Kerala High Court
S.Bright vs The Chief Secretary To on 9 December, 2015
Author: Ashok Bhushan
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937
WA.No. 276 of 2016 IN WP(C).2705/2010
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AGAINST THE JUDGMENT IN WP(C) 2705/2010 DATED 09-12-2015
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APPELLANT/RESPONDENT IN WPC :
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S.BRIGHT
S/O M.SREERANGANATHAN, SAI SMITHI, K.P.17/17
URA-17, NALANCHIRA P.O., THIRUVANANTHAPURAM-695015.
BY ADV. SRI.K.RAVIKUMAR
RESPONDENTS/PETITIONERS IN WPC :
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1. THE CHIEF SECRETARY TO
GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM
PIN:695 001.
2. THE SECRETARY TO GOVERNMENT
AGRICULTURE (A.H) DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM, PIN:695 001.
3. THE DIRECTOR OF ANIMAL HUSBANDRY, VIKAS BHAVAN,
THIRUVANANTHAPURAM.:695 001.
R1 TO R3 BY SPL.GOVERNMENT PLEADER, SMT. GIRIJA GOPAL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-02-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.R.
ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.
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W.A. No. 276 OF 2016
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Dated this the 23rd day of February, 2016
JUDGMENT
Ashok Bhushan, C.J.
This writ appeal has been filed by the 1st respondent to the writ petition against the judgment dated 09.12.2015 in W.P.(C) No.2705 of 2010. The writ petition was filed by the State authorities challenging the order of the Kerala Lok Ayukta dated 03.12.2008 by which order the Lok Ayukta directed the State Government to sanction pensionary benefits to the complainant(appellant) as provided in Clause 4B of Government Order dated 02.05.1968. Aggrieved by the order of the Lok Ayukta, the State has filed the writ petition which has been allowed by the learned Single Judge by the impugned judgment.
2. The learned Single Judge took the view that the Kerala Lok Ayukta could not have exercised any authority to sanction or non-sanction of pensionary benefits, which cannot be classified as maladministration within the meaning of the Lok Ayukta Act. The learned Single Judge also noticed that the WA No. 276 of 2016 -:2:- complainant took voluntary retirement on 13.01.2000 whereas the complaint was filed before Lok Ayukta in the year 2008. The learned Single Judge held that Lok Ayukta had neither any adjudicatory power nor power to enforce the recommendation made, whereas Lok Ayukta had issued a direction which was unsustainable. Brief facts of the case necessary to be noticed for deciding this writ appeal are :
The appellant shall be hereinafter referred to as complainant whereas the State as the writ petitioner. Complainant was appointed as Lower Division Clerk in the Animal Husbandry Department in 28.12.1970. He was sent on deputation to the Kerala State Coconut Development Corporation till 12.01.1985, after completion of deputation period he rejoined in Animal Husbandry Department on 31.08.1981. The complainant was issued with an appointment order dated 12.01.1981 by Kerala State Coconut Development Corporation (hereinafter referred to as 'Corporation') appointing him as Public Relations Officer in the Corporation. On the basis of such order, WA No. 276 of 2016 -:3:- complainant requested the Department to relieve him to take up the new appointment. An order dated 20.01.1981 was issued on behalf of the Director of Animal Husbandry Department relieving the complainant from service with effect from 20.01.1981 to take up the appointment in the Corporation. The complainant was allowed to retain his lien in the Department till he is confirmed in the Corporation or till five years from the date of relief, whichever is earlier. The order further stated that on absorption of the complainant in the Corporation, his pensionary benefits shall be governed by Government Order dated 02.05.2008.
3. The complainant joined the Corporation and ultimately took voluntary retirement under voluntarily scheme on 13.01.2000 from the Corporation. After about 8 years he filed a complaint before the Lok Ayukta raising the grievance of non-payment of pensionary benefits for the service period, i.e. 10= years in the Kerala Animal Husbandry Department. The communication dated 28.07.2008 was also issued by the Government informing the complainant that his transfer from WA No. 276 of 2016 -:4:- Government service to public sector undertaking was based on his own request and not on public interest hence Government cannot be liable for the retirement benefits as per Government Order dated 02.05.1968.
4. The Lok Ayukta after issuing notice and hearing the parties have issued the following directions in paragraph 5:
"5. Considering all the aspects of the matter we direct respondents 1 & 2 to sanction pensionary benefits to the complainant as provided in 1. (IV) (b) of G.O.(P) No.174/68/Fin dated 02.05.68. For action taken report, post on 30.12.2009."
5. Aggrieved by the said order of Lok Ayukta, the State authorities filed the writ petition before the learned Single Judge. In the writ petition, counter affidavit was also filed by the complainant wherein the order passed by the Lok Ayukta was sought to be justified. It was pleaded that complainant having worked in the Department from 1970 to 1981, he was entitled for the retirement benefits. It was further stated that the complainant would have normally attained the age of superannuation on 30.06.2004. Learned Single Judge has WA No. 276 of 2016 -:5:- allowed the writ petition setting aside the order of Lok Ayukta. Aggrieved by the said judgment, writ appeal has been filed by the complainant.
6. Learned Single Judge has come to the conclusion that even the act of inordinate delay by the State cannot be termed as maladministration within the meaning of Lok Ayukta Act. Hence present was not a case where the Lok Ayukta have issued any directions. The only jurisdiction which the Lok Ayukta has, as mere investigator, and could have sent a recommendation. The learned Single Judge has referred to various authorities in support of the above conclusion. The learned Single Judge has also noted that though the complainant has retired voluntarily in the year 2000, he filed a complaint only in 2008.
7. The first issue to be considered is as to whether the complaint filed by the complainant was beyond the jurisdiction of Lok Ayukta so as to entertain the complaint or take a decision. The definition Clauses 2(h) and 2(k) of Kerala Lok Ayukta Act, 1999, define as follows:
WA No. 276 of 2016 -:6:-
"2(h) "grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of mal- administration.
2(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 willful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay."
8. The learned Government Pleader has placed reliance on two judgments reported in State of Kerala v. Bernad [2002 (3) KLT 254] and State of Kerala v. John Joseph [2011(3) KLT 150]. The Division Bench in the aforesaid two cases had occasion to consider the concept of maladministration as defined in Lok Ayukta Act, 1999.
9. We may proceed to examine the statutory Scheme as delineated in the Act. The maladministration is defined in Section 2
(k) of the Act which means action taken or purporting to have been taken in the exercise of administrative functions in any case WA No. 276 of 2016 -:7:- where- (i) such action or the administrative procedure or practice adopted is unreasonable, unjust, oppressive or improperly discriminatory or (ii) there has been willful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay. Present is a case where complaint filed by the complainant raises a grievance regarding non-payment of pension to the petitioner. A copy of the complaint filed before the Lok Ayukta has been filed by the petitioner as Ext.P5. It is useful to extract the grievance of non-payment in paragraph 6 which is to the following effect :
"Non payment of pensionary benefit especially gratuity for the petitioner's service period (10= years) in the State Animal Husbandry Department as a confirmed L.D. Clerk between 1970-1981."
10. Further, in the complaint itself the complainant has referred to the letter dated 28.07.2008 of the Principal Secretary to Government which has also been produced on record as Ext.P4, where the claim of the petitioner has been rejected WA No. 276 of 2016 -:8:- holding that the Government cannot accept any liability to pay any retirement benefits.
11. One more Section which is need to be noted is Section 8 of the Kerala Lok Ayukta Act which enumerates about the matters not subject to any investigation. Section 8(1) provides that except as provided therein the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. Section 8 which is relevant for the present case is as follows :
"8. Matters not subject to investigation.- (1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule.
(2) The Lok Ayukta or an Upa-Lok Ayukta shall not investigate.-
(a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa-Lok Ayukta, as the case may be;
(b) any action in respect of a matter which has been referred WA No. 276 of 2016 -:9:- to inquiry under the Commissions of inquiry Act, 1952 (Central Act 60 of 1952);
(c) Any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place:
Provided that a complaint referred to in clause (c) may be entertained by the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause.
(3) in the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa-Lok Ayukta to question any administrative action involving the exercise of a 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. "
12. Section 8(1) refers to second schedule. Clause (d) of the Second Schedule which is relevant for the present case reads as under :
"(d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service." WA No. 276 of 2016 -:10:-
A perusal of Clause (d) of the Second Schedule indicates that claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service are not to be prohibited from investigation as contemplated under Section 8(1) read with Second Schedule. Thus Statute specifically exclude claim for pension, gratuity, Provident Fund etc from prohibition as provided in Section 8. This clearly indicates that claims for pension, gratuity, provident fund are not prohibited from investigation by the Lok Ayukta, rather the statutory scheme indicates that such claim can be investigated by the Lok Ayukta as delineated by the Second Schedule read with Section 8. As noticed above, the definition of maladministration includes any action taken if such action is unreasonable, unjust, oppressive or improperly discriminatory. Further, if there is any undue delay in taking such action or the administrative procedure or practice adopted in such action, can also be covered by maladministration.
WA No. 276 of 2016 -:11:-
13. Whether a particular action falls within the definition of maladministration as defined in Section 2(k), is a question of fact which has to be examined on the basis of the nature of action, the grievance claimed and other attending circumstances. As noted above, the claim for pension and gratuity has been thus clearly included in the jurisdiction of Lok Ayukta for investigation which is delineated by the statutory scheme. Thus it cannot be said that complaint which was filed by the complainant was beyond jurisdiction of Lok Ayukta to be entertained or it was prohibited by any provisions of the Statute. A perusal of the order of the Lok Ayukta indicates that issue of jurisdiction was not gone into by the Lok Ayukta. It does not appear to have been raised before the Lok Ayukta. In the writ petition the State has raised such submission which has been gone into by the learned Single Judge.
14. The two decisions which have been relied on by the learned Special Government Pleader needs to be considered. State of Kerala v. Bernad (supra) was a case where the WA No. 276 of 2016 -:12:- respondent who was working as a Junior Superintendent in the District Treasury, Ernakulam has made a representation to the Director of Treasuries, Trivandrum requesting for fixation of his pay in the revised scale. He approached the High Court by filing Original Petition which was disposed of directing consideration of the representation. Government has also issued certain guidelines for pay revision. The complaint was filed before the Lok Ayukta complaining that there was delay in payment of DCRG, arrears of pension and pay revision arrears. A direction was issued by the Lok Ayukta for making certain payments with interest which was challenged by the State. It is relevant to note that the Division Bench has though set aside the order of Lok Ayukta, revived the complaint filed before the Lok Ayukta, which was directed to be decided. It is useful to extract paragraph 16 of the judgment which reads as follows :
"16. In the circumstances, we are satisfied that the order of the Lok Ayukta needs to be interfered with. We quash and set aside the impugned order of the Lok Ayukta. The complaint is revived on the file of the Lok Aykta and shall be dealt with by the Lok Ayukta or Upa Lok Ayukta as may be decided in accordance with Section 7 of the Act, in the light of WA No. 276 of 2016 -:13:- the judgment in Dr.Kamalu & Ors.(supra), and disposed of in accordance with the law as laid down by us."
Thus in the above case the Division Bench has not held that the complaint filed by the Junior Superintendent in the above case was beyond the jurisdiction of Lok Ayukta and the complaint could not be proceeded by the Lok Ayukta. In the above case it is clear that the order of Lok Ayukta was interfered due to the reasons mentioned therein but not on the ground that the complaint was without jurisdiction. The Division Bench has set aside the order of Lok Ayukta.
15. The second case relied on by the learned Special Government Pleader is State of Kerala v. John Joseph (supra) which was again a case where a complaint was filed before the Lok Ayukta with regard to a registered document by way of sale deed No.778/2002. The complainant prayed for a declaration that the decision of the District Registrar is null and void and such declaration was granted by the Lok Ayukta. Aggrieved by the said order of Lok Ayukta the State has filed the writ petition. The Division Bench held that the power conferred under Section WA No. 276 of 2016 -:14:- 45B of the Kerala Stamp Act is the statutory power and exercise of such power cannot be classified as maladministration within the meaning of Lok Ayukta Act. Following was held in paragraph 19 of the judgment which reads as under :
19. The power purported to have exercised by the District Registrar by the proceedings impugned before the Lok Ayukta may or may not be strictly within the jurisdiction of the District Registrar. It is a question which we do not propose to go into the instant appeal. For the purpose of the present appeal, it is sufficient to note that, even acts of erroneous exercise of an authority purportedly conferred by a statute, in our opinion, cannot be classified as mal-administration within the meaning of the Lok Ayukta Act. It is clear from the language of the definition of the expression 'mal-administration' that "unreasonable, unjust, oppressive or improperly discriminatory"
action taken or purportedly taken in exercise of administrative functions alone amount to mal-administration. The power conferred under S.45B in our opinion is clearly a quasi-judicial function. It may be stated here that a decision of the District Registrar under S.45B(2) is an appealable decision under S.45B (4). Therefore, if the complainant before the Lok Ayukta is of the opinion for any reason that the decision of the District Registering Officer is beyond the jurisdiction conferred under S.45B or for any other reason untenable in law, the same could have been validly raised before the appellate authority referred to above apart from various other remedies indicated above." WA No. 276 of 2016 -:15:-
The above case was on its own fact and is clearly distinguishable with the present case.
16. In view of the foregoing discussions we are of the view that the complaint cannot be termed as beyond the jurisdiction of the Act or covered by prohibition as contained in Section 8. Present was a case where the action which culminated into a decision dated 28.07.2008 relating to denial of pensionary benefits was the complaint before the Lok Ayukta. The decision taken by the Government was an administrative decision and in the event the action can be termed as unreasonable or unjust or with undue delay, the same can be covered by the definition of mal-administration given in Section 2(k) and as per Section 2(h) grievance can be raised in consequence of maladministration.
17. The learned Single Judge has not come to a finding that the complaint was beyond the jurisdiction of Lok Ayukta rather, the learned Single Judge had come to the conclusion that the Lok Ayukta is only an investigator and could not have passed an order in the nature which has been passed by the Lok Ayukta WA No. 276 of 2016 -:16:- in the present case. In so far as the observation of learned Single Judge that the complainant has retired voluntarily in the year 2000 and in the year 2008 only he filed the complaint before Lok Ayukta, suffice to order that the right of receiving pension as per Government Order dated 02.05.1968 shall arise to the complainant only when he would complete normally the age of superannuation, i.e. 30.06.2004, the complaint having been filed within 5 years is within the time and we cannot say that the complaint was not entertainable.
18. Learned counsel for the appellant as well as learned Special Government Pleader have made submissions with regard to the entitlement of the complainant to receive pension from the Government. Learned Special Government Pleader submits that the order dated 20.01.1981, Ext.P1, by which the complainant was relieved to join the Corporation cannot be said to be a transfer order, more so, it cannot be made in public interest. It is submitted that the complainant having accepted voluntary retirement under the Voluntary Retirement Scheme in WA No. 276 of 2016 -:17:- the Corporation, the State Government has no liability to pay pension or other benefits since the question of payment of pension would arise only when he would have normally superannuated, had he continued in Government service. The complainant was otherwise not entitled for any pensionary benefits.
19. Learned counsel for the appellant submits that the appellant had served more than 10= years in the Animal Husbandry Department and which period was sufficient for grant of pension, gratuity etc which could not have been denied to the complainant only because he has joined the Corporation to take another employment. He submits that Ext.P1 itself provides that the absorption if any in the Corporation, the pensionary benefits of the complainant shall be governed by Government Order dated 02.05.1968. It is submitted by learned counsel for the complainant that he is entitled for the pensionary benefits and the action of the Government in refusing the said benefit is unreasonable and fully covered by the term maladministration. WA No. 276 of 2016 -:18:-
20. The order of the Kerala Lok Ayukta, as noted above indicates that the said order is nothing but an adjudicatory order which directs for sanctioning pensionary benefits to the complainant. The said adjudicatory order have been disapproved by the Division Bench of this Court as noticed above.
21. In view of the aforesaid we approve that part of judgment of learned Single Judge by which the order of Lok Ayukta has been set aside. However, in the interest of justice we are of the view that the claim of complainant for entitlement of pension need to be considered by the 2nd respondent to this appeal taking into consideration all facts and circumstances and other relevant materials including the Government Order dated 02.05.1968. The said decision shall be taken expeditiously by the 2nd respondent in view of the fact that the complainant has already attained more than 68 years.
In the result, the Writ Appeal is disposed of with the following directions:
i. The order of learned Single Judge setting aside the WA No. 276 of 2016 -:19:- order of Lok Ayukta is maintained.
ii. A direction is issued to the 2nd respondent to consider the claim of the complainant for pension and other benefits in accordance with law taking into consideration the Government Order dated 02.05.1968 also.
Iii. The petitioner shall submit a copy of this order to the 2nd respondent within four weeks from today along with the representation. The 2nd respondent shall decide the claim as directed above expeditiously, preferably within a period of three months from the date of receipt of a copy of this judgment.
Ashok Bhushan, Chief Justice.
A.M. Shaffique, Judge.
ttb/24/02