R. A. MEHTA - (1.) The petitioners in both these petitions are challenging the witness summons issued to each of them by the Lokayukta Gujarat State in suo motu Inquiry No.4 of 1990 (Special Civil Application No. 8977 of 1992) and suo motu Inquiry No. 1 of 1991 (Special Civil Application No. 134 of 1993). It is contended that under section 22 of the Gujarat Lokayukta Act 1986 the Lokayukta has delegated the powers by his order dated August 22 1992 of recording evidence under section 11(1) and (2) to Shri B.R. Acharya Registrar Lokayukta office.
(2.) The learned Counsels appearing for both the petitioners have raised the following contentions. (1): That section 22 is ultra vires and violative of Articles 14 19 and 21 of the Constitution of India because it confers unreasonable and arbitrary powers without any guidelines and all the powers of the Lokayukta under the Act (except making the report under sections 12 and 13) can be delegated to any employee and even to a Class IV servant and therefore this section is bad. (2): In the alternative it is submitted that the order delegation is improper (3): The witness summons deserves to be quashed on the ground that it is bad; and (4): That the cross examination of the witnesses in suo motu inquiry by the Counsel of the Commission is not permissible in Law.
(3.) We have heard the learned advocates at length. Section 22 of the Gujarat Lokayukta Act 1986 reads as follows: "The Lokayukta may by a general or a special order in writing direct that any powers conferred or duties imposed on him by or under this Act (except the power to make reports to the Governor under sections 12 and 13) may also be exercised or discharged by such of the officers employees or agencies referred to in section 15 as may be specified in the order". It is submitted that a bare and literal reading of the section shows that Lokayukta may delegate any of his powers under the Act (except under sections 12 and 13) to any officer employee or agency referred to in section 15. It is submitted that Lokayukta is appointed under section 3 of the Act by the Governor after consultation with the Chief Justice of the High Court and also after consultation with the Leader of Opposition and he should be such a person who is or has been a Judge of the High court. It is therefore submitted that having regard to the high stature qualification experience and eminent suitability he is appointed as a Lokayukta for investigating into allegations against public functionaries and it is because of his high stature that the powers have been conferred on him and the powers are found in various provisions of the Act (even apart from sections 12 and 13) which are of sensitive and important nature and such powers cannot be delegated and that too without any guidance to any employee. Our attention has been drawn to the provisions of section 7(3) which provides that Lokayukta shall before proceeding to investigate any action make such preliminary inquiry as he deems fit for ascertaining whether there exists reasonable ground for conducting the investigation and if he finds that there exists no such ground he shall record a finding to that effect and there upon the matter shall be closed. Thus the power of summary rejection of the complaint has been conferred under section 7(3) of the Act and this is important power and under section 22 this power can be delegated and that too without any guidelines as to whom much powers can be delegated. Similarly the provisions of section 8 and (4) have also been referred to. Section 8 provides for the matters which shall not be investigated by the Lokayukta and if any question arises whether such matter is excluded or not excluded decision on such questions can be left to the delegate. Section 10(1) provides that Where the Lokayukta decides to conduct any investigation under the Act he shall forward a copy of the complaint or a statement setting out the grounds if he proposes to conduct investigation on his own motion and the Lokayukta shall afford to the public functionary concerned an opportunity to offer his comments on such complaint or statement and make orders asto the safe custody of the document. Section 10(2) provides that every such investigation shall be conducted in private. Section 10(4) provides that the Lokayukta in his discretion may refuse to investigate or cease to investigate any complaint if in his opinion the complaint is frivolous or vexatious or is not made in good faith- or there are no sufficient grounds for investigating or as the case may be for continuing the investigation or other remedies are available to the complainant. It is submitted that under section 22 even this discretion and power of the Lokayukta can be delegated.;