Director of Health Services, Thiruvananthapuram and The Secretary to Government, Health and Family Welfare Department, Government Secretariat, Thiruvananthapuram v. P.P. Mathai Kunju and The Registrar, Lok Ayukta, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938** ## **WP(C).No. 9137 of 2012 (N)** ## **--------------------------------------** **IA.NO.518/2011 IN COMPLAINT NO.411/2008 OF LOK AYUKTA** **------------------** ## **PETITIONER(S):** ## **----------------------** ## **1. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM.** **2. THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WLEFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **3. THE STATE,** **REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.VIJU THOMAS** **RESPONDENT(S):** **-------------------------** ## **1. P.P. MATHAI KUNJU,** **(RETIRED STORE VERIFICATION OFFICER), PALATHADATHIL, VADAVUCODE P.O, ERNAKULAM DISTRICT 682310.** ## **2. THE REGISTRAR,** **LOKAYUKTA, THIRUVANANTHAPURAM 693001.** **R1 BY ADVS. SRI.C.S.ABDUL SAMMAD SRI.V.D.BALAKRISHNA KARTHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2016 THE COURT ON 09-12-2016, DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 9137 of 2012 (N)** **--------------------------------------** ## APPENDIX PETITIONER(S) EXHIBITS -----------------------------------EXT. P1 THE TRUE COPY OF THE ORDER DATED 26-10-2010 IN COMPLAINT NO 411/2008 OF LOK AYUKTA EXT. P2 THE TRUE COPY OF THE ORDER IN I.A NO 518/2011 IN COMPLAINT NO 411/2008 DATED 05-01-2012 OF LOK AYUKTA EXT.P3 THE TRUE COPY OF THE COMPLAINT BEFORE THE LOK AYUKTA EXT.P4 THE COPY OF THE REVIEW PETITION DATED 25/2/11 FILED AGAINST THE ORDER IN THE COMPLAINT EXT.P5 THE TRUE COPY OF THE OBJECTION DATED 22/10/11 FILED AGAINST THE REVIEW PETITION. ## **RESPONDENTS' EXHIBITS** ## **-------------------------------------** ## **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 9137 of 2012 ----------------------------------------------Dated this the 9[th] December, 2016** ## **JUDGMENT** The above writ petition is filed by the Director of Health Services as well as the Government, challenging Exhibit P2 order of the Kerala Lok Ayukta. The 1[st] respondent retired from the Health Services as Store Superintendent on 30.4.2007. When his pensionary benefits were not disbursed, he approached the Kerala Lok Ayukta with a complaint. By Exhibit P1 order, the complaint was closed by the Kerala Lok Ayukta in view of an action taken report. Thereafter, an interlocutory application to review Exhibit P1 order was filed by the 1[st] respondent. The entire factual and legal aspects of the matter were considered in detail and Exhibit P2 order was passed holding that since no lawful steps had been taken within a period of three years from the date of retirement to quantify the liabilities with notice to the 1[st] respondent, amounts shown as his liability could not be recovered from the DCRG. It was also held that though it is open to the Government to quantify the liability of a Government servant even after three years, recovery in such cases could be made _**WP(C).9137/12**_ 2 only by recourse to proceedings under the Public Accounts Act or before the civil court. A direction was, therefore, issued to the petitioners herein to issue non liability certificate to the 1[st] respondent and the matter was posted for action taken report to 22.2.2012. This order is under challenge. 2. Heard the learned Government Pleader appearing for the petitioners and the learned counsel appearing for the 1[st] respondent. 3. It is contended by the learned Government Pleader that the Kerala Lok Ayukta Act, 1999 (hereinafter referred to as 'the Act') does not provide for issuance of positive direction and the empowerment is only to submit a report or a special report and that the power to punish for contempt is confined to positive directions which can be issued under Section 14 of the Act directing a public servant to vacate office. The learned Government Pleader relied on bench decisions of this Court in _**State of Kerala v. Bernard**_ [2002(3) KLT 254], which was followed in _**State of Kerala v. Sheela S.**_ [2009 (2) KLT 660] in support of this contention. 3 _**WP(C).9137/12**_ 4. The learned counsel appearing for the 1[st] respondent would, on the other hand, contend that a single Judge of this Court in _**Kerala State Co-operative Bank Ltd. v. Kerala Lok Ayukta and another**_ [2016(4) KHC 88] has, considering the provisions of Sections 7 and 10 to 15 of the Act, held that the Kerala Lok Ayukta has powers to entertain complaints as well as issue directions under the Act. 5. I have considered the contentions advanced on either side at considerable length. It is beyond dispute that the Kerala Lok Ayukta is empowered under the Act to consider a complaint in the nature of the one raised by the 1[st] respondent before it with regard to delay in payment of pensionary benefits. It is contended that the pensionary benefits of the 1[st] respondent have not been disbursed to him till now and only the provisional pension is paid. What has been considered by the Kerala Lok Ayukta in Exhibit P2 order is the validity of a liability certificate issued after a period of three years from the date of retirement of the 1[st] respondent. It is not in dispute that it is now settled by bench decisions of this Court that no amounts can be recovered from the DCRG of a Government employee after a period of three years from the date _**WP(C).9137/12**_ 4 of his retirement in view of the specific provisions contained in Notes 2 and 3 to Rule 3, Part-III KSR. 6. In the above view of the matter, the findings contained in Exhibit P2 that a liability certificate issued after three years of the 1[st] respondent's retirement could not be relied upon to recover any amount from his DCRG is perfectly justified in law. Therefore, even if the direction contained in the order of the Kerala Lok Ayukta is found to be beyond its powers in view of the bench decisions of this Court, I am of the opinion that the exercise of jurisdiction under Article 226 of the Constitution of India being discretionary, this would not be a fit case for this Court to exercise its extraordinary jurisdiction, since such exercise would result in revival of an illegal order. It has been held by the Apex Court in ## _**Maharaja Chintamani Saran Nath Shahdeo v. State of**_ _**Bihar**_ [(1999)8 SCC 16] that where the setting aside of an order on the ground of lack of jurisdiction would result in the revival of an illegal order, the order lacking jurisdiction should not be set aside. After examining the pleadings and materials on record, I am of the considered opinion that there was no patent illegality or irregularity in Exhibit P2 order. 5 _**WP(C).9137/12**_ 7. The only question which arise for consideration in this writ petition would, therefore, be as to the nature of the order that can be passed by the Kerala Lok Ayukta. It is not in dispute that the Kerala Lok Ayukta is empowered to report in writing recommending to the competent authority that the injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. The competent authority also has to file an action taken report on the basis of the report of the Kerala Lok Ayukta. In the above view of the matter, even if Exhibit P2 is taken to be only a report as provided in Section 12(1) of the Act, I am of the opinion that the petitioners would be bound to take action on the basis of such report. Since they have approached this Court contending that the directions contained in Exhibit P2 are issued in excess of jurisdiction, it is for this Court to decide whether exercise of extraordinary jurisdiction under Article 226 of the Constitution is justified and necessary in view of the facts. In the facts and circumstances of this case, I am convinced that there was nothing illegal or arbitrary or legally incorrect in Exhibit P2 order. I am of the opinion that the petitioners are liable to be directed to comply with the same. 6 _**WP(C).9137/12**_ In the result, this writ petition is disposed of with a direction to the petitioners to immediately comply with Exhibit P2 order. The entire retirement benefits due to the 1[st] respondent, less any amount already paid, shall be calculated and paid to him within a period of four months from the date of receipt of a copy of this judgment. **ANU SIVARAMAN JUDGE** _vgs_