The High Court of Kerala dismissed a writ petition challenging an alleged investigation by the Lok Ayukta and investigating police officers. The court held the petitioner failed to substantiate claims that the Lok Ayukta entertained a complaint or ordered the investigation.
The writ petition was dismissed with costs; all pending applications stand closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941
WP(C).No.135 OF 2020(N)
PETITIONER:
M.V.ALIAS, AGED 41 YEARS, S/O.VARKEY, MANIYELI HOUSE, THURUTHI P.O., KURUPPAMPADY, ERNAKULAM DISTRICT.
BY ADV. SRI.GEORGE SEBASTIAN
RESPONDENTS:
1 THE KERALA LOK AYUKTA, REPRESENTED BY ITS REGISTRAR, LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033.
2 THE DEPUTY SUPERINTEDENT OF POLICE, INVESTIGATION WING, KERALA LOK AYUKTA, LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033.
R2&3 BY SR.GOVERNMENT PLEADER SRI.V. TEKCHAND
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C).135/2020
2
JUDGMENT
Dated this the 14th day of February, 2020
S. Manikumar, CJ
Contending inter alia that Lok Ayukta has entertained a complaint and also ordered an investigation, instant writ petition is filed for the following reliefs:
2. Short facts leading to writ petition are:
The petitioner had preferred some complaints highlighting corruption and abuse of powers by various public servants before
the 1st respondent. On 30.12.2019, the petitioner was
W.P(C).135/2020
3
telephonically contacted by the officers under the Assistant Commissioner of Police, Cantonment, Thiruvananthapuram (3rd respondent herein) and told that on the basis of a direction by the 1st respondent, they want to conduct enquiries against the petitioner. They had asked the petitioner to be present at the office of the 3rd respondent within one week. The said telephone call was received from telephone No.0471 2331794. It was also told that the 1st respondent had received a complaint against the petitioner herein and on the basis of the said complaint, a direction was issued by the 1st respondent to the State Police Chief to enquire into the matter and to submit a report before the 1st respondent and on that basis, the 3rd respondent is enquiring into the matter and the petitioner is being summoned in connection with the said enquiry. It was also told that the petitioner will be taken into custody in case he does not appear before the office of the 1st respondent. Immediately the petitioner has filed an application under the Right to Information Act, 2005, before the Public Information Officer of the 1st respondent seeking for details of the complaint allegedly received in the office of the 1st respondent against the petitioner herein. On 31.12.2019, some policemen attached to the 2nd respondent came to the office of the petitioner and told the persons who were there that they had come
W.P(C).135/2020
4
for conducting an enquiry on the basis of a direction by the Kerala Lok Ayukta. So far the information has not been furnished to the petitioner as sought for in Ext.P1. Subsequently, the petitioner had made a request before the Head of Investigating Wing of Lok Ayukta to provide the details of the alleged complaint filed against him. It was also requested that notice may be issued in case action is going to be taken against him. Similar request was made on 3.1.2020 before the Registrar of the 1st respondent and the Head of the Investigation Wing of the 1st respondent. But there was no response to those requests. The petitioner made enquiries with the office of the 1st and 2nd respondents. It was told that the 1st respondent had received some complaints against the petitioner and on the basis of the directions of the 1st respondent, the 2nd respondent and 3rd respondent are conducting investigation and enquiry against the petitioner.
W.P(C).135/2020
5
though the petitioner requested the Registrar of the 1st respondent and respondents 2 and 3 not to continue with the investigation and enquiry against the petitioner, those requests were not considered and they are taking the stand that since there was a direction by the Lok Ayukta and therefore they have to continue with the enquiry and investigation. Even though the petitioner had sought for copies of the complaints and directions issued by the Lok Ayukta by filing Ext.P1 Application and similar applications, so far the documents have not been furnished. On enquiry, it is learnt that no case is pending against the petitioner before the 1st respondent and no complaint has been considered in open court by the 1st respondent against the petitioner. The petitioner apprehends that he may be taken into custody illegally and harassment will be meted out to him.
W.P(C).135/2020
6
petitioner has been cheating others by fraudulently introducing himself as a superior officer of Lok Ayukta. In his petition, Mr. Rajeev Gopal has also stated that writ petitioner is the owner of an online News Channel by name RAN NEWS at Puliyarakkonam. Said Advocate has further stated that petitioner is facing criminal cases in crime No.2171/2013 which is registered against the petitioner on the file of Chengannoor Police Station, Crime No.281/2011 on the file of Moovattupuzha Police Station and Crime Nos.81/2011 and 3114/2017 of Kuruppampadi Police Station. Mr. Rajeev Gopal seems to have requested Lok Ayukta to conduct enquiry on the above subject matter.
W.P(C).135/2020
7
the same.
Rajeev Gopal and the Assistant Commissioner of Police, Cantonment, Thiruvananthapuram (3rd respondent) has instructed the petitioner to appear in person for enquiry.
as:
“(b) “allegation”, in relation to a public servant, means any affirmation that such public servant,-
(i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii)was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or
(iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;”
W.P(C).135/2020
8
Section 2(h) of the said Act defines “grievance” as:
“(h) “grievance” means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration”
Section 7 speaks about “Matters which may be investigated
by the Lok Ayukta and the Upa-Lok Ayuktas”, which reads thus:
“ 7. Matters which may be investigated by the Lok Ayukta and the Upa-Lok Ayuktas .-
(1) Subject to the provisions of this Act, the Lok Ayukta and one of the Upa-Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or specific approval of-
(i) the Chief Minister; or
(ii) a Minister; or
(iii) a Member of the State Legislature; or
(iv) a Secretary; or
(v) an office bearer of a political party at the State Level; or (vi) an officer rerferred to in sub-clause (iii) of clause (d) of section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa-Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa-Lok Ayuktas together and the decision of the majority therein shall prevail.
(2) Subject to the provisions of this Act, an Upa- Lok Ayukta may investigate any action which is taken by, or with the
W.P(C).135/2020
9
general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office bearer of a political party at State Level or an officer referred to in sub-clause (iii) of clause (d) of section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa-Lok-Ayukta, the subject of a grievance or an allegation.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the Lok Ayukta or an Upa-Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government.
(4)The Lok Ayukta may, by general or special order, assign to each of the Upa-Lok Ayuktas the matters which may be investigated by them under this Act.
(5) Notwithstanding anything contained in sub-sections (1) to (4), when an Upa-Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa-Lok Ayukta, and in the absence of both, by the Lok Ayukta.
(6) Notwithstanding anything contained in any other provision of this Act, no investigation made by an Upa-Lok Ayukta under this Act and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.
W.P(C).135/2020
10
(7) For the removal of doubts, it is hereby clarified that the term 'Lok Ayukta' wherever it is used in this Act, in relation to any of the persons referred to in sub-section (1), shall mean the Lok Ayukta and, as the case may be, one or both of the Upa-Lok Ayuktas as provided in that sub-section.”
Section 8 speaks about “Matters not subject to investigation, which reads 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.
(b) any action in respect of a matter which has been referred 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
W.P(C).135/2020
11
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.”
Second Schedule to Section 8(i)(a) reads thus:
“SECOND SCHEDULE
[See section 8 (i) (a)]
(a) Action taken for the purpose of investigating crime relating to the security of the State.
(b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a court or not.
(c) Administrative action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligation.
(d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other mattes relating to conditions of service of public servants but, not including
W.P(C).135/2020
12
actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service.
(e) Grant of honours and awards.”
W.P(C).135/2020
13
The writ petition is dismissed.
All pending applications, if any, stand closed.
Sd/S. Manikumar, Chief Justice
Sd/Shaji P. Chaly, Judge
Shaji P. Chaly,
sou.
W.P(C).135/2020
14
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 30/12/2019 FILED BY THE PETITIONER UNDER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT.
EXHIBIT P2 A TRUE COPY OF THE REQUEST DATED 01/01/2020 SUBMITTED BY THE PETITIONER BEFORE THE HEAD OF THE INVESTIGATION WING OF THE LOK AYUKTA WITH ENGLISH TRANSLATION.
2 issues framed by the court
Whether the Kerala Lok Ayukta had entertained a complaint and ordered investigation against the petitioner.
Whether the respondents are justified in conducting enquiry and investigation against the petitioner who is not a public servant.
4 provisions across 1 enactments
M.V. Alias
The Kerala Lok Ayukta
The Deputy Superintendent of Police
The Assistant Commissioner of Police, Cantonment, Thiruvananthapuram
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
