Kerala High Court
The State Of Kerala vs Kerala Lok Ayukta on 7 April, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938
WP(C).No. 22263 of 2011 (G)
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PETITIONER(S) :
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1. THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARYTO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
2. THE SECRETARY TO GOVERNMENT,
GENERAL ADMINISTRATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY GOVERNMENT PLEADER SMT. MABLE C.KURIAN
RESPONDENT(S) :
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1. KERALA LOK AYUKTA,
REPRESENTED BY THE REGISTRAR, OFFICE OF LOK AYUKTA,
NEW LEGISLATIVE BLOCK, PALAYAM,
THIRUVANANTHAPURAM- 695 001.
2. J.SALEENA BEEVI,
SAJU BHAVAN, NRA-15, AISHWARYA NAGAR, NALANCHIRA,
THIRUVANANTHAPURAM-695 001.
3. S.HARISH, S/O.LATE.P.A. SHAMSUDHEEN,
TKRA 101, DHAKSHI VILLA TC VII/1593, NEAR 7TH DAY
ADVENTIST SCHOOL, THIRUMALA.P.O.,
THIRUVANANTHAPURAM-695 006.
4. S.FEBINA FATHIMA,
D/O.LATE P.A.SHAMSUDHEEN, TKRA 101, DHAKSHI VILLA
TC VII/1593, NEAR 7TH DAY ADVENTIST SCHOOL,
THIRUMALA.P.O.,THIRUVANANTHAPURAM-695 006.
R1 BY ADV. SMT.RENU. D.P., S.C
R2 BY ADV. SRI.SABU S.KALLARAMOOLA
R3 & R4 BY ADVS. SRI.GEORGE POONTHOTTAM
SRI.ENOCH DAVID SIMON JOEL
SRI.V.S.VISWAMBHARAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-02-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 22263 of 2011 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: A TRUE COPY OF THE G.O.(RT)NO. 2677/2009/GAD
DATED 07.04.2009.
EXHIBIT P2: A TRUE COPY OF THE OBJECTION/STATEMENT FILED BY
THE GOVERNMENT BEFORE THE LOK AYUKTA.
EXHIBIT P3: A TRUE COPY OF THE ORDER OF THE FAMILY PENSION, DCRG
AND OTHER BENEFITS.
RESPONDENT(S)' EXHIBITS :
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
"CR"
DEVAN RAMACHANDRAN, J.
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W.P.(C) No.22263 of 2011
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Dated this the 27th day of February, 2017
JUDGMENT
In an interesting turn of events, the Government of Kerala has filed this writ petition challenging the decision of the learned Kerala Lok Ayukta, as per which, it had directed that the pensionary benefits available to deceased P.A.Shamsudheen be paid to the second respondent in exclusion to the third and fourth respondents. The order impugned in this writ petition has been appended as Ext.P3.
2. The learned Government Pleader appearing for the State says that the second respondent is the second wife of late P.A.Shamsudeen and that third and fourth respondents are his son and daughter from an earlier marriage. The State is aggrieved, as per him, because the learned Lok Ayukta has given an affirmative direction to pay the DCRG, the arrears of pension and family pension entitled to late Shamsudeen to the second respondent in exclusion to third and fourth respondents even W.P.(C) No.22263 of 2011 2 when the competent Authority, who is statutorily vested with the power to conclude on these issues, is already in seizing of the matter based on applications made by both the parties.
3. The essential challenge in this writ petition appears to be that the learned Lok Ayukta, in having issued emphatic and explicit directions to the Secretary of the Government of Kerala to make payment of the amounts referred above, has exceeded jurisdiction vested in it under Section 12(1) of the Kerala Lok Ayukta Act, since the Act empowers and authorises it only to make suitable recommendations and no more.
4. I have heard the learned Government Pleader appearing for the petitioners, the learned standing counsel appearing for the Kerala Lok Ayukta and the learned counsel appearing for respondents 2 to 3.
5. I have examined Ext.P3 order which is impugned in this writ petition. The Learned Lok Ayukta has, after consideration of all the issues raised before it, entered into certain conclusions and have issued directions to the respondents in the said proceedings, namely, the Government of Kerala and the Secretary of the General Administration Department, to pay the W.P.(C) No.22263 of 2011 3 DCRG entitled to late Shamsudeen to the second respondent herein, who was the complainant before it. Further directions are also seen given to them to issue orders sanctioning family pension to the second respondent herein with a further command to grant the life time arrears of pension to all the legal heirs mentioned in the legal heirship certificate. I notice that the learned Lok Ayukta has entered into a conclusion that as per Rule 86 of Part III of the KSR, the DCRG and family pension shall be paid to the nominee of the deceased person, who in this case was the second respondent.
6. The above reasoning and the position reached by the learned Lok Ayukta may not be completely untenable. However, it would be subject to further interpretation, on account of the impact of Rule 90 (7) (ii) of part III of the KSR, since the effect of the said clause is that, as regards the contributory family pension, the eligible son/daughter from the spouse of first marriage shall also be entitled to receive a portion of the same, along with the widow from a legally valid second marriage. This issue has not been apparently considered by the learned Lok Ayukta presumably because such an assertion was not raised W.P.(C) No.22263 of 2011 4 before it by the second respondent. Her stand is logical to her cause because she is the widow from a legally valid second marriage and she asserts that the pension in question is not contributory to attract the provisions of Rule 90(7)(ii) of Part III of the KSR.
7. Normally, I do not think that I would be justified in entering into any conclusions regarding the validity or otherwise of the orders of the learned Lok Ayukta and I would not do so but for one fact that disturbs me. The fact remains that respondents 3 and 4 in this writ petition were not made parties before the learned Lok Ayukta and Ext.P3 order had been issued by the learned Lok Ayukta without hearing them. It is also obvious that the learned Lok Ayukta did not have any occasion to consider the dialectical claims of the parties with respect to DCRG and pension. I am not saying that the learned Lok Ayukta has not concluded correctly. It may be that only the second respondent is entitled to receive the DCRG and pension. However, it may also be equally possible that respondents 3 and 4 may have a claim based on the provisions that I have noticed above or such others. The problem is that these issues were W.P.(C) No.22263 of 2011 5 never raised before the Learned Lok Ayukta, since respondents 3 and 4 were never made parties before them.
8. There cannot be a doubt in the question of law that under Sections 12(1) and 12(3) of the Lok Ayukta Act, the learned Lok Ayukta or an Upa Lok Ayukta, if satisfied that any action in respect of a complaint involving grievance has resulted in injustice or hardship to the complainant or to any other person, it can, by a report in writing, recommend to the competent Authority concerned that such injustice or hardship be remedied or redressed in such manner and within such time. Even though Ext.P3 order has given certain directions to the petitioners herein, it will have to be construed as one that has been issued under Rules 12(1) and 12(3) and nothing more. This can be the only purport of Ext.P3 order.
9. In that view of the matter, obviously, Ext.P3 shall have to be treated as a recommendation made by the learned Lok Ayukta to the competent Authority to remedy the hardship placed before its consideration by the second respondent. If the order is so construed, there can be no dispute that the same has been validly issued. The challenge of the State on questions W.P.(C) No.22263 of 2011 6 of law, as regards the nature of Ext.P3 order would, therefore, stand quenched to substantial extent.
10. As I have already noticed above, respondents 3 and 4 had not been made parties in the proceedings before the learned Lok Ayukta. It is also stated by the learned Government Pleader that they have also made a claim before the competent Authority for the DCRG and pension and that both these applications are now pending before the competent Authority. She says that on account of Ext.P3 directions, the competent Authority has not been able to take a decision, since they do not dare but to view Ext.P3 to be affirmative directions to pay the amounts to the second respondent in exclusion to respondents 3 and 4. As I have already observed above, Ext.P3 need not be considered as affirmative directions but as recommendations under the provisions of Sections 12(1) and 12(3) of the Kerala Lok Ayukta Act. Obviously therefore, the competent Authority, before whom the application of second respondent and that of respondents 3 and 4 are pending, will have to take a decision independently but keeping in mind the observations and conclusions of the learned Lok Ayukta and by treating Ext.P3 to W.P.(C) No.22263 of 2011 7 be recommendations issued under Section 12 of the Act and issue such orders as are necessary without any further waste of time or delay.
11. In such circumstances, I direct the second petitioner to consider the claims of second respondent on one side and that of respondents 3 and 4 on the other, quad hoc their respective claims over the DCRG and pension entitled to late Shamsudheen and take a decision thereon adverting to Ext.P3 order of the learned Lok Ayukta and by treating the same as a recommendation issued under Section 12 of the Kerala Lok Ayukta Act and in terms of the entitlement of the parties under the various provisions of the Kerala Service Rules and such other applicable Statutes and Regulations.
12. The afore-directed exercise shall be completed by the second petitioner, after affording an opportunity of being heard to respondents 2, 3 and 4, within a period of three months from the date of receipt of a copy of this judgment.
13. It is made clear that I have not considered the relative merits of the claims of the parties in this case and I leave it open to the parties to make such submissions, as are apposite to W.P.(C) No.22263 of 2011 8 them, before the competent Authority who shall consider them also before passing final orders.
The writ petition is ordered as above. In the nature of the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.
Sd/- DEVAN RAMACHANDRAN
stu JUDGE