Sreekumar N vs Kerala Lok Ayukta
2022 Latest Caselaw 6765 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                           &
                    THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
       TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                              WP(C) NO. 4333 OF 2022
PETITIONER:

                  SREEKUMAR N.,
                  AGED 52 YEARS, S/O.NATARAJAN, NANDANAM,
                  PANAYAM POST, PERINAD, KOLLAM - 691 601.

                  BY ADVS.
                  BIJU BALAKRISHNAN
                  V.S.RAKHEE
                  K.J.GISHA
                  AJMAL P.
                  PARVATHY S.R.
RESPONDENTS:
     1     KERALA LOK AYUKTA,
           LEGISLATURE COMPLEX, VIKAS BHAVAN P.O.,
           THIRUVANANTHAPURAM, PIN-695 033,
           REPRESENTED BY ITS DEPUTY REGISTRAR.

       2          STATE OF KERALA
                  REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
                  FOOD AND CIVIL SUPPLIES (A) DEPARTMENT, GOVERNMENT
                  SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

       3          DIRECTOR OF CIVIL SUPPLIES,
                  DIRECTORATE OF CIVIL SUPPLIES,
                  PUBLIC OFFICE BUILDING, PALAYAM,
                  THIRUVANANTHAPURAM-695 033.

       4          TALUK SUPPLY OFFICER,
                  TALUK SUPPLY OFFICE, DEVIKULAM,
                  MUNNAR,IDUKKI DISTRICT - 695 613.

       5          ALICE P.I.,
                  KAILAS BHAVAN, KOTTARKKAVU P.O.,
                  MAVELIKKARA, ALAPPUZHA - 690 101.

                  BY ADV S.RAMESH
                  SRI. V. TEK CHAND SR GP FOR R2 TO R4
THIS       WRIT    PETITION   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.4333 of 2022
                                     2


                                                                     "C.R."
                             JUDGMENT

Dated this the 14th day of June, 2022

Shaji P.Chaly, J.

The captioned writ petition is filed by the first

respondent in Complaint No.76 of 2021-D on the files of the

Upa LokAyukta, challenging Exhibit P1 report dated

13.12.2021 whereby the following findings were rendered and

directions issued:

"10. On the basis of the aforementioned report, under Section 12(1) of the Kerala Lok Ayukta Act, 1999, this Court recommend to the competent authority (The secretary, Food and Civil Supplies Department, Government of Kerala) that the injustice caused to the complainant shall be remedied in the following manner:

1. Respondents 2 and 3 shall pay the complainant interest on his retiral benefits other than DCRG, at the rate of 6% from 01.05.2019 to 05.10.2021 within a period of two months from today and that if the amount is not paid within two months, the amount shall carry interest at the rate of 9% from the date of default till payment.

2. Respondents 2 and 3 shall pay the complainant interest @ 10% within two months, for Death Cum Retirement Gratuity amount for the period W.P.(C)No.4333 of 2022

mentioned above.

3. Other benefits claimed by the complainant under Group Insurance Scheme and repayable amount spent for petrol shall be disbursed along with item 1 & 2 in case he is entitled.

4. The Government and respondents 2 and 3 are at liberty to realise the amount from the 1 st respondent after making the payment to the complainant. The respondents shall file Action Taken Report. Copy of the Report shall be communicated to respondents 1, 2 and 3."

2. Brief facts for the disposal of the writ petition are as

follows:

2.1. The 5th respondent in the writ petition, namely, Alice

P.I. has filed a complaint before the LokAyukta seeking to

issue orders directing the respondents therein i.e., (1) the writ

petitioner (2) Taluk Supply Officer, Devikulam and (3) Director

of Civil Supplies, Thiruvananthapuram, to immediately release

the monthly pension and the retiral benefits of the

complainant and for a further direction to the respondents in

the complaint to pay 12% interest for all delayed payments of

retiral benefits. The complainant also prayed to take

necessary action against the petitioner herein for abuse of W.P.(C)No.4333 of 2022

position as public servant and declare him unfit to hold the

post he is occupying.

2.2. The complainant retired from service as Taluk

Supply Officer, Devikulam on 31.01.2019 after having a

qualifying service of 27 years. There were no departmental

disciplinary proceedings or judicial proceedings against her

during the period of her service. According to the

complainant, immediately after her retirement, she should

have been paid with the retiral benefits since she has

submitted all the required papers sufficiently earlier to her

retirement. It is also stated that the Accountant General has

issued the verification report along with intimation slip of

pensionary benefits of the complainant on 28.08.2019, which

was produced along with the complaint as Exhibit P1 series.

2.3. Admittedly, during the pendency of the complaint,

the Last Pay Certificate (L.P.C.) was issued by the Taluk Supply

Officer on 05.07.2021 and consequent to which, the full

pensionary benefits were released to the complainant.

Anyhow, the Upa LokAyukta, after assimilating the factual W.P.(C)No.4333 of 2022

situations, has arrived at the conclusion that it was due to the

recalcitrant attitude of the petitioner, who took charge as the

Taluk Supply Officer, Devikulam on 01.05.2019 to release the

L.P.C., the delay of 32 months had occurred and it was

accordingly that the directions were issued to the Taluk

Supply Officer, Devikulam and the Director of Civil Supplies to

pay the interest @ 6% from 01.05.2019 to 05.10.2021 within a

period of two months from the date of the order i.e.,

13.12.2021 with a rider that if the amount is not paid as

directed, interest @ 9% from the date of default till payment

is liable to be paid. It was also directed that due to the delay

in disbursing gratuity, 10% interest is to be paid on the

amount of Death-Cum-Retirement Gratuity (DCRG). Anyhow,

though the directions were issued to the officials of the State

Government, the Government and the official respondents

are given the liberty to realise the amount from the petitioner

after making the payment to the complainant. It is thus

challenging the legality and correctness of the directions so W.P.(C)No.4333 of 2022

issued to recover the amount from the petitioner, the writ

petition is filed.

3. Admittedly, the complainant retired from service as

early as on 31.01.2019 as Taluk Supply Officer, Devikulam. The

petitioner herein has taken charge as Taluk Supply Officer,

Devikulam on 01.05.2019, four months after the retirement of

the complainant. Therefore, the petitioner, who is the officer

liable to issue the L.P.C. to the complainant, did not take any

action and it was after 32 months, the L.P.C. was issued and

forwarded to the Treasury Officer, thus enabling the

complainant to get the pension and other retiral benefits

belatedly.

4. The case projected by the petitioner is that prior to

him taking charge, there was yet another officer holding the

post of Taluk Supply Officer and since the said person has not

taken any action for a period of 46 days i.e., till the time the

petitioner has taken charge as Taluk Supply Officer, no

manner of attributions can be made against the petitioner. It

is also contended that there is no manner of negligence or W.P.(C)No.4333 of 2022

lethargy on the part of the petitioner in issuing the L.P.C.

especially for the reason that the complainant has never

contacted the petitioner for issuance of L.P.C. and therefore,

the attributions made in the complaint against the petitioner

is without any basis and accordingly, the directions issued by

the Upa LokAyukta to recover the interest amounts from the

petitioner cannot be sustained under law.

5. Though it is submitted by the learned counsel for the

petitioner that there is no maladministration in contemplation

of the provisions of the Kerala Lok Ayukta Act, 1999, we are

unable to agree with the same for the reason that

maladministration defined under section 2(k) means "action

taken or purporting to have been taken in the exercise of

administrative functions in any case where,-

(i) such action or the administrative procedure or practice

adopted in such action is unreasonable, unjust, oppressive

or improperly discriminatory; or W.P.(C)No.4333 of 2022

(ii) there has been willful negligence or undue delay in

taking such action or the administrative procedure or

practice adopted in such action involves undue delay."

Therefore, it can be seen that it is not only willful negligence

that can be termed as administration, but undue delay in

taking such action or the administrative procedure or practice

adopted in such action can also be treated as

maladministration, and therefore the LokAyukta was vested

with powers to adjudicate the complaint filed before it.

6. Moreover, section 8 of Act 1999 deals with matters

not subject to investigation, which reads 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 Upa-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;

W.P.(C)No.4333 of 2022

(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 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."

7. Now on a reference to clause (d) of Second Schedule

constituted as per section 8, it is clear that the prohibition

contained under section 8 read with clause (d) of Second

Schedule the claims for pension, gratuity, provident fund or to

any claims which arises on retirement, removal or termination

of service are matters that could be considered by the W.P.(C)No.4333 of 2022

LokAyukta by virtue of the powers conferred on it under the

Act, 1999. Clause (d) of Second Schedule to the Act 1999

reads thus:

"(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."

8. It is clear from the facts and circumstances that there

was a delay of 32 months in issuing the L.P.C. to the

complainant. It is an admitted fact that the petitioner herein

has taken charge as the Taluk Supply Officer, Devikulam on

01.05.2019, who was duty bound to issue the L.P.C. to the

complainant. That duty conferred on the petitioner is not

dependent on the actions initiated by the complainant, and

therefore irrespective of any inaction on the part of the

complainant, the petitioner had to discharge his duty within a

reasonable time. Having not done so, the petitioner cannot

justify the unpardonable delay contending that the

complainant has not contacted him to secure the L.P.C. That W.P.(C)No.4333 of 2022

said, when a duty is cast upon an officer to do something, that

burden will not shift merely because there was no action from

the part of the aggrieved, if the aggrieved has played his part

by submitting the required papers on time. Moreover, a

pensioner is entitled to get his retrial benefits immediately

after his retirement; and it is with the intention to achieve the

said noble objective that the definition of maladministration is

couched in such a manner in the Act 1999 creating liability on

any officer even for causing undue delay. Even though various

contentions are raised on facts, it was found out by the

LokAyukta that it was due to the recalcitrant attitude of the

petitioner that the delay had occurred. It was accordingly that

interest @ 6%, default interest @ 9% against the pensionary

benefits and interest @ 10% for DCRG was ordered; and it was

after identifying the undue delay occurred on the part of the

petitioner that liberty was granted to the State and it's

officials to recover the interest amounts from the petitioner.

9. After assimilating the factual and legal situations, we

are of the clear opinion that the liability fixed up by the Upa W.P.(C)No.4333 of 2022

LokAyukta against the writ petitioner cannot be said to be

arbitrary or illegal in any manner as alleged in the writ

petition, susceptible to be interfered exercising the power of

judicial review.

10. However, learned counsel for the petitioner

submitted that the interest directed to be paid, especially, the

default interest @ rate of 9% and the interest @ 10% for the

DCRG is excessive and exorbitant, and if this court is not

inclined to interfere with the findings of the Upa LokAyukta,

the interest rate may be slashed down to 6% without

imposing the rider of 9% in the event of default. Anyhow, the

order of the Upa LokAyukta was stayed by this court on

29.03.2022 and it is continuing in force.

11. Taking into account the present economic and other

adverse situations prevailing in the community, we are of the

opinion that the rate of interest awarded by the Upa

LokAyukta can be confined to 7% against the retiral benefits

and the DCRG paid belatedly. In that view of the matter, the W.P.(C)No.4333 of 2022

order of the Lok Ayukta is modified, confining the interest to

7% for the delayed payment of retiral benefits and the DCRG.

The writ petition is therefore partly allowed by

modifying the order of the Upa LokAyukta in regard to the

interest to the above extent, and accordingly there will be a

direction to the State and it's officials to pay the amount of

interest as ordered above for the period specified by the Upa

LokAyukta in it's order within one month from the date of

receipt of a copy of this Judgment and then recover it from

the petitioner.

Pending interlocutory applications, if any, shall stand

closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.P.(C)No.4333 of 2022

APPENDIX OF WP(C) 4333/2022

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE REPORT DT.13.12.2021 IN COMPLAINT NO.76/2021 D OF THE 1ST RESPONDENT KERALA LOK AYUKTA.

Exhibit P2 TRUE COPY OF THE COMPLAINT NO.76/2021 D, FILED BY THE 5TH RESPONDENT ON 24.06.2021 BEFORE THE 1ST RESPONDENT LOK AYUKTA.

Exhibit P3       TRUE COPY OF THE STATEMENT             OF FACTS
                 DT.13.12.2021   FILED  BY  THE        PETITIONER
                 BEFORE THE 1ST RESPONDENT.

Exhibit P4       TRUE COPY OF THE WRITTEN STATEMENT DT.

28.07.2021 FILED BY THE DIRECTOR OF CIVIL SUPPLIES BEFORE THE 1ST RESPONDENT.

Exhibit P5 TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE DT.18.03.2019.

Exhibit P6 TRUE COPY OF THE LETTER NO.FCSD-A1/87/2021, DT.07.01.2022 BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

Exhibit P7 TRUE COPY OF THE LETTER NO.C.S.5-

126/20,DT.7/4/2022 OF THE TALUK SUPPLY OFFICER, DEVIKULAM.

Exhibit P7 A     TRUE ENGLISH TRANSLATION OF EXT.P7 DOCUMENT


RESPONDENTS' EXHIBITS
EXT.R5(A)        TRUE      COPY       OF    THE     ORDER,

G.O.(P)NO.55/2019/FIN. DATED 4-5-2019 ISSUED BY THE GOVERNMENT, ALONG WITH THE ENGLISH TRANSLATION.

//TRUE COPY//

P.A. TO JUDGE