High Court of KeralaSingle Judge2011-09-30Dismissed

Arunkumar V.A. v. State of Kerala and Others

Case / Petition Number:W.P.(C) Nos. 16891 & 20125 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Antony Dominic
Judgment Date: 2011-09-30
Court Decision / Holding: Writ petitions dismissed. The court held that Ext.P2 reference under Sec.7(3) was untenable at inception, as the action did not qualify as a ‘public servant’ action at the relevant time; subsequent notification could not validate the invalid reference. It also found withdrawal of the reference by the Government permissible in light of the 7(3) framework and the need to avoid futile investigations. The court criticized extending Sec.7(3) beyond its plain text and upheld the Cabinet’s and Government’s decisions to withdraw and conduct Vigilance enquiries for the remaining issues.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Arunkumar V.A., S/O V.S. Achuthanandan

Respondents

State of Kerala, represented by the Additional Chief Secretary, Home and Vigilance Department
Director, Vigilance and Anti-Corruption Bureau, Thiruvananthapuram
Shri. Oommen Chandy, Puthuppally House, Jagathy, Thiruvananthapuram-03

Legal Representation & Advocates

Counsels for Petitioners

• K. Gopalakrishana Kurup (Senior Advocate)
• S. Manu
• K. Deepa (PAYYANUR)
• K. Suresh

Counsels for Respondents

• C.S. Manilal (Government Pleader)

Case Synopsis & Summary

The petitions challenge Ext.P2, a reference under Section 7(3) of the Kerala Lok Ayukta Act, 1999, to investigate eleven allegations against Arun Kumar (the petitioner) and, by implication, against his father, the former Chief Minister, and his office. The context: during 2006–2011 the Chief Minister was his father; Opposition Leader (3rd respondent) sent Ext.P1 with 11 allegations, including against the Chief Minister and office. The Chief Minister forwarded the letter to the Home and Vigilance Minister, directing that, since Arun Kumar is an officer of IHRD (Institute of Human Resources Development), the reference be made to Lok Ayukta under Sec.7(3). Lok Ayukta registered GR 01/2011-A and issued notices. The 3rd respondent filed IA 640/2011 arguing that Arun Kumar was not a public servant since IHRD was not notified under the Act, and that many allegations related to pre-notification periods and to actions outside the petitioner’s public duties. The Cabinet later withdrew the reference under Sec.7(3) and directed a Vigilance enquiry into certain issues, while Ext.P9 notification (04.05.2011) brought IHRD within the Act’s scope. The Court examined whether a reference under Sec.7(3) could be made for non-public servant periods and whether subsequent notification could validate an initial invalid reference. It held that the reference was untenable ab initio, and that withdrawal was permissible. The petitions were dismissed, with the court emphasising the distinction between “action” under Sec.7(3) and “grievance/allegation” under Sec.7(1)/(2).

Provisions of Law Cited

Kerala Lok Ayukta Act, 1999 - Section 7(3); Section 7(1); Section 7(2); Section 2(a) (definition of action); Section 2(b) (allegation); Section 2(h) (grievance); Section 2(o)(vii)(D) (IHRD notification)General Clauses Act, 1897 - Section 21Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 - as applicable to IHRD

Legal Doctrines & Maxims

sublato fundamento cadit opus

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitions contend that Ext.P2 reference under Sec.7(3) cannot validly cover alleged actions against the petitioner and his father, particularly since IHRD was not a notified public body at the time of reference (10.03.2011). The 3rd respondent's Ext.P1 included allegations against the former Chief Minister and his office, which cannot be the subject of a Section 7(3) reference unless the subject is a public servant acting in his official capacity. The Act defines ‘action’ under Section 2(a) and restricts ‘grievance’ and ‘allegation’ to Sections 7(1)–(2). Notification Ext.P9 (04.05.2011) later brought IHRD within the Act, but the reference itself was already predicated on non‑public‑servant status. The Government’s withdrawal (Ext.P11–P12) was permissible; continuing the reference would serve no purpose and could lead to a futile investigation. The independence of investigation and risks of bias due to the 3rd respondent’s control over Vigilance are also argued.

Contentions of Respondents

The respondents maintain that Section 7(3) authorizes the Government to refer to Lok Ayukta for investigation of any action by a public servant, even if the action predates notification. Since the reference emanated from a letter about actions by Arun Kumar as a public servant (IHRD officer) and the complaint involved public‑sector actions, it was within Sec.7(3)’s non‑obstante framework. The Cabinet’s decision to withdraw the reference while directing Vigilance enquiry on other issues is lawful. Ext.P9’s notification clarifies the status and retroactively legitimizes the reference if applicable. The independence of the investigation remains controlled by law, not by the subject’s office, and withdrawal under Sec.21 of the General Clauses Act is permissible to avoid wastage of public resources. The legal dispute centers on whether a reference can be withdrawn and whether pre‑notification actions can be investigated under Sec.7(3).

Cited Precedents (14)

Case Name	Citation	Treatment	Explanation
Jagir Singh and Others v. State of Bihar and another	AIR 1976 SC 997	Mentioned Only	Cited for interpretative approach, not relied upon for the core holding.
State of Bihar v. D.N. Ganguly	AIR 1958 SC 1018	Distinguished	Cited as a contrary position to withdrawal; court distinguished on the Act’s provisions.
State of Madhya Pradesh v. Ajay Singh and others	AIR 1993 SC 825	Distinguished	Cited similarly to Ganguly case; distinguished in context of Sec.7(3).
Ritesh Tewari and another v. State of Uttar Pradesh and Others	2010 (10) SCC 677	Positive	Supported proposition that initial illegality cannot be cured by later action.
C. Albert Morris v. K. Chandrasekaran	N/A	Mentioned Only	Cited for general principle (lawful origin) without direct binding on issue.
Mangal Prasad Tamoli v. Narvadeshwar Mishra	N/A	Positive	Supported proposition that bad initial order taints subsequent proceedings.
Chairman-cum-Managing Director, Coal India Limited and Others v. Ananta Saha and Others	2011 (5) SCC 142	Positive	Supports non‑sanctification of unlawful initial action.
Mysore Urban Development Authority v. Veer Kumar Jain	AIR (2010) SC 2153	Positive	Affirms proposition that if reference is legally untenable, further steps need not be pursued.
Venkateswara Rao v. Government of Andhra Pradesh	AIR 1966 SC 828	Positive	Cited in support of discretionary jurisdiction in related contexts.
Jagan Singh v. State Transport Appellate Tribunal	AIR 1980 Raj. 1	Positive	Cited for jurisprudential context within High Court discretion.
Roshan Deen v. Preeti Lal	AIR 2002 SC 33	Mentioned Only	Referenced in related discussion; not central to main holding.
Koya v. State of Kerala	1992 (2) KLT 194	Positive	Cited as supporting the principle on non‑interference in certain invalid orders.
State of Uttar Pradesh v. District Judge, Unnao & Ors.	AIR 1984 SC 1401	Positive	Cited for discretionary nature of High Court intervention; applied to discussion on quashing.
Sangram Singh v. Election Tribunal, Kotah	AIR 1955 SC 425	Mentioned Only	Cited within discussion of legal principles; not central to the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933** **PETITIONER(S):** **-----------------------** **ARUNKUMAR.V.A,S/O.V.S.ACHUTHANANDAN, RESIDING AT A/6 T.C.9/578,JAWAHAR NAGAR, KOWDIAR.P.O,THIRUVANANTHAPURAM-695003.** **BY ADV. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE SRI.S.MANU SMT.K.DEEPA (PAYYANUR) SRI.K.SURESH** **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA,REP.BY THE ADDITIONAL CHIEF SECRETARY,HOME AND VIGILANCE DEPARTMENT OF HOME AFFAIRS(S.S.A),SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. THE DIRECTOR,VIGILANCE AND ANTI** **CORRUPTION BUREAU,THIRUVANANTHAPURAM-1.** **3. SHRI.OOMMEN CHANDY,PUTHUPPALLY HOUSE, JAGATHY,THIRUVANANTHAPURAM-03.** ## **GOVERNMENT PLEADER SRI.C.S.MANILAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, ALONG WITH WPC NO. 20125 OF 2011 THE COURT ON 30/9/11 DELIVERED THE FOLLOWING:** **WPC NO.16891/11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF THE LETTER DATED 1.3.11 SENT BY THE 3RD RESPONDENT TO THE THEN CHIEF MINISTER.** **EXT.P2: TRUE COPY OF THE ORDER DT 10.3.11 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF EXT.P1.** **EXT.P3: TRUE COPY OF THE PROCEEDINGS DATED 18.4.07 ISSUED BY THE UPA LOK AYUKTA.** **EXT.P4: TRUE COPY OF THE LETTER NO.GR 01/2011(A) ISSUED BY THE KERALA LOK AYUKTA TO THE PETITIONER.** **EXT.P5: TRUE COPY OF THE I.A.NO.640/2011 AND THE AFFIDAVIT IN SUPPORT OF THE SAME IS FILED BY THE 3RD RESPONDENT.** **EXT.P6: TRUE COPY OF THE ADDITIONAL AFFIDAVIT FILED BY THE 3RD RESPODNENT IN THE ABOVE IA NO.640/2011.** **EXT.P7: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN THE ABOVE IA.** **EXT.P8: TRUE COPY OF THE PETITION AND THE AFFIDAVIT IN IA NO.675/2011 IN GR NO.1/2011 ALONG WITH THE ANNEXURES.** **EXT.P9: TRUE COPY OF THE NOTIFICATION GO(P) NO.9/2011/VIG. DT 4.5.11.** **EXT.P10: TRUE COPY OF THE COUNTER AFFIDAVIT DATED 1.6.11 FILED BY THE PETITIONER BEFORE THE HON'BLE LOK AYUKTA.** **EXT.P11: TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT BEARING NO.19232/SSA2/11/HOME DATED 10.6.11.** **EXT.P12: TRUE COPY OF THE GOVERNMENT ORDER DT 16.6.11.** **EXT.P13: TRUE COPY OF THE JUDGMENT DATED 30.5.11 IN WA NO.1791/2009.** ## **EXTS. OF R1** ## **ANNEXURE 1: TRUE COPY OF THE ORDER OF THE UPA LOK AYUKTA.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NOs. 16891 & 20125 OF 2011 ==========================** ## **Dated this the 30[th] day of September, 2011** ## **J U D G M E N T** Issues raised in these writ petitions and the parties are common and therefore these cases were heard together and are disposed of by this common judgment. W.P.(C) No.20125/2011 is adopted as the leading case and documents produced therein are referred to in this judgment. 2. From May 2006 till May 2011 the petitioner’s father was the Chief Minister of the State and the 3[rd] respondent was the Opposition Leader in the Legislative Assembly. During the said period, on the floor of the Legislative Assembly and outside, members of the opposition raised several allegations against the petitioner and his father. Subsequently, the 3[rd] respondent sent Ext.P1 letter dated 01.03.2011 containing as many as the 11 allegations against the petitioner, against the Chief Minister himself and his office. The contents of this letter being relevant to decide the issues raised in these writ petitions, the letter is extracted for ready reference; **==> picture [47 x 8] intentionally omitted <==** പ��യപ�ട മ�ഖ�മ പ��, അങപയക�റ�ച�� അങയ�പ� ഓഫ�സ�പ�ക�റ�ച�� മക ! അര�ണക�മ$റ�പ�ക�റ�ച�� യമസഭയ&കകത �� റത�� ഉനയ�കപ�ട ആരര$�ണങപ-�റ� മറ�� റയ$ ! സഭയ&കകത& **WPC Nos. 16891 & 20125/11** ## **:2 :** ലഭ�ച അവസരങ 1 ഉ�രയ$ഗ�ക$പ3 മ�4�5ര7� മറ& വ�ഷയങ1 �റഞ& ര:$ധ�5ര7� അങ& ഒഴ�ഞ�മ$റ�യ സ$ഹചര�ത�ല$ണ& ഞങ 1 ഈ കത& 3ര �ന3&. സഭയ� ല മറ �� റയ$പ3 �പ3സരC-�� ത� ഒര � ആരര$�ണപതക �റ�ച& മ$പ3� എഴ�3�3ന$ ല അര�Eഷ�ക$പമന � �റഞ3�ര�$�& ഞങ 1ക& രയ$ജ��ല. പ�3��ക� സഭയ&കകത�� റത�� റഞ�ട�ള എല$ ആരര$�ണങപ-ക �റ�ച�� അര�Eഷ�ക �വ$ ! അങ& 3യ$റ$കണപമന& ആവശ�പ��ന�. 3$പഴ�റയ�ന ഗ�ര�3രമ$യ ആരര$�ണങ 1 ഞങ 1 ഉനയ�ക�ന�. (1) രല$ടറ� വ�വ$ദത� ല സ� .:�.ഐ. അര�Eഷണ� ആവശPപ�ട�പക$ണ& 29.11.2010ല മ�ഖ�മപ�� രകപS ആഭ��ര മപ�� പശ� ��.ച�ദ�:രത��& കത& അയച�. പ�സ&3�3 കത��& 29.12.2010 (ഡ�.ഒ. ��: ര V/17014/7/2010 CSR I) മറ�� ലക�പയങ�ല�� 55 ദ�വസ� വച& 3$മസ��ക�കയ$ണ�ണ$യ3&. രകപSത�രലയ&ക& അയച കത �ക 1 മ$ധ�മങ 1ക& �ലക�പയങ�ല�� അ3�� വന മറ �� രഹസ�മ$യ� വയ&ക�കയ$ണ�ണ$യ3&. ഡലഹ� സ&പ�ഷ�ല ര�$ല�സ& ആക& എസ$ബ�ഷ&പമന&-പസക�(6) പ�ക$ര� സ� .:�.ഐ. അര�Eഷണത��& എഫ& .ഐ.ആര റജ�സര പചയണപമന�� ഗവണപമന& ര�$ട�ഫ�രകഷ ! രവണപമന3 �� സ�സ$� ഗവണപമന��& അറ�ഞ�ക5ര�? മറയ5 ര ചS� പക$ളപയക�റ�ച�ള സ�.:�.ഐ. അര�Eഷണത�പന ഉതരവ& മ�ഖ�മപ��യ�പ� �പ3സരC-�ത� ല വ�3രണ� പചയ&3 ഓരഡറ� ല ഈ ��പകമങ 1 �$ല�ച�ട�ണ&. എന$ ല 80,000 രക$�� ര5�യ�പ� അഴ�മ3�പയന& മ �ഖ�മപ�� 3പന സC3�ച രല$ടറ� അഴ�മ3�പക3�പര എഫ& .ഐ.ആര ഇട& സ� .:�.ഐ. അര�Eഷണത��& എ��പക$ണ& ര�$ട�ഫ�രക ഷ ! ഇറക�യ� ല . സ$ന�യ$രഗ$ മ$രട�പ�-3�പര രകപസ��ക�വ$ ! എര� ��ങ 1 മ��ക�ന�. സ$ന�യ$രഗ$ മ$രട�പ� ഉ� ! അറസ& പചയ�പമന& പ�3�3� സPഷ� ചരശഷ� അറസ& ഇല . പ3-�വ�ക 1 �ശ��ക�വ$ ! രവണ� �$ലക$�& ഓഫ�സ& 3�യ�ട സ�ഭവത� ല ��ക-�� ഇല. ��യമസഭയ� ല പശ�. വ�.ഡ�. സ3�ശ ! എ�.എല എ. ഈ പ�ശ&�� ഉനയ�ചര�$ 1 ഇ3��& ഒന�� അങ& മറ�� റഞ�ല. അര� ണക�മ$റ�പന 3$ല&�ര�വ�� സE$ധ��വ�മ$ണ& **WPC Nos. 16891 & 20125/11** ## **:3 :** ഈ മ$റത�പന ക$രണപമന& വ�ശEസ�ക�ന�. ഇ3�പ�ക�റ�ച& സമപഗമ$യ അര�Eഷണ� രവണ�. - (2) ചS� ഫ$കറ� ഉ�മ പശ� ഖ$ദ ര �$രല$ത�പന പവ-�പ��ത ല സ�:ന�ച& പശ�. പക.:$:� എ�. എല .എ ��യമസഭയ� ല അ��യ��ര പ�രമയ� അവ3ര��ചര�$ 1 മ�ഖ�മപ��യ�പ� മറ�� 3�കച�� 3P�&3�കരമല$യ�ര�ന�. 7 ലക� ര5� അര� ണ ക�മ$റ��& �ല&ക�പയന& പവ-�പ�� ത�യ�ട�� അര�Eഷണ� ��ത$! എ��പക$ണ& 3യ$റ$ക�ന�ല. റcഫ�� ഇല�ക ല രജ$സ�� ത�യ പവ-�പ�� തല�പന അ��സ$�ത� ല �� സE�കര�ക�ന ഗവണപമന& എ� �പക$ണ& ഈ ഇരടത$�& ക$ണ�ക�ന�. ഈ ആരര$�ണപതക �റ�ച& അര�Eഷണ� ��തണ�. - (3) പശ�.അര�ണക�മ$ ര IHRD യ� ല രജ$ല� പചയ&3 �വരരവ ��.എച&.ഡ�. രജ�സ&രപ�ഷ�� രവണ� രകര- സരവകല$ശ$ലയ�ല അര�ക�ക�കയ�ണ$യ�. പ�രവശ� �ര�കപയഴ �3$പ3 രജ�സ&രപ�ഷ ! ലഭ�ക�ന3��രവണ� ഏഴ� വരഷപത അദ�$�� ര�ചയമ�പണന& വ�$ജരരഖ ചമച$ണ& അര�ക �ല&ക�യ3& . ആദ�� രജ�സ&രപ�ഷ ! �ല&ക�യ സരവകല$ശ$ല ഇക$ര�� പശദയ�ലപ�ടര�$ 1 രജ�സ&രപ�ഷ ! റദ$ക �കയ$ണ�ണ$യ3&. സരവകല$ശ$ല സ�ന�രകറ� ല സ�.��.എC��ള അപ�മ$ദ�3E� ഞങ 1 �റരയണ3�ലരല$. സരവകല$ശ$ലയ�പ� ��പക3�പര ഹഹരക$�3�പയ സമ��ച അര � ണക�മ$റ��& അദ�$�� ര�ചയപതക�റ�ച& 3$ ! �ല&ക�യ വ�$ജ സ രട�ഫ�കറ�പന സ$ധ�3 പ3-�യ�ക$ ! കഴ�ഞ�ല. മ$പ3മല, IHRD-യ� ല ഒര� ദ�വസപത അദ�$�� ര�ചയ� ര�$ല�� അര�ണക�മ$റ��പലന& ഡയറ കര ഹഹരക$�3�പയ അറ�യ�ക�കയ�� പചയ&3 �. എന�ട�� വ�$ജരരഖ ചമച& സരവകല$ശ$ലപയ ക:-��ക$ ! പശമ�ച അങയ�പ� മകപ�3�പര ഒര � രകസ �ര�$ല�മ�ണ$യ�പലന3& ഞങപ- അത�3പ��ത�ന�. ഒര� സ$ധ$രണ �cര�& ഇ3 � ര�$പല ആ��ക5ല�� ക�ട�രമ$? - (4) മറയ5 ര ചS� രകസ� ല സ�.:�.ഐ. അര�Eഷണ� ��ത� മ�3� രന വ�� വക ��& ഉരദ�$ഗസ രപക3�പര സ രവ�സ� ല ��ന& ��ക�ന3� 1പ�പ�യ�ള ��ക 1 സE�കര�കണപമന$ വ- **WPC Nos. 16891 & 20125/11** **:4 :** ശ�പ�ട& റ�ര�$ രട& �ല&ക�യ�ര�ന�. 2010 �വ�:റ� ല 3പന ഈ റ�ര�$ രട& ക�ട�യ�ട�� പയ��ക$ ! അങയ�പ� ഓഫ�സ& 3യ$റ$യ�ല. ഇ3& സ�:ന�ച ഒര� പ�$3 �3$ല&�ര� ഹരജ� ഹഹരക$�3�യ� ല വനര�$ 1 മ$പ3മ$ണ& ക�റ$രര$��3�$യ ഒര� സ�.സ�. എഫ�പ�3�പര സസ&പ� !ഷ! ഉതരവ�റക�യ3 &. എന$ ല 2011 ജ��വര� 22 �& ഇറക�യ പ�സ&3 �3 ഉതരവ& ��$ക$പ3 ഈ വ�ക�ക& പസ!പ�ല അഡ&മ��സ&രപ�റ�വ& ഹപ�:�5ണല� ല ര�$യ� രസ വ$ങ$� �ള സമയമ �ണ$ക� പക$��ത�. അങ�പ� രകര-� കണ ഏറവ�� വല�യ ചS� രകസ�ക-�പല$ന� ല സ� .:�.ഐ. റ�ര�$ രട& � ലക�യ�ട �� പ�സ&3�3 ഉരദ�$ഗസ �& ഒര� ര�$റ ലര�$ല�രമ ലക$പ3 2011 ജ�വര� 31 �& സ ര7�സ� ല ��ന& റ�ട യ ര പചയ$ ! അവസരമ�ണ$യ�. (5) 2004 ല �$ലക$�& ജ�ലയ�പല എല� �ള� �ഞ$യത� ല പ�വ രത�ക�ന ചS� ഫ$കറ� അ�ച��5ട$ ! എ ലഡ� എഫ�� ര�3P3Eമ�ള � ഞ$യത& കC�റ� ക$രണ� ക$ണ� ക ല ര�$ട�സ& �ല&ക�യ�ര�ന�. ചS� ഫ$കറ� ക 1ക �� ചS� ക�ത��പമ3�പര ശകമ$യ� പ�ച$രണ� ��ത�വന�ര �ന പ�3��ക ര�3$വ$യ�ര �ന അങയ �പ� ഓഫ�സ& ഇ�പ�ട& അര�ണക�മ$റ�പന സE$ധ��ത��& വഴങ� ഈ ചS� ഫ$കറ�ക& ഹലസ!സ& ��3�ക� �ലക�കയ$യ�ര�ന�. ഇക$ര�പതക�റ�ച& �$രട�ക�ള�ല�� യമസഭയ�ല�� ആരര$�ണ ങ 1 ഉയരനര�$ 1 ��യമസഭയ� ല അങ& അവ�കമ$യ ഭ$ഷയ� ല മറ �� ലക�കയ$ണ�ണ$യ3&. ഈ വ$ രത മ$ധ�മങ-� ല അന& റ�ര�$ രട& പചയ&3�ട�ള3$ണ&. (6) ഇ��യ�പല പ�ശസ&3 പ�ക&ര�$പക$റ �� കമ�5ണ�സ& സഹയ$പ3�ക��മ$യ�ര�ന പശ� .പക.��.��.�മ�$ ര ‘സഫല� കല$�ഭര�3� ’ എന 3പന ആതകഥയ� ല കണ5 ര � വ ര പപ�$ജക& 3��ങ$ ! രകര-ത�പലത�യ സ$ഹചര�� വ�ശദ�കര�ക�ന�ണ&. അന& എല .ഡ�.എഫ&. കണവ��റ$യ�ര�ന 3$ങ- �പ� മക ! അര�ണക�മ$ ര അവപര സമ��ച& പമ$ത� പപ�$ജക& 3 �കയ$യ 1500 രക$�� ര5�യ�പ� അഞ� ശ3മ$�മ$യ 75 രക$�� ര5� ആവശ�പ�ട �പവന& വ�കമ$ക�ന�ണ&. ഈ വ�ഷയ� പശ�. �മ�$ ര 3പന �$രട�യ�പല ഉന3 ര�3$കപ- ര�ര�ട& അറ�യ�ച�ര�ന�. ��ന��& രകസ& **WPC Nos. 16891 & 20125/11** **:5 :** ഉണ$യര�$ 1 വ$ദ�ഭ$ഗപതയ�� പ�3�ഭ$ഗപതയ�� അഭ�ഭ$ഷ ക ര ക5��യ$രല$ച�ച& ഒത� 3�ര�$ക�യ3$യ� പശ�. അര�ണക�മ$റ�പന അഭ�ഭ$ ഷക ! �ല �� .വ�. ച$�ല�ക-�ല�� അഭ�മ �ഖത� ല �റയ�ന�ണ&. പശ�. �മ�$പരര�$പല രകര- സമ5ഹ� ആദര�ക�ന ഉന3 വ�ക� ര�ര�ട& ര:$ധ�പ�ട& ഉനയ�ച ഒര� അഴ�മ3� ആരര$�ണ� അഭ�ഭ$ഷ ക ര മ�രഖ� ഒത� 3�രക$ ! കഴ�യ�ന ഒര� വ�ഷയ� മ$പ3മ$രണ$? അഭ�ഭ$ഷ ക ര 3C� ല ധ$രണ ഉണ$യ$ ല ? പക�മ�� ല ക�റ� ക�റമല$3$ക�രമ$ ഈ ആരര$�ണ� ഇര�$ഴ�� ല��ലക�ന�. രകര-�യ സമ5ഹത� ല ഇര�$ഴ �� ച രചപചയപ��ന ഈ വ�ഷയപതക�റ�ച& അര�Eഷ�കണപമന& ഞ ങ 1 ആവശ�പ��ന�. (7) അങയ�പ� മ ക ! കയ രപഫഡ& എ�.ഡ�.യ$യ�ര�പക ഉയര ന രക$��ക-�പ� 3ട��മ$യ� :നപ�ട& വ�ജ�ല !സ& അര�Eഷണ� �$3�വഴ�യ� ല ��ലക�കയ$ണ&. കയരപഫഡ�ല�ണ$യ ഏറവ�� വല�യ ഈ അഴ�മ3�പയക�റ�ച�ള അര�Eഷണ� 3 ��രണപമന& ആവശ�പ��ന�. (8) അര�ണക�മ$റ�പന ഭ$ര� ഡയറകറ$യ പചറ� എനരഹപ�സസ& എന സ$�� ഓണഹല! രല$ടറ� :�സ��സ& ��ത�യ�ര�ന�. അങ& ഓണഹല! രല$ടറ�പക3�ര$യ പ�ച$രണ� ��ത�ര�$ഴ$ണ& ഇ3& പചയ&3പ3ന3$ണ& പശരദയ�. ഈ ക��യ�ല മറ& ഡയറകര ര:$രഡ�ഗങ1 ആപര$പകയ$യ�ര�ന�. അവര�മ$യ� അങയ�പ� മകപന :�സ��സ& :നങപ-ക�റ�ച& സ�ശയങ1 ഉയരന�ര�ക�ന സ$ഹചര�ത�ല വ�ശദമ$യ അര�Eഷണ� ��തണ�. (9) അര�ണക�മ$റ��& 3�ര�വ��ര� രഗ$1ഫ& കബ�പല അ�ഗ3E� �ണ� പക$��ക$പ3 ര��പയന അവക$ശവ$ദ� പ3റ$പണന& പ3-�യ�ന രരഖ മ$ധPമങ1 പ�സ�ദ�കര�ച3& അങയ�പ� പശദയ�ല വന�ക$ണ�പമന& വ�ശEസ�ക �ന�. രക$ഴ�രക$�& രക$സ&രമ$പ�$-�റ! കബ�ല �� അര�ണക�മ$റ��& അ�ഗ3E� ഉപണന& പവ-�പ�ട�ര�ക�ന�. രണ& �ഞ�കപ3 കബ�ക-�ല അ�ഗമ$ക�വ$! അങയ�പ� മക��ള സ$��ത�ക രപസ$3സ& എപ�ന& അര�Eഷ�കണ�. (10) �Sക�മ$റ�പ�3�പര ഹഹരക$�3�യ�പല സ��യര അഭ�ഭ$ഷക! പശ�.പക.ര$�ക�മ$ര ച�ല പവ-�പ��തല�ക1 ��ത�യ�ര�ന�. ഈ �Sക�മ$റ�മ$യ� അരങയ&ക�� അങയ�പ� ഓഫ�സ�� മക�� **WPC Nos. 16891 & 20125/11** **:6 :** എ�& :നമ$ണ�ള3&? അയ$-�പ� രഫ$ണ ��റ�രലക�� 3�ര�ച�� രവധ� പ�$വശ�� മ�ഖPമപ��യ�പ� ഓഫ�സ�ല ��ന�� വ�ട�ല ��ന�� :നപ�ട3$യ� ആരര$�ണമ�യരന�ര�ക�ന�. ര$�ക�മ$റ�പ�ര�$പല മ�3�രന അഭ�ഭ$ഷക! ഗcരവ3രമ$യ ആരര$�ണ� ഉനയ�ച�ട �� ഒരര�Eഷണ� ര�$ല �� ഈ ക�മ$റ�പ�3�പര ആര�ഭ�ച�ട�ല എന3& ദ�ര5ഹ3യ�ണരത�ന�. (11) അര�ണക�മ$ ര കഴ�ഞ അഞ � വരഷക$ല� ��ത�യ വ�രദശയ$പ3ക-�പ� വ�വര� � �റത�വ��$! 3യ$റ$രണ $? ഏപ3ല$� ര$ജ�ങ-�ല എപ3 പ�$വശ�� വ�3മ$ണ& അരദഹ� യ$പ3 ��ത�യ�ട�ള3&? ഇ3& ഔരദ�$ഗ�ക യ$പ3ക-$പണങ�ല രവണ അ��മ3�ക1 ലഭ�ച�ട �രണ$? സEക$ര� യ$പ3ക-$പണങ�ല ഇ3��ള �ണ� ഈ സരക$ര �രദ�$ഗസ�& എവ�പ� ��ന�ണ$യ�? ഈ യ$പ3ക-�ല അര�ണക�മ$റ�പന സഹയ$പ3�കര ആപര$പകയ$പണന& പവ-�പ��ത$രമ$? അങയ�പ� മകപന സ$:ത�ക ഇ��$� �കപ-�റ� ഗ�ര�3രമ$യ ആരര$�ണങ1 ഉയരന� വന�ര�ക �ന3��$ല വ�.എസ&.അര�ണക�മ$റ�പന സEത�വ�വരപതക�റ�ച& അര�Eഷ�കണ�. രമല വ�വര�ച വ�ഷയങ1 ഉ1പ�പ�യ�ള ��രവധ� ആരര$�ണങ-$ണ& അങയ �പ� മകപ�3�പരയ�� അങയ&പക3�പരയ�� ഉയരന�ര�ക�ന3&. ഈ ആരര$�ണങപ-�റ� ��ഷ&�കവ �� 3��5ര7കവ�മ$യ അര�Eഷണ� ��ത�വ$�� യമ ��ക1 സE�കര�ക�വ$�� ഇ��പയങ�ല�� അങ& 3യ$റ$കണപമന& അഭ�രt�ക�ന�. ��!വ$3�ല ��യമ�ങ1 അട�$��യ�പല ആദ�വ$സ�ക-�പ� ഭ5മ� 3ട�പയ��ത �� ക�ട�$ട�പല മ�ര�കപന മ�ചഭ5മ� ലഭ�ച 217 കരഷകപത$ഴ�ല$-�കപ- ക:-��ച& ഭ5മ$ഫ�യപയ സഹ$യ�ച �� 3 ��ങ� പ�3��ക� ഉതരവ$ദ�3Eരത$��ക5�� സഭയ�ല ഉനയ�ച മറ& അഴ�മ3�കപ-ക�റ�ച�� അര�Eഷ�ക$! ഗവണപമന& 3യ$റ$കണപമന& അഭ�രt�ക�ന�. ” 3. The files produced by the learned Government Pleader show that, on receipt of Ext.P1, by his letter dated 9.3.2011, the then Chief Minister forwarded it to the then Minister for Home and Vigilance **WPC Nos. 16891 & 20125/11** **:7 :** Department requesting him to take steps for an enquiry into the allegations against his son, the petitioner herein. This letter reads thus: 09.03.2011 പ��യപ�ട ക��ട�കയര� ബ�ല��ഷ� ന , 01.03.2011 ത�യത� പ ച" പ�ത��ക ക$ത� " പ% �.ഉമന(�ണട� എ$�ക" എഴ-ത�തന�ട0ള ആകര��ങളടങ�യ �ത" ഇകത�പട��6 ക(രക-ന-. എപ8 മ� ന �.എ.അര-ണ�-മ�റ�പ$ത�പര (അഡ�ഷ� @ ഡയറക ര , I.H.R.D) ഉനയ�ച�ട0ള ആകര��ങ G ഉ(�തമ�യ ഒരഅക$Iഷ� ഏജ നL�പയപക�ണട" അക$Iഷ��ക-നത�$-ള $ട�ട� ക�പക�ള� ന ത�ല�രOപ�ട-ന-. �.എL". അ(O-3$�S! ക��ട�കയര� ബ�ല��ഷ� ന , ആഭOനര – �ജ�ല നL" മപ�� 4. On 09.03.2011 itself, the then Minister for Home and Vigilance Department issued a note to the Addl. Chief Secretary (Home & Vigilance) directing that since the petitioner is an officer of Institute of Human Resources Development (“IHRD” for short). Ext.P1 complaint may be forwarded to the Lok Ayukta for an enquiry under Section 7(3) of the Kerala Lok Ayukta Act 1999 (hereinafter referred to as 'Act" for short). This note of the Minister reads thus: **WPC Nos. 16891 & 20125/11** 09.03.2011 **:8 :** ## �-റ��" 01.03.2011 ത�യത� ച" പ�ത��ക ക$ത� " പ%�.ഉമന(�ണട� മ-ഖO മപന�ക" എഴ-ത�പക�ട-ത ആകര��ങളടങ�യ �ത- 6, 09.03.2011$" മ-ഖOമപന�, പ�ത��ക ക$ത� �പ8 �ത" Lഹ�ത6, എ$�ക" അയച0തന �ത-6 ഇകത�പട��6 അയക-ന-. തപ8 മ� ന പ%� .അര-ണ�-മ�റ�പ$ത�പര (അഡ�ഷ�@ ഡയറക ര , IHRD) ഉനയ�ച�ട0ള ആകര��ങ G ഉ(�തമ�യ ഒരഅക$Iഷ� ഏജ നL�പയപക�ണട" അക$Iഷ��ക-നത�$-ള $ട�ട� ക�പക�ള�$��- മ-ഖOമപന� ആ %Oപ�ട�ര�ക-നത". പ%�.അര- ണ�-മ� ര IHRDയ�പല ഒരഉകUO�ഗസ$�യത�$� @ , പ�ത��ക ക$ത� " ഉനയ�ച ആകര�� ങ G ക�രള കല��" ആയ-ക ആക�പല 7(3) �-�" പ��ര6 അക$Iഷ�ത�$�യ� കല��"ആയ-കയക" അയച0-പ��ട-കകണത��". ക��ട�കയര� ബ�ല��ഷ� ന അഡ�ഷണല (�ഫ" പLപ�ടറ� (കഹ�6 & �ജ�ലനL"). 5. Accordingly, the 1[st] respondent issued Ext.P2 letter dated 10.03.2011 to the Registrar of the Kerala Lok Ayukta requesting that steps be taken for an enquiry in terms of Section 7(3) of the Act into the allegations contained in Ext.P1 letter. Ext.P2 letter reads thus; “സ5ച�യ�പല കത&പ�ക$ര� പശ�.വ�.എ.അര�ണക�മ$റ�പ�3�പര :ഹ�.പ�3��ക ര�3$വ& ഉനയ�ച ആരര$�ണങപ-�റ� ഉച�3മ$യ അര�Eഷണ� ��തണപമന& :ഹ �.മ�ഖ�മപ�� രരദശ�ക�കയ�ണ$യ�. പശ�.അര�ണ ക�മ$ര ഐ.എച&.ആര . ഡ�. യ�പല അഡ�ഷണല ഡയറകറ$യ3��$ല പ�സ&3 �3 ആരര$�ണങപ-�റ� 1999പല രല$ക$യ �ക ആക�പല 7(3) വക�� പ�ക$ര� അര�Eഷണ� ��ത$! സരക$ര **WPC Nos. 16891 & 20125/11** **:9 :** 3$ല&�ര�പ��ന�. ആയ3��$ല ഇക$ര�� :ഹ�.രകരരല$ക$യ�കയ�പ� പശദയ�ലപ�� ത� പ�സ&3 �3 വക ��& പ�ക$ര� അര�Eഷണ� ��ത�വ$! ആവശ�മ$യ ��ക1 സE�കര�കണപമന& അഭPരt�ക �ന�. :ഹ�.പ�3��ക ര�3$വ�പന കത�പന �കര� �� ഇര3$പ�$�� ഉള�ക� ” പചയ�ന�. 6. In this context, it should be noticed that in Ext.P1 complaint made by the 3[rd] respondent, specific allegations were made not only against the petitioner, but also against his father, the former Chief Minister, and his office. The opening sentence of Ext.P1 itself will demonstrate this factual position. However, on receipt of the complaint, when the Chief Minister forwarded it by his letter dated 09.03.2011 to the Minister for Home and Vigilance, he has cautiously requested for an enquiry only into the allegations against his son. In other words, though this letter contains a generous request, the former Chief Minister absolved himself and his office, from the scope of the enquiry recommended by himself. This has been repeated by the Minister and the Additional Chief Secretary, when the reference under Section 7(3) of the Act was made. 7. On receipt of Ext.P2, it was registered as G.R.No. 01/2011-A and the Upa Lok Ayukta passed Ext.P3 order dated 18.04.2011 taking on file the reference under Section 7(3) of the Act, treating the 3[rd] **WPC Nos. 16891 & 20125/11** **:10 :** respondent as the complainant and the petitioner as the respondent and to issue notice to the parties and posting the reference to 02.06.2011. Accordingly, Ext.P4 notice was issued to the parties concerned. 8. Meanwhile, 3[rd] respondent filed I.A. No.640/2011, a copy of which is Ext.P5, requesting for advancing the hearing and to decide on the maintainability of the reference. The main contention raised was that the 3[rd] respondent was not a public servant and hence the Act itself is inapplicable to him. The relevant averments contained in paragraphs 5 to 7 of the affidavit, reads thus: “5. It is obvious that Mr. Arun Kumar is not a “Public Servant” in his capacity as son of the Chief Minister. Moreover, as Additional Director of Institute of Human Resource Development (IHRD) also, he is not a Public Servant as the said Organisation registered under the Travancore-Cochin, Literary Scientific and Charitable Societies Registration Act 1955 is not so far notified under the provisions of the Lok Ayukta Act 1999. To my knowledge only the Societies viz., C-DIT and Audio Visual & Reprographic Centre only are notified so far. 6. It is submitted that the Hon. Chief Minister and the authorities in Government are well aware of the above fact and that Sri. Arun Kumar is not a Public Servant under the provisions of the Lok Ayukta Act and that the ‘Reference’ made to the Hon’ble Lok Ayukta is a non-est in the eye of law and hence not maintainable, in as much as Mr.Arun Kumar is not a “Public Servant” as defined under the provisions of the Kerala Lok Ayukta Act 1999 either in his capacity as son of the Chief Minister or as Additional Director of IHRD. 7. It is submitted that the above Reference is intended only to defeat, delay and to protract the legal action to be taken against Mr.Arun Kumar in view of the very serious nature of the allegations raised against him and hence the ‘Reference’ is also vitiated by malafides.” **WPC Nos. 16891 & 20125/11** **:11 :** 9. Again the 3[rd] respondent filed Ext.P6 Additional Affidavit and Ext.P7 counter affidavit was filed by the petitioner, contending that some of the allegations against him related to the period when he was working as the Managing Director, COIRFED and that COIRFED was already notified under the Act. It is stated that by order dated 16.05.2011, I.A.No.640/2011 was dismissed by the Upa Lok Ayukta. The 3[rd] respondent again filed Ext.P8 I.A. No.675 of 2011, dated 29.04.2011 requesting that the reference may be answered/ returned to the Government. To this IA also, the petitioner filed Ext.P10 counter affidavit. In the counter affidavit, petitioner made reference to Ext.P9 notification issued by the Government on 04.05.2011, under Section 2(o) (vii) (D) of the Act, bringing IHRD within the purview of the Act. 10. Meanwhile, elections to the State Legislative Assembly were held and when results were declared on 13.05.2011, the United Democratic Front lead by the 3[rd] respondent secured majority and he was sworn in as the Chief Minister and the petitioner’s father became the Leader of Opposition. 11. The files show that on 07.06.2011 a Note was submitted by the Minister for Law to the Cabinet recommending to withdraw the reference already made under Section 7(3) of the Act and to order **WPC Nos. 16891 & 20125/11** ## **:12 :** Vigilance enquiry into the allegations. Reason stated is mainly that under Section 7(3) of the Act, Lok Ayukta has the power only to investigate into actions of a public servant, that the term action means administrative action and includes wilful failure or omission to act and that the allegations raised against the petitioner are that he is guilty of corruption, favouritism etc., which will not come within the scope of Section 7(3) of the Act. The matter was placed before the Cabinet on 08.06.2011 and it was decided that the reference be withdrawn and that the allegations in Ext.P1, except the one relating to the online lottery about which CBI is already investigating, the other issues be referred for Vigilance enquiry. 12. In pursuance to the said decision of the Cabinet, the 1[st] respondent issued Ext.P11 letter dated 10.06.2011 intimating the Lok Ayukta that the Government have decided to conduct a vigilance enquiry into the allegations and requested that steps may be taken for withdrawal of the reference made under Section 7(3) of the Act. Thereafter, Ext.P12, G.O.(MS) No.19/2011/Vg., dated 16.06.2011 was issued ordering that the Vigilance and Anti Corruption Bureau shall investigate into the 10 allegations mentioned therein against the former Chief Minister and his son, the petitioner herein. **WPC Nos. 16891 & 20125/11** ## **:13 :** 13. Immediately thereafter, W.P.(C)No.16891/2011 was filed with a prayer to quash Exts.P11 and P12. When that writ petition was considered by this court on 05.07.2011, the learned Advocate General informed that the question whether the proceedings before the Lok Ayukta could be closed on the basis of Ext.P11 order has been raised by the counsel for the petitioner and that the Lok Ayukta would be considering the said issue on 07.07.2011. In view of the submission so made, the case was ordered to be posted to 14.07.2011 to await the outcome of the hearing on 07.07.2011. It appears that on 07.07.2011, the 1[st] respondent herein got impleaded in the proceedings as additional 2[nd] respondent and filed a statement to the effect that the reference is invalid and ineffective. Accordingly, the Upa Lok Ayukta considered the matter and order dated 15.07.2011 was passed upholding the power of the Government to cancel the reference made under Section 7 (3) of the Act and to discontinue the investigation into the complaint. It was thereupon that producing order dated 15.7.11 as Ext.P14, W.P.(C) No.20125/2011 was filed seeking to quash the said order, to declare that the Government has no authority to withdraw a reference made under Section 7(3) of the Act and to direct that the complaint be restored on file and to proceed with it in accordance with law. **WPC Nos. 16891 & 20125/11** ## **:14 :** 14. The contention raised by the Sr. Counsel for the petitioner was mainly that once a reference is made under Section 7(3) of the Act, in the absence of any enabling provision in the Act, Government has no power to withdraw such reference. In support of this contention, learned Counsel relied on the Apex Court judgments in State of Bihar v. D.N.Ganguly (AIR 1958 SC 1018) and State of Madhya Pradesh v. Ajay Singh and others (AIR 1993 SC 825). On the other hand, Learned Government Pleader contended that the Government having made the reference under Section 7(3) of the Act, always had the power to withdraw/ modify the reference. According to him, though the Act does not confer any specific power in this regard, Section 21 of the General Clauses Act, confers adequate power on the Government in this behalf. 15. When the writ petitions initially came up for consideration on 25.7.11, upon hearing the learned Sr. Counsel for the petitioner and going through the pleadings, this Court passed an order, which reads as under: “When the writ petition was taken up, learned counsel for the petitioner was called upon to clarify whether the allegations in Ext.P1 complaint could form the subject matter of a reference under Section 7(3) of the Lok Ayukta Act. He was also further asked to clarify whether the notification issued under Section 2(o)(vii)(D) of the Act notifying IHRD could make the petitioner a public servant as on 10/3/2011, when Ext.P2 reference was made. Counsel for the petitioner seeks time to look up and argue. **WPC Nos. 16891 & 20125/11** ## **:15 :** ## Post on 27/7/2011 along with WP(C)No.16891/2011”. 16. Thereupon at the request of the counsel, these cases were adjourned and were finally heard on 17.08.2011 and both the Sr. Counsel for the petitioner and the learned Govt. Pleader argued on the issues raised in the writ petition and those covered in the order dated 25.07.2011. 17. I shall first deal with the question whether the issues raised in Ext.P1 complaint, could have formed the subject matter of a reference under Section 7(3) of the Act. Placing reliance on the words “action means any action including administrative action" ............................. occuring in Section 2(a) of the Act, learned Senior Counsel for the petitioner contended that in view of the language of the Section and the object sought to be achieved by the Act, any action by a public servant would come within the scope of Section 2(a) of the Act. Further he also contended that reference under Section 7(3) is not limited to actions defined in Section 2(a) alone, but would also extend to actions involving allegations and grievances. According to him a narrow interpretation of Sections 2(a) and 7(3) would defeat the very object of the Act and therefore should not be preferred. **WPC Nos. 16891 & 20125/11** ## **:16 :** 18. In this context, it is necessary to have a look at the relevant statutory provisions to understand the scope of these provisions. Section 7 of the Act enumerates the matters which may be investigated by the Lok Ayukta and the Upa Lok Ayuktas and to the extent relevant, the section is extracted below for reference: “Sec.7(1): Subject to the provisions of this Act, the Lok Ayukta and one of the Upa-Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or specific approval of – - (i) the Chief Minister; or - (ii) a Minister; or - (iii) a Member of the State Legislature; or - (iv) a Secretary; or - (v) an office bearer of a political party at the state level; or - (vi) an officer referred to in sub-clause (iii) of clause (d) of Section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa-Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa-Lok Ayuktas together and the decision of the majority therein shall prevail, (2) Subject to the provisions of this Act, an Upa-Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office bearer of a political party at State level or an officer referred to in subclause (iii) of clause (d) of Section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa-Lok Ayukta, the subject of a grievance or an allegation. (3) Notwithstanding anything contained in sub-sections (1) and (2), the Lok Ayukta or an Upa-Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government.” **WPC Nos. 16891 & 20125/11** ## **:17 :** 19. The general rule of construction of a statute is not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the word under the circumstances (vide Jagir Singh and Others v. State of Bihar and another (AIR 1976 SC 997) 20. A perusal of sub-section (1) shows that the Lok Ayukta may investigate any action which is taken by or with the general or specific approval of any of the public servants mentioned at Serial Nos.1 to 6, in any case where a complaint involving a "grievance or an allegation” in respect of such action is made. Sub-section (2) provides for investigation by Upa Lok Ayukta into any action taken by or with the general or specific approval of, any public servant not included in Section 7(1), in any case where a complaint involving a “grievance or an allegation” is made in respect of such actions or such action can be or could have been in the " - opinion of the Upa Lok Ayukta, the subject of a grievance or an " allegation . Section 7(3) states that notwithstanding the provisions contained in sub-sections (1) and (2), the Lok Ayukta or Upa Lok Ayukta may investigate "any action" taken by or with the general or specific approval of a public servant, if it is referred by the Government. **WPC Nos. 16891 & 20125/11** **:18 :** 21. A close reading of sub-sections (1), (2) and (3) show that sub Sections (1) and (2) confers authority on the Lok Ayukta or Upa Lok Ayukta, as the case may be, to investigate into any "action" of the public servant, where such actions involve a "grievance" or an "allegation", which expressions are defined in clauses (b) and (h) of Section 2 of the Act. On the other hand, notwithstanding Section 7(1) and (2), Section 7(3) authorises the Government to refer to the Lok Ayukta for investigation, any "action" taken by a public servant, which expression is also defined in Section 2(a) of the Act. Thus, in view of the non-obstante clause contained in Section 7(3) of the Act, inspite of the provisions contained in Section 7(1) and (2), Section 7(3) will have its full operation and Sections 7(1) and (2) will not be an impediment, for a reference being made for an investigation. Here it is to be noticed that while the legislature has used the expression, "action involving allegation or grievance" in Sections 7(1) and (2), the expression used in Section 7(3) is "action". Therefore to invoke Sections 7(1) and (2) of the Act, the action complained of should also involve a “grievance” or an “allegation”, whereas Section 7(3) only requires an “action” to make a reference to the Lok Ayukta. **WPC Nos. 16891 & 20125/11** **:19 :** 22. The expressions, action, allegation and grievance, have been defined in Section 2(a), (b) and (h) of the Act and the definitions read thus: “(a) “action” means any action including administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly; (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; (h) “grievance” means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration;” 23. Thus, as per Section 2(a), an action means any action including administrative action by way of decision, recommendation or finding or in any other manner and includes wilful failure and omission to act. This definition clause is in the form of "mean and include" and such definitions are considered exhaustive. The object of the Act is to ensure purity in administrative actions by public servants and machineries have been created to enquire into such actions. Bearing in mind the principles **WPC Nos. 16891 & 20125/11** **:20 :** laid down by the Apex Court in Jagir Singhs' Case (supra), if the meaning of the word of “action” as defined in Section 2(a) is examined, it can be seen that, to qualify to be an "action" as defined in Section 2(a) of the Act, the action complained of must be that of a public servant and should be one in discharge of or in the purported discharge of his duties as a public servant. Otherwise, if the interpretation canvassed on behalf of the petitioner is accepted, the resultant position would be that everything done by a public servant, including those which are totally unrelated to his duties as such, would also come within the purview of Section 2(a). Such an interpretation, is against the object of the statute itself and is untenable. Contrary to this, the expression "allegation" in relation to a public servant includes abuse of his position as public servant to obtain any gain or favour, any affirmation that he was actuated by personal interest, improper or corrupt motives and cases where he is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as public servant. The expression “grievance” means the claim by a person that he sustained injustice or undue hardship as a consequence of maladministration. From these expressions also it is clear that while 'action' means and include what is done by a person in discharge of his duties as a public servant, "allegation" refers to omissions and commissions of a **WPC Nos. 16891 & 20125/11** ## **:21 :** public servant, which are actuated by personal interest or corrupt motives, etc., and "grievance" arises out of individual hardship or injustice caused by a public servant. Viewed in this manner, it can be seen that while Sections 7(1) and (2) takes in only cases of actions of public servants which involve allegation or grievance as defined in Section 2(b) and (h) of the Act, the subject matter of reference under Section 7(3) of the Act can only be the action of a public servant, which means that the action should be in his capacity as a public servant or in the purported discharge of his duties as such. 24. As far as the broad interpretation sought to be placed on Section 7(3) is concerned, as I have already held while the legislature has used the expression "action involving grievance or allegation" in Sections 7(1) and (2) of the Act, it has only used the expression "action" in Section 7(3) of the Act. From the unambigious words used in the statute, it is clear that under Section 7(3) of the Act the legislature intended to refer only cases involving action as defined in Section 2(a), which will not include cases where actions involve allegation or grievance. If the argument canvassed by the learned Senior Counsel for the petitioner is to be accepted, this court will have to ignore the difference in the plain language of Sections 7(1) and (2) as compared to Section 7(3) of the Act. **WPC Nos. 16891 & 20125/11** ## **:22 :** Such an exercise is impermissible in a process of interpretation, particularly in a case where the words of the statute are clear and unambiguous, justifying only its literal interpretation. For the aforesaid reasons, this contention of the Senior Counsel of the petitioner deserves to be rejected. 25. The scope of Section 7(3) of the Act being as above, Ext.P1 complaint made by the 3[rd] respondent should be examined to decide whether a reference under Section 7(3) of the Act could have been made. Among the 11 allegations raised, allegation No.4 is directly against the former Chief Minister and allegation Nos.7 and 10 are against both the former Chief Minister, his office and the petitioner and all the remaining allegations are against the petitioner himself. These allegations do not have any connection with the duties discharged by the petitioner in his capacity as a public servant, to qualify these to be "actions" as defined in Section 2(a) of the Act. If that be so, the only conclusion that is possible is that the allegations in Ext.P1 complaint could not have formed the subject matter of a reference under Section 7 (3) of the Act and therefore, Ext.P2 order dated 10.03.2011 and the reference made to the Kerala Lok Ayukta are legally unsustainable. **WPC Nos. 16891 & 20125/11** ## **:23 :** 26. The 2[nd] question which was posed to the learned Senior Counsel for the petitioner was whether Ext.P9 notification issued on 04.05.2011 could validate Ext.P2 reference made on 10.03.2011. Ext.P2 reference was made on the basis of the former Chief Minister’s letter dated 09.03.2011 (extracted above), requesting the Minister for Home and Vigilance Department to enquire into the allegations against the petitioner, who is an Additional Director in IHRD. It was acting upon that letter, the Minister for Home and Vigilance issued his note dated 09.03.2011 (extracted above) to the Addl. Chief Secretary, Home and Vigilance, directing that since Arun Kumar is an officer of IHRD, the allegations raised by the Opposition Leader should be referred to the Lok Ayukta for an enquiry under Section 7(3) of the Act. Therefore, the reference under Section 7(3) was made on the basis that, being an officer of IHRD, petitioner is a public servant as defined under the Act. 27. IHRD is a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 1955 under the control of Government of Kerala. The employees of such a Society could be public servants for the purpose of the Act, only if a notification is issued by the Government of Kerala in terms of Section 2(o)(vii)(D) of the Act. Admittedly, when the reference was made on 10.03.2011, IHRD **WPC Nos. 16891 & 20125/11** ## **:24 :** was not a Society notified in terms of Section 2(o)(vii)(D) of the Act and it was only by Ext.P9 notification dated 04.05.2011 that the Government of Kerala notified IHRD for the purpose of the Act. Thus, it is only with effect from 04.05.2011, employees of IHRD became public servants for the purpose of the Act. 28. In such circumstances, the question is whether Ext.P9 notification issued on 04.05.2011 would validate Ext.P2 reference made on 10.03.2011 when the petitioner was not a public servant for the purpose of the Act. As already seen, reference under Section 7(3) could be made only regarding the "action" of a public servant. Therefore, at the time of the alleged action, the person concerned should be a public servant. In this case, this fundamental requirement is not satisfied and hence, the reference is without jurisdiction and is a nullity. 29. The question whether an initial fundamental defect such as the one pointed out above, could be rectified by a subsequent notification, has been considered by the Apex Court in various cases and it has been consistently held in the negative. In the context of a proceeding under the Contempt of Courts Act, where consent of the Advocate General was obtained subsequent to making of the motion, in its Judgment in State of **WPC Nos. 16891 & 20125/11** **:25 :** Kerala v. M.S. Mani and Others (AIR 2001 SC 3315), the Apex Court held that: - “subsequent obtaining of a consent, in our view, does not cure the initial defect so as to convert the incompetent motion in to a maintainable petition”. 30. In Ritesh Tewari and another v. State of Uttar Pradesh and Others [2010 (10) SCC 677] it has been held thus: “32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. (Vide Upen Chandra Gogoi v. State of Assam; Satchidananda Misra v. State of Orissa and SBI v. Rakesh Kumar Tewari.) 33. In C. Albert Morris v. K. Chandrasekaran this Court held that a right in law exists only and only when it has a lawful origin. 34. In Mangal Prasad Tamoli v. Narvadeshwar Mishra this Court held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside”. 31. Again in Chairman-cum-Managing Director, Coal India Limited and Others v. Ananta Saha and Others [2011 (5) SCC 142] it has been held thus: “32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento **WPC Nos. 16891 & 20125/11** ## **:26 :** cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls”. Thus, if the initial reference by Ext.P2 order is without jurisdiction, it could not have been sanctified by Ext.P9, the subsequent notification issued under Section 2 (o)(vii)(D) of the Act. For this reason also the reference made under Section 7(3) of the Act is untenable. 32. In Ext.P9 counter affidavit filed by him, petitioner has raised a contention that some of the allegations pertained to the period when he was an employee of COIRFED and that COIRFED was an establishment already notified under Section 2(o)(vii) (D) of the Act. However, I am unable to accept this contention to sustain the reference for the reason that files show that the reference under Section 7(3) was made on the basis that the petitioner, being an officer of IHRD, is a public servant. If it were not so, the Government need not have issued Ext.P9 notification. In the light of the above discussion, the finding of the Upa Lok Ayukta, that the petitioner's actions even before he became a public servant as defined in the Act can be investigated, is unsustainable. 33. The main contention of the learned Senior Counsel for the petitioner was that once a reference is made under Section 7(3) of the Act, it cannot be withdrawn by the Government. It was contended that there is no provision in the Act enabling withdrawal of a reference made **WPC Nos. 16891 & 20125/11** ## **:27 :** under Section 7(3) and therefore the impugned decision of the Government is illegal. This contention was sought to be supported relying on the principles laid down by the Apex Court in the judgments in State of Bihar v. D.N. Ganguly and Others [AIR (1958) SC 1018] and State of Madhya Pradesh vs. Ajay Singh and others (AIR 1993 SC 825). 34. I should mention in this context that while the petitioner is arguing to sustain the reference made, in the pleadings, he is not canvassing that the reference is legally tenable. Therefore he is reserving his right to raise this plea when time is ripe for such an argument. It is in this context the apprehension of the Government recorded in Ext.P14 order of the Upa Lok Ayukta that the allegations levelled against the petitioner may go without investigated in case it is ultimately found that the reference itself is invalid, has to be appreciated. I have already held the reference legally unsustainable and accepting the contentions of the petitioner, if the order now passed by the Upa Lok Ayukta is interfered with, result would be the revival of a legally untenable reference. An investigation into such a reference, will be an exercise in futility, a waste of time, public money and energy and will delay, if not defeat, investigation by competent agencies. In such a case, this Court will not exercise its jurisdiction and quash the impugned order for the reason **WPC Nos. 16891 & 20125/11** **:28 :** that quashing the impugned order will result only in the revival of an illegal reference. 35. This view I have taken, is fortified by the principles laid down by this Court in the judgment in Rameshan v. Jayavally (2007 (2) KLT 325), where, refering to the relevant precedents, it was held thus; " _“12. However, our conclusion on the above issue does not conclude the dispute, if we accept the contention of the appellant on point No. 2. As we have already noted, according to the quashing of Ext.P5 and Ext.P7 would result in restoration of the orders of the Educational Authorities declining approval to his appointment which is per se illegal for other reasons and therefore we should restrain ourselves from exercising power under Art.226 of the Constitution of India. Counsel made reference to various authorities in support of the above proposition canvassed by him. He has referred to the judgment of the Supreme Court reported in Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828), wherein it has been observed as follows:_ _“If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances”,_ _This was followed by the Andhra Pradesh High Court in the case reported in M.Padmanabha Iyyengar v. Government of A.P. (AIR1990 A.P.357) and held as follows:_ _“It must also be remembered that the remedy under Art. 226 is a discretionary one. The court is not bound to interfere merely on the establishment of an irregularity or illegality. The court must further be satisfied that such interference is called for to meet, or to further, the orders of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm: (See Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) and Venkateseara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828). Having regard to the totality of the circumstances,_ **WPC Nos. 16891 & 20125/11** **:29 :** _we do not think that this court should interfere and quash the Inquiry under S.5A.”_ _Still later in the case of Jagan Singh v. State Transport Appellate Tribunal (AlR 1980 Raj. 1, it has been held as follows:_ _“As we have already pointed out above, the effect of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G.Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828).”_ _Making reference to R. v. Garland ((1970) 5 QB 269), it was contended that even in issuing writs of mandamus, the same principle is followed and that if the effect of issuing mandamus is going to be highly prejudicial, as where it would enable trustees to evade the discharge of their duties, a court of equity will not issue the writ. These judgments were followed by a Division Bench of this Court in the case reported in Koya v. State of Kerala (1992 (2) KLT 194), where it has been held as follows:_ _“It is now well settled that if an order of an authority is illegal or without jurisdiction, it need not be quashed by the High Court under Art. 226 of the Constitution of India if such action would result in restoration or revival of another order, which is also bad.”_ _On this reasoning, this Court concluded in the following terms:_ _“Following the principles laid down by the Supreme Court in Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828) for exercise of discretion, we hold that this is not a fit case for quashing Ext.P5 order of the Government even if it was without jurisdiction for, such quashing would restore Ext.P4 order of the Wakf Board which is bad for other reasons. This is therefore, not a fit case for exercising discretion to quash Ext.P5.”_ _Counsel also made reference to the judgment in Mohammad Swallieh and Ors. v. Third Addl. District Judge, Meerut & Anr. ((1988)1 SCC 40). Paragraph 7 thereof is extracted below for reference:_ _“It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The_ **WPC Nos. 16891 & 20125/11** **:30 :** _High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge. in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.”_ _We were also referred to the Supreme Court judgment in the case reported in Roshan Deen v. Preeti Lal (2002 (1) KLT (SC) (SN) 43 = AIR 2002 SC 33), where it has been held as follows:_ _“Time and again this Court has reminded that the power conferred on the High Court under Arts.226 and 227 of the Constitution is to advance justice and not to thwart it, (vide State of Uttar Pradesh v. District Judge, Unnao & Ors., (AIR 1984 SC 1401). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law.”_ _We were also referred to a Division Bench of this Court in W.A.No.2430 of 2002 in which the aforesaid judgment of the Supreme Court has been followed and it was held that the court cannot erase justice done in the name of correcting error of law.”_ **WPC Nos. 16891 & 20125/11** ## **:31 :** 36. These principles have been again stated in the Apex Court judgment in Mysore Urban Development Authority v. Veer Kumar Jain (AIR (2010) SC 2153). Therefore, in view of the finding that the reference is legally untenable and for the aforesaid reasons, it is unnecessary to examine the contention raised by the petitioner regarding the power of the Government to withdraw a reference made under Section 7(3) of the Act. 37. In W.P.(C)No.16891/2011, petitioner is seeking to quash Ext.P12 order dated 16.06.2011 issued by the first respondent ordering a vigilance enquiry into the allegations mentioned in the order. Contention raised was that the 3[rd] respondent, being the present Chief Minister of the State, is also in charge of the Vigilance and Anti Corruption Bureau. Therefore, according to him, the complainant being the Minister in charge of the investigating agency, the investigation will not be fair and unbiased. First of all, petitioner’s father himself having initiated the reference against him, this very argument was urged by the respondents also. That apart, by the time writ petitions were heard, the 3[rd] respondent had relinquished his charge over the Vigilance and Anti Corruption Bureau. Further, the result of accepting this contention would be that, no agency in this state will be competent to conduct the **WPC Nos. 16891 & 20125/11** ## **:32 :** investigation, so long as the 3[rd] respondent continues in office. Irrespective of all these, this argument is also against the settled legal principles regarding the independence enjoyed by the investigating officers, which has been reiterated by the Apex Court in R. Sarala v. T.S. Velu (AIR 2000 SC 1731) where it has been held thus; “15. In this context we may also point out that the Investigating Officer, though is subject to supervision by his superiors in rank is, not to take instructions regarding investigation of any particular case even from the executive government of which he is a subordinate officer. This position which was well delineated by the celebrated Lord Denning, has since been followed by this Court. In R. v. Metropolitan Police Commissioner, (1968) 1 All ER 763. Lord Denning had said thus: "I have no hesitation, however, in holding that, like every constable in the land, he should, and is, independent of the executive. He is not subject to the orders of the Secretary of State...I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone." Therefore, this contention also has no force. **WPC Nos. 16891 & 20125/11** **:33 :** For the aforesaid reasons, the writ petitions lack merit and are dismissed. ## **ANTONY DOMINIC, JUDGE** Rp