of Vigilance, may be senior in the ladder, was not legally

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justified.  The Officer of the Department has made a complaint on

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th  December, 2020 and other officer is called upon to conduct a

preliminary inquiry as stated that one cannot be a judge in its own

cause and that being the reason, the Division Bench of the High

Court has permitted the Lokayukta to conduct an inquiry by the

inquiry wing of the Lokayukta and administrative bias can’t be

ruled   out   of   the   Directorate   of   Vigilance   who   is   to   conduct   a

preliminary inquiry.  

12. Learned counsel further submits that since the respondents

were   duly   represented   and   the   Advocate   General   of   the   State

appeared along with the State counsel, opportunity of hearing was

afforded to the appellant and plea of the principles of natural justice

as prayed for by the appellant being violated, in the facts and

circumstances, does not hold good.   That apart, review petition

came to be rightly dismissed as the appellant failed to justify any

manifest error being committed by the Division Bench of the High

Court under its Order dated 3rd February, 2021 which may call for

our interference.

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13. It may be noticed that while issuing notice by this Court on

23rd April, 2021, operation of the impugned order was stayed.  In

furtherance of the stay granted by this Court, it is informed that the

appellant has proceeded further and after the preliminary inquiry

report being submitted to the Lokayukta by the Officer Shri P.K.

Naik on 28th May, 2021 and after affording opportunity of hearing to

the appellant, a detailed Order was passed by the Lokayukta under

Section   20(3)(a)   dated   27th  September,   2021   directing   the

Directorate of Vigilance to carry out investigation.  In furtherance

thereof,   Directorate   of   Vigilance   submitted   a   detailed   report   of

investigation   to   the   Lokayukta   on   7th  June,   2022,   however,   no

further action has been initiated and awaiting orders of this Court

which is indicated in the order dated 24th  June, 2022 placed on

record along with IA No. 89629 of 2022.

14. We have heard learned counsel for the parties and with their

assistance perused the material available on record.

15. Before   we   proceed   to   examine   the   question   raised   in   the

instant appeals, it may be apposite to first take a bird’s eye view of

the Scheme of the Act, 2014.   

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16. The Act, 2014 has been enacted by the legislature of the State

of Odisha having been assented to by the President on the 16th

January, 2015 with an object to provide for the establishment of the

body of Lokayukta for the State of Odisha to inquire into allegations

of   corruption   against   public   functionaries   and   for   matters

connected therewith or incidental thereto.  The Act is applicable to

the public servants of the State of Odisha serving in and outside the

State and the public servants under the control of Government of

Odisha.

17. A ‘complaint’ has been defined under Section 2(d), and the

term ‘preliminary inquiry’ and ‘public servant’ under Sections 2(l)

and 2(n) of the Act 2014 which are stated as follows:­

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

……

(d) “complaint” means a complaint, made in such form as may be prescribed,

alleging that a public servant has committed an offence punishable under the

Prevention of Corruption Act,1988;

……

(l) “preliminary inquiry” means an inquiry conducted under this Act;

……

(n) “public servant” means a person referred to in clauses (a) to (h) of subsection (1) of section 14 but does not include a public servant in respect of

whom the jurisdiction is exercisable by any court or other authority under the

Army Act, 1950, the Air Force Act, 1950, the Navy Act, 1957 and the Coast

Guard Act, 1978 or the procedure is applicable to such public servant under

those Acts;

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…….”.

18. Chapter VII prescribes the procedure in respect of preliminary

inquiry and investigation, the relevant part of which is reproduced

as under:­

“20. (1) The Lokayukta, on receipt of a complaint, if it decides to proceed further,

may order— 

(a) preliminary inquiry against any public servant by its Inquiry 

Wing or any agency to ascertain whether there exists a prima 

facie case for proceeding in the matter; or 

(b) investigation by any agency or authority empowered under any

law to investigate, where there exists a prima facie case: 

Provided that any investigation under this clause shall be ordered only if in

the   opinion   of   the   Lokayukta   there   is   substantial   material   relating   to   the

existence of a prima facie case or any earlier statutory investigation or enquiry

regarding the same complaint reveals that a prima facie case exists: 

Provided further that before ordering an investigation under this clause, the

Lokayukta shall call for the explanation of the public servant and views of the

competent authority, so as to determine whether there exists a prima facie case

for investigation: 

Provided also that a decision to order investigation under this clause shall

be taken by a bench constituted by the Chairperson under section 16.

  (2) During the preliminary inquiry referred to in sub­section (1), the Inquiry

Wing or any agency shall conduct a preliminary inquiry and on the basis of

material,   information   and   documents   collected,   seek   the   comments   on   the

allegations   made   in   the   complaint   from   the   public   servant   and   competent

authority and after obtaining the comments 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 the Lokayukta shall

consider every report received under sub­section (2) from the Inquiry Wing or

any agency and after giving an opportunity of being heard to the public servant,

decide   as   to   whether   there   exists   a   prima   facie   case,   and   make

recommendations to proceed with one or more of the following actions, namely:

— 

(a)   investigation   by   any   agency   (including   any   special

investigation agency); 

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(b)   initiation   of   the   departmental   proceedings   or   any   other

appropriate action against the concerned public servant by the

competent authority; 

(c) closure of the proceedings against the public servant and take

action to proceed against the complainant under section 46. 

(4) The promotion and other service benefits of a public servant mentioned in

clauses (e) to (h) of sub­section (1) of section 14 shall not be affected until the

public servant is put under suspension on recommendation of the Lokayukta

under section 32 or charge sheet is filed after completion of investigation under

clause (a) of sub­section (3) or a charge memo is issued against the said public

servant in a disciplinary proceeding initiated on the recommendation of the

Lokayukta under clause (b) of sub­section (3).

 (5) Every preliminary inquiry referred to in sub­section (1) shall ordinarily be

completed within a period of ninety days and for reasons to be recorded in

writing, within a further period of ninety days from the date of receipt of the

complaint. 

(6) In case the Lokayukta decides to proceed to investigate into the complaint, it

shall, by order in writing, direct any investigating agency (including any special

agency) to carry out the investigation as expeditiously as possible and complete

the investigation within a period of six months from the date of its order: 

Provided that the Lokayukta, for the reasons to be recorded in writing, may

extend the said period by a further period not exceeding six months at a time

and for the maximum period of two years. 

(7) Notwithstanding anything contained in section 173 of the Code of Criminal

Procedure, 1973, any investigating agency (including any special agency) shall,

in respect of cases referred to it by the Lokayukta, submit the investigation

report to the Lokayukta. 

(8) A bench consisting of not less than three Members of the Lokayukta shall

consider every report received by it under sub­section (7) from any investigating

agency (including any special agency) and may, decide as to— 

(a) filing of charge­sheet or closure report before the Special Court

against the public servant; 

(b)   initiating   the   departmental   proceedings   or   any   other

appropriate action against the concerned public servant by the

competent authority. 

(9) The Lokayukta may, after taking a decision under sub­section (8) on the

filing of the charge sheet, direct its Prosecution Wing to initiate prosecution in a

Special   Court   in   respect   of   cases   investigated   by   any   investigating   agency

(including any special agency).

…..”

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19. Section 20 provides an inbuilt mechanism laying down the

procedure   to   be   followed   in   holding   preliminary   inquiry   and

investigation which the Lokayukta, in the facts and circumstances,

on receipt of a complaint may decide ­ either order for conducting

preliminary inquiry against the public servant by its inquiry wing or

any agency to ascertain whether there exists a prima facie case for

proceeding in the matter; or direct to hold an investigation by any

agency or authority empowered under any law to investigate, to

record its satisfaction whether there exists a prima facie case.

20. Sub­sections (2), (3) and (4) provide the procedure which has

to be followed by the inquiry wing or any agency which has been

asked to ascertain the fact as to whether there exists prima facie

case for proceeding in the matter.  Such report is placed before a

Bench consisting of not less than three members of the Lokayukta

to consider the same under sub­section (2) from the inquiry wing or

any agency and after affording an opportunity of being heard to the

public servant, may recommend to proceed with one or more of the

actions as provided under Clauses (a), (b) or (c) of sub­section (3) to

hold departmental action against the public servant.  Sub­section

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(5) prescribes the time schedule of 90 days under which preliminary

inquiry has to be concluded.  Sub­section (6) provides the action to

be taken to carry out the investigation as expeditiously as possible

and   complete   the   investigation   within   a   period   of   six   months.

Under   sub­section(7),   notwithstanding   anything   contained   in

Section   173   of   the   Code   of   Criminal   Procedure,   1973,   the

investigating  agency may  submit  the  investigation  report  to   the

Lokayukta.   Sub­sections (8) and (9) provide the procedure to be

followed   after   investigating   agency   has   submitted   its   report   for

taking further action.

21. Chapter VIII provides the power of the Lokayukta.   Under

Section 25, the power of superintendence and direction over the

investigating   agency   including   the   State   Vigilance   and   Crime

Branch in respect of the matters in so far as they relate to the

investigation   made   by   such   agency   has   been   entrusted   to

Lokayukta.

22. Section 27 clarifies that for the purpose of any preliminary

inquiry, the inquiry wing of the Lokayukta holds powers of a civil

Court,   under   the   Code   of   Civil   Procedure,   1908   and   any

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proceedings before the Lokayukta shall be deemed to be a judicial

proceeding within the meaning of Section 193 of the Indian Penal

Code, 1860.

23. Section   28   authorise   the   Lokayukta   to   conduct   any

preliminary inquiry or investigation and utilize the services of any

officer or organization or investigation agency of the Government.

24. The   Act,   in   fact,   is   a   complete   code   putting   in   place   the

procedure under which the Lokayukta under the Act, 2014 within

its territorial jurisdiction holds the authority to adopt a mechanism

in reference to public servants of the State of Odisha serving in and

outside the  State  and the public servants under the  control  of

Government   of   Odisha   to   inquire   into   allegations   of   corruption

against   the   public   functionaries   and   for   matters   connected

therewith or incidental thereto.

25. Mr.   Ranjan   Kumar   Das,   Deputy   Superintendent   of   Police,

Vigilance Cell Unit, Bhubaneswar was not a person interested but

as an informant submitted a complaint against respondent no. 1

(MLA   Gopalpur   Constituency)   to   Odisha   Lokayukta   regarding

possession of disproportionate assets and intentionally enriching

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himself illicitly adopting mal­practices.     On the said complaint

being received, the appellant directed the Directorate of Vigilance,

Cuttack to conduct a preliminary inquiry against respondent no.1

in exercise of his power under Section 20(1) of the Act, 2014 by an

order dated 11th  December, 2020.     Before any action could have

been   taken   by   the   Directorate   of   Vigilance   in   conducting   a

preliminary inquiry, a writ petition was filed by respondent no.1

before the High Court and on the first motion stage, the High Court,

without affording an opportunity of hearing to the appellant, set

aside the order dated 11th December, 2020 passed by the appellant

for conducting a preliminary inquiry.   The action of the Division

Bench of the High Court indeed was in violation of the principles of

natural justice.  

26. The aim to the rule of natural justice is to secure justice or to

put it negatively, these rules can operate only in areas not covered

by any law validly made.   The concept of natural justice, indeed,

has undergone a change with the passage of time, but still the timetested rules, namely, are (i) no one shall be a judge in his own case

(Nemo debet essse judex propria causa) and (ii) no decision shall be

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given   against   a   party   without   affording   him   a   reasonable

opportunity of hearing (audi alteram partem).     At the same time,

action of the authority must be held in good faith without bias and

not arbitrary or unreasonable.  

27. In the first instance, the Division Bench of the High Court has

committed a manifest error in passing of the order impugned dated

3

rd  February, 2021 while setting aside the order of the appellant

dated 11th December, 2020 to conduct a preliminary inquiry against

respondent no.1 in exercise of powers under Section 20(1) of the

Act, 2014 which is in violation of the principles of natural justice.  

28. Even on merits, the Division Bench has completely overlooked

Section 20(1) of the Act, 2014 that empowers the Lokayukta, on

receipt of a complaint, obviously after recording satisfaction, in its

discretion   if   intended   to   proceed   and   to   hold   any   inquiry,   can

conduct either a preliminary inquiry against a public servant by its

inquiry wing or any other agency to ascertain whether there exists a

prima facie case for proceeding in the matter or hold investigation

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by any agency or authority empowered under any law to investigate

whether there exists a prima facie case.  

29. So   far   as   the   term   ‘any   agency’   is   concerned,   it   clearly

manifests from Section 25 of Chapter VIII which entrusts the power

of superintendence to the Lokayukta to exercise in such a manner

so  as  to   require  any  agency,  including  the  State   Vigilance  and

Crime Branch.   

30. At   the   same   time,   under   Section   28,   for   the   purpose   of

conducting any preliminary inquiry or investigation, it is open for

the Lokayukta to utilize the services of any officer or organization or

investigation agency of the Government and, in the circumstances,

if the appellant in its judicious discretion and on the facts and

circumstances of the case, conduct a preliminary inquiry through

an agency of the Government of which reference has been made

under Section 28 through the Directorate of Vigilance, Cuttack,

there appears no legal infirmity being committed by the appellant in

the decision­making process in conducting a preliminary inquiry

which, in our view, was within the scope and ambit of Section 20(1)

of   the   Act,   2014   and   a   manifest   error   was   committed   by   the

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Division Bench of the High Court while setting aside the order of the

appellant dated 11th December, 2020 to conduct an inquiry against

respondent no.1.   

31. It is not a case of the respondents that respondent no.1 is not

a public servant or the Act, 2014 is not applicable to him or the

Lokayukta   in   its   jurisdiction   was   not   competent   to   conduct   a

preliminary inquiry under Section 20(1) of the Act, 2014.   In the

given facts and circumstances, the finding returned by the Division

Bench of the High Court under the judgment impugned, in our

view, is not legally sustainable.   

32. During the course of submissions made by the parties, it was

informed   that   after   the   stay   was   granted   by   this   Court   of   the

judgment impugned dated 3rd  February, 2021, the appellant has

proceeded   in   conducting   further   inquiry   and   actions   are   being

taken after the Directorate of Vigilance has submitted a preliminary

inquiry report to the Lokayukta under Section 20(3)(a) to carry out

investigation and steps are taken by the Directorate of Vigilance in

summitting a report of investigation before the appellant on 7th

June, 2022.  

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33. Although we may not appreciate the action of the appellant in

taking further steps when there was stay of the order impugned

passed   by   this   Court,   but   at   the   same   time,   we   granted   an

opportunity to the respondents as well to justify if the action taken

by the appellant is not in conformity with the mandate of the Act,

2014,   but from the written submissions placed before us, we do

not find any valid objection being raised by the respondents which

may call upon this Court to interfere in furtherance of the action

being taken by the appellant after the preliminary inquiry report

was submitted pursuant to order dated 11th December, 2020.  Still

we leave it open to respondent no.1, if further action taken by the

appellant is not in conformity with law, he is at liberty to initiate

proceedings as admissible to him under the law.   

34. So far as the objection raised by the respondents regarding the

action of conducting preliminary inquiry being bias for the reason

that   the   Deputy   Superintendent   of   Police   of   the   Directorate   of

Vigilance has submitted a complaint and the appellant directed the

Directorate of Vigilance to conduct a preliminary inquiry by an

order dated 11th December, 2020, which, in fact, was conducted by

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a   senior   officer   of   the   Directorate   of   Vigliance   i.e.   Additional

Superintendent of Police Vigilance, Mr. P.K. Naik, who submitted a

report to the appellant on 28th May, 2021 is concerned, we are not

persuaded with the submission of there being any bias on the part

of the Directorate of Vigilance cell in conducting preliminary inquiry

for the reason that the Officer who submitted a complaint was

simply an informant and not the person interested, at the same

time, preliminary inquiry was conducted by a different Officer not

connected with author of the complaint, thus the plea of bias was

ill­founded.   In our view, the principles of bias, even remotely are

not attracted in the facts and circumstances of the present case.  

35. The rule against bias is an essential component of modern

administrative law.   The rule against bias ensures a fair procedure

by excluding decision­makers who are tainted by bias.  Under the

rule,  actual  bias  is  disqualifying  even  though  it  is  prohibitively

difficult to establish.  The basic principle underlying the time­tested

rule is that justice must not only be done but must also appears to

be   done   and   this   rule   has   received   wide   recognition   in   several

decisions of this Court and for our consideration we take note of the

21

judgment of this Court in A.K. Kraipak and others vs. Union of

India and others1

, wherein in para 15 this Court held as under:

“15. It is unfortunate that Naqishbund was appointed as one of

the members of the selection board. It is true that ordinarily the

Chief Conservator of Forests in a State should be considered as the

most appropriate person to be in the selection board. He must be

expected to know his officers thoroughly, their weaknesses as well

as   their   strength.   His   opinion   as   regards   their   suitability   for

selection to the All­India Service is entitled to great weight. But

then under the circumstances it was improper to have included

Naqishbund as a member of the selection board. He was one of the

persons to be considered for selection. It is against all canons of

justice to make a man judge in his own cause. It is true that he did

not  participate  in the deliberations  of  the committee  when his

name   was   considered.   But   then   the   very   fact   that   he   was   a

member of the selection board must have had its own impact on

the   decision   of   the   selection   board.   Further   admittedly   he

participated in the deliberations of the selection board when the

claims of his rivals particularly that of Basu was considered. He

was also party to the preparation of the list of selected candidates

in order of preference. At every stage of his participation in the

deliberations of the selection board there was a conflict between

his interest and duty. Under those circumstances it is difficult to

believe that he could have been impartial. The real question is not

whether he was biased. It is difficult to prove the state of mind of a

person.   Therefore   what   we   have   to   see   is   whether   there   is

reasonable ground for believing that he was likely to have been

biased. We agree with the learned Attorney General that a mere

suspicion of bias is not sufficient. There must be a reasonable

likelihood of bias. In deciding the question of bias we have to take

into   consideration   human   probabilities   and   ordinary   course   of

human conduct. It was in the interest of Naqishbund to keep out

his rivals in order to secure his position from further challenge.

Naturally he was also interested in safeguarding his position while

preparing the list of selected candidates.

(emphasis added)

1 1969 (2) SCC 262

22

36. The aforesaid view was further considered by a Constitution

Bench of this Court in Ashok Kumar Yadav and others vs. State

of Haryana and others2

 as under:

“16. We agree with the petitioners that it is one of the fundamental

principles of our jurisprudence that no man can be a judge in his

own cause and that if there is a reasonable likelihood of bias it is

“in accordance with natural justice and common sense that the

justice likely to be so biased should be incapacitated from sitting”.

The question is not whether the judge is actually biased or in fact

decides partially, but whether there is a real livelihood of bias.

What is objectionable in such a case is not that the decision is

actually tainted with bias but that the circumstances are such as

to create a reasonable apprehension in the mind of others that

there   is   a   likelihood   of   bias   affecting   the   decision.  The   basic

principle underlying this rule is that justice must not only be done

but must also appear to be done and this rule has received wide

recognition in several decisions of this Court. It is also important to

note that this rule is not confined to cases where judicial power

stricto sensu is exercised. It is appropriately extended to all cases

where an independent mind has to be applied to arrive at a fair

and just decision between the rival claims of parties. Justice is not

the function of the courts alone; it is also the duty of all those who

are expected to decide fairly between contending parties. The strict

standards applied to authorities exercising judicial power are being

increasingly applied to administrative bodies, for it is vital to the

maintenance   of   the   rule   of   law   in   a   Welfare   State   where   the

jurisdiction of administrative bodies is increasing at a rapid pace

that   the   instrumentalities   of   the   State   should   discharge   their

functions in a fair and just manner. This was the basis on which

the applicability of this rule was extended to the decision­making

process of a selection committee constituted for selecting officers to

the Indian Forest Service in A.K. Kraipak v. Union of India [(1969) 2

SCC 262]. What happened in this case was that one Naqishbund,

the acting Chief Conservator of Forests, Jammu and Kashmir was

a member of the Selection Board which had been set up to select

officers   to the  Indian Forest   Service   from  those   serving  in  the

Forest Department of Jammu and Kashmir. Naqishbund who was

a member of the Selection Board was also one of the candidates for

2 1985 (4) SCC 417

23

selection   to   the   Indian   Forest   Service.   He   did   not   sit   on   the

Selection Board at the time when his name was considered for

selection but he did sit on the Selection Board and participated in

the   deliberations   when   the   names   of   his   rival   officers   were

considered for selection and took part in the deliberations of the

Selection Board while preparing the list of the selected candidates

in   order   of   preference.   This   Court   held   that   the   presence   of

Naqishbund vitiated the selection on the ground that there was

reasonable   likelihood   of   bias   affecting   the   process   of   selection.

Hegde, J. speaking on behalf of the Court countered the argument

that   Naqishbund   did   not   take   part   in   the   deliberations   of   the

Selection Board when his name was considered, by saying :

“But then the very fact that he was a member of the

Selection Board must have had its own impact on the

decision of the Selection Board. Further admittedly he

participated in the deliberations of the Selection Board

when the claims of his rivals ... was considered. He

was also party to the preparation of the list of selected

candidates in order of preference. At every stage of his

participation   in   the   deliberations   of   the   Selection

Board there was a conflict between his interest and

duty....   The   real   question   is   not   whether   he   was

biased. It is difficult to prove the state of mind of a

person. Therefore what we have to see is whether there

is reasonable ground for believing that he was likely to

have   been   biased....   There   must   be   a   reasonable

likelihood of bias. In deciding the question of bias we

have to take into consideration human probabilities

and ordinary course of human conduct.”

This Court emphasised that it was not necessary to establish bias

but it was sufficient to invalidate the selection process if it could be

shown that there was reasonable likelihood of bias. The likelihood

of bias may arise on account of proprietary interest or on account

of personal reasons, such as, hostility to one party or personal

friendship or family relationship with the other. Where reasonable

likelihood  of  bias is alleged on the ground of relationship,  the

question   would   always   be   as   to   how   close   is   the   degree   of

relationship or in other words, is the nearness of relationship so

great as to give rise to reasonable apprehension of bias on the part

of the authority making the selection.”

                                                           (emphasis added)

24

37. In the instant case, the complaint was made by the Deputy

Superintendent of Police (Mr. Ranjan Kumar Das) of the Directorate

of Vigilance, 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   that   apart,   a   preliminary   inquiry   was   conducted

independently by a senior officer of the Directorate of Vigilance,

Additional Superintendent of Police, Mr. P.K. Naik, who submitted

his   report   of   the   preliminary   inquiry   on   28th  May,   2021,   the

question of bias in the instant facts and circumstances does not

arise at all and that apart, the Constitution Bench of this Court

recently in Mukesh Singh vs. State (Narcotic Branch of Delhi)3

,

while examining the question as to whether in case investigation is

conducted by the police officer who himself is a complainant is the

trial stands vitiated and the accused is entitled to acquittal and

after   examining   the   scheme   of   the   Code,   finally   answered   the

reference as under:

“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

Singh v. State   of   Rajasthan [(1976)   1   SCC   15]   , Megha

3 2020 (10) SCC 120

25

Singh v. State   of   Haryana [(1996)   11   SCC   709]

and State v. Rajangam [(2010) 15 SCC 369] and the acquittal of

the accused by this Court on the ground that as the informant and

the investigator was the same, it has vitiated the trial and the

accused is entitled to acquittal are to be treated to be confined to

their own facts. It cannot be said that in the aforesaid decisions,

this Court laid down any general proposition of law that in each

and every case where the informant is the investigator there is a

bias caused to the accused and the entire prosecution case is to be

disbelieved and the accused is entitled 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 the

ground of bias or the like factor. The question of bias or prejudice

would depend upon the facts and circumstances of each case.

Therefore, merely because the informant is the investigator, by that

itself the investigation would not suffer the vice of unfairness or

bias   and   therefore   on   the   sole   ground   that   informant   is   the

investigator, the accused is not entitled to acquittal. The matter

has to be decided on a case­to­case basis. A contrary decision of

this Court in Mohan Lal v. State of Punjab [(2018) 17 SCC 627] and

any   other   decision   taking   a   contrary   view   that   the   informant

cannot  be  the investigator and in such  a case  the accused  is

entitled to acquittal are not good law and they are specifically

overruled.”

                                                                    (emphasis added)

38. We are of the considered view that there was no element of

bias in conducting a preliminary inquiry in the instant case and the

objection raised by the respondents stands overruled.   

39. The further objection raised by the respondents is in reference

to the locus standi of the appellant in filing appeal in this Court and

in   support   of   his   submission,   counsel   placed   reliance   on   the

judgments of this Court in National Commission for Women vs.

26

State   of   Delhi   and   another4 and  M.S.   Kazi   vs.   Muslim

Education   Society   and   others5

.     In   our   considered   view,   the

submission is wholly bereft of merit for the reason that the action of

the appellant initiated pursuant to order dated 11th December, 2020

for conducting a preliminary inquiry in exercise of powers conferred

under   Section   20(1)   of   the   Act,   2014   was   a   subject   matter   of

challenge before the High Court at the instance of respondent no.1

and if that is being interfered with and the action of the appellant is

being set aside under the impugned judgment dated 3rd February,

2021, the appellant, indeed, was a person aggrieved and has a

locus standi to question the action interfered with by the Division

Bench of the High Court and the only remedy available with the

appellant is to question the order of the Division Bench of the High

Court by filing an special leave petition 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 in

criminal trial, in the first instance held by the trial Court, the

4 2010 (12) SCC 599

5 2016 (9) SCC 263

27

accused was convicted and on appeal being preferred by him, was

later acquitted by the competent Court of jurisdiction and obviously

appeal could be preferred against the order of acquittal either by the

prosecution i.e. the State Government or the victim, under Section

378 of the Code of Criminal Procedure, 1973, but either of the party

has not preferred any appeal and it was the National Commission

for Women who approached this Court by filing a special leave

petition under Article 136 of the Constitution and this Court still

has ventured to examine the appeal preferred by the Commission

on merits, but observed that the special leave to appeal at the

instance of the appellant – National Commission for Women, is not

maintainable and obviously at least the National Commission for

Women was not a person aggrieved and it has no locus to object the

order passed by 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 minority

institution after conducting a disciplinary inquiry.   As the matter

travelled   to   the   High   Court   under   Article   226/227   of   the

Constitution and at this stage the Division Bench of the High Court

28

observed that since the Tribunal is not a party respondent who was

the Administrator before whom the dispute inter se between the

parties i.e. the teacher and the minority institution was examined,

the objection was sustainable, still that objection was turned down

by this Court as referred in para 9 and held that it is the person

aggrieved who has to pursue his or her remedy available under the

law and in the case on hand the person aggrieved invoked the

jurisdiction of the Tribunal, but the Tribunal was not a necessary

party to the proceedings for the reason that the lis was between

teacher and the minority institution and accordingly, this Court

held that the High Court has committed an error in dismissing the

letters patent appeal on the ground that it was not maintainable in

the absence of Tribunal being a party respondent.   

42. Both   the   judgments   relied   upon   are   not   even   remotely

concerned with the facts and circumstances of the present case.

To say in other words, if the order of the appellant directing the

Directorate   of   Vigilance   to   conduct   the   preliminary   inquiry   in

exercise of power under Section 20(1) of the Act, 2014 dated 11th

December, 2020 has been set aside by the High Court, obviously,

29

the appellant is a person aggrieved and can certainly question the

legality/validity of the judgment of the High Court impugned by

invoking   jurisdiction   of   this   Court   under   Article   136   of   the

Constitution.

43. Consequently,   the   appeals   succeed   and   are   accordingly

allowed.   The judgment of the High Court dated 3rd February, 2021

and the review order dated 5th April, 2021 are hereby set aside. No

costs.  

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

……………………………J.

                                                     (AJAY RASTOGI)

……………………………J.

                                                         (BELA M. TRIVEDI)

NEW DELHI

FEBRUARY 23, 2023.

30