Lokayukta Can Only 'Recommend' To Disciplinary Authority To Take Action Against Erring Officer, No Statutory Power To Issue Direction: Jharkhand HC

The Jharkhand High Court has held that Section 12(3) of the Jharkhand Lokayukta Act, 2001 does not confer power upon the Lokayukta to pass a direction commanding upon the disciplinary authority to take action against a person, against whom irregularities are found to be true in the course of inquiry.

Justice Sujit Narayan Prasad held that the authority can only make a recommendation to that effect.

The development arose in a writ petition that was filed under Article 226 of the Constitution of India challenging an order by the respondent, on the ground that under the provision of Section 12(3) and Section 12(5)(A), the Lokayukta has got no power to direct the disciplinary authority to take action based on the fact-finding report.

The Court analyzed the fact of the given case and the order passed by the  Lokayukta to test whether the order passed therein is a recommendation or a direction. It noted that the order had been passed, making the competent authority to suspend the petitioner along with other public servants whose names have been referred in the impugned order and to initiate a departmental proceeding; apart from that, an FIR has also been recommended to be instituted. It observed,

"It further appears that after making such recommendation, the stipulation has been made to the effect that such recommendation is being made, so that, in future such occurrence may not be repeated. Further, the order has been passed upon the concerned authority to communicate to the Office of the learned Lokayukta about the action taken report within three months. Thus, it is evident that the order impugned, initially, contains recommendation of suspending the public servants and initiating the departmental proceeding against them as also instituting an FIR. If the order would have been up to the stage of recommendation, then it would have been said to be in consonance with the provision of Section 12(3) and 12(5)(k) under which the power has been conferred by the Lokayukta to take decision by making recommendation before the competent authority, so that, the recommendation, if required be acted upon."

However, noting that the stipulation has been made to the effect that such recommendation is being made so that such occurrence may not be repeated and the action is taken report to be also furnished within three months, is changing the nature of recommendation making it a direction.

It concluded that since the provision of Section 12(3) does not confer power upon the Lokayukta to pass such direction commanding upon the disciplinary authority to take action against whom irregularities are true in the course of inquiry. Therefore, the Court held that the order passed by the Lokayukta is required to be modified to the extent that the aforesaid order will be treated to be a recommendation. It directed,

"The authority before whom, the finding along with the recommendation has been sent, is directed to act strictly in pursuance to the provision of Section 12 of the Act, 2001, so that the purpose for which, the Lokayukta Act, 2001 as has been enacted, be achieved, keeping this into consideration the Chief Secretary of the State is directed to ensure compliance of this order."

Disposing of the petition directed that the authority will not be prejudiced in any way while acting as per the recommendation and will make a decision without being prejudiced by this order.

Case Title:  Jai Prakash Narayan Sinha v. The State of Jharkhand & Ors.

Citation: 2022 Livelaw (Jha) 17

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