The High Court held that the Kerala Lok Ayukta lacked jurisdiction under Article 227 to investigate a complaint regarding recovery of dues from a school headmistress, as the matter involved conditions of service covered under the Lok Ayukta Act's exclusion lists.
Quashed Complaint No. 608 of 2012A on the file of the Kerala Lok Ayukta, Thiruvananthapuram.
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.
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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 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942
WP(C).No.1367 OF 2013(U)
PETITIONER/S:
MINI VARGHESE AGED 44 YEARS HEDMISTRESS, NEW UPPER PRIMARY SCHOOL, ESWARAMANGALAM P.O., THAVANOOR (VIA)-679 573.
BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.T.B.REMANI SMT.P.A.RINUSA
RESPONDENT/S:
1 STATE OF KERALA REP. BY ITS SECRETRY TO GOVT., GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THD DIRECTOR FO PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 001.
R3 BY ADV. SRI.JAMSHEED HAFIZ R4 BY ADV. SMT.RENU. D.P., SC, LOK AYUKTA R1 AND R2 BY SRI. SURIN GEORGE IPE, SR. GP.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2201-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
Dated this the 22nd day of January, 2021
S. Manikumar, C. J.
Petitioner has sought for a direction to set aside all further proceedings initiated by the Lok Ayukta, pursuant to Ext. P3 Complaint No. 608 of 2012A.
hereunder:-
Petitioner is a Headmistress of an aided U. P. school. According to the petitioner, based on the report of the Super Check Cell, the Director of Public Instruction, Thiruvananthapuram, 2nd respondent herein, has ordered to revise the staff fixation order of the school by abolishing four divisions and one post of U.P.S.A. In compliance with the above order, the Assistant Educational Officer revised the staff fixation order. Revision petition filed against the above orders was dismissed by the Secretary to the Government, General Education
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Department, Government Secretariat, Thiruvananthapuram, the 1st respondent herein. The above orders are now under challenge in W. P. (c) No. 14984 of 2011 filed by the petitioner and others. In the said writ petition, this Court passed Ext. P1 interim order dated 03.06.2011, staying recovery, pursuant to the above orders. The said writ petition is now pending before this Court.
Petitioner has further submitted that Mr. Dharmapalan M. V., 3rd respondent, a total stranger, as far as the school is concerned, got himself impleaded as additional 4th respondent in W.P.(C).No. 14984 of 2011, alleging that, it is at his instance, the Super Check Cell conducted inspection in the school. Petitioner has contended that the 3rd respondent has been personally harassing the petitioner, for the last so many years, since, the petitioner as Headmistress of the school, did not support the various fraudulent conduct of his close friend, Mr. Aboobacker, former Peon of the petitioner's school, in the matter of discharging official duties.
Petitioner has further submitted that Mr. Dharmapalan M. V., 3rd respondent, along with Mr. Kunhippa, have approached before various
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other forums and this Court by filing W.P. (c) No. 8886 of 2008, by producing fabricated documents in those cases.
In connection with the above incident, C. C. No. 311 of 2011 is now pending before the Judicial First Class Magistrate Court, Ponnani, wherein Mr. Dharmapalan M. V., 3rd respondent herein, Mr.Aboobacker and Mr. Kunhippa have been arrayed as accused.
Petitioner has also submitted that Mr. Dharmapalan M. V., 3rd respondent, is an influential person of the locality. At his instance, the Assistant Educational Officer, Ponnani, has even gone to the extent of initiating steps against the petitioner, to recover the amount, pursuant to the orders issued, on the basis of the report of the Super Check Cell, in violation of Ext. P1 interim order dated 03.06.2011, issued by this Court. That order of recovery, was withdrawn by the Assistant Educational Officer after filing, COC No.616 of 2012 in this Court.
According to the petitioner, Mr. Dharmapalan M. V., 3rd respondent has filed Ext. P3 Complaint No. 608 of 2012 before the Lok Ayukta, seeking for a direction to initiate action against the petitioner, pursuant to the orders issued by the Secretary to
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Government, General Education Department, Government Secretariat, Thiruvananthapuram, 1st respondent and the Director of Public Instruction, Thiruvananthapuram, 2nd respondent, based on the report of Super Check Cell. The petitioner has appeared in that case and filed Ext. P4 objection. As per the statement of facts filed along with the writ petition, the above case was posted to 16.01.2013. Petitioner has contended that the Lok Ayukta has no jurisdiction to proceed with Complaint No. 608 of 2012 filed by Mr. Dharmapalan M. V., the 3rd respondent, for enforcing the orders of the Assistant Educational Officer, which is already under challenge before this Court in W.P. (C).No. 14984 of 2011 . Being aggrieved, instant writ petition is filed.
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jurisdiction to entertain the complaint and order notice. The nature of the proceedings referred to in the complaint, for which action was sought for, is recovery of Rs. 99,902/-, as ordered by the Assistant Educational Officer, Ponnani, to be recovered from the writ petitioner.
“8. Matters not subject to investigation – (1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall
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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.
SECOND SCHEDULE
(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.”
the aspect of maladministration and facts, considered the statutory provisions of the Lok Ayukta Act, 1999, held thus:-
“10. In that regard, Sections 8 and 9 of the Kerala Lok Ayukta Act, 1999 are relevant to the context, which read thus:
“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
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grievance in respect of any action, if such action relates to any matter specified in the Second Schedule.
(2) The Lok Ayukta or an Up-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 to inquiry under the Commissions of inquiry Act, 1952 (Central Act 60 of 1952) .
(c) Any complaint involving an allegation made after the expirty 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 UpaLok 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
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discretion can prima-facie be regarded as having been improperly exercised.
Subject to the provisions of this Act, any person may make complaint under this Act to the Lok Ayukta or an Upa-Lok Ayukta.
(2) Every complaint shall be made in such form and in such manner, as may be prescribed, and shall be supported by an affidavit.
(3) Where the Lok Ayukta or an Upa-Lok Ayukta proposes, after making such preliminary inquiry as he deems fit, to conduct any investigation under this Act he-
(a) shall forward a copy of the ocmplaint to the public servant and the competent authority concerned.
(b) shall afford to such public servant, an opportunity to offer his comments on such complaint.
(4) Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held, either in public or in camera, as the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, considers appropriate in the circumstances of the case.
(5) The Lok Ayukta or an Upa-Lok Ayukta may, in his discretion, refuse to investigate or discontinue investigation of, any complaint involving a grievance, or an allegation, if in his opinion.
(a) the complaint is frivolous or vexatious or is
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not made in good faith.
(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or
(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.
(6) In any case where the Lok Ayukta or an UpaLok Ayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned.
(7) The conduct of an investigation under this Act against a public servant in respect of any action shall not affect such action or any power or duty of any other public servant to take further action with respect to any matter subject to investigation.
(8) In every proceeding before the Lok Ayukta or an Upa-Lok Ayukta under this Act, the State shall be made a party thereto and the Government shall appoint a special Attorney and one or more senior Government Pleaders to represent the Government before the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, on the terms and conditions prescribed:
Provided that it shall not be necessary that State should be made a party in cases where Government
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interests are not involved.
“(k) “mal-administration” means action taken or purporting to have been taken in the exercise of administrative functions in any cases 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 wilful negligence or undue delay in taking into account such action or the administrative procedure or practice adopted in such action involved undue delay;”
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unjust or oppressive action can be treated as mal administration. On going through the complaint filed by Dr. K.P. Satheesan, we are quite sure that such clear allegations are made in the complaint. That being so, we do not find any force in the contention advanced by the learned Standing Counsel for the University that the Lok ayukta has exceeded its jurisdiction.
Resultantly, writ appeal fails and accordingly it is dismissed.”
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In the light of the above discussion, we are of the view that the writ petitioner has made out a case to quash Complaint No. 608 of
2012A, on the file of the Kerala Lok Ayukta, Thiruvananthapuram.
Accordingly, writ petition is allowed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE INTERIM ORDER DATED 03.06.2011 IN W.P.(C)NO.14984/2011.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 23.01.2012 IN COC NO.61/2012. EXHIBIT P3 TRUE COPY OF THE PETITIONER FILED BY THE 4TH RESPONDENT DATED 12.12.2012. EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 23.05.2012.
2 issues framed by the court
Whether the Kerala Lok Ayukta has jurisdiction to entertain a complaint involving recovery proceedings under service matters barred by the Second Schedule.
Whether the Lok Ayukta can proceed with parallel proceedings when the High Court has already stayed recovery and entertained a writ petition.
Mini Varghese
State of Kerala
Thd Director of Public Instruction
Mr. Dharmapalan M.V.
The Honble Kerala Lok Ayukta
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
