The Chairman And Managing ... vs The Secretary To Government
2023 Latest Caselaw 3377 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                 &
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                      WP(C) NO. 19402 OF 2015
PETITIONER:

          THE CHAIRMAN AND MANAGING DIRECTOR
          KERALA STATE CIVIL SUPPLIES CORPORATION LTD, MAVELI
          BHAVAN, GANDHI NAGAR, KOCHI-20
          BY ADV SHRI N.D.PREMACHANDRAN,SC,SUPPLYCO

RESPONDENTS:

    1     THE SECRETARY TO GOVERNMENT
          FOOD AND CIVIL SUPPLIES DEPARTMENT,
          THIRUVANANTHAPURAM
    2     THE DIRECTOR OF CIVIL SUPPLIES
          THIRUVANANTHAPURAM
    3     THER DISTRICT SUPPLY OFFICER
          CIVIL STATION, KOZHIKODE 673 020
    4     THE TALUK SUPLY OFFICER
          CIVIL STATION, KOZHIKODE 673 020
    5     V. SARASWATHI
          MANJIMA HOUSE, CHERUVANNOOR, FEROOK P O, KOZHIKODE
          673 631
    6     THE KERALA LOK AYUKTHA
          THIRUVANANTHAPURAM
          BY ADVS.
          SRI.K.D.BABU
          SRI.G.SANTHOSH KUMAR P.

OTHER PRESENT:

          K P HARISH- SR GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)19402/2015                   -:2:-


                             JUDGMENT

This writ petition is filed challenging Ext.P15 order passed by the

Kerala Lok Ayukta ('Lok Ayukta', for short) in Complaint No.589/2010

directing the petitioner to pay interest to the complainant on the amount

of DCRG due to her.

2. The short facts leading to Ext.P15 order are as follows:-

The 5th respondent-complainant (hereinafter referred to as

'complainant' for short), was an employee of the Kerala State Civil

Supplies Department. She was working in the Civil Supplies

Corporation on deputation during the period from 28.02.1990 to

27.02.1995 and thereafter, from 02.05.1998 to 30.06.2003. After the

period of deputation, she worked in the parent department and retired

from service on 30.11.2005. The Accountant General, as per

proceedings dated 31.11.2005, sanctioned an amount of Rs. 1,26,888/-

as Death cum Retirement Gratuity (DCRG) to her subject to the

production of Non Liability Certificate (NLC). The DCRG was further

revised by the Accountant General on 05.06.2007 to Rs. 1,35,336/-.

The NLC has to be issued by the District Supply Officer (DSO),

Kozhikode, the 4th respondent, the pension sanctioning authority. Since

NLC was not issued and DCRG was not released, the complainant

caused lawyer notice to the respondents and the Director of Civil

Supplies, the 2nd respondent, issued direction to the DSO to release

DCRG and the DCRG was released to the complainant on 10.12.2009.

After receipt of DCRG, she preferred Ext. P11 complaint before the

Lok Ayukta contending that there is no justification in withholding the

NLC and the DCRG and she is entitled to get interest on the DCRG at

market rate from 01.01.2006 till 09.12.2009.

3. The respondents before the Lok Ayukta filed statements

resisting the complaint. It was contended that, the complainant, while

working in the Civil Supplies Corporation and was in charge of Maveli

Store, Panniyankara, some irregularities were detected on her part

during the audit and she was held responsible for short accounting of

Maveli items worth Rs.18,370.75. Accordingly, the Civil Supplies

Corporation requested the Director of Civil Supplies to initiate

disciplinary action against the complainant for recovery of the loss

sustained to the Corporation. The Director of Civil Supplies, informed

the Civil Supplies Corporation that, since the complainant has retired

from service, action can be taken only with the permission of the

Government. The Government, as per G.O. (Rt) No. 210/09/F&CSD

dated 09.07.2009, accorded sanction to the Chairman and Managing

Director, Civil Supplies Corporation, the 3rd respondent in the

Complaint and the petitioner herein, to take action against the

complainant for recovery of the loss sustained by the Civil Supplies

Corporation, by revenue recovery proceedings. Pursuant thereto,

demand notices were issued to the complainant to recover the amount

of Rs.18,370.75. However, the complainant did not respond to any of

the notices nor did she remit the amount demanded. On receipt of the

lawyers notice on behalf of the Complainant, the Director of Civil

Supplies directed the DSO to issue NLC and the DCRG was released to

the complainant on 10.12.2009 and the Civil Supplies Corporation

initiated proceedings against the complainant under the Revenue

Recovery Act for the recovery of the loss caused by the complainant.

4. The Lok Ayukta, by Ext.P15 order, found that the complainant

had submitted her pension papers only on 06.01.2007 though she

retired on 30.11.2005 and that she cannot claim interest for any period

prior to 06.01.2007. However, the Lok Ayukta recommended the 1 st

respondent, the Secretary to Government, Food and Civil Supplies

Department, the competent authority, to pay interest to the complainant

on the DCRG amount of Rs. 1,26,888/- for the period from 01.04.2007

to 10.06.2007 and for the total gratuity amount of Rs. 1,35,336/- from

10.06.2007 to 30.11.2009 and to take appropriate action for recovery of

the said amount from the persons who held the post of District Supply

Officer, Kozhikode and Chairman & Managing Director, Supplyco at

the relevant time, after fixing their proportionate liability, with notice to

them. Challenging Ext.P15 order, the Chairman and Managing

Director, Civil Supplies Corporation has filed this writ petition.

5. The contention of the petitioner is that there is no specific

allegation in the complaint or any finding by the Lok Ayukta that the

petitioner is guilty of laches or negligence for the delay in disbursement

of DCRG to the complainant and in the absence of such finding, the

petitioner cannot be held responsible for payment of interest. It is also

contended that there was liability arising from loss caused by the

complainant to the Corporation and as such, no NLC could be issued to

her and the delay in disbursement of DCRG was due to the pendency of

recovery proceedings and the petitioner cannot be mulcted with the

liability to pay interest.

6. Heard Sri.N.D Premachandran, the learned counsel for the

petitioner, Sri.G.Santhosh Kumar, the learned counsel for the 5 th

respondent and Sri.K.P Harish, the learned Senior Government Pleader.

7. On going through Ext.P15 order passed by the Lok Ayukta, we

find that there is no finding regarding maladministration on the part of

the respondents in the complaint. Section 7 of the Lok Ayukta Act

provides for matters which may be investigated by the Lok Ayukta and

provides that, subject to the provisions of the Act, the Lok Ayukta may

investigate any action which is taken by or with the general or specific

approval of the persons specified therein, in any case where a

complaint involving a ''grievance'' or an ''allegation'' is made in respect

of such action. Section 2(b) of the Lok Ayukta Act defines 'allegation'

as follows:-

"Section 2(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;"

8. Section 2(h) of the Lok Ayukta Act defines 'grievance' to mean

a claim by a person that he sustained injustice or undue hardship in

consequence of maladministration. Section 2(k) of the Lok Ayukta Act

defines 'maladministration' as follows:-

"Section 2(k). Maladministration 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

(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"

9. Ext. P11 complaint filed before the Lok Ayukta does not reveal

any allegation or grievance in consequence of maladministration. There

is no finding regarding maladministration on the part of the respondents

in the complaint by the Lok Ayukta to mulct the liability to pay interest

for the belated payment of DCRG. Therefore, the recommendation of

the Lok Ayukta in Ext. P15 cannot be sustained.

10. Further, while mulcting the liability on the respondents in the

complaint to pay interest, the Lok Ayukta did not advert to their

contentions as to the steps taken by them for getting sanction from the

Government in terms of Part III of the Kerala Service Rules to proceed

against the complainant who had retired from service for recovery of

loss caused by her. The Lok Ayukta did not consider whether there was

justification in withholding the NLC and DCRG in the aforesaid

circumstances. No reason has been stated by the Lok Ayukta for

fastening the liability on the respondents in the complaint to pay

interest. Ext.P15 order cannot be sustained and is, accordingly, set

aside.

Writ petition is allowed. There will be no order as to costs.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

MURALI PURUSHOTHAMAN JUDGE

spc/

APPENDIX OF WP(C) 19402/2015

PETITIONER EXHIBITS EXT.P1: A COPY OF THE PROCEEDINGS DATED 27/6/2007 EXT.P2: A COPY OF THE LETTER DATED 9/10/2007 TO THE 2ND RESPONDENT.

EXT.P3: A COPY OF THE LETTER DATED 13/11/2007 ISSUED BY THE 2ND RESPONDENT.

EXT.P4: A COPY OF THE LETTER DATED 11/12/2007 TO THE 1ST RESPONDENT.

EXT.P5: A COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.

210/09/F&CSD DATED 9/7/2009.

EXT.P6: A COPY OF THE DEMAND NOTICE NO D16-12261/07(1) DATED 25/9/2009 EXT.P7: A COPY OF THE LETTER DATED 30/12/2009 OF THE 5TH RESPONDENT.

EXT.P8: A COPY OF THE LETTER DATED 20/2/2010 ISSUED TO THE 5TH RESPONDENT.

EXT.P9: A COPY OF THE NOTICE NO D11-7831/10(1) DATED 10/5/2010.

EXT.P10: A COPY OF THE LAWYER NOTICE DATED 30/9/2009 ISSUED TO THE REPONDENTS 1,2,3,4 AND THE PETITIONER. EXT.P11: A COPY OF THE COMPLAINT DATED 22/2/2010 FILED BEFORE THE LOK AYUKTA.

EXT.P12: A COPY OF THE COUNTER AFFIDAVIT DATED 7/2012 FILED ON BEHALF OF THE PETITIONER.

EXT.P13: A COPY OF THE THE LETTER DATED 2/3/2010 OF THE 5TH RESPONDENT.

EXT.P14: A COPY OF THE LETTER DATED 24/5/2010 OF THE 5TH RESPONDENT.

EXT.P15: A COPY OF THE ORDER DATED 18/3/2015 PASSED BY THE LOK AYUKTA.

RESPONDENTS' EXHIBITS:

EXTR5(A):TRUE COPY OF THE AUTHORIZATION DATED 26.03.2007.

EXT.R5(B):TRUE COPY OF THE REVISED ORDER DATED 05.06.2007.