State Of Kerala vs Prof. T.V Balan on 24 June, 2013

[Cites 20, Cited by 0]

Kerala High Court

State Of Kerala vs Prof. T.V Balan on 24 June, 2013

These writ appeals arise out of a common judgment dated 24.06.2013 passed in four writ petitions. W.A. No.720 of 2014 arises out of W.P.(C) No.25045 of 2006, W.A. No. 728 of 2014 arises out of W.P.(C) No. 36204 of 2001, W.A. No. 756 of 2014 arises out of W.P.(C) No.35084 of 2001 and W.A. No.775 of 2014 arises out of W.P.(C) No. 36197 of 2001.

2. The writ petitioners are the respondents in the appeals. Parties shall be referred to as described in the writ petition. W.A. No.720 of 2014 is being treated as the leading case and facts giving rise to the writ appeal shall suffice in deciding the issues raised in all the appeals.

3. The petitioners who had filed the writ petition were appointed as members of Ombudsman as per Section 271G(2) of the Kerala Panchayat Raj Act, 1994 by Notification dated 29.05.2000. In all, 7 persons were appointed as W.A. Nos. 720, 728, 756 and 775 of 2014 -:2:- members of the Ombudsman. All the petitioners joined their offices as members of Ombudsman on 30.05.2000. The provision providing for creating of Ombudsman was incorporated in the Kerala Panchayat Raj Act, 1994 by Act 13 of 1999 by which Chapter XXVB was inserted. Chapter XXVB contained a heading "Ombudsman for Local Self Government Institutions". Section 271G provided for term of office and conditions of Service of Ombudsman. According to Section 271G(4), a person appointed as Ombudsman shall hold office for a term of five years from the date on which he enters upon his office. The provision pertaining to the office of the Ombudsman was inserted by the State Legislature on the recommendation of an Expert Committee namely Dr.Sathya Brata Sen.

4. By Act 12 of 2001 amendments were made in provisions of Section 271G by which a new Section 271G was substituted with effect from 14.09.2001. As a consequence of Act 12 of 2001, the Chairman and Members of the existing Ombudsman constituted under the principal act were deemed to have vacated their office as such. The tenure of Ombudsman W.A. Nos. 720, 728, 756 and 775 of 2014 -:3:- were also reduced from 5 years to 3 years. Consequent to Act 12 of 2001 all the petitioners were deemed to have vacated their office. The provisions of Amendment Act 12 of 2001 were challenged in this Court. However, the challenge in O.P. No.21205 of 2000, was repelled by judgment dated 06.09.2000 by this Court. The writ petitions giving rise to these appeals were filed by the members of the Ombudsman. W.P.(C) No.25045 of 2006 was filed by Prof. T.V. Balan with the following prayers:

"I. To declare that the Kerala Panchayat Raj (Amendment) Act, 2001 (Act 12 of 2001) is illegal, unconstitutional and ab initio void;

II. To declare that the petitioner is entitled to get adequate compensation for carrying a burden and disability of not holding any office or position imposed under Section 276G (6) of the Kerala Panchayat Raj Act, after the abrupt cessation of office of Ombudsman.

III. To issue a writ of mandamus order or direction commanding and compelling the respondents to adequately compensate the petitioner for carrying a burden and disability of not holding any office or position imposed under Section 276G (6) of the Kerala Panchayat Raj Act, after the abrupt cessation of office of Ombudsman.

IV. To issue a writ of mandamus, order or direction commanding and compelling the respondents to give an W.A. Nos. 720, 728, 756 and 775 of 2014 -:4:- amount equal to the salary and allowances and also other benefits to which the petitioner is entitled as if he had continued as member of Ombudsman from 30.05.2000 for a period of 5 years.

V. To issue a writ of mandamus, order or direction directing the respondents to give the petitioner all pre- requisites including salary, dearness allowance, house rent allowance of Rs.10,000/-, Medical reimbursement and city compensatory allowance etc;

VI. To issue a writ of mandamus, order or direction directing the respondents to give pensionary benefits to the petitioner as if he had functioned as member of Ombudsman for a period of 5 years from 30.05.2000. "

Other writ petitions were also filed praying for more or less similar reliefs.

5. Learned Single Judge after hearing the parties decided the writ petitions by judgment dated 24.06.2013 holding that petitioners are entitled to the relief and compensation as prayed for. Learned Single Judge has observed that in the facts and circumstances of the case it being an old matter it is for the respondent to negotiate with the petitioners to have reduction of the compensation amount.

W.A. Nos. 720, 728, 756 and 775 of 2014 -:5:-

6. The State, aggrieved by the aforesaid judgment, has come up in appeals. Smt.Girija Gopal, learned Special Government Pleader in support of the appeal contended that the tenure of petitioners came to an end by a statutory provision wherein they were entitled for salary and other perks only for the period they have worked. The claim for pay and allowances for the non-work period is contrary to the established terms of law and hit by Article 14 of the Constitution. The disqualification as enumerated under sub-section (6) of Section 271G of the Act would apply only when the incumbents complete the original term of appointment. In the present cases none of the petitioners had completed the original term of appointment, hence disqualification shall not be attracted and they are not entitled for any compensation. The Government has every right to change the composition of the Ombudsman and no exception can be taken to the aforesaid right of the Government. Petitioners as have not worked for the rest of the period, they are not entitled for any pay on the principle of no pay for no work. W.A. Nos. 720, 728, 756 and 775 of 2014 -:6:-

7. We have heard Sri.N.N. Sugunapalan, Senior Advocate and Sri.Ramesh appearing for the writ petitioners. Refuting the submission of learned counsel for the appellant it is contended that petitioners are clearly entitled for compensation as their tenure have been reduced by the Act of Legislation. The disqualification attached under Section 271G(6) is fully operative and on account of the said disqualification, they were clearly entitled to work for full term and receive full emoluments for the period of 5 years. It is submitted that the cases of the petitioners are fully covered by the Apex Court judgment relied on by the learned Single Judge reported in Justice S.K. Ray v. State of Orissa and others [(2003) 4 SCC 21].

8. We have heard learned counsel for the parties and perused the record.

9. The main issues which arise for consideration are:

i) Whether due to shortening of their tenure by Act 12 of 2001, they are entitled for compensation for the period they could not work as Ombudsman ?

ii) Whether the disability as provided by Section 271G(6) shall also be attracted to a person who could not complete his tenure ?

W.A. Nos. 720, 728, 756 and 775 of 2014 -:7:- Iii) Whether on account of disability as provided for in Section 271G(6) the petitioners were entitled to any compensation ?

10. Before we proceed to consider the issue raised it is necessary to refer to the relevant provisions of the Kerala Panchayat Raj Act, 1994. As noted above, the State of Kerala has constituted an Expert Committee namely 'Dr.Sathya Brata Sen Committee' on decentralization of the powers to the local bodies. The said Committee submitted a detailed report. In paragraph 3.33.2 the Committee recommended for setting up of an Ombudsman system in Kerala to cover all the Local Self Government Institutions which has to be headed by a judicial officer of the rank of a High Court Judge and assisted by two judicial officers of the rank of District Judges, two officers with administrative experience of the rank of Secretary to Government and two eminent public men whose credibility is beyond doubt.

11. Acting on the basis of the recommendation, the State Legislation inserted Chapter XXVB in the Kerala Panchayat Raj Act, 1994 by Act 13 of 1999 with effect from 24.03.1999. W.A. Nos. 720, 728, 756 and 775 of 2014 -:8:- Section 271G which provided for term of office and conditions of service of the Ombudsman as inserted by Act 13 of 1999. The substituted provision of Section 271G is as follows :

"271 G. Constitution, term of office and conditions of service of Ombudsman.- (1) The Government shall, by notification in the Gazette, constitute an authority for Local Self Government Institutions at State level known by the name 'Ombudsman' with effect from the date specified therein for conducting investigations and enquiries in respect of any action involving corruption or maladministration or irregularities in the discharge of administrative functions in accordance with the provisions of this Act, by Local Self Government Institutions and public servants, working under them and for the disposal of such complaint in accordance with Section 271Q.

(2) The Governor shall, on the advice of the Chief Minister appoint the members of the Ombudsman and the member referred in sub-section (3) holding or held the post of High Court Judge shall be its Chairman.

(3) Of the persons appointed as members of the Ombudsman.-

(a) one shall be a person holding or held the post of a High Court Judge;

(b) two shall be from judiciary holding the post of District Judges

(c) two shall be officers not below the rank of a Secretary to Government; and

(d) two shall be public men of repute having known integrity;

Provided that the approval of the Chief Justice of the High W.A. Nos. 720, 728, 756 and 775 of 2014 -:9:- Court of Kerala shall be obtained for appointing as members of Ombudsman till they hold the post of High Court Judge or District Judge and for appointing Public men as members, the Leader of opposition of the Kerala Legislative Assembly shall be consulted. (4) A person appointed as a member of the Ombudsman for Local Self Government Institutions shall,before entering office, make and subscribe before the Governor or a person authorised by him, an oath or affirmation as given below:-

"I, A B having been appointed as a member of the Ombudsman for Local Self Government Institutions under the Kerala Panchayat Raj Act, 1994, do swear in the name of God/Solemnly affirm that I will bear true faith and allegiance to the Constitution of India and I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will."

(5) Any member of the Ombudsman shall not be a member of Parliament or of any State Legislative Assembly and shall not hold any office (other than being a member) of faith or profit or do any business or engage in any work and accordingly a person other than High Court Judge or District Judge or Secretary to Government appointed as member shall, before entering his office,-

a) resign the membership of the Parliament or any State Legislative Assembly or Local Self Government Institution if he is such a member;

b) resign from the office of faith or profit if he is holding such an office;

c) resign from doing or supervising (except relinquishment of ownership) the business if he is doing a business; and

d) stop doing the work if he is engaged in any work.

W.A. Nos. 720, 728, 756 and 775 of 2014 -:10:-

6) A person shall not be eligible for being appointed as a member of the Ombudsman if he was a member of a political party.-

(a) immediately before the coming into force of this Act,in the case of first appointment, after such commencement; and

(b) for five years immediately before the occurrence of vacancy in the case of subsequent appointment.

(7) A person appointed as member shall hold office for, a term of five years from the date on which he enters upon, office of till the age of sixty five years whichever is earlier :

Provided that.-

(a) a member shall resign from his office by writing under his hand addressed to the Governor; and

(b) a member shall be removed from his office as provided in Section 271 H. (8) A member, after ceasing hold office as such, shall not be eligible for re-appointment as member or for further appointment in any office of profit in any Corporation, Company, Society, or University under the control of the Government of Kerala.

Explanation.- After ceasing to hold office of such member, taking over the office as High Court Judge Or as District Judge of the Judiciary or as a Secretary to Government, shall not be deemed to be a reappointment in any office of profit as mentioned in this sub-section.

(9) A member shall have the status equal to that of a Judge of High Court of Kerala and shall be entitled to get the same salary, allowances and pension and the same conditions of service shall be made applicable:

W.A. Nos. 720, 728, 756 and 775 of 2014 -:11:- Provided that the allowances and conditions of service of a member shall not be varied to his disadvantage after his appointment.

(10) A vacancy in the Office of the Chairman or any member of the Ombudsman shall not invalidate the proceedings of the Ombudsman.

(11) In the absence of Chairman, senior among the members appointed from District Judges shall exercise the powers and discharge the functions of the Chairman during the period of such absence."

12. After the enforcement of Act 13 of 1999 the State decided to constitute Ombudsman in the State of Kerala. Notification dated 29.05.2000 (Ext.P1) was issued by the State of Kerala wherein in all 7 members including all the petitioners were appointed as members of the Ombudsman. All the petitioners joined their office on 31.05.2000 and started functioning as members of the Ombudsman.

13. New Government came into office and introduced an Ordinance for amendment of provisions of Chapter XXVB. The Kerala Panchayat Raj Amendment Ordinance No.36 of 2001 was promulgated which ordinance was subsequently converted into the Kerala Panchayat Raj Act, 2001 (Act 12 of 2001) with effect W.A. Nos. 720, 728, 756 and 775 of 2014 -:12:- from 14.09.2001. Section 271G as substituted by Act 12 of 2001 reads as follows:

"271G. Term of office and conditions of Service of the Ombudsman.- (1) There shall be an authority for Local Self Government institutions, at State Level known as 'Ombudsman' for making investigations and enquiries , in respect of charges on any action involving corruption or maladministration or irregularities in the discharge of administrative functions, in accordance with the provisions of this Act by Local Self Government Institutions and Public Servants working under them and for the disposal of such complaint in accordance with Section 271Q.

(2) The Governor shall, on the advice of the Chief Minister, appoint a person who has held the post of a Judge of the High Court as Ombudsman.

(3) A person appointed to be the Ombudsman shall, before he enter upon his office, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation according to the form set out below:-

"I, A B having been appointed as the Ombudsman for Local Self Government Institutions under the Kerala Panchayat Raj Act, 1994, do swear in the name of God/Solemnly affirm that I will bear true faith and allegiance to the Constitutions of India and I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will."

(4) A person appointed as Ombudsman shall hold office for a term of three years from the date on which he enters upon his office:

W.A. Nos. 720, 728, 756 and 775 of 2014 -:13:- Provided that,-

(a) the Ombudsman may, by writing under this hand addressed to the Governor, resign his office; and

(b) the person appointed as Ombudsman may be removed from his office in the manner provided in Section 271 H. (5) The person appointed as Ombudsman shall be entitled for salary and allowances as are admissible to a Judge of the High Court of Kerala.

(6) On expiry of his term of office as Ombudsman, he shall not be eligible for re-appointment as Ombudsman or for further appointment to any office of profit under the Government of Kerala or in any corporation, company, society or university by or under the control of the Government of Kerala."

By Act 12 of 2001 changes in the Ombudsman were made. Clause of the Act 12 of 2001 is relevant which is to the following effect:-

"7. Dissolution of the existing Ombudsman.- (1) Notwithstanding anything contained in the Principal Act or in any other law or in any judgment, decree or order of any Court, on and from the date of commencement of this Act, the Chairman and Members of the existing Ombudsman constituted under the provisions of the principal Act shall by this Act, be deemed to have vacated their office as such.

(2) The Chairman and the Members of the Ombudsman who have deprived of their official position by virtue of this Act, shall be entitled to get the salary, allowances and other benefits W.A. Nos. 720, 728, 756 and 775 of 2014 -:14:- for the period in which they have functioned as the Chairman or the Member, as the case may be:

Provided that the Chairman or the Member, as the case may be, who have been deprived of their official position shall not be entitled to the salary, allowances, and other benefits for the remaining period of their tenure.

(3) Further action in pursuance of the orders passed by the Ombudsman before the date of commencement of this Act and all enquiries, investigations and other proceedings pending disposal on the date of commencement of this Act shall be deemed to be commenced before the Ombudsman, appointed under the principal Act as amended by this Act."

14. The challenge to the Ordinance as well as Act 12 of 2001 was repealed and provisions have been held to be valid. Thus the prayer of the petitioners in so far as declaring the provisions of Act 12 of 2001 as ultra vires has to be rejected. The learned Single Judge has also noted the above fact and has only conceded the prayer of the petitioners in so far as the claim of compensation was concerned. As noted above, by enactment of Act 12 of 2001, the existing Ombudsman was dissolved. Clause 7 of Act 13 of 1999 contains a deeming provision which is clear from sub-clause (1) of Clause 7 which uses the words "be deemed to have vacated their office as such". Thus on account W.A. Nos. 720, 728, 756 and 775 of 2014 -:15:- of vacation of the office which was of a statutory consequence, the petitioners cannot be heard against their vacation of the office of the Ombudsman.

15. The submission which has been pressed by the writ petitioners is that in spite of they having vacated the office of the Ombudsman, the disability as contemplated under Section 271G(6) still continues. Section 271G(6) provides that on expiry of the term of office as Ombudsman, a person shall not be eligible for re-appointment as Ombudsman or for further appointment to any office of profit under the Government of Kerala or in any Corporation, Company, Society or University by or under the control of Government of Kerala. It is submitted that the string of disability provided under Section 271G(2) also is attached with them even though they have held the office only for a short period. It is submitted that they had accepted the office of Ombudsman with an intention to complete the term of 5 years and thereafter denied themselves the opportunity for further appointment to any office of profit under the Government of Kerala or in any Corporation, Company, Society or University W.A. Nos. 720, 728, 756 and 775 of 2014 -:16:- by or under the control of Government of Kerala. They thus are entitled to be compensated for the loss of salary and other benefits which they would receive if they would have been allowed to continue till 5 years of their tenure.

16. The submission of learned counsel for the appellants is that the disability under sub-section (2) of Section 271G shall apply only to those who have completed their full term. Although sub-section (6) uses the words "on expiry of his term of office as Ombudsman", the words "expiry of the terms"

shall also cover the cases where the term has been shortened by statutory intervention as in the present case. The object and purpose of introduction of sub-section (6) of Section 271G is to maintain the purity of the office. The incumbent who had acted as Ombudsman at least for some time would have to deal with many matters, therefore he was prohibited from holding any office on expiry of the term. The said restrictions were brought in the statutory scheme with a laudable object and for maintaining the dignity of the high office of the Ombudsman. W.A. Nos. 720, 728, 756 and 775 of 2014 -:17:-

17. The Apex Court had occasion to consider provisions of Orissa Lokpal and Lokayuktas Act, 1970 and the repealing Act of 1992 in the case of Sri.Justice S.K. Ray v. State of Orissa and others [(2003) 4 SCC 21]. Justice S.K. Ray was the Chief Justice of Orissa High Court, who after retirement, was appointed as Lokpal on 17.08.1989. By an Ordinance the Act was repealed which Ordinance was subsequently replaced by the Orissa Lokpal and Lokayuktas (Repeal) Act of 1992. Writ petition was filed claiming compensation for loss of salary for the remaining period of his tenure and certain other benefits. Sub-section (3) of Section 5 of the 1970 Act contained the similar restrictions as contained under Section 271G(6) of 1994 Act. The High Court examined the question and granted relief partially, however, it was held that 'the appellant would not be entitled for any compensation on the terms of his office coming to an end on repeal of the enactment'. An appeal was filed wherein the Apex Court had occasion to examine the similar issues. The Apex Court observed in the said case that compensation is granted not for loss of office, but for W.A. Nos. 720, 728, 756 and 775 of 2014 -:18:- carrying the burden of not holding any office or position thereafter. Following was laid down in paragraphs 8, 9, 10 and 11 :

"8. The High Court, on examining these two provisions, held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of S.2 of the Repealing Act or S.5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continue and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or sate, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he W.A. Nos. 720, 728, 756 and 775 of 2014 -:19:- had incurred any disqualification not to hold any office in terms of S.5(3) of the Act. That means there is a disability attached to him for all times to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment and, of course, he submitted that it would not. If that is the reasonable approach, then the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by the repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying the burden of not holding any office or position thereafter. If thus becomes clear that such person must be adequately or appropriately compensated. It cannot be said that the Government will control the activities of a person who will incur certain liabilities or obligations but he shall not be suitably compensated for the same. In a situation of this sort, we think that adequate compensation will be the loss of his salary for the remainder tenure for which he would have held the office of the Lokpal. We, therefore, direct the respondents to work out and pay the difference in salary that the appellant will become entitled to by this order on ceasing to hold the office of the Lokpal and pay the same to him. But this direction will not entitle the appellant to claim any other allowances or perks to be converted into cash.

9. There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant. One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, W.A. Nos. 720, 728, 756 and 775 of 2014 -:20:- including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view could be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The latter view, if taken, would lead to incongruous results because the incumbent in the office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restrictions continue to be operative on abolition of the office, the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter.

10. The learned counsel for the respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not be entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the office of the Lokpal. He is deprived of all other offices or business interest when he holds the office of the Lokpal and the office, which he holds, is also denied to him by reason of the Repealing Act. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would W.A. Nos. 720, 728, 756 and 775 of 2014 -:21:- baffle all logic.

11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Art.226 of the Constitution, sets out the facts and the claims arising thereto. May be, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same."

The aforesaid judgment has rightly been relied on by the learned Single Judge and observed that petitioners are entitled for the relief. It is relevant to note that in the aforesaid case the Apex Court directed the respondent to work out and pay the difference in salary that the appellant will become entitled by the order on ceasing to hold office of Lokpal, but it was held that the directions will not entitle the appellant to claim any other allowances or perks to be converted into cash.

18. Learned Government Pleader has also relied on the Apex Court judgment in Dr.L.P. Agarwal v. Union of India and others [(1992) 3 SCC 526]. The aforesaid was a case where the W.A. Nos. 720, 728, 756 and 775 of 2014 -:22:- appellant was appointed as Director of All India Institute of Medical Sciences, on a tenure post of 5 years, was compulsorily retired before completion of his tenure. The Apex Court set aside the order and held that the appellant was entitled to complete his tenure. The said case has no application in the present case. Present is not a case of compulsory retirement of a person holding a tenure post, rather present is a case of appointment on the office of Ombudsman which office came to be vacated by virtue of an Act of legislation.

19. The learned Senior Counsel appearing for the petitioners has relied on the judgment of the Apex Court reported in State of Himachal Pradesh and another v. Kailash Chand Mahajan and others [1992 Supp.(2) SCC 351] which was also a case regarding superannuation of Chairman of the Electricity Board by virtue of a statutory provision. The said case is also clearly distinguishable and has no application in the present case.

20. Another judgment relied on by learned counsel for the petitioners is Sreenivasan v. M.M. Pareed Pillai (Retd. Chief Justice) [2009(2) KLT 823]. The issue in that case was as W.A. Nos. 720, 728, 756 and 775 of 2014 -:23:- to whether the Chairperson of State Human Rights Commission is disqualified for appointment as Lok Ayukta. In accordance with the provisions of Section 24(3) of Protection of Human Rights Act, 1993, a person is ineligible for further employment under the Government of a State or under the Government of India. Justice M.M. Pareed Pillai, retired Chief Justice was the Chairperson of the State Human Rights Commission and after demitting his office as such he was appointed as Lok Ayukta of the State. The appointment was challenged on the ground that by virtue of Section 24(3) of the Protection of Human Rights Act, 1993 he was ineligible for appointment. The said submission was repelled by a Division Bench of this Court holding that the appointment as Chairperson under the State Human Rights Commission cannot be held to be employment under the State. The said case is also on different facts and has no application.

21. Another judgment relied on by learned counsel for the appellant is N.K. Bajpai v. Union of India and another [(2012) 4 SCC 653]. The issue in the said case was regarding restriction on members of Customs, Excise and Service Tax W.A. Nos. 720, 728, 756 and 775 of 2014 -:24:- Appellate Tribunal from appearing, acting or pleading before the Tribunal on demitting the office. The said restriction was upheld. The said case is also on its own facts and has no application in the present case.

22. One of the submissions made by learned Special Government Pleader is that persons who vacated the office were appointed to different posts including the Chairman of Admission Supervisory Committee and Fee Regulatory Committee and certain other posts of office of profit under the State.

23. We, are of the view that if during the relevant period when members of Ombudsman were entitled to function, if they had received any emoluments arising out of an office of profit, the State is entitled to adjust/deduct the said amount while computing compensation payable to him.

24. We are of the view that present case is fully covered by the judgment of the Apex Court in S.K. Ray's case (supra). It is relevant to note that the Apex Court had directed for making payment of salary to which the appellant was entitled, after ceasing to hold the office. However, it was held that the W.A. Nos. 720, 728, 756 and 775 of 2014 -:25:- said payment shall not entitle the petitioners to claim any other allowances or perks to be convertible into cash.

25. We further notice that the learned Single Judge while deciding the writ petition has observed that though the petitioners are entitled for compensation, the respondent, i.e. the State of Kerala may negotiate with the petitioners for reduction of compensation amount. We are of the view that no direction was necessary to be given to the State to negotiate.

26. As noted above by Act 12 of 2001, Section 271G (4) was substituted which provided that Ombudsman shall hold office for a term of three years from the date on which he enters upon his office. The provisions of Act 12 of 2001 has already been upheld by this Court. Even if the petitioners had not vacated their office with effect from 14.09.2001, they would have completed their tenure within three years i.e. on 29.05.2003. Thus while computing the payment of compensation to the petitioners their tenure has to be treated as three years only.

27. In the result, we modify the judgment of learned Single Judge in following manner:

W.A. Nos. 720, 728, 756 and 775 of 2014 -:26:-

1. The Writ Petitioners shall be entitled for salary for the period during which they could not complete their tenure of Ombudsman consequent to statutory intervention however in computing the said salary, the allowances and perks shall not be included.

2. During the aforesaid period if any emoluments or pecuniary benefits have been received by the petitioners, the said amount shall be deducted by the State while computing the emoluments to be paid to the petitioners.

3. The appellant shall compute the aforesaid amount and make payment of the same within a period of three months to the petitioners All the writ appeals are disposed of accordingly.

Ashok Bhushan, Chief Justice.

A.M. Shaffique, Judge.

ttb/22/01

Unlock Advanced Research with PRISMAI

Kerala High Court