Dismissed

Trivandrum Corporation v. K.Sarala

Kerala HC17 Oct 2016WP(C)/2976/2008

Case brief

AI extract

What is this about?

The High Court held that the Lok Ayukta lacks jurisdiction to issue positive orders directing payment from the Corporation to a bank. The Court set aside an order where the Lok Ayukta directed respondents to pay amounts directly to a creditor bank instead of merely recommending departmental action.

What did the court decide?

The order dated 31.07.2007 passed by the Kerala Lok Ayukta directing payment is set aside.

Trivandrum Corporation Vs K.Sarala — Constitutional and Fundamental Rights | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938

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WP(C).No. 2976 of 2008 (D)

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PETITIONER(S) :

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THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, CORPORATION BUILDINGS, M.G.ROAD, THIRUVANANTHAPURAM-33.

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BY SRI.N.NANDAKUMARA MENON (SENIOR ADVOCATE) ADV. SRI.P.K.MANOJKUMAR

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RESPONDENT(S) :

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1. K.SARALA, SWEEPER, MANACAUD CIRCLE, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM.

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2. JAYALEKSHMI, HEALTH OFFICER, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM.

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3. S.RAJAPPAN, KRIPA BHAVAN, 6/1147, KAPPIVILA, NETTAYAM P.O., THIRUVANANTHAPURAM.

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4. THE KERALA LOK AYUKTA, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.

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ADDITIONAL R5 IMPLEADED

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5. SMT. J.SULOCHANA, RAJAJI NAGAR, FLAT NO. 270, THIRUVANANTHAPURAM.

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ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 09.06.2011 IN I.A.NO. 8616 OF 2011

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R4 BY SMT.RENU. D.P., S.C

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 2976 of 2008 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: THE PHOTOSTAT COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE LOK AYUKTA DATED 03.02.2007 NO. C-264/05, C-265/05.

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EXHIBIT P2: THE PHOTOSTAT COPY OF THE COMMON ORDER DATED 31.07.2007 IN 1. COMPLAINT NO. 264/2005(2) PASSED BY THE KERALA LOK AYUKTA.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

P.V.ASHA J.

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W.P.(C) No.2976 of 2008

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---------------------------------------------

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Dated this the 17^th day of October, 2016

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J U D G M E N T

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Petitioner challenges the proceedings of the Kerala Lok Ayukta directing the Corporation to make payment towards Karamana Co-operative Urban Bank .

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The 1^st respondent and another who are working in the Thiruvananthapuram Corporation as sweepers filed separate complaints before the Lok Ayukta against the Health Officer and Secretary of the Corporation and the 3^rd respondent who is also a sweeper. Both the complainants along with 3^rd respondent availed loans from the Karamana Urban Cooperative Bank (hereinafter referred to as 'the Bank') to the tune of Rs.25,000/- each in the year 1998-1999 in which they stood as sureties mutually. Consequent to the default committed by the 3^rd respondent, all the 3 faced recovery from their salary at the rate of Rs.1500/- per month.

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The 3^rd respondent availed voluntary retirement and he was relieved from the Corporation with effect from 01.11.2001. The 3^rd respondent had submitted a letter to the corporation agreeing that the amount due from him towards the Karamana Co-operative Urban Bank can be recovered from

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W.P.(C) No.2976 of 2008

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his retirement benefits. But no recovery was effected either from his salary or his retirement benefits. Producing the requisition from the Karamana Co-operative Urban Bank issued to the Corporation on 20.09.2000, reminder sent by them on 17.10.2000 for effecting recovery from the salary of the 3^rd respondent at the rate of Rs.1500/-, the request made by the 3^rd respondent on 12.12.2001 seeking permission for voluntary retirement with effect from 01.11.2001 and the letter dated 04.01.2002 of the 3^rd respondent addressed to the Health Officer of the Corporation agreeing for recovery of the amount due to the Bank from his terminal benefits and documents to show that the said letters were very much before the concerned officials of the Corporation, the complainants submitted before the Lok Ayukta that the terminal benefits due to the 3^rd respondent were paid by the Corporation without referring to any of those letters and it had resulted in very serious injustice to them.

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Secretary of the Corporation had filed Ext.P1 additional written statement stating that there were several loans availed by the 3^rd respondent and several recoveries were to be effected from his salary. The details regarding the recovery effected from his salary were furnished and it was

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W.P.(C) No.2976 of 2008

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stated that out of the sum of Rs.1,50,710/- which was available towards DCRG of the 3^rd respondent, the entire amount was utilized for meeting the liabilities towards various Banks. However, it was stated that a sum of Rs74,449/- was his salary for the period from January 2000 to August 2001, out of which a sum of Rs.39,279/- was recovered at the rate of Rs.1,758/per month and during the said period the total payment made to him was only a sum of Rs.35,170/-, after effecting recovery at permissible limit. It is further stated that the DCRG due to the 3^rd respondent was not sufficient to clear his liability towards 3 Banks i.e., Attingal Municipal Employees Cooperative Society, Thiruvananthapuram Service Co-operative Bank and Kerala Municipal Co-operative Employees Welfare Board which came to a sum of Rs.1,60,710/-. Since the recovery can be made only from of the DCRG, no recovery could be made from the amount due to him towards commutation of pension except with the consent of the retired hand. However, a sum of Rs.65,736/- was recovered from the pension commutation amount which came to a sum of Rs.88,845/-. According to them the 3^rd respondent was very well aware that there would not be any amount for recovery from his terminal benefits for payment towards the Karamana

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Co-operative Urban Bank and he had deliberately submitted his consent for effecting recovery. It was further stated that a requisition from the Karamana Co-operative Urban Bank or the consent letter of the 3^rd respondent was not available in the concerned file or in the concerned section, dealing with the settlement of pensionary benefits; the payment to the employees of the Corporation were being made from the respective Circle Offices of Health as and when the bills in their case are being passed in the Regional/Circle Offices. Notices for recovery are being received by the concerned Superintendent of the Corporation which has to be forwarded to the concerned Health Circle Offices by the respective Superintendents. Since the 3^rd respondent was a regular defaulter and a regular absentee a huge amount of recovery was to be effected towards liabilities from various institutions. Therefore, the Secretary of the Corporation submitted that there was no deliberate inaction on their part in not effecting recovery.

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Lok Ayukta considered both the complaints together and passed Ext.P2 order dated 31.07.2007. It was found that the complainants had produced all the relevant documents, the Corporation and its officials filed a statement saying that those letters were not available in the concerned file despite

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the availability of the clinching and conclusive documents before them. Saying that Corporation was liable to deduct the loan amount due from the 3^rd respondent's salary while he was in service and subsequently at the time of settlement of pensionary benefits, the Lok Ayukta found that the respondents 1 and 2 therein and other officers of the Corporation who were responsible at the relevant time discarded their obligations under law to recover the amount from the salary and pensionary benefits by deliberate misconduct and callous negligence. Referring to the documents produced by the complainants, the Lok Ayukta held that the respondents 1 and 2 filed a statement before it without adverting to any of the documents, stated that the documents relating to the recovery or liability towards the Karamana Co-operative Urban Bank were not available in the file of the 3^rd respondent while the recoveries were effected and his terminal benefits were settled and hence they were guilty of grave negligence, misconduct and callous indifference in making such false and wanton statement and therefore they failed to discharge their legal obligations and that they were liable for departmental as well as penal action provided under law. With the above observations the Lok Ayukta held as follows:

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The gross misconduct and negligence of respondents 1 & 2 or anybody else responsible at the relevant time in not recovering the loan amount due from the 3^rd respondent to the Karamana Co-operative Urban Bank Ltd. inspite of the written requisitions made by the creditor bank and consent in writing given by 3^rd respondent has caused heavy monetary loss and grave mental agony to the complainants. If in fact there were other requisitions along with the requisition made by the Karamana Co-operative Urban Bank Ltd. obliging them to recover the amounts due to them from 3^rd respondent out of his retiral benefits, the respondent 1 & 2 or any other person responsible at the relevant period should have deducted the amounts due to all creditors in rateable proportion, if the total amount due to 3^rd respondent as his retiral benefits was found insufficient to discharge all the claims requisitioned. But in this case it is very curious to note that the respondents 1 & 2 or the officers responsible at the relevant time recovered the amounts due from 3^rd respondent to the three authorities as mentioned in the statement and paid the balance amount to 3^rd respondent as if there was no requisition by the Karamana Co-operative Urban Bank Ltd. for the amount due from 3^rd respondent and written consent by 3^rd respondent to recover that amount from his retiral benefits. It is also pertinent to note that even after the above complaints were filed by the complainants, respondents 1 & 2 have not made any effort to see that the 3^rd respondent paid the amount due from him to the Karamana Co-operative Urban Bank Ltd. or to take any disciplinary or penal action against the erring officers in this case by identifying them properly and attempted to shield the guilty persons for misconduct and illegal acts of omissions and commissions by filing the statement with false averments. Therefore I find that in order to alleviate

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the grave hardship and gross injustice caused to the complainants interests of justice can be met by directing respondents 1 & 2 or any other officer responsible during the relevant period to pay the amount due from 3^rd respondent to the Karamana Co-operative Urban Bank Ltd. and to recover the amount from 3^rd respondent under due process of law.

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In view of what is stated above the respondents 1 &2 or any other officer responsible at the relevant period are directed to pay the entire amount due from the 3^rd respondent to the Karamana Co-operative Urban Bank Ltd within a month from the date of receipt of a copy of this order and exonerate the complainants from their liability to pay the amount to the Karamana Co-operative Urban Bank Ltd. and file an action taken report.

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The respondents 1 & 2 or any other persons discharging the liability due from 3^rd respondent to Karamana Co-operative Urban Bank Ltd. will be entitled to recover the amount from the 3^rd respondent under due process of law. The competent authority will be at liberty to initiate appropriate disciplinary and penal proceedings against the officers concerned guilty of negligence, misconduct and dereliction of duty. For filing action taken report post on 10.07.2007.

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The request of Secretary to absolve him was not accepted saying that even though he was not directly involved, he is liable for penal action. Accordingly, it was directed that the amount which has due from the 3^rd respondent to the Karamana Co-operative Urban Bank has to be paid by the respondents 1 and 2 or any other officer responsible at the relevant period and the complainant shall be exonerated from

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effecting payment. It was further ordered that they would be entitled to recover the said amount from the 3^rd respondent under process of law and the competent authority will be at liberty to initiate disciplinary proceedings against the officers concerned for misconduct and dereliction of duty. This is the order under challenge by the Corporation mainly on the ground that the Lok Ayukta does not have any jurisdiction to issue positive orders.

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Referring to the judgment of this Court in George v. Saralakumari [2007 (4) KLT 924] where this Court after analysis of the various provisions contained in the Lok Ayukta Act and Rules held that Lok Ayukta does not have any jurisdiction to issue positive orders it was argued that what is contemplated under the provisions is to make recommendations by way of report to the competent authority. In the present case what is done by the Lok Ayukta is to issue a direction to the officers of the Corporation presently working, i.e at the relevant time when the order was passed to effect the payment towards the amount due from the 3^rd respondent to the Karamana Co-operative Urban Bank apart from the directions to initiate the disciplinary proceedings against the said officers. The contention of the Corporation is that the Lok

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Ayukta has passed the order without referring to the statements filed by them and in excess of the powers vested in it. In the judgment in George's case (supra), this Court had held that the power of the Lok Ayukta is confined to forwarding of a report in terms of Section 12 of the Act. It is also pointed out that there was no finding regarding the officers who committed any misconduct on the basis of an enquiry conducted in accordance with provisions contained in the Act and Rules. It was pointed out that the officers who were at the relevant time, dealing with the files were not before the Lok Ayukta and direction is issued without hearing them and without issuing notice to them, contrary to the provisions contained in the Act. The learned counsel for the petitioner submitted that in order to arrive at a finding as to maladministration the party who is alleged to have committed the said mal-administration should be issued notice and given an opportunity of hearing. In this case the parties before the Lok Ayukta were the Health Officer who was in office at the time of filing the complaint in the year 2005 and the Secretary of the Corporation at the relevant time. At the same time, the loan was availed in the year 2000 and the 3^rd respondent availed voluntary retirement in the year 2001 and his terminal benefits

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were settled in 2004 and the concerned officers who dealt with the files were not before the Lok Ayukta while issuing this orders. The learned counsel for the petitioner further referred to another judgment of this Court in University of Kerala v.

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Parvathy Krishna and another [2014 (2) KHC 199] wherein this Court considered the scope of passing interim orders by the Lok Ayukta.

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Referring to this judgment also the learned counsel for the petitioner submits that the Lok Ayukta could not have passed an order like Ext.P2 either as an interim order or as a final order.

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On the other hand the learned counsel for the Lok Ayukta argued that orders passed by Lok Ayukta had passed orders within its jurisdiction, seeing the injustice caused to the complainants before it. Referring to the discussion made by the Lok Ayukta in the order it was pointed out that the attitude adopted by the officials in this matter was discussed by the Lok Ayukta and it was only when it was seen that the action of the officials of the Corporation caused prejudice to the complainants that the Lok Ayukta passed the order. It was pointed out that the provisions contained in section 2 of the Act which defines grievance will show that the claim of the

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complainants was liable to be considered by the Lok Ayukta as a grievance since they had sustained injustice/undue hardship in consequence of mal administration. Mal-administration as defined under Section 2(k) means that action taken in exercise of administrative functions in an unreasonable and unjust manner or in a case where there is wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in the action involved undue delay. Therefore it was argued that there was further reason for the Lok Ayukta to take action in the case when the officials of the Corporation did not take action even after repeated requests of the complainants and in spite of the letter of the 3^rd respondent agreeing for recovery from his terminal benefits. The learned counsel for the Lok Ayukta attempted to justify the order seeking an interpretation of the same as an interim order and argued that directions can be issued by way of interim orders, as held by the Apex Court in judgment in Rama Rao v. Lokayukta [AIR (1996) Supreme Court 2450]. It was seen that the said judgment was in a case where the Lok Ayukta of the Andhra Pradesh State issued orders directing to suspend and transfer the officers when the matter was pending before the Lok Ayukta. There a compliant was filed before the Lok Ayukta

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against the Superintending Engineer in respect of expansion of work in the Osmania General Hospital, Hyderabad. The question considered was under Section 7(3) of the Lok Ayukta Act which confined power on the Lok Ayukta to take suo motu action in respect of any action contemplated under the Act. Therefore, it was found that in order to have an effective investigation and to enable the Lok Ayukta to conduct further investigation, the recommendation to suspend an officer or to transfer him pending further investigation was not without jurisdiction. It is seen that there also the order passed by the Lok Ayukta was by way of an interim report with recommendation to suspend the officer concerned.

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In this case the Lok Ayukta has issued directions to effect the payment by the officers of the Corporation to the Bank to which amount was due from the 3^rd respondent. The learned counsel for the Lok Ayukta vehemently argued referring to the judgments of this Court in Sreenivasan Venugopalan v. M.M.Pareed Pillay [2009 (2) KHC 671], Kerala State Co-operative Bank v. Kerala Lok Ayukta [2016 (4) KHC 88], K.S.R.T.C v. Padmavathy [2008 (1) KLT 584], Bright S. v. Chief Secretary to Government of Kerala and others [ILR 2016(1) Kerala 1017], unreported

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judgments of this Court in the judgment dated 28.06.2016 in W.P.(C).No.9971 of 2016, which was confirmed in Writ Appeal No.1329 of 2016, the judgment dated 18.09.2015 in W.P.(C). No.36209 of 2009 asserting that directions can be issued by the Lok Ayukta when it was found that injustice was caused to the complainants on account of mal administration of the officers. On a perusal of the judgments referred by the learned counsel, it is seen that the judgments rendered in K.S.R.T.C v. Padmavathy [2008 (1) KLT 584], Bright S. v. Chief Secretary to Government of Kerala and others ILR [2016 (1) Kerala 1017], Sreenivasan Venugopalan v. M.M.Pareed Pillay [2009 (2) KHC 671] and Kerala State Co-operative Bank v. Kerala Lok Ayukta [2016 (4) KLT 488] were in cases where the jurisdiction of the Lok Ayukta to pass positive orders did not come up for consideration. In the judgment of this Court in Kerala v. Parvathy Krishna and another 2014 (2) KLT 199 relied on by the learned counsel for the petitioner, this Court had considered all these aspects and referring to the judgment in State of Kerala v. Bernad [2002 (3) KLT 254] and several other judgments it was held that the jurisdiction of the Lok Ayukta is confined to forwarding of reports to the competent authority and in the said case even an interim order

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with a positive direction was found to be without jurisdiction of the Lok Ayukta. In the division Bench judgment reported in Bright S. v. Chief Secretary to Government of Kerala and others [ILR 2016(1) Kerala 1017] also this Court had followed judgment in Bernad's case where it was held that no positive directions can be issued by the Lok Ayukta. In the other cases the question considered was whether Lok Ayukta had jurisdiction to entertain the complaints in respect of pension etc., and referring to Section 8 of the Act it was found that the Lok Ayukta had jurisdiction to entertain it even in Bernad's case the Lok Ayukta was found to have jurisdiction to entertain the complaint and proceed with the investigation based on the complaint. The issue decided was with respect to the jurisdiction to issue positive orders. The said judgment in Bernad's case is not seen reversed. In that view of the matter, despite the contentions addressed by the learned counsel for the Lok Ayukta, I am unable to sustain the order Ext.P2, since it only contains positive directions for which no power is conferred on the Lok Ayukta.

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Under the above circumstances, Ext.P2 order is set aside. From the order it is not clear whether the Lok Ayukta has passed an interim order or final order though it appears to be a

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final order. Therefore, in case the Lok Ayukta has not passed a final order it is up to the Lok Ayukta to proceed with the investigation and pass fresh orders.

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With the above observations, this writ petition is disposed

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of.

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Sd/- P.V.ASHA, JUDGE.

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Trivandrum Corporation v. K.Sarala

Case brief

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Trivandrum Corporation v. K.Sarala

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