Kerala High Court
Writ Petitioners vs P.Saralakumari
Author: V.Giri
Bench: V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.GIRI
THURSDAY, THE 13TH SEPTEMBER 2007 / 22ND BHADRA 1929
WP(C).No. 21379 of 2006(T)
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PETITIONER: WRIT PETITIONERS
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1. A.T.GEORGE, U.D.CLERK,
COLLECTORATE, IDUKKI.
2. M.N.SUKUMARAN,
SPECIAL TAHSILDAR L.A., THODUPUZHA.
3. P.K.GOPINATHAN,
REVENUE DIVISIONAL OFFICER, DEVIKULAM.
BY GOVERNMENT PLEADER SRI. P.NANDAKUMAR
RESPONDENTS:
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1. P.SARALAKUMARI,
QUARTERS NO.D 13, KSEB COLONY, VAZHATHOPU,
IDUKKI COLONY P.O.
2. THE KERALA LOK AYUKTA, REPRESENTED BY
ITS REGISTRAR, THIRUVANANTHAPURAM.
R1 BY ADV. SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SMT.REENA THOMAS
SRI.TITUS THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13/09/2007 ALONG WITH WPC NO. 3735/2007 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO: 21379/2006
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1. COPY OF THE ORDER DATED 13/09/04.
EXT.P2. COPY OF THE ORDER DT. 27/3/2006 IN COMPLAINT NO. 2186/04 OF THE R2.
RESPONDENT'S EXHIBITS
EXT.R1A. COPY OF THE ORDER IN COMPLAINT NO. 2186/04 BY R2.
EXT.R1B. COPY OF THE COMPLAINT BY R1 BEFORE THE LOK AYUKTA.
EXT.R1 C1: COPY OF THE REPLY BY THE RESPONDENTS.
EXT.R1 C2: COPY OF THE REPLY BY RESPONDENTS.
EXT.R1 D. COPY OF THE SEPARATE REPLY BY THE R1.
EXT.R1 D1. COPY OF THE REPLY BEFORE THE R1.
EXT.R1 D2. COPY OF THE ARGUMENT NOTE BEFORE THE R1.
EXT.R1E. COPY OF THE SEPARATE PETITION BY THIS RESPONDENT.
EXT.R1 F. COPY OF THE ORDER NO. 88043/PRU2/01/FIN DT. 16/10/01.
EXT.R1G. COPY OF THE COMMUNICATION VIDE NO. 85189/PRC C2/2003/FIN DT. 4/3/04
FROM THE GOVT.
EXT.R1H. COPY OF THE REVIEW PETITION.
EXT.R1I. COPY OF THE ORDERS GRANTING REFIXATION OF PAY TO THIS
RESPONDENT.
Truecopy
tga
V.GIRI, J.
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W.P.(C).Nos.21379/06, 3422, 3565, 3611,
3612, 3614, 3616 & 3735 of 2007 H
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Dated this the 13th day of September, 2007.
JUDGMENT
Common questions arise in all these writ petitions filed by the State of Kerala, under Article 226 of the Constitution, challenging identically worded orders passed by the Kerala Lok Ayuktha, in complaints preferred by the contesting respondents herein. The facts involved in all these cases are also so similar, as could be called as identical. Therefore, all these writ petitions have been heard and are disposed of by this common judgment. For the sake of convenience, W.P.(C)No.3565/07 is taken as the leading case.
2. Nine police constables of the District Armed Reserve, Thiruvananthapuram, were dismissed by the Governor of Kerala. They were dismissed as per G.O.(Rt) No.1041/74 dated 26.6.1974, after the Governor of Kerala was personally satisfied under the proviso to Article 311 of the Constitution of India that in the interest of the security of the State, it is not expedient to hold an enquiry in the case of the W.P.(C).Nos.21379/06 & con.cases :: 2 ::
said 9 policemen of the District Armed Reserve, Thiruvananthapuram. It was further found that the activities of the said 9 policemen are such as to warrant dismissal from service. Therefore, the Governor dismissed the aforesaid 9 policemen from service with immediate effect.
3. That the said order was not challenged before any court. But, a representation was filed by one among the 9 persons in 1987, and it seems that the Governor reviewed the earlier order of dismissal on the basis of the said representation. There was a further direction that the order dismissing them from service is liable to be vacated. They were ordered to be reinstated in service. This is as per G.O.(Rt)No.4737/ 97 dated 30.7.1997. Paragraph 4 of the said order reads as follows:
"So far as to how the period of absence in the case of the above policemen is to recognized will be issued separately."
4. Apparently, in consonance with the same the Government issued a subsequent order as G.O.(Rt) No.2544/92 dated 1.6.1992 directing as follows:
W.P.(C).Nos.21379/06 & con.cases :: 3 ::
"It has been reported by the Director General of Police tha Sri.Ali Akbar (PC 3583) and Sri.Ravikumar (PC3855) have expired. By the representations read as 3rd paper above, the other police constables have requested Government to regularise the period spent by them under dismissal.
Government have examined the case in detail and are pleased to order that the period of dismissal will be treated as break of service without forfeiture of past service."
5. It seems that the beneficiaries of the said order were not satisfied with the direction that the period of absence, viz., 26.6.1974 to 30.7.1990, be treated as a break of service without forfeiture of past service. Apparently, they again approached the Government and the Government proceeded to pass yet another order as G.O.(Rt)No.1358/00 dated 1.4.2000. The relevant portion of the said Government Order reads as follows:
"Government have examined the various aspects of the case of the petitioners in detail in consultation with Finance Department and they are of the view that requests of the petitioners merits a lenient view and sympathetic consideration on humanitarian grounds. Government are W.P.(C).Nos.21379/06 & con.cases :: 4 ::
therefore pleased to order that the period of dismissal i.e. From 26.6.74 to 30.7.90 of the above 9 policemen of District Armed Reserve, Thiruvanthapuram will be treated as qualifying service for the purpose of Pension in relaxation of rules, as special case."
6. In effect, therefore, though the 9 policemen were originally dismissed from service under Article 311(2) of the Constitution without an enquiry, they were subsequently reinstated in service. By the time the order of reinstatement came, two among the nine policemen, including the husband of the 1st respondent in the instant case, had died. But, what is relevant for the present case is that ultimately, the reinstatement of the persons, who were dismissed, should be treated as one accompanied by an order, of the Government, directing that the period of dismissal from 26.6.1974 to 30.7.1990 will be treated as qualifying service for the purpose of pension in relaxation of the Rules.
W.P.(C).Nos.21379/06 & con.cases :: 5 ::
7. The last among the orders above mentioned was also not specifically challenged before any court. But the first respondent herein filed a complaint as Complaint No.1408/05 before the Lok Ayuktha on 25.6.2005. The following reliefs were sought for in the said complaint:
"i) An order directing the respondents to issue the entire salary and other allowances of late M.S.Ravikumar during the period of illegal termination of service from 26-6-1974 to 2-7-1986 to the complainant.
ii) An order directing the respondents to refix
the pensionary benefits including the
monthly family pension till date, and pay the arrears therein to the complainant.
iii) An order directing the respondents to pay reasonable rate of interest to the said amount as fixed by this Hon'ble Lokayukta.
iv) Such other reliefs which this Hon'ble Lokayukta deem fit and proper in the interest of justice."
8. On receipt of summons, an Additional Secretary to the Home Department filed a counter affidavit therein. By order dated 24.4.2006 the Lok Ayuktha proceeded to pass a common order, which is impugned in all W.P.(C).Nos.21379/06 & con.cases :: 6 ::
these 7 writ petitions, holding that the complainant in the petition is entitled to salary for the period during which he was illegally kept out of service. It was further directed that the salary so due to the petitioner (namely the complainant before the Lok Ayuktha) must be disbursed within a period of two months from the date of receipt of a copy of that order. A report regarding the action taken was to be filed after paying the amount as directed to be paid as salary and allowances. It is Ext.P3 that has been challenged in these writ petitions.
9. It is contended by the State in the writ petitions that Ext.P3 order is without jurisdiction and therefore, warrants interference. The Lok Ayuktha should not have entertained that complaint and therefore, should not have passed the order, Ext.P3. It is further contended in the writ petitions that the order in question regarding payment of salary to the complainant for the period when he was kept out of service is beyond the scope and jurisdiction and powers of the Lok Ayuktha; that the issue relating to W.P.(C).Nos.21379/06 & con.cases :: 7 ::
pay and allowances claimed by the complainant for the period during which he was kept out of service will not come within the purview of an investigation conducted by the Lok Ayuktha. There was, therefore, an express exclusion of jurisdiction to try such matters. Specific reference was made to two decisions of a Bench of this court reported in Kamalu v. State of Kerala {2000(3) K.L.T. 227} and State of Kerala v. Bernad {2002(3) K.L.T. 254}.
10. A counter affidavit is filed by the first respondent wherein it is contended that the issue in question dealt with by the Lok Ayuktha does not fall within the excluded items mentioned in the second schedule to the Lok Ayuktha Act (for short "the Act") and therefore, the Lok Ayuktha had jurisdiction to deal with the same. It is further contended that the Lok Ayuktha had jurisdiction to investigate a complaint and that what was involved in the present case was a `grievance' within the meaning of Section 2(h) of the Act; that the Lok Ayuktha had jurisdiction to W.P.(C).Nos.21379/06 & con.cases :: 8 ::
decide the issue and consequently, the order under challenge does not warrant any interference.
11. I have heard learned Senior Government Pleader Mr.Nandakumar on behalf of the State and Mr.Rajasimhan on behalf of the first respondent. Elaborate arguments were addressed by both sides. I have also heard Mr.Mohan Jacob George, who was appearing for the first respondent in another connected case, as regards the question of jurisdiction.
12. The first issue which falls for consideration is whether the order passed by the Lok Ayuktha can be said to be without jurisdiction. In my opinion, if it is without jurisdiction, then this court would be justified in interfering with the same. But, if it is with jurisdiction, then this court will be reluctant to interfere with the order.
13. The primary question which arises for consideration is whether the order passed, Ext.P3 is with jurisdiction or not. Absence of jurisdiction is imputed in the present case with reference to the scope and ambit of the W.P.(C).Nos.21379/06 & con.cases :: 9 ::
powers exercised by the Lok Ayuktha under the provisions of the Act. It might, therefore, be necessary to refer to the salient provisions of the enactment.
14. Section 2(b) of Act defines an `allegation' in relation to a public servant. Section 2(h) and Section 2(k) of the Act are relevant and are, therefore, extracted hereunder:
(h) 'grievance' means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration.
(k) 'mal-administration' means action taken or purporting to have been taken in the exercise of administrative functions in any case where,-
(i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay.
15. Section 7 of the Act deals with matters which may be investigated by the Lok Ayuktha and Upa Lok Ayukthas. The Lok Ayuktha, may investigate any action W.P.(C).Nos.21379/06 & con.cases :: 10 ::
which is taken by or with the general or specific approval of the authorities, which are enumerated therein, in any case where a complaint involving a `grievance' or an `allegation' is made in respect of such action. The words `allegation' and `grievance' as occurring in Section 7 should naturally draw colour from the definition clause as contained in Sections 2(b) and 2(h) of the Act.
16. Section 8 of the Act deals with matters, which cannot be subjected to investigation.
17. Section 9 of the Act enables any person to make a complaint to the Lok Ayuktha or Upa Lok Ayuktha.
18. Section 10 enables the Lok Ayuktha to issue a search warrant and Section 11 enables the Lok Ayuktha to evaluate the evidence in the matters mentioned therein.
19. Section 12(1) of the Act makes it clear that if, after investigation of any action in respect of which a complaint involving grievance has been made, the Lok Ayuktha is satisfied that such action resulted in an `injustice` or `undue hardship' to the complainant or to any other W.P.(C).Nos.21379/06 & con.cases :: 11 ::
person, the Lok Ayuktha shall recommend to the competent authority concerned, that the injustice or undue hardship shall be remedied or redressed, in the manner in which the same is to be done. Sub-Section (3) deals with the action to be taken where there is an `allegation'. Sub-section (5) deals with the power of the Lok Ayuktha to take further steps, if it is satisfied that the action taken on its recommendation are satisfactory or where it is not satisfactory. Section 14 of the Act deals with cases where the Lok Ayuktha is satisfied that the complaint involving an allegation against a public servant is substantiated and that the said public servant should not continue to hold the post held by him. Therefore, a report recommending the same is binding on the Government and the Statute provides for a deeming provision by which the public servant concerned is deemed to have vacated his office where the report of the Lok Ayuktha is accepted by the Government.
20. There are, therefore, essentially two broad categories of proceedings before the Lok Ayuktha. The first W.P.(C).Nos.21379/06 & con.cases :: 12 ::
category deals with an "allegation" against a public servant and this ultimately could result in a report under Section 14 and may eventually lead to a public servant vacating the office as such. What takes place in between is 'the enquiry and investigation' conducted by the Lok Ayuktha and a hearing of the affected persons or any other person. But where there is a report under Section 14(1), the same is statutorily binding on the Government and the consequences also follow.
21. The second category deals with, what is defined in Section 2(k) of the Act as a `grievance'. The `grievance' arises where a person feels that he has sustained an injustice or undue hardship and proceeds to make a claim in that regard. The injustice or undue hardship must be in consequence of `mal-administration'. `Mal-administration', as noted above, has been defined in Section 2(k) of the Act. Appraisal of Section 2(k) of the Act would show that mal- administration is found if the action, which is the subject matter of the proceedings before the Lok Ayuktha, is found W.P.(C).Nos.21379/06 & con.cases :: 13 ::
to be unreasonable, unjust, oppressive or improperly discriminative. It can also arise where there has been willful negligence or undue delay in taking such action. Where, therefore, the Lok Ayuktha finds that a grievance is presented before it, it then proceeds under Section 9 of the Act. It may exercise its jurisdiction under Sections 10 and 11 of the Act. But, what does it do when it completes an enquiry or an investigation into a `grievance' and how does it proceed there from? Section 12 deals with the report of the Lok Ayuktha. Consequently, Section 12 does not speak about orders, as the term is understood, with reference to a judicial body, a quasi judicial body or a tribunal. Where, therefore, there is a report, the one question which arises in these circumstances, is what are the jurisdictional factors which would statutorily enable the Lok Ayuktha to forward a report to the Government in terms of Section 12(5). This is done, after investigation of any action, in respect of which a complaint involving a `grievance' has been made and the Lok Ayuktha is satisfied that the action, which has been W.P.(C).Nos.21379/06 & con.cases :: 14 ::
impugned in the complaint, has resulted in injustice or undue hardship to the complainant or any other person. The collocation of the words used in Section 12 is not inadvertent. It is purposeful. The words `claim' and `complaint', `injustice', `undue hardship' are those words which find a place in the definition of the word `grievance' under Section 2(h) of the Act. `Grievance' again, as the term is defined under Section 2(h) of the Act, mean a claim of injustice or undue hardship, but does not rest with that. It should be a case of injustice or undue hardship in consequence of `mal-administration'. `Mal-administration' is defined under Section 2(k) of the Act. Therefore, the satisfaction of the Lok Ayuktha referred to in Section 12(1) of the Act, must be in relation to a `grievance' and `grievance' must again be as the term is defined in Section 2
(h) of the Act. Is it enough, if a claim made by a person before the Lok Ayuktha, merely alleges that the complainant has sustained injustice or undue hardship in consequence of `mal-administration'? Is it necessary that the Lok Ayuktha W.P.(C).Nos.21379/06 & con.cases :: 15 ::
should be satisfied that the complainant has made out a `grievance' to come to such a conclusion? Is it not necessary that the Lok Ayuktha should enter a finding that injustice or undue hardship that has been caused either to the complainant or any other person is a consequence of `mal- administration'? If that be so, is it not necessary that the Lok Ayuktha should find that there has been `mal- administration', as the term is defined in Section 2(k) of the Act?
22. In my view, it is so necessary. It is only when the Lok Ayuktha finds that the complainant has made out a grievance, as the term is defined in Section 2(h) of the Act, that it can proceed to make a report under Section 12 (1) of the Act, recommending to the competent authority that an injustice or undue hardship shall be remedied or redressed. To take any other view, would be to do violence to the definition clauses in the Act and would also be against the real purport and purpose of the enactment in question. The Act was intended to oppress instances of mal- W.P.(C).Nos.21379/06 & con.cases :: 16 ::
administration. It is therefore that a high power body is constituted under the Act. The legislature in its wisdom thought that public servants, whose actions have been found to be instances of mal-administration, should also be required to redress the grievance suffered by a complainant and for this purpose, it enables the Lok Ayuktha to make a report and once such a report is made, the statutory consequences follow under Section 12 of the Act. It is, therefore, not merely enough that an allegation of `mal- administration' is made in a claim or a complaint filed before the Lok Ayuktha. In fact, a regular petition or a complaint, as we understand it in civil courts or constitutional courts, is not necessary to trigger the Lok Ayuktha into action and therefore, a mere allegation of 'mal-administration' is not sufficient to clothe the Lok Ayuktha with the jurisdiction to proceed to make a recommendation under Section 12 of the Act. Thus, satisfaction of the Lok Ayuktha that there is mal- administration, as the term has been defined in the enactment is, therefore, the jurisdictional factor with which W.P.(C).Nos.21379/06 & con.cases :: 17 ::
alone the Lok Ayuktha can proceed under Section 12(1) of the Act. The satisfaction is to be discerned from a reading of the report, which the Lok Ayuktha issues under Section 12 (1) of the Act. The absence of specific finding by the Lok Ayuktha regarding the existence of a mal-administration having tainted the action in question can, therefore, be treated as a jurisdictional infirmity or an irregularity, committed by the statutory body in question.
23. Further more, with regard to the question as to what is the nature of the action that could be taken by the Lok Ayuktha under Section 12(1) of the Act, the position is covered by the elaborately considered bench decisions of this court reported in Kamalu v. State of Kerala {2003 (2) K.L.T. 227} and State of Kerala v. Bernad {2002 (2) K.L.T. 254}.
24. Kamalu's case dealt with the precise scope of sub-clause (d) of the second schedule in the Act. It was held that "what is permitted to be investigated is only actions relating to claims for pension, gratuity, provident W.P.(C).Nos.21379/06 & con.cases :: 18 ::
fund or to any claims which arise on retirement, removal or termination of service. Obviously, the action in relation to such categories will have to be taken if it is a grievance and grievance will have to be answered under Section 2(k) of the Act, which again is rested on presence of 'mal- administration', as defined in Section 2(h) of the Act.
25. State of Kerala v. Bernad {2002(2) K.L.T. 254} is more apposite to the facts of the present case in the context of the nature of an action that could be taken by the Lok Ayuktha under Section 12 of the Act. The Bench undertook an elaborate consideration of several statutory provisions on the subject as also the provisions of the Act.
26. The area where the power could legitimately be operated, according to the Division Bench, is sub-section (1) of Section 14 of the Act which deals with a declaration that the public servant is not entitled to hold the office and the statutory obligation on the part of the competent authority is to accept the said declaration. The instant cases W.P.(C).Nos.21379/06 & con.cases :: 19 ::
are obviously not one which falls under Section 14 of the Act. In such circumstances, going by what the Division Bench has held in the aforementioned decision, Ext.P3 in the present case, would qualify itself as an order and if that be so, it was obviously beyond the jurisdiction of the Lok Ayuktha. In other words, if Ext.P3 is treated as an order, it is beyond the jurisdiction of the Lok Ayuktha and is, therefore bereft of jurisdiction.
27. Insofar as the jurisdictional aspect is concerned, there is yet another reason which persuades me to hold that Ext.P3 is unsustainable.
28. As mentioned by me supra, the Lok Ayuktha can proceed from the stage of Section 12(1) of the Act. Even if it is to make a report as such, it must be satisfied that there is a `grievance' made out in the case in question, by reason of an `injustice' or `undue hardship' caused either to the complainant or to any other person and such injustice or undue hardship is in consequence of a 'mal- administration'. In other words, the satisfaction of the Lok W.P.(C).Nos.21379/06 & con.cases :: 20 ::
Ayuktha requisite in terms of Section 12(1) of the Act must specifically relate to the existence of a 'mal-administration' having resulted in 'injustice' or 'undue hardship', as the case may be. Obviously, when a statutory authority is empowered to make a report, which has also statutory consequences as such, the satisfaction requisite must be discernible from the proceedings which takes the shape of an "order", as in the present case, or comes in the form of a report in terms of Section 12(1) of the Act. It is here, that I am constrained to note that there is not a whisper in Ext.P3 that there has been any 'mal-administration', as the term is defined in Section 2(k) of the Act, which brought about an `injustice or undue hardship', as the case may be. Obviously, the satisfaction of the Lok Ayuktha regarding the existence of mal-administration is not an empty formality. If mal-administration is to be found, the public servant/servants, who are responsible for mal- administration, should also be identified. The provisions of the Act provide that such persons, who are responsible for W.P.(C).Nos.21379/06 & con.cases :: 21 ::
the mal-administration, should be given notice and should also be heard by the Lok Ayuktha. Obviously, such notice and hearing of the concerned public servant, who is responsible for the mal-administration must be, before the stage at which the Lok Ayuktha makes a report under Section 12(1). In the instant case, there is no finding by the Lok Ayuktha in Ext.P3 that there has been any mal- administration. There is also no finding that a public servant, who is identified as such, is responsible for such mal-administration. Consequently, I am of the view that there has been a jurisdictional error, which has vitiated Ext.P3.
29. Learned counsel for the first respondent submits that Ext.P3, though styled as an order, it may be treated as a recommendation within the meaning of Section
12. I am afraid; I am not able to accept the said submission. Ext.P3, nowhere mentions that the Lok Ayuktha is proposing to make a recommendation as such. Positive directions have been issued in Ext.P3. Specific orders have W.P.(C).Nos.21379/06 & con.cases :: 22 ::
been issued directing the Government to pay the back wages to the petitioners for a period of 16 years. What is revealed is, therefore, not a recommendation, but an order. Where, therefore what is impugned is demonstrated to be an order, I do not think it is open to this court, when moved under Article 226 of the Constitution, to make an attempt to save the impugned proceedings by holding, though what is issued is styled as an 'order' and also intended as an 'order', it may still be treated as a recommendation. What is impugned in the writ petitions is the proceedings of a very high powered body and therefore, it would not be proper for this court even exercising jurisdiction under Article 226 of the Constitution of India, to undertake the task of construing the orders issued by such high powered body as a recommendation bringing it within the ambit of the statute. The jurisdiction of this court is not appellate, but one of judicial review.
30. Once the decision making process is found to be vitiated, what this court would normally do is to issue a W.P.(C).Nos.21379/06 & con.cases :: 23 ::
writ setting aside the impugned orders. Further more, assuming that Ext.P3 can be construed as a recommendation what is requisite to enable the Lok Ayuktha to make a report under Section 12(1), viz., maladministration has not been found in the present case. Consequently, a strained attempt to save the said order may not be possible as such.
31. Mr.Nandakumar, learned Government Pleader, also raised a contention to the effect that the proceedings which were initiated before the Lok Ayuktha in the instant case vide Ext.P2 could not have been subjected to an investigation in view of Section 8[c] of the Act, which says that a complaint involving an allegation made after the expiry of 5 years from the date cannot again be investigated. Mr.Rajasimhan contends that at any rate, there is ample power available to the Lok Ayuktha to condone any such delay and consequently, the bar of limitation, as such, may not be of much importance. In such circumstances, where I find that Ext.P3 order is without W.P.(C).Nos.21379/06 & con.cases :: 24 ::
jurisdiction, it is not necessary to consider the supplemental contentions.
32. Mr.Rajasimhan referred to another 4 decisions of this court, primary among them being a decision of another learned single Judge of this court reported in Commissioner of Police v. Abida Beevi {2006(2) K.LT.112}. The question of jurisdiction was raised by the Government in the said case also. But, the learned Judge did not decide the question of jurisdiction, essentially on the premise that even if it is assumed that Lok Ayuktha has no jurisdiction, if the order passed by it renders justice, then it is not necessary for the court to interfere with the same. In other words, the question of jurisdiction was not gone into.
His Lordship, essentially, exercising the discretionary jurisdiction under Article 226 of the Constitution deemed it appropriate in the said case not to go into the question of jurisdiction on the premise that the order passed by the Lok Ayuktha impugned in the writ petition could possibly be the same order that the court might have passed in the facts W.P.(C).Nos.21379/06 & con.cases :: 25 ::
and circumstances of the case. Further more, I find that the decision of the Bench of this court in Bernad's case {2002 (3) KL.T. 254} which specifically went into the nature of orders passed by the Lok Ayuktha was not brought to the notice of the learned Judge in Abida Beevi's case{2006 (2) K.LT. 112}. I am bound by the decision of the Division Bench with regard to orders that the Lok Ayuktha could pass and in my opinion, Ext.P3, is purported to be an order passed by the Lok Ayuktha, similar to an order, which was set aside by the Division Bench in Bernad's case {2002(3) KL.T. 254} and consequently, I am not in a position to follow the course of action which was followed by this court in Abida Beevi's case {2006(2) K.LT. 112}. Further more, the question of `maladministration' and the existence of the same being a part of the jurisdiction exercised by the Lok Ayuktha, does not seem to have been brought to the notice of this court in Abida Beevi's case. Mr.Rajasimhan contended that if I do not propose to follow the decision in Abida Beevi's case {2006(2) K.LT. 112}, then I should W.P.(C).Nos.21379/06 & con.cases :: 26 ::
refer these writ petitions to the Division Bench. Normally, this should have been done, but in the present case, I find that the question of infirmity of the order passed by the Lok Ayuktha is squarely covered by the decision of the Division Bench in Bernad's case {2002(3) KL.T. 254}, which does not seem to have been considered by this court in Abida Beevi's case {2006(2) K.LT. 112}. Obviously, as I am bound by the decision of the Division Bench as such, I do not propose to refer these cases to the Division Bench. Further, this court in Abida Beevi's case had not found that the Lok Ayuktha had jurisdiction in a similar set of facts. But, thought it proper, as a court of unlimited jurisdiction, under Article 226 of the Constitution, not to enquire into the said question. I do not think it fetters the hands of this court in considering the question of jurisdiction when it is mooted and argued and when the court feels that such question of jurisdiction necessarily arises in this case.
33. Mr.Rajasimhan brought to my notice two other decisions of court reported in Kerala State Civil W.P.(C).Nos.21379/06 & con.cases :: 27 ::
Supplies Corporation v. Kerala Lok Ayukta {2006(1) K.LT. 692}, Kerala State Road Transport Corporation v. Sreedharan Nair {2007(1) K.L.T. 348} and Director, Economics and Statistics and another v. Subramania Pillai and others 2007(3) I.L.R. 170}. Insofar as the latter two decisions are concerned, the question of jurisdiction apparently was not mooted or considered in those cases at all, nor was Bernad's case {2002(3) KL.T. 254} referred to therein. The first among the aforementioned decisions is a Bench decision wherein ultimately this court held that the Lok Ayuktha had jurisdiction to conduct an investigation only in the case of complaints involving grievance and as a matter of fact, Civil Supplies Corporation' case {2006(1) K.LT. 692} to an extent, supports the case of the petitioner herein. It is true that the merits of the case were gone into in the said case. But, ultimately, the order passed by the Lok Ayuktha was interfered with and a specific relief as such was not granted W.P.(C).Nos.21379/06 & con.cases :: 28 ::
to the claimant, though he was permitted to approach the appropriate authority in the said case.
For all these reasons, I hold that Ext.P3 is without jurisdiction and the same is, therefore, set aside. All the writ petitions are allowed. But, there will be no order as to costs. But, I make it clear that if the complainants before the Lok Ayuktha have a right to claim back wages for the period from 1974 to 1990, it open to them to establish the same in the appropriate court and claim appropriate reliefs there. I have dealt with the case only on the question of jurisdiction and not as to the entitlement of the petitioners, as regards the claim for back wages made by them.
Sd/-
(V.GIRI) JUDGE sk/ //true copy//