IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 WP(C).No. 32416 of 2006(H) -------------------------- PETITIONER: ------------ 1. T.M.MANOHARAN, CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.N.N.SUGUNAPALAN(SR.)SC,KSEB SRI.S.SUJIN RESPONDENTS: ------------- 1. B.RAVINDRAN, "KARTHIKA", CONVENT ROAD, PRAVACHAMBALAM, NEMOM, THIRUVANANTHAPURAM. 2. THE HON'BLE KERALA LOKA AYUKTA, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY SRI.M.V.KIRAN MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32416 of 2006(H) APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DATED 12.05.04 ISSUED BY THE PETITIONERS BOARD. EXT.P2: TRUE COPY OF THE ORDER DATED 25.11.04 ISSUED BY THE HON'BLE UPA LOK AYUKTA IN COMPLAINT NO.512/04. EXT.P3: TRUE COPY OF THE COMPLAINT NO.512/04 PREFERRED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE NOTICE DATED 14.01.05 ISSUED BY THE PETITIONER'S OFFICE TO THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF THE STATEMENT FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE NOTICE DATED 8.2.05 SENT BY THE 2ND RESPONDENT TO THE PETITIONER UNDER SECTION 14 SUB CLAUSE (1) OF THE KEARALA LIK AYUKTA ACT. EXT.P7: TRUE COPY OF THE ORDER DATED 8.2.05 PASSED BY THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF THE OBJECTIONS PREFERRED BY THE BOARD BEFORE THE HON'BLE LOK AYUKTA IN COMPLAINT NO.512/04. EXT.P9: TRUE COPY OF THE NOTICE DATED 4.5.05 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS IN W.P(C) NO.13592 OF 2005. EXT.P10: TRUE COPY OF THE COMPLAINT NO.516 OF 2005 ALONG WITH ANNEXURES FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT DT.21.2.05. EXT.P11: TRUE COPY OF THE STATEMENT FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT IN COMPLAINT NO.516/2005. EXT.P12: TRUE COPY OF THE ORDER DATED 13.9.06 IN COMPLAINT NO.516 OF 2005 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS EXT.R1(a): COPY OF THE JUDGMENT IN W.P(C).7745/05 DT.9.3.05. EXT.R1(b): COPY OF THE JUDGMENT IN W.P(C).13592 OF 2005 DT.14.12.05. EXT.R1(c): COPY OF THE PETITION DATED 7.2.06 FILED IN COMPLAINT NO.512/04. EXT.R1(d): COPY OF THE JUDGMENT IN W.P(C).3867/06 DT.11.12.06. EXT.R1(e): COPY OF THE MEMO DATED 5.9.05. V.GIRI, J ------------------------------------ W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 ------------------------------------- Dated this the 13th day of March, 2008 JUDGMENT Parties in these Writ Petitions are common. The issues in these petitions are also common. Therefore these Writ Petitions have been heard and disposed of by this common judgment. I refer to the fact in W.P(C) No.21587 of 2007 at the first instance. The Kerala State Electricity Board and Secretary of the Board are the petitioners in this Writ Petition. The 1st respondent retired as a Deputy Chief Engineer on 31.10.2003. Apparently since there was a delay in disbursal of the retiral benefits due to him, he approached the Lok Ayuktha with complaint No.512 of 2004 seeking directions to the petitioners herein to disburse the pensionery benefits to him. By Ext.P1 order retiral benefits had been sanctioned in his favour and except D.C.R.G, the other benefits were sanctioned and disbursed also. It seems that the D.C.R.G was withheld for want of vigilance clearance. 2. By Ext.P2 order dated 25.11.04, the Upa Lok Ayuktha after hearing both sides passed an order directing the petitioners W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 2 herein to disburse the retiral benefits due to the complainant within two months from the date of the order. Paragraphs 3 & 4 of the order read as follows: “Para.3: It has to be noted that the complainant retired from service on 31.10.03, and more than a year lapsed thereafter. Even according to the respondents the proceedings initiated against the complainant are not finalised and the alleged liability due from the complainant is not so far fixed. Under such circumstances, in view of Rules 3 and 116 of Part III K.S.R. the respondents cannot retain the retiral benefits due to the complainant any longer. Therefore, the respondents are directed to disburse the retiral benefits due to the complainant within 2 months from this date for their non compliance of Rules 3 and 116 of Part III of K.S.R and G.O.(P) 185/02/Fin dtd.27.03.2002. Para.4: This order will not affect the rights of respondents to recover any amount legally due from the complainant to the respondents in accordance with law.” 3. It is clear from the above that the Board was directed to disburse balance retiral benefits due to the petitioner within a time frame. Only that, then due to be disbursed, was the D.C.R.G. That alone forms subject matter of the complaint before the Lok Ayuktha. 4. Ext.P2 order as such was not challenged by the petitioners herein, immediately, before any other court. But by W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 3 Ext.P4 notice dated 14.01.2005, the Chairman of the Board fixed an amount of Rs.9,53,568/- as the liability of the complainant/1st respondent herein. This was on the premise that while acting as Deputy Chief Engineer, the complainant had sanctioned and disbursed to the contractor amounts well in excess of the actual expenditure incurred in the uprooting of certain stumps for the construction of the road, for providing transportation facility to certain areas which would be cut of due to the submergence of reservoir area of the Kuttiadi augmentation. A report Ext.P5 was filed by the Board before the Lok Ayuktha in line with Ext.P4 notice and the Board tried to justify the non disbursal of the D.C.R.G on the said basis. 5. Lok Ayuktha then proceeded to pass Ext.P7 order dated 08.02.05 finding that prima facie there is violation of the order passed by the forum and it amounts to contempt of the forum. Ext.P6 notice of show cause was therefore issued requiring the Board to show cause why a report should not be made under Section 14(1) of the Kerala Lok Ayuktha and also for disobedience of the order passed and contempt to the forum under Section 19 of the Lok Ayuktha Act. Exts.P6 and P7 were W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 4 challenged in W.P(C) No.7745 of 2005 and by Ext.R1(a) judgment dated 09.03.05, W.P(C) No.7745 of 2005 was dismissed finding that if the petitioners' case is that there has been no violation of the orders of the Lok Ayuktha which warrants initiation of proceedings in contempt, then it is for them to appear before the Lok Ayuktha and make necessary submissions. 6. Apparently thereafter Ext.P8 statement was filed by the Board to Exts.P6 and P7. The Lok Ayuktha on 04.05.05 passed Ext.P9 order declining to accept the defence taken by the court. It is found in Ext.P9 that the Board was bound to obey the order for payment of retiral benefits and that they only had liberty to take appropriate proceedings in accordance with law for recovery of any amount that may be allegedly due from the complainant. After having entered such a specific finding, the complaint was posted for further hearing regarding the report to be sent under Section 14(1) of the Lok Ayuktha Act and for framing charges under Section 19 of the Act. In the meanwhile, that is before Ext.P9 order was passed, Exts.P6 and P7 were again challenged before this Court in W.P(C) no.13592 of 2005. It actually came up for admission on 03.05.05 and subsequently on W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 5 19.05.05 stay of further proceedings before the Lok Ayuktha was granted there. W.P(C) No.13592 of 2005 was taken up for hearing. The complainant before the Lok Ayuktha had then produced Ext.P9 order herein (Ext.R1(e) there). Taking note of this, this Court disposed of W.P(C) No.13592 of 2005 by judgment dated 14.12.05 dismissing the Writ Petition as infructuous without prejudice to the rights, if any, of the petitioners to challenge Ext.P9 herein (Ext.R1(e) there). 7. It will have to be noted at this juncture that the Hon'ble Lok Ayuktha had, earlier by order dated 06.12.05, closed complaint No.512 of 2004 (as also complaint No.516 of 2005) taking note of the fact that this Court had taken cognizance of W.P(C) No.13592 of 2005. Therefore the complaint was closed without prejudice to the complainant's right, if any, to approach the forum after the disposal of the matter pending before the High Court. 8. After the disposal of W.P(C) No.13592 of 2005, the complainant before the Lok Ayuktha moved the said forum for reopening complaint No.512 of 2004. His application was allowed W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 6 and when further proceedings were to be taken, the Board again filed W.P(C) No.3867 of 2006 challenging Exts.P6, P7 and P9 orders (Ext.P9 in this Writ Petition being Ext.P11 in W.P(C).3867 of 2006). Apparently this Court had taken cognizance and had admitted this case and an order of stay was also passed. 9. But subsequently on 11.12.06, W.P(C) No.3867 of 2006 was disposed of with the following judgment: “Learned counsel for the petitioners states that because of the developments that have taken place after the impugned order was passed this writ petition has become infructuous and be accordingly closed. So ordered. I.A.No.3560 of 2006 does not survive.” 10. I note here that apparently no further opportunity was reserved to challenge any other order passed in complaint No.512 of 2004 by the Division Bench. 11. It is thereafter that the present Writ Petition has been filed challenging Exts.P2, P6, P7 and P9 proceedings of the Lok Ayuktha in complaint No.512 of 2004. Counter affidavit has been W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 7 filed by the 1st respondent. I will refer to the contention in the other two Writ Petitions at a later stage. It will be appropriate that to deal with the issues which arose in W.P(C) No.21587 of 2007, at the first instance, I heard the learned Senior Counsel for the Board Sri.N.N.Sugunapalan as also Sri.S.Sujin and Sri.L.Mohanan, the learned counsel for the 1st respondent. 12. The learned Senior counsel submits that the orders passed by the Lok Ayuktha are without jurisdiction. The Lok Ayuktha has no adjudicatory powers. It only has the power to make a recommendation in terms of Section 14 of the Act. The law in this regard has been settled by the Division Bench of this Court in the decision in State of Kerala v. Bernard [2002(3) KLT 254] and George v. Saralakumari [2007 (4) KLT 924]. Same principle has been followed in the subsequent judgment also. Powers of the Lok Ayuktha are confined to the provisions of the Act. The aforementioned contention would have warranted a deeper scrutiny on merit in the light of the dictum laid down by this Court in Bernard's case. But in the facts of this case the Board finds it difficult to challenge the orders passed by the Lok Ayuktha in complaint No.512 of 2004 on account of the earlier W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 8 judgments by this Court. As noted above the orders challenged in this Writ Petition are Exts.P2, P6, P7 and P9. It is under Ext.P2 that the Upa Lok Ayuktha had originally directed the Board to pay retiral benefits due to the petitioner reserving at the same time the liberty of the Board to take appropriate steps for recovering any loss that may have been caused by the complainant to the Board. As I noted above Ext.P2 was not immediately challenged by the Board before this Court or any other court. In fact, Ext.P4 notice will indicate that an exercise which led to the notice was undertaken by the Board with a view to comply with the orders of the Lok Ayuktha. In so far as the challenge against Exts.P6 and P7 are concerned, the Board had challenged the same before this Court in W.P(C) No.7745 of 2005 and the Writ Petition was dismissed under Ext.R1(a) judgment. I am constrained to note that it shall open to the Board when it filed W.P(C) No.7745 of 2005 to have mounted a challenge against Ext.P2 order also. It was not done. If that be so, the challenge against Ext.P2 order at this stage cannot be entertained not only for the reason that it is belated and that the Board itself has not challenged the further proceedings in complaint No.512 of 2004 but also for the reason W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 9 that the said challenge is barred by principles akin to .... of resjudicata. 13. In so far as Exts.P6 and P7 are concerned, the challenge is barred directly by Ext.R1(a) judgment which has become final. In my view it is also barred by the judgment of this Court in W.P(C) No.13592 of 2005 wherein this Court had only reserved the liberty of the Board to challenge Ext.P9 order if it is otherwise opened. No liberty as such was reserved in W.P(C) No.13592 of 2005 to challenge Exts.P6 and P7. The challenge against Exts.P6 and P7 also is therefore not maintainable. This only leads Ext.P9 order apart from the fact that Ext.P9 only seems to an order which has been passed for the alleged non compliance with Exts.P2, P6, P7 and P9 was directly challenged in W.P(C) No.3867 of 2006. As I have noted above the Division Bench had closed the said Writ Petition finding that the Writ Petition has become infructuous. No liberty as such is reserved even there to pursue the challenge against Ext.P9. 14. In the ultimate analysis, in my view as long as Ext.P2 order passed by the Upa Lok Ayuktha on 25.11.04 is unsuccessfully challenged or set aside. The challenge against the W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 10 other orders, even if considered on merits, may not really improve the case as I have noted above. It was open to the Board to challenge Ext.P2 when it filed W.P(C) No.7745 of 2005. It did not do so. In fact, Ext.P4 notice and Ext.P5 action taken report filed by the Board before the Lok Ayuktha seems to suggest that the Board had accepted Ext.P2 and Ext.P4 notice itself was apparently only in the force of an exercise undertaken to secure compliance with the orders of the Lok Ayuktha. 15. For all these reasons, I am of the view that the challenge raised by the Board in this Writ Petition against Exts.P2, P6, P7 and P11 orders is not maintainable or in other words the contentions as regards jurisdiction of the Lok Ayukthat to pass such orders is not available to the Board to be urged and pursued on merits as such. In the circumstances, I am of the view that the Board is bound to comply with Ext.P2 order passed by the Upa Lok Ayuktha on 25.11.04. 16. It takes me to W.P(C) No.32412 of 2006. The Board challenges Ext.P12 order passed by the Lok Ayuktha in complaint No.516 of 2005. Apparently complaint No.516 of 2005 is filed at the point of time when the complainant was aggrieved by the W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 11 fixation of the liability purported to be effected under Ext.P4 notice in W.P(C) No.21587 of 2007. There was also a prayer that action be taken against the 1st respondent in the said complaint for maladministration. The maladministration alleged as against the 1st respondent in complaint No.516 of 2005 is that due to personal animosity he had proceeded to fix the liability on the complainant after retirement and after Ext.P2 order passed by the Lok Ayuktha. As a matter of fact, complaint No.516 of 2005 was also originally dropped. But later the same was also reopened. No doubt, allegations of maladministration could be looked into by the Lok Ayuktha. But in so far as the allegation against Ext.P4 notice in W.P(C).21587 of 2007 is concerned, the order passed by the Upa Lok Ayuktha and challenged in W.P(C) No.21587 of 2007 had settled the issue in the context of the entitlement of the complainant for the balance amount due by way of D.C.R.G. After all, if the said orders become final, then the notice in question (it is Ext.P4 in this Writ Petition also) will only have to be treated as a temptated fixation of the alleged loss caused by the complainant to the Board. This will only enable the Board to institute appropriate proceedings before the civil court, in accordance with W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 12 law, for recovery of the said amount which allegedly has been caused loss to the Board by the complainant. But the Lok Ayukthat had, while proceeding to consider complaint No.516 of 2005, enlarged its scope of the direction already issued by the Upa Lok Ayukthat vide order dated 24.11.04 which entitles the complainant to receive D.C.R.G from the Board. Paragraphs 26 and 27 of Ext.P12 order in W.P(C) No.21587 of 2007 reads as follows: “Para.26: Law laid down by the Supreme Court is binding on all authorities in India as per the provision contained in Article 141 of the Constitution. It is to be treated as the law of the land. In the instant case it is crystal clear that petitioner was not subjected to any departmental or judicial proceedings for causing any loss to the Board while he was in service or up to the date on which the Board was directed to pay the retiral benefits to the complainant in C.No.512/04. Thereafter Ext.P2 notice issued by the 1st respondent herein on 14.01.2005 can be treated as mala fide and arbitrary exercise of his power. It brings out the maladministration resorted to by the 1st respondent. We are clear in our mind that this action of the 1st respondent in issuing Ext.P2 has delayed payment of D.C.R.G and other retiral benefits to the petitioner. Entire amount by way of pension, D.C.R.G and other retiral benefits which have been withheld by the Board should carry interest @ 12% per annum simple interest. This rate of 12% cannot be considered to be high because 1st respondent claims 18% interest from the 1st respondent on the money alleged to have been lost to the Board. W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 13 Para.27: First respondent is directed to pay all amounts due to the petitioner towards the retiral benefits including D.C.R.G with 12% interest per annum from the date of expiry of 2 months from the date of retirement namely 1.1.04 till the date of payment. The interest portion must be paid by the 1st respondent personally. In other words we make it clear that the interest portion must not come from the funds belonging to Kerala State Electricity Board. After paying the entire retiral benefits due to the petitioner together with interest, action taken report should be filed. For that purpose, adjourned to 27.11.06.” 17. It is this portion of the order that has been challenged by the Board in Writ Petition. Mr.N.N.Sugunapalan, the learned senior counsel has repeated his contentions as regards jurisdiction of the Lok Ayuktha rather the absence of jurisdiction as such to pass an order in the nature of Ext.P2. He further contended in so far as complaint No.516 of 2005 is concerned all that the Lok Ayuktha was required to consider whether Ext.P4 notice amounted to any maladministration on the part of the respondents therein. It obviously did not enable the Lok Ayuktha to any effect enlarging the scope of the direction already issued in complaint No.512 of 2004 granting interest and by further stipulating that the interest must be paid by the 1st respondent to the complained person. He submits that directions issued in W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 14 para.27 of Ext.P12 is therefore without jurisdiction. 18. I am inclined to accept the submission of the learned senior counsel in this regard. Firstly the request made in the complaint in 516 of 2005 was only in relation to Ext.P4 notice. Ext.P4 notice was issued within 3 years from the date of retirement of the complainant. It is difficult to characterise by granting the same as a complete abuse of power or one which amounts to maladministration within the meaning of Lok Ayuktha. Moreover, after the order dated 25.11.04 is treated as final, enforcible and operative, Ext.P4 only needs be treated as a temptated fixation. The alleged loss caused by the complainant to the Board which has to be made clear straightaway. Ext.P4 will not enable the Board to retain any portion of the D.C.R.G due to the 1st respondent. If that position is clear and at any rate the said decision was clear beyond any doubt in so far as Lok Ayuktha is concerned then there really was no necessity to proceed as such with complaint No.516 of 2005 or enter a finding as is contained in para.26 and 27 of Ext.P12. In my view all that is necessary was to declare that the said right of the parties is governed by the order of the Upa Lok Ayuktha dated 25.11.05, W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 15 Ext.P2 in W.P(C) No.21587 of 2007. More over in issuing a direction in complaint No.516 of 2005 the same forum could not have enlarged the scope of earlier order passed by the same court; at the same time imposed a personal liability on the Chairman of the Board. These directions seem to be unjustified. 19. I also accept the submission of the learned senior counsel that directions contained in para.26 and 27 in Ext.P12 are not in consonance with the law laid down by this Court in Bernard's case. Sri.L.Mohanan, the learned counsel for the 1st respondent submits that it is aggrieved by Ext.P4 notice that he had approached the Lok Ayuktha and that therefore this Court should restrain the Board from taking further steps as contemplated by Ext.P4, which also contemplates a reference of the case to the Vigilance if this Court is inclined to interfere with Ext.P2. I am unable to accept this submission for more than one reason. Firstly the challenge in this Writ Petition is only as regards Ext.P12 order particularly para.26 and 27 of the said order. No relief has been sought for in this Writ Petition as regards complaint No.516 of 2005, as it is the proceedings before the Lok Ayuktha the parties have any contentions or sought any W.P(C).Nos.32416 of 2006, W.P(C) Nos.21587 of 2007 and W.P(C) No.7130 of 2008 16 relief emanating as such from complaint 516 of 2005, it is up to them to approach the Lok Ayuktha. I have considered only the validity of Ext.P2 order of stay. 20. In the result, Ext.P12 order in W.P.(C) No.32416 of 2006 will stand quashed. 21. This leads Writ Petition No.7130 of 2008. The petitioner herein is the complainant before the Lok Ayuktha prays for a direction to the respondents to disburse D.C.R.G due to him with interest from 31.10.04 reviving only the direction that is called for in this Writ Petition is one to the Board. The findings and observations in the aforementioned two cases could govern this case also. The only direction required is one to the Board to disburse to the petitioner the D.C.R.G due to him in terms of Ext.P3 order dated 25.11.04. In so far as the petitioner's claim for interest is concerned, since no liability to interest as such arises from Ext.P3 order, right of the petitioner to claim and recover interest if any is left open to the agitated before the civil court. 22. In the result, the Writ Petitions are disposed of with the following terms: i) W.P(C)