IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 OP.No. 19441 of 2002(M) ------------------------------ PETITIONER(S): --------------- 1. A.ABDUL GAFOOR, PRESIDENT, KULATHUPUZHA SERVICE CO-OPERATIVE BANK LTD., NO.1867, KULATHUPUZHA, KOLLAM DISTRICT. (NOW RESIDING AT KANTANCHIRA PALACE, KULATHUPUZHA, KOLLAM DISTRICT). 2. THAJUDEEN, SECRETARY, KULATHUPUZHA SERVICE CO-OPERATIVE BANK LTD., NO.1867, KULATHUPUZHA, KOLLAM DISTRICT. BY ADVS. MR.PIRAPPANCODE V.SREEDHARAN NAIR MR.S.P.ARAVINDAKSHAN PILLAY MR.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): -------------------- 1. C.HARILAL, KAIRALI MANDIRAM, KULATHUPUZHA P.O., KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. KERALA LOK AYUKTA, LEGISLATIVE COMPLEX, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR. ADVS. MR.P.GOPALAKRISHNAN NAIR FOR R1 MR.P.A.AHAMMED FOR R1 MR.A.AHZAR FOR R1 GOVERNMENT PLEADER MS. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 19441 of 2002 ORDER ON C.M.P.NO.33241 OF 2002 IN O.P.NO.19441 OF 2002 CLOSED. 31.3.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF THE COMPLAINT NO.6/96 FILED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE GROUNDS OF OPPOSITION TO EXT.P1 SUBMITTED BY THE 1ST PETITIONER DATED 9.9.1996. EXT.P3: COPY OF THE REJOINDER FILED BY THE COMPLAINANT IN C.NO.27. EXT.P4: COPY OF AFFIDAVIT SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE UPA LOK AYUKTA. EXT.P5: COPY OF THE COMPLAINT FILED BY the 1ST RESPONDENT. EXT.P6: COPY OF THE GROUNDS OF OPPOSTION SUBMITTED BY THE 2ND PETITONER TO EXT.P5. EXT.P7: COPY OF THE REJOINDER FILED BY THE 1ST RESPONDENT BEFORE THE LOK AYUKTA. EXT.P8: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND PETITIONER BEFORE THE LOK AYUKTA. EXT.P9: COPY OF THE ORDER PASSED BY THE UPA LOK AYUKTA IN COMPLAINT NO.27/99 AND 28/99. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.19441 OF 2002 ---------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The petitioners are the President and Secretary of Kulathupuzha Service C-operative Bank Ltd. No.1867. A complaint was filed before the Public Men's Corruption (Investigation and Enquiries) Commission, in respect of certain allegations of financial impropriety by the petitioners. After that Commission was abolished, the complaint was made over to the Kerala Lok Ayukta. The Kerala Lok Ayukta considered the application along with other complaints and passed Ext.P9 order. The findings in Ext.P9 order in relation to the complaint against the petitioners and the recommendations thereon are as follows: “Complaint No.28/99. This complaint is practically similar to Complaint No.27/99, but is directed against the Secretary of the Bank Sri.M. Thajudeen. It is unnecessary to repeat the allegations except to state that the gravamen of charges was that the Secretary did not discharge his duty when he allowed the President to retain huge amounts with him for a continuously long period that he did not take steps to inform the Registrar that construction was being done without the sanction of the Registrar and that he did not O.P.No.19441/02 2 take the necessary steps to ensure that loan accounts were correctly maintained etc. It is also stressed that the charges of Printing of Calendars should not have been enhanced in favour of a particular company without calling for fresh quotations. As these allegations have considered while disposing off Complaint No.27/99 it is not proposed to repeat the same. It is sufficient if it is held that the allegations are partly substantiated as already held in Complaint No.27/99. Recommendations After having considered the contentions of both parties with reference to the pleadings and the documentary evidence made allegations made by the petitioner are atleast partly substantiated therefore made the following recommendations under Section 12 (3) of the Kerala Lok Ayukta Act. The Principal Secretary to the Government, Co- operation, will conduct a comprehensive enquiry through any independent authority including any officer not below the rank of an Additional Secretary to the Finance department, regarding the allegations made in complaints 27 and 28 of 1999 with special reference to the financial dealings of the Bank for the period 1.6.94 and (a) the amounts retained by the President and Secretary and the duration of the retention of those amounts in their hands (b) the particulars of the amounts spent, together with the corresponding dates and the purposes for which they were utilised. (c) the legality and propriety of election expenses incurred in respect of the election of the President Sri. Abdul Gafoor being met by the bank (d) the legality of enhancing the price of calendars without notice to other bidders and without following the correct legal procedure and the loss caused thereby in the printing of the calendars of the year 1996 and (e) the grant of loans by the Board during the year when the 1st respondents were President and Secretaries till 31.12.1994. O.P.No.19441/02 3 The Principal Secretary will constitute the enquiry authority within three months from the date of receipt of this order and report the fact to this court under Section 12(3) of the Act”. Although the petitioners challenge Ext.P9 order itself, now the petitioners would submit that the petitioners are prepared to face an enquiry. But the Lok Ayukta has already entered a finding that the part of the charges have been proved, which may be held against the petitioners by the enquiring authoirty and therefore, even if this Court permits an enquiry as directed by the Kerala Lok Ayukta that shall be untrammelled with the earlier findings of the Lok Ayukta is their present submission. 2. I have heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel for the 1st respondent. 3. I am of opinion that from the very recommendations of the Lok Ayukta, it is abundantly clear that what the Lok Ayukta directed is only an independent enquiry as directed by the Lok Ayukta. The Lok Ayukta itself had not intended the enquiring authority to be influenced by its earlier findings, which was only for the purpose of directing an enquiry and therefore, it is only a prima facie finding. The Lok O.P.No.19441/02 4 Ayukta itself wanted the enquiring authority to decide whether the petitioners are guilty of the allegations against them on the basis of the evidence to be collected in the enquiry. In the above circumstances, this original petition is disposed of with a direction that the enquiring authority shall conduct the enquiry and enter a finding based on evidence collected by it and not based on the prima facie finding entered by the Lok Ayukta. S. SIRI JAGAN, JUDGE Acd O.P.No.19441/02 5