Ramesh Abhishek v. Lokpal of India & Anr.

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioner - Mr. Ramesh Abhishek challenging the impugned orders dated 2nd February, 2022 and 3rd January, 2023 passed by the Lokpal of India by which inquiries and investigation by the Directorate of Enforcement (ED) have been directed by Lokpal against the Petitioner, in respect of possession of disproportionate assets.

3. The Petitioner is an ex-IAS officer who served as the Secretary to the Ministry of Commerce/DPIIT as also the Chairperson of the Forward Markets Commission. He retired with effect from 31st July, 2019. A complaint was received by The Lokpal of India in May 2019 against the Petitioner. Vide impugned order dated 2nd February, 2022, the Lokpal directed as under:

4. As can be seen from the above directions, the Lokpal referred the matter to the ED to make enquiries in respect of immovable property and other properties of the Petitioner. The ED vide its letter dated 4th August, 2022, communicated a report to Lokpal which was considered on 3rd January, 2023 by the Lokpal. After considering the report submitted by the ED, vide the impugned order dated 3rd January, 2023, the Lokpal directed an open enquiry and it was further directed that the said enquiry and investigation should be completed by the ED within two months. The relevant portions of the said impugned order dated 3rd January, 2023 are extracted below:

5. Mr. Ajit Kumar Singh, ld. Counsel appearing for the Petitioner takes the following grounds to challenge the jurisdiction of Lokpal and the manner in which the Lokpal is proceeding in the matter. The contentions of ld. Counsel are as under: i) Under Section 14 of the Lokpal and Lokayuktas Act, 2013 ( hereinafter, ‘Lokpal Act, 2013’), an enquiry can relate to only the period during which the public servant is holding or serving capacity; ii) Under Section 20 of the Lokpal Act, 2013, preliminary enquiry can only be directed by the Central Vigilance Commission and not by the ED; iii) Under Rule 4 of the Lokpal (Complaint) Rules, 2020 the identity of the complainant or the public servant has to be protected till the enquiry or investigation is going on. iv) The manner in which the Lokpal has directed the ED to enquire into the matter would also be in contrary to the scheme of the Lokpal Act, 2013 inasmuch as the Lokpal could not have sought enquiry by the ED as the Petitioner belongs to Group A class of officers and would be covered by the first proviso to Section 20 (1) of the Lokpal Act, 2013. v) Finally, the complaint is also not in the proper format as required under Section 2(e) and the accompanying format of the Lokpal Act, 2013.

6. It is urged on behalf of the Petitioner that summons are currently being sent by the ED to clients of the Petitioner to whom the Petitioner is currently providing professional services which is contrary to Rule 4 of the Lokpal (Complaint) Rules, 2020. It is further submitted that the right to livelihood of the Petitioner is being adversely affected by such methods adopted by the ED.

7. On behalf of the ED, Mr. Zoheb Hossein, ld. Counsel submits that under Section 20, preliminary enquiry can be directed against any public servant by any agency to ascertain whether there exists a prima facie case which is what has been done by the Lokpal in the present case. For the said purpose, under the PMLA, 2002 the ED is empowered to issue notices/summons calling for information. The said clients or employers of the Petitioner are not themselves under investigation but only information gathering is being done.

8. Mr. Kurup, ld. Counsel for the Lokpal of India submits that insofar as the Petitioner is concerned, the period for which the enquiry is being conducted, is the period during which the Petitioner was a public servant. However, the activities of the Petitioner post retirement may also have a bearing on the conduct while the Petitioner was a public servant. Further, insofar as Rule 4 of the Lokpal (Complaint) Rules, 2020 is concerned, the same is directory and it is left to the discretion of the Lokpal as to in what manner the confidentiality is to be maintained.

9. The Court has considered the matter. The Lokpal is a body created by Parliament to look into allegations of corruption and misconduct of public servants. In order for it to function effectively, the Lokpal needs to be able to get enquiries and investigations done by specialised agencies. Moreover, interference in the proceedings before Lokpal, while exercising writ jurisdiction, ought to be avoided, unless there is something palpably wrong or contrary to law. Repeated petitions seeking to interdict the proceedings before Lokpal would defeat the very purpose of the legislation.

10. The first impugned order of the Lokpal is of 2nd February, 2022 when the ED was asked to enquire into the complaint which was before it. The second order dated 3rd January, 2023 is also in continuation of the ED report received in terms of the first order.

11. Today, Mr. Zoheb Hossein submits that the ED has in fact already submitted its report to the Lokpal which is proceeding in the matter. A report in terms of the order dated 3rd January, 2023 has already been submitted. However, the ED has sought further time to submit a final report.

12. The entire matter is under consideration of the Lokpal and challenge in the present petition is to stop the investigation by Lokpal which this Court is not inclined to do at this stage. The legal grounds which are being raised by the Petitioner, relating to the jurisdiction of Lokpal or the manner in which it is proceeding, can be brought to the attention of Lokpal by the Petitioner himself by appearing before the Lokpal at the appropriate stage.

13. A perusal of Section 20 would reveal that the stage of the enquiry/investigation is currently preliminary in nature. The relevant part of the provision is as under: