Mini Varghese vs State Of Kerala
2021 Latest Caselaw 2571 Ker

WP(C).No.1367 OF 2013(U)            -1-

              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.

       3        MR.DHARMAPALAN M.V.
                MELAVETTASHERI VEEDU, ESWARAMANGALAM P.O.,
                THAVANOOR (VIA)-679 573.

       4        THE HONBLE KERALA LOK AYUKTA, LEGISLTIVE COMPLEX
                VIKAS BHAVAN P.O.
                THIRUVANANTHAPURAM-695 033.

             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 22-
01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1367 OF 2013(U)           -2-




                            JUDGMENT

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.

2. Short facts leading to the filing of the writ petition are as

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, 2 nd 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

Department, Government Secretariat, Thiruvananthapuram, the 1 st

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., 3 rd

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., 3 rd

respondent, along with Mr. Kunhippa, have approached before various

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., 3 rd

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., 3 rd

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

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 3 rd

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.

3. Record of proceedings shows that, while entertaining the

above writ petition, this Court has granted interim stay of Complaint

No. 608 of 2012, on the file of the Lok Ayukta.

4. On this day, when the matter came up for further hearing, by

inviting the attention of this Court to Section 8 (1) read with clause

(d) of Second Schedule of the Lok Ayukta Act, 1999, Mr. Surin

George Ipe, learned Senior Government Pleader submitted that,

considering the nature of the complaint, Lok Ayukta has no

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.

5. Mr. M. R. Anison, learned counsel for the petitioner made

submissions on the grounds raised.

6. Mr. Jamsheed Hafiz, learned counsel for the 3 rd respondent

submitted that, in as much as there was an order of recovery against

the writ petitioner, in public cause, complaint was preferred before the

Lok Ayukta. He further submitted that Mr. Dharmapalan M. V., 3 rd

respondent, the litigant, may not be aware as to whether Lok Ayukta

has jurisdiction to entertain a complaint on the said nature.

7. Heard the learned counsel for the parties and perused the

material on record.

8. Section 8 (1) read with clause (d) of Second Schedule of the

Lok Ayukta Act, 1999 is reproduced hereunder:-

"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.

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."

9. Statutory provisions impose a prohibition for entertaining

complaint in respect of appointment, removal, pay, discipline,

superannuation or other matters relating to conditions of service of

public servants.

10. This Court on a similar issue in W. A. No. 922 of 2020, on

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

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 Upa- Lok 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

discretion can prima-facie be regarded as having been improperly exercised.

9. Provisions relating to complaints and investigations:- (1) 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

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 Upa- Lok 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

interests are not involved.

11. On a deeper analysis of the said provisions, it is clear that the Lok Ayukta or an Upa Lok Ayukta is prohibited from conducting certain investigations specified in the second schedule and under sub-Section 2 of Section 8 of the Act. Thinking so, it can be seen that the issue raised by Dr. K.P. Sathhesan was not in respect of any prohibition created under Section 8, thus disabling the Upa Lok Ayukta to investigate into the complaint. Moreover, as pointed by us above, there was a clear question of mal administration in the matter of ratification of the appointments by the syndicate of the University in respect of the advocates engaged by some of the syndicate members and engaged by the University for the officials. In that regard, the definition given to mal administration under Section 2(k) is relevant, which read thus:

"(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;"

12. Therefore, on a reading of the definition of mal administration, it is clear that discriminatory, unreasonable,

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.

13. Therefore, we have no hesitation to hold that there are no reasons to interfere with the judgment of the learned Single Judge as the appellant University has failed to make out any case of legal infirmity or other justifiable circumstances to interfere with the discretionary power exercised by the learned Single Judge.

Resultantly, writ appeal fails and accordingly it is dismissed."

11. From the record of proceedings, it is evident that the 3 rd

respondent herein, has already been arrayed as additional 4th

respondent in W.P.(C).No. 14984 of 2011. When the High Court, in

exercise of its jurisdiction under Article 226 of the Constitution of

India, has already entertained a writ petition, and also stayed the

recovery proceedings issued by the Assistant Educational Officer, Lok

Ayukta, being amenable to Article 227 of the Constitution of India,

has no jurisdiction, to proceed further, in any parallel proceedings.

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

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.