Director, Kerala State Institute of Languages v. T. Jayakumar and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 WP(C).No. 14015 of 2017 ## PETITIONER(S) THE DIRECTOR KERALA STATE INSTITUTE OF LANGUAGES, NLANDA, NANTHENCODE, THIRUVANANTHAPURAM. BY ADV.SRI.P.C.SASIDHARAN ## RESPONDENT(S): 1. T. JAYAKUMAR S/O. THANKAPPAN PILLAI, RETD. 1ST GRADE COMPOSITOR, GOVERNMENT PRESS, MANNANTHALA, THIRUVANANTHAPURAM, NOW RESIDING AT LAKSHMI BHAVAN, CHATHIYODU, NALANCHIRA, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR, PRINTING DEPARTMENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM - 695 001. 3. THE SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ## 4. KERALA LOY AYUKTA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR - 695001. R1 BY ADV. SMT.AYSHA YOUSEFF R1 BY ADV. SMT.MOLLY JACOB BY GOVERNMENT PLEADER SRI.SURIN GEORGE IPE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14015 of 2017 (B) ## APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 02/09/2015 EXHIBIT P2 TRUE COPY OF THE LETTER DATED 18/08/2015 WITH ENGLISH TRANSLATION. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 14/3/2017. ----- ## ANTONY DOMINIC, Ag. C.J. & DAMA SESHADRI NAIDU, J. ------------------------------------------------ W. P. (C) No.14015 of 2017 -----------------------------------------------Dated this the 7[th ] day of February 2018 ## JUDGMENT ## Dama Seshadri Naidu, J. ## **Introduction:** An employee, on his superannuation, claims his terminal benefits. He demands that, to reckon the length of his service, his previous service in some other establishment should be counted. That claim rejected, he complained to the Lok Ayukta. And it issued an interim mandatory injunction or direction. The former employer questions, in this writ petition, the Lok Ayukta’s jurisdiction or power to issue interim mandatory injunctions. 2. So the question is, does Lok Ayukta have the inherent jurisdiction to issue interim directions—mandatory ones, at that— despite its ultimate power being only advisory? W. P. (C) No.14015 of 2017 -2- ## **Facts:** 3. First-respondent Jayakumar served the Printing Department and retired. Before his joining the Printing Department, he had also worked in the Kerala State Institute of Languages (KSIL). When his employer wanted to fix the terminal benefits, Jayakumar insisted that his service in KSIL should also be considered. So demanding, he applied to his first employer:KSIL. After failing to receive a positive response from the former employer, he approached the learned Lok Ayukta, by filing the Ext.P1 complaint; he sought these reliefs: "a) The 1[st] Respondent may be directed to make entry in the service book of the complainant that the Complainant was a regular employee in the State Institute of Languages during the period from 11/04/1996 to 07/06/2000 and to send back the service book to the 2[nd] Respondent at the earliest and also grant increment for the period from 11/04/1996 to 07/06/2000. b) The 2[nd] respondent may be directed to disburse the pension, gratuity and other retirement benefits without delay to the Complainant after getting back the service book from the 1[st] Respondent. c) To take necessary action against the 1[st] Respondent for his maladministration by making wilful negligence and undue delay for sending back the service book after making entry as sought by the 2[nd] Respondent and against the 3[rd] Respondent who failed to carry out his duty to direct the 1[st] Respondent to send back the service book to the 2[nd] Respondent. d) To grant such other reliefs which are deemed fit and proper and as per the prayer of the Complaint.” W. P. (C) No.14015 of 2017 -3- ## 4. Through Ext.P3 interim order, a detailed one, the learned Lok Ayukta held that an interim mandatory direction was the need of the ## hour. So it directs: “In view of the above, there is every justification for passing an interim order in the following terms. Therefore, we direct the first respondent to make entries in the complainant's service book to the effect that by virtue of Ext.P1 order of the governing body of the State Institute of Languages followed by Ext.P3 proceedings of the first respondent and the consequent appointment and posting of the complainant as L.D. Binder in Vijnanamudranam Press on a salary and allowances applicable to Class-III employees, the complainant was a regular employee of State Institute of Languages during the period from 11/04/1996 to 07/06/2000 and after making such entries to send back the service book of the complainant to the second respondent at the earliest. We direct the second respondent to release pension, gratuity and other retiral benefits to the complainant within a period of three weeks after getting the service book back from the first respondent. The first respondent will comply with the direction herein before contained within three weeks of receiving this order. Post on 11/04/2017.” ## 5. Now, Jayakumar’s former employer, KSIL, questions Lok Ayukta’s Ext.P3 interim order. ## **Submissions:** ## **KSIL’s:** 6. The learned Standing Counsel for KSIL contends that the Lok Ayukta lacked jurisdiction to try the issue and, particularly, to issue an interim direction as was set out in Ext.P3. He submits that the order, though styled as interim, has virtually decided the entire matter—at the W. P. (C) No.14015 of 2017 -4- threshold and without adjudication, at that. According to him, the learned Lok Ayukta has no jurisdiction to decide contentious issues and, more particularly, to issue a positive direction, as if it were a mandamus to the authorities that it be complied with immediately. He relied on _State of Kerala v. Bernard_ .[1] ## **Jayakumar’s:** 7. On the other hand, the learned counsel for Jayakumar has strenuously contended that Jayakumar eminently deserved the interim relief from the Lok Ayukta. To elaborate, she has submitted that Jayakumar did work in KSIL, so his services ought to be reckoned for the retirement benefits. She also submitted that Jayakumar has placed abundant material before the Lok Ayukta to enable it to decide the dispute and issue an interim direction, in the interest of justice. Finally, she argues that under section 8, read with the Second Schedule, of the Kerala Lok Ayukta Act (the Act), the learned Lok Ayukta could adjudicate any issue about an employee’s pensionary benefits—and issue an interim direction. > 1 2002 (3) KLT 254 W. P. (C) No.14015 of 2017 **==> picture [15 x 9] intentionally omitted <==** 8. Heard the learned Standing Counsel for KSIL and the learned counsel for T. Jayakumar, as well as the learned Government Pleader. **Analysis:** 9. Indeed, the dispute, now raised, relates to Lok Ayukta’s inherent jurisdiction to issue a binding interim direction. We stress the obvious by observing that the jurisdictional issue—or the maintainability of judicial or quasi-judicial proceedings—undecided, the Court cannot look into the merits of the matter. 10. As rightly contended by the learned Standing Counsel, the Lok Ayukta, in fact, in the name of an interim direction, seemed to have decided the entire issue by granting reliefs 1 and 2. 11. This Court in _Bernard_ has elaborately dealt with the jurisdictional aspect of the Lok Ayukta; it has, in fact, held that the Lok Ayukta, though could enquire into any matter within its jurisdictional bounds, cannot issue binding directions or orders. Lok Ayukta exercises, to be precise, advisory jurisdiction. 12. In Para 5 of _Bernard_ , the learned Division Bench observes thus: W. P. (C) No.14015 of 2017 -6- 5. [I]n our view, with regard to a complaint involving a "grievance", the Lok Ayukta does not have any adjudicatory power, nor is he empowered to make any binding order which is enforceable as against a public servant whose action is under investigation, or the competent authority or the State Government. His role is confined to investigating the grievance, to satisfy himself as to its correctness, and thereafter recommending the remedial measures to the competent authority. The competent authority, normally, is expected to attach due importance to such recommendation made by the Lok Ayukta, albeit, it may not be bound by the recommendation. One expects, therefore, such recommendation to be implemented by the competent authority within the time stipulated by the Lok Ayukta. However, there may be occasions when the competent authority may, for good reasons, disagree with the recommendations of the Lok Ayukta. In such cases, it would be difficult to hold that the competent authority would be bound by the recommendations of the Lok Ayukta. All that the Lok Ayukta may do then is to make a special report to the Governor, which the Governor is obliged under Sub-section (7) of Section 12 of the Act to place before the Legislative Assembly. _The role of the Lok Ayukta then becomes one of an investigator, who brings the facts to the notice of the Legislative Assembly, so that there may be public debate thereupon. Barring this role, we do not see any power given to the Lok Ayukta under the Act to adjudicate a dispute which enables him to make an order of a binding nature in complaints involving a 'grievance'._ (italics supplied) 13. About any “allegations” that may have been brought before the Lok Ayukta, _Bernard_ further observes that the Lok Ayukta’s function vis-à-vis an allegation is slightly different. When somebody complains, the Lok Ayukta will investigate. If the allegation sustains itself fully or partly, Lok Ayukata will communicate its findings and recommendations to the competent authority/Government by a report, accompanied by all relevant materials. On receipt of such a report, the competent authority will intimate, within three months, the Lok Ayukta W. P. (C) No.14015 of 2017 **==> picture [15 x 9] intentionally omitted <==** about the action the authority has taken or proposed to take. If the Lok Ayukta is not satisfied with the action taken or proposed to be taken by the authority, it will submit a special report to the Governor. 14. Lok Ayukta has no power, _Bernard_ goes on to observe, to execute its orders. In fact, it would be inappropriate to call the Lok Ayukta’s report/recommendation an "Order". Though the Lok Ayukta has been invested with certain powers of the Civil Court, say, to investigate with greater efficacy, it cannot, however, be equated with a court. _Bernard,_ indeed, points out one area of enforceability for Lok Ayukta: under sub-section (1) of Section 14, when Lok Ayukta declares that a public servant should not hold office, the competent authority "shall accept" the declaration. 15. We may also observe that this Court has consistently followed _Bernard’s_ view: _George v. Sarala Kumari[2] , Kamalu v. State of Kerala[3] , State of Kerala v. Sheela S[4] , Sunayana v. Tahsildar, Trivandrum_[5] and . _Bright S v. Chief Secretary to Government of Kerala_[6] > 2 ILR 2007 Kerala 442 3 2003 (2) KLT 227 4 ILR 2009 (2) Kerala 660 5 2013 (1) KHC 836 6 2016 2 ILR(Ker) 1017 W. P. (C) No.14015 of 2017 -8- ## **Interim Order:** 16. The cardinal canon of common law is that when an Act confers jurisdiction, it also impliedly grants the power of doing all such acts or employing such means as are essentially necessary to its execution. But before our insisting on any such implication of necessity, we must satisfy ourselves that the existence of that power is essential for the tribunal or court to discharge the powers conferred on it—not merely that it is convenient to have such a power. 17. Section 14 of the Consumer Protection Act deals with the nature of relief that can be granted. This section does not envisage grant of any interim relief or an ad interim relief; on the contrary, it contemplates only a final relief. In _Morgan Stanley Mutual Fund Vs. Kartick Das_ ,[7] the Supreme Court considered section 14 and held that the above provision, on a careful reading, discloses that there is no power for the Forum under the Act to grant any interim relief or even an _ad interim_ relief. Only a final relief could be granted. _Kartick Das_ also observes that “if the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our 7 (1994) 4 SCC 225 W. P. (C) No.14015 of 2017 -9- comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience.” 18. We will examine another enactment. Section 12 of the Copy Right Act prescribes the Copyright Board’s powers and the procedure. After examining that provision, the Supreme Court in _Super Cassettes Industries Ltd. Vs. Music Broadcast Pvt. Ltd.,[8]_ has observed that the language used in the Section clearly contemplates a final order after a hearing and after holding an inquiry; it was to see whether the ground for withholding the work from the public was justified. There is no hint of any power having been given to the Board to make interim arrangements, such as the grant of interim compulsory licences, during the pendency of a final decision of an application. 19. _Super Cassettes_ has also observed that the Tribunals discharging quasi-judicial functions and having the trappings of a Court, it is true, are generally seen as vested with incidental and ancillary powers to discharge their functions. But that cannot surely mean that without any provision to the contrary, such Tribunal would have the power to grant at the interim stage the final relief which it 8 (2012) 5 SCC 488 W. P. (C) No.14015 of 2017 -10- could grant. We wonder, on our part, whether the institution of Lok Ayukta is quasi-judicial, sans enforceability. 20. The Court further holds that such incidental powers could at best be said to exist to preserve the _status-quo_ , but not to alter the same, as will no doubt happen if an interim compulsory licence is granted. If the legislature had intended that the Copyright Board should have powers to grant a mandatory injunction at the interim stage, it would have vested the Board with such authority. The Court rejected the submission that there is no bar to grant such interim relief under Section 31, for “the presence of a power cannot be inferred from the absence thereof in the Statute itself.” ## **An Alternative View:** 21. Viewed from another perspective, the contention about the pension is, at best, incidental or consequential. The principal issue is whether the previous service could be reckoned for pensionary benefits. Thus, that issue pertains to the service conditions of an employee which may not have been adjudicated upon at an interim stage, even if one were to assume that Lok Ayukta had the jurisdiction. W. P. (C) No.14015 of 2017 **==> picture [20 x 9] intentionally omitted <==** In these circumstances, without adverting to the merits of the matter, we set aside the Ext.P3 order and remand the matter to the learned Lok Ayukta to examine the grievance in accordance with law. No order on costs. Sd/ANTONY DOMINIC ACTING CHIEF JUSTICE Sd/DAMA SESHADRI NAIDU JUDGE kns/- //TRUE COPY// P.S. TO JUDGE