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TMI Blog2013 (1) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Chandrashekaraiah as Upa Lokayukta on 21.1.2012, was without consulting the Chief Justice of the High Court, the same was illegal. The High Court also issued various directions including the direction to the State and the Principal Secretary to the Governor to take steps for filling up the post of Upa Lokayukta in accordance with the directions contained in the judgment. Aggrieved by the Judgment of the High Court, these appeals have been preferred by Justice Chandrashekaraiah and the State of Karnataka. Facts 4. The notification dated 21.1.2012 issued in the name of the Governor was challenged by two practicing lawyers in public interest contending that the institution of Lokayukta was set up in the State for improving the standard of public administration by looking into complaints against administrative actions including cases of corruption, favouritism and official indiscipline in administrative machinery and if the Chief Minister's opinion has primacy, then it would not be possible for the institution to work independently and impartially so as to achieve the object and purpose of the Act. 5. The office of the Karnataka Upa Lokayukta fell vacant on the resignation of J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and functions of the office of Lokayukta or Upa Lokayukta are to carry out investigation and enquiries and the institution of Lokayukta, as such, does not form part of the judicial organ of the State. Learned senior counsel also submitted that the functions and duties of the institution of Lokayukta, as such, cannot be compared with the functions and duties of the Judiciary, Central Administrative Tribunals, State Administrative Tribunals or Consumer Disputes Redressal Forums etc. 10. Learned senior counsel, referring to the various provisions such as Sections 3, 7, 9 etc. of the Act, submitted that Lokayukta or Upa Lokayukta are appointed for the purpose of conducting investigations and enquiries and they are not discharging any judicial functions as such and their reports are only recommendatory in nature. Consequently, the Act never envisaged vesting any primacy on the views of the Chief Justice of the High Court in the matter of appointment of Lokayukta or Upa Lokayukta. In support of his contentions, reference was made to the various judgments of this Court, which we will discuss in the latter part of this judgment. Shri Viswanathan, however, has fairly submitted that, as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rror in quashing the notification appointing Justice Chandrashekaraiah as Upa Lokayukta. Learned senior counsel submitted that the various directions given by the High Court in its judgment is in the realm of rule making which is impermissible in law. 13. Shri K.N. Bhat, learned senior counsel appearing for the respondents endorsed the various directions given by the High Court which according to him are of paramount importance considering the nature and functions to be discharged by Lokayukta or Upa Lokayukta in the State of Karnataka. Learned senior counsel pointed out that the institution of Lokayukta has been set up for improving the standards of public administration so as to examine the complaints made against administrative actions, including the cases of corruption, favouritism and official indiscipline in administrative machinery. Shri Bhat compared the various provisions of the Act with the similar legislations in other States and submitted that, so far as the Karnataka Act is concerned, there is a multi-member team of consultees and also there is no indication in the Act as to whose opinion should prevail over others. Considerable reliance was placed on the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angements for redress of grievances; and (2) the need for introduction of any new machinery for special institution for redress of grievances. The Commission after elaborate discussion submitted its report on 14.10.1966 to the Prime Minister vide letter dated 20.10.1966. 17. The Commission suggested that there should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States and another authority in each State and at the Centre for dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary. The Committee, in its report, has stated as follows: "21. We have carefully considered the political aspect mentioned above and while we recognize that there is some force in it, we feel that the Prime Minister's hands would be strengthened rather than weakened by the institution. In the first place, the recommendations of such an authority will save him from the unpleasant duty of investigation against his own colleagues. Secondly, it will be possible for him to deal with the matter without th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir appointment should, as far as possible, be non- political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favourtism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive Government. Bearing in mind these essential features of the institutions, the Commission recommend that the Lokpal be appointed at the Centre and Lokayaukta at the State level. The Lokayukta 36. So far as the Lokayukta is concerned, we envisage that he would be concerned with problems similar to those which would face the Lokpal in respect of Ministers and Secretaries though, in respect of action taken at subordinate levels of official hierarchy, he would in many cases have to refer complainants to competent higher levels. We, therefore, consider that his powers, functions and procedures may be prescribed mutatis mutandis with those which we have l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the working of the institution of Lokpal or Lokayukta that we have suggested for India will be watched with keen expectation and interest by other countries. We hope that this aspect would also be fully borne in mind by Government in considering the urgency and importance of our recommendation. Though its timing is very close to the next Election, we need hardly to assure the Government that this has had nothing to do with the necessity of making this interim report. We have felt the need of such a recommendation on merits alone and are convinced that we are making it not a day too soon." 18. Based on the above report, the following Bill was presented before the Karnataka Legislature which reads as follows:- "The Administrative Reforms Commission had recommended the setting up of the institution of Lokayukta for the purpose of appointment of Lokayukta at the state's level, to improve the standards of public administration, by looking into complaints against the administrative actions, including cases of corruption, favouritism and official indiscipline in administrative machinery. One of the election promises in the election manifesto of the Janata Party was the setti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the Lokayukta may investigate any action which is taken by or with the general or specific approval of.- (i) the Chief Minister; (ii) a Minister or a Secretary; (iii) a member of the State Legislature; or (iv) any other public servant being a public servant of a class notified by the State Government in consultation with the Lokayukta in this behalf; in any case where a complaint involving a grievance or an allegation is made in respect of such action. (2) Subject to the provisions of the Act, an Upa-lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature, Secretary or other public servant referred to in sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upa-lokayukta, the subject of a grievance or an allegation. (2-A) Notwithstanding anything contained in sub-sections (1) and (2), the Lokayukta or an Upa-lokayukta may investigate any action taken by or with the general or specific approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint referred to in clauses (c) and (d) if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in those clauses. (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lokayukta or an Upa-lokayukta to question any administrative action involving the exercise of discretion except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised." 21. Section 9 of the Act pertains to provisions relating to 'complaints' and 'investigations' which is extracted hereunder: "9. Provisions relating to complaints and investigations.- (1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokayukta or an Upa-lokayukta. (2) Every complaint shall be made in the form of a statement supported by an affidavit and in such forms and in such manner as may be prescribed. (3) Where the Lokayukta or an Upa-lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry if any, before such investigation) under this Act, the Lokayukta or an Upa-lokahukta may require any public servant or any other person who, in his opinion, is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document. (2) For the purpose of any investigation (including the preliminary inquiry) the Lokayukta or Upa-lokayukta shall have all the powers of a Civil Court while trying a suit under that the Code of Civil Procedure Code, 1908, in respect of the following matters only:- a) summoning and enforcing the attendance of any person and examining him on oath; b) requiring the discovery and production of any document; c) receiving evidence on affidavits; d) requisitioning any public record or copy thereof from any Court or office; e) issuing commissions for the examination of witnesses or documents; f) such other matters as may be prescribed." Sub-section (3) of Section 11 provides for applicability of Section 193 of the Indian Penal Code (Punishment for false evidence), for proceedings before the Lokayukta or Upa Lokayukta, while exercising its powers conferred under sub-section (2) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacate office if directed by Lokayukta etc. (1) Where after investigation into a complaint the Lokayukta or an Upalokayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokayukta or the Upalokayukta shall make a declaration to that effect in his report under sub-section (3) of section 12. Where the competent authority is the Governor, State Government or the Chief Minister, it may either accept or reject the declaration. In other cases, the competent authority shall send a copy of such report to the State Government, which may either accept or reject the declaration. If it is not rejected within a period of three months from the date of receipt of the report, or the copy of the report, as the case may be, it shall be deemed to have been accepted on the expiry of the said period of three months. (2) If the declaration so made is accepted or is deemed to have been accepted, the fact of such acceptance or the deemed acceptance shall immediately be intimated by Registered post by the Governor, the State Government or the Chief Minister if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be discharged by Lokayukta or Upa Lokayukta under the Act. 26. The Act has, therefore, clearly delineated which are the matters to be investigated by the Lokayukta and Upa Lokayukta. They have no authority to investigate on a complaint involving a grievance in respect of any action specified in the Second Schedule of the Act, which are as follows: a) Action taken for the purpose of powers investigating crimes relating to the security of the State. b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a Court or not. c) Action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers, except where the complaint alleges harassment or gross delay in meeting contractual obligations. d) Action taken in respect of appointments, removals, pay, discipline, superannuation or other matters relating to conditions of service of public servants but not including action relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. e) Grant of honours and awards. 27. Further if the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in the case of quasi-judicial functions, under the relevant law, the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority. Noticing the above legal principles this Court held in view of the requirement of law that the Commission is to give decision only after making an enquiry, wherein an opportunity of hearing is to be given to the representative of the political party, the Election Commission is is required to act judicially. 32. Recently, in Automotive Tyre Manufactures Association v. Designated Authority and others (2011) 2 SCC 258, this Court examined the question whether the Designated Authority appointed by the Central Government under Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped Articles and for Determination of Injury) Rules, 1995 (1995 Rules) for conducting investigation, for the purpose of levy of anti dumping duty in terms of Section 9-A of the Customs Act, 1962, is functioning as an administrative or quasi judicial authority. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ukta, if after the investigation, is satisfied that the public servant has committed any criminal offence, prosecution can be initiated, for which prior sanction of any authority required under any law for such prosecution, shall also be deemed to have been granted. Nature of Appointment 35. We are, in this case, as already indicated, called upon to decide the nature and the procedure to be followed in the matter of appointment of Lokayukta or Upa Lokayukta under the Act for which I have elaborately discussed the intention of the legislature, objects and purpose of the Act and the nature and functions to be discharged by Lokayukta or Upa Lokayukta, its investigative nature, the consequence of its report etc. Section 3 of the Act deals with the appointment of Lokayukta and Upa Lokayukta, which reads as follows: 3. Appointment of Lokayukta and Upa-lokayukta- (1) For the purpose of conducting investigations and enquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-lokayukta or Upa-lokayuktas. (2)(a) A person to be appointed as the Lokayukta s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. It is, therefore, clear that all the above five dignitaries have to be consulted before tendering advice by the Chief Minister to the Governor of the State. 37. Section 3(2)(b) of the Act stipulates that, so far as the Upa Lokayukta is concerned, he shall be a person who has held the office of a Judge of the High Court and shall be appointed on the advice tendered by the Chief Minister. The Chief Minister has to consult the five dignitaries, the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Legislative Council and the Leader of Opposition in the Karnataka Legislative Assembly. Therefore, for the purpose of appointment of Lokayukta or Upa Lokayukta all the five consultees are common. The appointment has to be made by the Governor on the advice tendered by the Chief Minister in consultation with those five dignitaries. Legislations in few other States.- 38. Legislatures in various States have laid down different methods of appointment and eligibility cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as Lokayukta and one or more persons to be known as Upa-Lokayukta or Upa-Lokayuktas: Provided that:- (a) The Lokayukta shall be appointed after consultation with the Chief Justice of the Gauhati High Court, the Speaker and the leader of the opposition in the Assam Legislative Assembly and if there be no such leader a person elected in this behalf by the members of the opposition in that house in such manner as the speaker may direct; (b) The Upa-Lokayukta or Upa-Lokayuktas shall be appointed after consultation with the Lokayukta Provided further that where the Speaker of the Legislative Assembly is satisfied that circumstances exists on account of which it is not practicable to consult the leader of the opposition in accordance with Cl(a) of the preceding proviso he may intimate the Governor the name of any other member or the opposition in the Legislative Assembly who may be consulted under that clause instead of the leader of the opposition. (2) Every person appointed as the Lokayukta or Upa-Lokayukta shall before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation in the form set out for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chattisgarh Legislative Assembly. (6) Every person appointed as a Pramukh Lokayukt or a L Lokayukt shall, before entering upon his office, take and subscribe before the Governor, or some person appointed in that behalf by him, an oath of affirmation in the form set out for the purpose in the First Schedule. (7) The Pramukh Lokayukt or the Lokayukt shall not hold any other office of trust or profit or be connected with any political party or carry on any business or practice any profession or hold any post in any society, including any cooperative society, trust, or any local authority, or membership of the Legislative Assembly of any State or of the Parliament. 43. DELHI LOKAYUKTA AND UPLOKAYUKTA ACT, 1995: Section 3 - Appointment of Lokayukta and Uplokayukta.- (1) For the purpose of conducting investigations and inquiries in accordance with the provisions of this Act, the Lieutenant Governor shall, with the prior approval of the President, appoint a person to be known as the Lokayukta and one or more persons to be known as Upalokayukta; Provided that- (a) the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court of Delhi and the Leader of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of the High Court. (3) Every person appointed as the Lokayukta shall, before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation in the form set out for the purpose in the First Schedule. 45. THE JHARKHAND LOKAYUKTA ACT, 2001 3. Appointment of Lokayukta- (1) For the purpose of conduction investigations in accordance with the provisions of this Act, the Governor shall by warrant under his hand and seal appoint a person to be known as the Lokayukta of Jharkhand; Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the Jharkhand High Court, Ranchi and the Leader of the Opposition in the State Legislative Assembly or if there be no such leader a person elected in this behalf by the Members of the Opposition in the State Legislative Assembly in such manner as the Speaker may direct. (2) The person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by the Governor, an oa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court concerned shall be consulted, if a sitting judge is appointed as an Upa- Lok Ayukta. (4) A person appointed as Lok Ayukta or Upa-Lok Ayukta shall, before entering upon his office, make and subscribe, before the Governor or a person appointed by him in that behalf, an oath or affirmation in the form set out for the purpose in the First Schedule." 48. A brief survey of the above statutory provisions would show that State Legislatures of various States have adopted different eligibility criteria, method of selection, consultative procedures etc. in the matter of appointment of Lokayukta, Upa-Lokayukta in their respective States. For instance, in Andhra Pradesh Lokayukta Act the Chief Minister as such has no role and the only consultee for the post of Lokayukta is the Chief Justice. Upa Lokayukta is appointed not from the category of Judges of the High Court, sitting or former, but from a panel of five names of District Judges of Grade I forwarded by the Chief Justice. Further in the States of Assam, Delhi, Gujarat, etc., the Chief Ministers have no role as such. However, in the States of Chattisgarh, Haryana etc., the Governor appoints on the advice of the Chief Minister. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Governor can only appoint a person to the post of District Judge in consultation with the High Court. The purpose and object of consultation is that the High Court is expected to know better in regard to the suitability or otherwise of a person, belonging either to the judicial service or to the Bar, to be appointed as a district Judge. The duties enjoined on the Governor are, therefore, to make the appointment in consultation with the body which is the appropriate authority to give advice to him. In Chandramouleshwar Prasad v. Patna High Court (1969) 3 SCC 56, Justice Mitter J. while interpreting the Article 233 held "that the High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. It was held that consultation with the High Court under Article 233 is not an empty formality. Further, it was also stated that consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other others and discuss and examine the relative merits of their views". 51. In Samsher Singh v. State of Punjab and another (1974) 2 SCC 831, Justice Kr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of functions to be discharged by them and to make the judiciary independent of the executive. APPOINTMENT TO THE CENTRAL AND STATE ADMINISTRATIVE TRIBUNALS 53. Central Administrative Tribunal as a Tribunal constituted under Article 323-A of the Constitution and is expected to have the same jurisdiction as that of the High Court. Such Tribunal exercises vast judicial powers and the members must be ensured absolute judicial independence, free from any executive or political interference. It is for this reason, sub-section (7) to Section 6 of the Administrative Tribunals Act, 1985 requires that the appointment of a member of the Tribunal cannot be made "except after consultation with the Chief Justice of India". Considering the nature of functions to be discharged by the Tribunal which is judicial, the views of the Chief Justice of India has primacy. In Union of India and others v. Kali Dass Batish and another (2006) 1 SCC 779 this Court has interpreted the expression "after consultation with the Chief Justice of India" as appearing in Section 6(7) of the Administrative Tribunal Act, 1985 and held that the judicial powers are being exercised by the Tribunal and hence the views of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Statute. 56. Judgments discussed above would indicate that the consultation is held to be mandatory if the incumbent to be appointed to the post is either a sitting or a retired judge who has to discharge judicial functions and the orders rendered by them are capable of execution. Consultation, it may be noted, is never meant to be a formality, but meaningful and effective and primacy of opinion is always vested with the High Court or the Chief Justice of the State High Court or the collegium of the Supreme Court or the Chief Justice of India, as the case may be, when a person has to hold a judicial office and discharge functions akin to judicial functions. 57. The High Court, in the instant case has, placed considerable reliance on the Judgment of this Court in K.P. Mohapatra (supra) and took the view that consultation with the Chief Justice is mandatory and his opinion will have primacy. Above Judgment has been rendered in the context of the appointment of Orissa Lokpal under Section 3 of the Orissa Lokpal and Lokayuktas Act. The proviso to Section 3(1) of the Act says that the Lokpal shall be appointed on the advice of the Chief Justice of the High Court of Orissa and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laws of England, Vol.1 page 59 has said "the most fair and rational method for interpreting a statute is by exploring the intention of the Legislature through the most natural and probable signs which are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reasons of the law. In Kanailal Sur v. Paramnidhi Sadhu Khan AIR 1957 SC 907, Justice Gajendragadkar stated that, "if the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act". It is unnecessary to multiply that principle with decided cases, as the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. 62. Section 3(2)(a) and (b) when read literally and contextually admits of not doubt that the Governor of the State can appoint Lokayukta or Upa Lokayukta only on the advice tendered by the Chief Minister and that the Chief Justice of the High Court is only one of the consultees and his views have no primacy. The Governor, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and character as a judge, various other information have also to be gathered since the persons who fall in that source are retired judges. Government has its own machinery and system to gather various information about retired judges. The Chief Minister, it may be noted, cannot advise a name from that source without making a meaningful and effective consultation after disclosing the relevant materials. This, in my view, is a sufficient safeguard against arbitrary selection and advice. Further, as already noticed, the duties and functions of the Lokayukta or Upa Lokayukta are investigative in nature and their orders as such cannot be executed. In such situation, the legislature, in its wisdom, felt that no primacy need be attached to views of the consultees including the Chief Justice but on the advice of the Chief Minister. 65. In my view that this is the scheme of Section 3(2)(a) and (b) of the Act and however, much we strain, nothing spells out from the language used in Section 3(2)(a) and (b) to hold that primacy be attached to the opinion expressed by the Chief Justice of the High Court of Karnataka. I am, therefore, of the view that the various directions given by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIVIL APPEAL Nos.200-202 OF 2013 [Arising out of SLP (Civil) Nos. 16512-16514 OF 2012] J U D G M E N T Madan B. Lokur, J. 1. Leave granted. 2. Brother Radhakrishnan has elaborately dealt with the issues raised - and I agree with his conclusions. Nevertheless, I think it necessary to express my views on the various issues raised. The issues raised: 3. My learned Brother has stated the material facts of the case and it is not necessary to repeat them. 4. The principal question for consideration is whether the appointment of Justice Chandrashekaraiah as an Upa-lokayukta was in accordance with the provisions of Section 3(2)(b) of the Karnataka Lokayukta Act, 1984 which requires consultation, inter alia, with the Chief Justice of the Karnataka High Court. In my opinion, the Karnataka High Court was right in holding that there was no consultation with the Chief Justice specifically on the appointment of Justice Chandrashekaraiah as an Upa- lokayukta. His appointment, therefore, is void ab initio. 5. Several related questions require consideration, including whether the Upa-lokayukta is a quasi-judicial authority or is only (without meaning any disrespect) an investigator; who shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le." Whether the Upa-lokayukta a quasi-judicial authority: 7. Without intending to belittle the office of the Upa-lokayukta, it was submitted by learned counsel for the State of Karnataka (hereafter "the State") that the Upa-lokayukta is essentially required to investigate complaints and inquire into grievances brought before him. In this process, he may be exercising some quasi-judicial functions, but that does not make him a quasi-judicial authority. The significance of this submission lies in the further submission that if the Upa-lokayukta is not a quasi-judicial authority then the opinion of the Chief Justice of the Karnataka High Court would not have primacy in the appointment and consultation process, otherwise it would have primacy. (i) View of the High Court: 8. After discussing the provisions of the Act and the case law on the subject, the High Court was of the opinion that the Upa-Lokayukta performs functions that are in the nature of judicial, quasi-judicial and investigative. The High Court expressed the view that if the functions of an Upa-Lokayukta were purely investigative, the legislature would not have insisted on a person who has held the office of a judge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice of the High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. In other words, the appointment of the Upa-lokayukta is the concern of constitutional authorities of the State. 13. The oath of office taken by the Upa-lokayukta in terms of Section 3(3) of the Act is similar to the oath of office taken by a judge of a High Court under Schedule III to the Constitution. The only substantial difference between the two is that, in addition, a judge of the High Court takes an oath to uphold the sovereignty and integrity of India and uphold the Constitution of India and the laws. 14. The term of office and other conditions of service of an Upa-lokayukta are dealt with in Section 5 of the Act. This Section, read with Section 6 of the Act (which deals with the removal of an Upa- lokayukta), provides security of tenure to the Upa-lokayukta. He has a fixed term of five years and cannot be removed "except by an order of the Governor passed after an address by each House of the State Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny enquiry or other proceedings to be conducted by him, an Upa-lokayukta is empowered by Section 10 of the Act to issue a warrant for search and seizure against any person or property. The warrant can be executed by a police officer not below the rank of Inspector of Police authorized by the Upa-lokayukta to carry out the search and seizure. The provisions of Section 10 of the Act also make it clear that the provisions of the Code of Criminal Procedure, 1973 relating to search and seizure shall apply. 20. By virtue of Section 11 of the Act, an Upa-lokayukta has all the powers of a Civil Court for the purpose of carrying out an investigation. These powers include summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of any document; receiving evidence on affidavits and other related powers. Proceedings before the Upa- lokayukta are deemed to be judicial proceedings within the meaning of Section 193 of the Indian Penal Code. In this context, Section 17-A of the Act is important and this Section enables the Upa-lokayukta to exercise the same powers of contempt of itself as a High Court and for this purpose, the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. 26. The conditions of service of the staff of the Upa-lokayukta are referred to in Section 15 of the Act. They may be prescribed in consultation with the Lokayukta in such a manner that the staff may act without fear in the discharge of their functions. Section 15 of the Act also enables the Upa-lokayukta to utilize the services of any officer or investigating agency of the State or even of the Central Government, though with the prior concurrence of the Central Government or the State Government. Section 15(4) of the Act makes it clear that the officers and other employees of the Upa-lokayukta are under the administrative and disciplinary control of the Lokayukta. 27. The broad spectrum of functions, powers, duties and responsibilities of the Upa-lokayukta, as statutorily prescribed, clearly bring out that not only does he perform quasi-judicial functions, as contrasted with purely administrative or executive functions, but that the Upa- lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is not placed on the pedestal of a judicial authority rendering a binding decision. He is placed somewhere in between an inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. However, the issue is more specifically dealt with in Associated Cement Companies v. P.N. Sharma, 1965 (2) SCR 366. In that case, Kania, C.J. held: "It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed." 32. Similarly, Das, J held, after reviewing a large number of cases where there were two disputing parties and an authority to adjudicate their dispute and where there were no two disputing parties but there was an authority to sit in judgment. I am presently concerned with the second line of cases. The learned Judge held: "What are the principles to be deduced from the two lines of cases I have referred to? The principles, as I apprehend them, are: (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly emanate from a person who is not within their jurisdiction. The only person who is outside the ambit of Lokayukta is the Chief Justice and all other Constitutional authorities mentioned in the provision come within his jurisdiction. They will not have the right to suggest the name. Only the Chief Justice would have the right to suggest the name which, of course the other Constitutional authorities can consider. Though all of them are constitutional authorities, all of them cannot be placed on the same pedestal. The Chief Justice is the head of the Judiciary in the State, and he cannot be compared with others. That is why the legislature has consciously enacted the provision in such a manner that the first person to be consulted is the Chief Justice. The intention of the legislature is clear. The name has to emanate from the Chief Justice alone. Therefore, the law laid down by the Constitution Bench of the Apex Court squarely applies to the appointment of Lokayukta and Upa- Lokayukta. Therefore, we have no hesitation in holding that under Section 3 of the Act, it is only the Chief Justice who shall suggest the name of the Judge for being appointed as Lokayukta or Upa- Lokayukta. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashok Tanwar and Another v. State of Himachal Pradesh and Others, (2005) 2 SCC 104. However, in that case, the Constitution Bench did not comment on the view expressed in Ashish Handa that the Chief Justice of the High Court must initiate the process for appointment of the President of the State Commission and not the Executive of the State. The law laid down in Ashish Handa to this extent remained unchanged. However, Ashish Handa was overruled on the modality of the consultation process, which I will consider in another section of this judgment. That Ashish Handa was overruled on the modality of the consultation process for the appointment of the President of the State Commission under Section 16 of the Consumer Protection Act was confirmed in State of Haryana v. National Consumer Awareness Group, (2005) 5 SCC 284. 40. In N. Kannadasan v. Ajoy Khose and Others, (2009) 7 SCC 1 the appointment of the President of the State Commission under Section 16 of the Consumer Protection Act once again came up for consideration. After referring to Ashish Handa, Ashok Tanwar and National Consumer Awareness Group it was held in paragraph 153 of the Report that the process of selection must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment were to recommend the name of a person? Would it vitiate the process or would the process be only irregular? Again, no clear- cut answer is available. Sarwan Singh Lamba seems to suggest that the procedure would not be vitiated but would, at best, only be irregular. But, Ashok Tanwar seems to suggest, sub silentio, that the appointment procedure would be vitiated. 45. Would these principles laid down by this Court apply to initiating the process of appointment of the Upa-lokayukta under the Act? I think not. In the appointment of the Upa-lokayukta, the Chief Minister must consult not only the Chief Justice but several other constitutional authorities also and given the fact that the Upa-Lokayukta is not a purely judicial authority, it hardly matters who initiates the process of appointment of the Upa-Lokayukta. Ordinarily, it must be the Chief Minister since he has to tender advice to the Governor and, in a sense, the appointment is his primary responsibility. But this does not preclude any of the other constitutional authorities who are required to be consulted from bringing it to the notice of the Chief Minister that the post of the Upa-Lokayukta needs to be filled up and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t firstly referred to the above decisions of this Court to explain the meaning of 'consultation' in the context of the appointment process and secondly in the context of the issue whether the view of the Chief Justice of the Karnataka High Court would have primacy in the process of consultation. (i) View of the High Court: 49. The High Court gave a realistic meaning to 'consultation' generally and, in my opinion, specifically to the meaning of the word as occurring in Section 3(2)(b) of the Act. This is what the High Court had to say: "The word 'consult' implies a conference of two or more persons or impact of two or more minds in respect of a topic/subject. A person consults another to be elucidated on the subject matter of the consultation. Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or atleast satisfactory solutions. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. A consultation may be between an uninformed person and an expert or between two experts. In either case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... function of the State Commission is primarily to adjudicate consumer disputes and therefore a person from the judicial branch is considered suitable for the office of the President of the State Commission under Section 16 of the Consumer Protection Act. Given this context, prior consultation with the Chief Justice of the High Court is obvious since the Chief Justice is the most appropriate person to know the suitability of the person to be appointed as the President of the State Commission. Further elaborating on this, it was held that the procedure of consultation should be the same as laid down in Article 217 of the Constitution as interpreted in Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268. 52. In Ashok Tanwar the Constitution Bench considered the dictum laid down in Ashish Handa and categorically distinguished the process of the appointment of a judge of a superior court under Article 217 of the Constitution from that of the President of the State Commission. It was observed in paragraph 16 of the Report as follows:- "The process of consultation envisaged under Section 16 of the Act can neither be equated to the constitutional requirement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal authority but is a sui generis quasi-judicial authority? In my opinion, the answer to this question must be in the affirmative. 58. At this stage, it is necessary to mention that on a plain reading of Section 3(2)(b) of the Act, there can be no doubt that consultation with all the constitutional authorities, including the Chief Justice of the Karnataka High Court, is mandatory. There was no dispute on this - the controversy was limited to the meaning of 'consultation'. I have already held that an Upa-lokayukta is not a judicial authority, let alone a constitutional authority like a judge of a High Court. Therefore, on reading of the above decisions, it is clear that the mandatory consultation in the appointment process as postulated by Section 3(2)(b) of the Act is with the Chief Justice in his individual capacity and not consultation in a collegial capacity. (iii) The process of consultation: 59. How is this 'consultation' to take place? There are absolutely no 'consultation' guidelines laid down in the Act. But the High Court seems to endorse the view that consultation ought take place across a table or through correspondence. It was also suggested by learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom his letter dated 4th February 2012 wherein he stated four times that he was not consulted on the appointment of Justice Chandrashekharaiah. This is what he stated: "I was not consulted on the said name (Shri Justice Chandrashekaraiah) for the position of Karnataka Upa Lokayukta. ... ... ... "I had not recommended the name of Shri. Justice Chandrashekaraiah for consideration for appointment as Karnataka Upa Lokayukta. Thereafter, I have not heard anything from you. I emphasise that the appointment of Shri. Justice Chandrashekaraiah has been made without consultation with the Chief Justice. Therefore, it is in violation of mandatory requirements of law. ... ... ... "To put the matter plainly, there is no gainsaying the fact that there never ever was any consultation on the name of Shri Justice Chandrashekaraiah for appointment to the position of Upa Lokayukta between you and myself. ... ... ... "I reiterate that in this particular case, not even the name was shared by you (the Chief Minister) with me (the Chief Justice), leave alone eliciting my views on the suitability of the person for holding the post of Upa Lokayukta." 62. The contents of this letter are not denied by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'prior consultation' is not always mandatory. Then there is 'consultation' as a part of "fair procedure" as mentioned in the second conclusion. This is mandatory. Finally, there is the conclusion arrived at which is 'after consultation'. In some cases the 'consultor' may be bound to accept the conclusion arrived at and in some cases he may not. That is a matter of interpretation of the statute and the purpose of the consultation process. But to say that since the 'consultor' is not bound by the conclusion arrived at, he need not go through the consultation process would be stretching the law laid down in IAS Association to the vanishing point. 66. This Court held in IAS Association, with reference to the above provision, that 'prior consultation' was not mandatory as long as the relevant rules were made 'after consultation'. The present case is not concerned with the issue of 'prior consultation'. All that is of concern in the present case is whether the Chief Minister acted in consultation with the constitutional authorities referred to Section 3(3)(b) of the Act and the answer to this is in the negative. 67. 'Consultation' for the purposes of Section 3(2)(b) of the Act does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st a name and on receipt of the same, ignoring the said name and tendering advice to the Governor to appoint somebody else, would make the consultation a farce." 71. In Ashok Tanwar the Constitution Bench did make a reference to the primacy of the Chief Justice of India in the context of the appointment of a judge of the superior court and noted that the Chief Justice is best equipped to know and assess the work of the candidate and his suitability for appointment. However, the Constitution Bench did not express any opinion on the question of primacy of the opinion of the Chief Justice in regard to the appointment of the President of the State Commission under Section 16 of the Consumer Protection Act, although I think it would naturally follow. 72. In any event, in Kannadasan it was held that for the appointment of the President of the State Commission, the view of the Chief Justice was final and for all intents and purposes decisive, and except for very cogent reasons, his recommendation must be accepted. It was held in paragraph 156 of the Report that: "For the appointment as President of the State Commission, the Chief Justice of the High Court shall have the primacy and thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to find out who is the most or more suitable for that office. It was also held that consultation with him is a sine qua non, and if there is a Leader of the Opposition then he "is also required to be consulted". But if there is no Leader of the Opposition, obviously consultation with him is not possible. This Court then said, "This would indicate nature of such consultation and which is to apprise him [the Leader of the Opposition] of the proposed action but his opinion is not binding to the Government." With respect, this does not follow. If the law requires consultation then it must take place; whether the opinion expressed during the consultation process is binding or not is a different matter altogether. This Court went a bit further in Justice Mohapatra and held that though the Leader of the Opposition is entitled to express his views but he cannot suggest any other name for consideration. 76. I am afraid, however uncomfortable one may feel about it, Section 3 of the Orissa Lokpal and Lokayuktas Act, 1999 as I read it, simply does not prohibit the Leader of the Opposition from suggesting some other name for consideration for appointment as a Lokpal. This restriction is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upa-lokayukta. 79. The mechanics of the working of a statute has to be decoded from the contents of the statute and the words used therein; otherwise there is a possibility of committing a serious error. If, as a general principle, it is held (as has been argued before us) that the view of the Chief Justice must have primacy over the views of everybody else, how would one explain the omission of the Chief Justice in the consultation process in the Kerala Lokayukta Act, 1999? Similarly, if as a general principle, it is held that the view of the Chief Minister must have primacy over the views of everybody else, how would one explain the omission of the Chief Minister in the consultation process in the Orissa Lokpal and Lokayuktas Act, 1995? It is for this reason that I would hold that a statute must be considered and understood on its own terms. In so construing the Act, I see no reason to accord primacy to the views of the Chief Justice in the appointment of an Upa-lokayukta under the Karnataka Lokayukta Act, 1984. The judgment of the High Court, to this extent, is set aside. Other contentions: 80. It was submitted that the practice followed for the appointment of the Upa-lokayuk ..... X X X X Extracts X X X X X X X X Extracts X X X X
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