Kerala High Court
The District Executive Officer vs C.R.Manoharan
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
WP(C).No. 17974 of 2009 (N)
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PETITIONER:
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THE DISTRICT EXECUTIVE OFFICER,
KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD,
ERNAKULAM.
BY ADVS.SRI.P.RAMAKRISHNAN
SMT.ASHA K.SHENOY
RESPONDENTS:
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1. C.R.MANOHARAN,
KARAYANTHARA HOUSE,
POONITHURA P.O., TRIPUNITHURA, ERNAKULAM.
2. KERALA LOK AYUKTA,
THIRUVANANTHAPURAM.
*3. STATE OF KERALA,
REPRESENTED BY ADDL. CHIEF SECRETARY TO GOVT.
LABOUR & SKILLS (S) DEPARTMENT,
THIRUVANANTHAPURAM.
R1 BY ADV. SRI.SAJI SANKARAN NAIR
R3 BY GOVT.PLEADER SRI. T.S. SYAM PRASANTH
*[R3 IS IMPLEADED AS PER ORDER DATED 18-11-2016 IN IA No.4840/2016]
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
W.P (C) No.17974/2009
APPENDIX
PETITIONER'S EXHIBITS
EXT- P1- TRUE COPY OF THE COMPLAINT DATED 27-05-2007 SUBMITTED BY
THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT WITH
EXHIBITS.
EXT- P2- TRUE COPY OF THE STATEMENT DATED 24-01-2008 SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXT- P3- TRUE COPY OF THE ORDER DATED 20-11-2008 IN COMPLAINT
No.1370/2007 OF THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS
NIL
True copy
P.A. ToJudge
AMG
C.K. ABDUL REHIM, J.
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W.P.(c) No. 17974 OF 2009-N
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DATED THIS THE 18th DAY OF NOVEMBER, 2016.
J U D G M E N T
The District Executive Officer of the Kerala Motor Transport Workers Welfare Fund Board, Ernakulam is the petitioner herein, challenging Ext.P3 order passed by the Kerala Lok Ayukta, the 2nd respondent herein. Issue pertains to the final determination of the contributions payable by the 1st respondent with respect to the motor transport undertakings operated by him. The petitioner herein conducted adjudication for determination of the contributions payable by the 1st respondent with respect to the years 1987 to 1998. A final order under Section 8 (1) of the Kerala Motor Transport Workers Welfare Fund Act, 1985 was issued, vide: order No.EE121/RAO/87-98, dated 31-08- 2005. The said order was challenged in appeal filed by the 1st respondent before the Government, under Section 8 (5) of the Act. Through an order passed by the Government on 24-04-2006, the final determination order W.P.(c) No. 17974/2009 -2- dated 31-08-2005 was set aside in appeal. The petitioner herein was directed to reassess the contribution after conducting a denova enquiry, after verifying the relevant records pertaining to the operation of the vehicles in question. After the remand, a fresh final determination order was passed by the petitioner on 30-10-2006. It is stated in the said order that, consequent to the remand by the Government, notice was issued to the 1st respondent as well as to the workers to appear for an enquiry on 25-07- 2006. On the said date the statement of one of the employees was recorded. The 1st respondent herein submitted a request to adjourn the matter to 26-07-2006, based on which the enquiry was adjourned to 16-10-2006. On the said date 3 other workers appeared and their statements were recorded. But the employer failed to appear on the said date. The petitioner authority had issued the fresh order on the basis of the statements given by the workers who appeared for the enquiry proceedings.
2. After passing the fresh order of final determination on 30-10-2006, the 1st respondent herein filed W.P.(c) No. 17974/2009 -3- a complaint before the 2nd respondent on 27-05-2007, raising the allegations that the petitioner herein had acted in a high handed manner and misused his official powers for personal gains. It was complained that the petitioner herein had failed to give proper credit to an amount of Rs.50,000/- remitted by the 1st respondent on an earlier occasion, which was remitted in compliance of the condition stipulated by this court in an interim order passed in CMP No.59583/2001 in OP No.35832/2001. According to the 1st respondent the non-accounting of the said amount in a proper manner had created burden on the 1st respondent to remit Rs.35,000/- out of the amounts determined, for the purpose of filing an appeal.
3. Based on notice issued from the Lok Ayukta the petitioner appeared in the complaint which is numbered as Complaint No.1370/2007. The petitioner herein filed a detailed statement, dated 24-01-2007. It is specifically contended that, after the remand of the matter by the appellate authority, an enquiry was conducted as directed; and the 1st respondent failed to appear on 25-07-2006 and W.P.(c) No. 17974/2009 -4- on 16-10-2006, inspite of notices received by him. It was contended that, the petitioner herein had no other alternative but to issue the final determination order, without making any change in the earlier order, based on statements of the employees recorded during the enquiry. Before the Lok Ayukta it was contended that the 1st respondent has got an effective remedy of appeal against the said order and therefore the complaint may not be entertained.
4. The Lok Ayukta, after consideration of the complaint as well as the statement filed by the petitioner herein, passed Ext.P3 order. The contention regarding availability of an alternate statutory remedy was repelled observing that the Forum has not exercised its discretion under Section 9 (5) to refuse to investigate upon the complaint, and therefore the Forum has got jurisdiction to entertain the complaint. It was further observed that the remedy available before the Lok Ayukta can be invoked in view of Section 24 (2) of the Kerala Lok Ayukta Act, 1999. On the factual aspects, the Lok Ayukta found that, the W.P.(c) No. 17974/2009 -5- petitioner had failed to conduct the denovo enquiry as directed by the appellate authority. It was observed that the 1st respondent was denied of opportunity of hearing. Further finding is that the petitioner had failed in verifying the relevant records as directed by the appellate authority. On the basis of the said findings, it is held that, the action of the petitioner herein is unreasonable, unjust, oppressive and improperly discriminatory, amounting to maladministration. Therefore the final determination order dated 30-10-2006 was set aside and the petitioner was directed to make a reassessment in accordance with the directions contained in the appellate order.
5. On a perusal of the complaint filed by the 1st respondent before the Lok Ayukta, it is not clearly discernible as to whether the 1st respondent is raising an allegation or as to whether he is agitating a "grievance" before the Forum. The only allegation which is discernible from the complaint is that, the petitioner herein had not properly accounted the amount of Rs.50,000/- paid by the 1st respondent which was remitted in compliance with an W.P.(c) No. 17974/2009 -6- interim order issued by this court in an earlier writ petition. Evidently, the Lok Ayukta had not conducted any adjudication on the said issue. The further allegation was that, the petitioner is keeping vengeance towards the 1st respondent and that he had openly threatened the 1st respondent on many occasions that he will teach him a lesson. Thirdly it is alleged that the petitioner had misused his official power to have personal gain in the matter. The Lok Ayukta has not conducted any investigation into the above said allegations. The findings that the petitioner had acted in an unreasonable, unjust, oppressive, improper and discriminatory manner, was arrived without any proper basis. This court is of the opinion that the Lok Ayukta ought to have restrained from entertaining the complaint in view of Section 9 (5) (c) of the Kerala Lok Ayukta Act, considering availability of an effective alternate remedy conferred by the relevant statute to challenge the order of final determination, in appeal before the Government. The reason mentioned in the impugned order for not refusing entertainment of the complaint is that the Lok Ayukta has W.P.(c) No. 17974/2009 -7- not exercised the discretion provided under the specific provision disagreeing for such investigation. Further, the finding of the Lok Ayukta is that the 1st respondent was not afforded with sufficient opportunity to participate in the enquiry. But such a finding is arrived without considering the contention of the petitioner that the 1st respondent failed in participating the enquiry without any basis. At the most, the interference can be justified only to the extent that the impugned order of final determination does not reflects a verification of the connected records, as directed by the appellate authority. But the question remains as to whether such records were available before the Forum, without the 1st respondent producing the same. There was no reason to hold that the petitioner acted unreasonable, unjust, oppressive and improperly discriminatory manner. As a whole the findings contained in the impugned order of the Lok Ayukta is totally illegal and unsustainable.
6. Learned counsel for the petitioner pointed out that, the 1st respondent had approached the Lok Ayukta by suppressing the fact that he had already availed the remedy W.P.(c) No. 17974/2009 -8- of appeal, against the order of final determination passed on 30-10-2006. It is pointed out that, from Ext.P1 order issued by the Government on 05-01-2007 it is evident that the 1st respondent had filed an appeal under Section 8 (5) of the Act against the order dated 30-10-2006 and that the Government had stayed the operation of the said order till the disposal of the appeal, subject to the condition of the 1st respondent remitting 35% of the balance amount assessed, within a period of 2 months. Evidently the 1st respondent had approached the Lok Ayukta with the complaint only after Ext.P1 order of the Government, dated 05-01-2007, raising the allegation that because of non-crediting of the amount of Rs.50,000/- remitted earlier, he was compelled to make payment of the 35% of the balance amount in compliance with the order of the Government. But the Lok Ayukta had missed to notice all the above aspects and also about the pendency of the appeal filed against the order dated 30-10-2006.
7. Considering all the above mentioned circumstances, this court is convinced that the impugned W.P.(c) No. 17974/2009 -9- order of the Lok Ayukta is legally unsustainable. Hence the above writ petition is hereby allowed. Exhibit P3 order passed by the Lok Ayukta is hereby quashed. The complaint of the 1st respondent before the Lok Ayukta, (Complaint No.1370/2007) will stand dismissed. It is made clear that the 3rd respondent Government will be at liberty to consider the appeal instituted by the 1st respondent against the order dated 30-10-2006, which is pending as evident from Ext.P1 order of the Government, dated 05-01-2007. The appeal shall be disposed of after affording opportunity of hearing to all the parties, at the earliest possible.
8. Needless to observe that the appeal shall be disposed of by the Government independently, untrammeled by any of the observations contained herein above.
Sd/-
C.K. ABDUL REHIM JUDGE AMG True copy P.A. to Judge