Geetha Kumari K. v. Kerala Lok Ayukta; Adarsh K v. Kerala Lok Ayukta

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 WP(C) NO. 32030 OF 2014 ``` ## **`PETITIONER/S:`** ``` GEETHA KUMARI K. AGED 45 YEARS W/O.ASOK KUMAR, ALTHARA ROAD, T.C.15/395, VELLAYAMABALAM, THIRUVANANTHAPURAM. BY ADVS. SRI.LATHEESH SEBASTIAN SRI.M.FATHAHUDEEN SMT. NEETHU S. ``` ## **`RESPONDENT/S:`** |**`1`**|**`KERALA LOK AYUKTA`**| |---|---| ||**`REPRESENTED BY REGISTRAR, LEGISLATIVE COMPLEX,`**| ||**`VIKAS BHAVAN P.O., THIRUVANANTHAPURAM.`**| |**`2`**|**`UNIVERSITY OF KERALA`**| ||**`REPRESENTED BY REGISTAR, UNIVERSITY OFFICE,`**| ||**`THIRUVANANTHAPURAM.`**| |**`3`**|**`STATE OF KERALA`**| ||**`REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM.`**| ||**`BY ADVS.`**| ||**`SRI.K.B.PRADEEP`**| ||**`SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA`**| ||**`SMT.RENU. D.P., SC, LOK AYUKTA`**| ||**`SRI. K. P. HARISH, SR. GP.`**| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2023, ALONG WITH WP(C).23787/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -2- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 WP(C) NO. 23787 OF 2016 ``` ## **`PETITIONER/S:`** ``` ADARSH K AGED 25 YEARS, S/O.KAMALASANAN, TC 19, KUDAPPANAKKUNNU P.O, THIRUVANANTHAPURAM,695 043. BY ADVS. SRI.LATHEESH SEBASTIAN SRI.M.FATHAHUDEEN ``` ## **`RESPONDENT/S:`** |**`1`**|**`KERALA LOK AYUKTA`**| |---|---| ||**`REPRESENTED BY ITS REGISTRAR, LEGISLATIVE`**| ||**`COMPLEX,VIKAS BHAVAN P.O, THIRUVANANTHAPURAM,`**| ||**`695 033.`**| |**`2`**|**`VICE CHANCELLOR`**| ||**`UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695 033.`**| |**`3`**|**`PRO-VICE CHANCELLOR`**| ||**`UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695 033.`**| |**`4`**|**`REGISTRAR`**| ||**`UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695 033.`**| |**`5`**|**`STATE OF KERALA`**| ||**`REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT`**| ||**`SECRETARIAT, THIRUVANANTHAPURAM 695 001.`**| ||**`BY ADVS.`**| ||**`SRI.K.B.PRADEEP`**| ||**`SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA`**| ||**`SMT.RENU. D.P., SC, LOK AYUKTA`**| ||**`SRI. V. TEKCHAND, SR. GP.`**| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2023, ALONG WITH WP(C).32030/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -3- ## **J U D G M E N T** ## S. Manikumar, C. J. After placing the material on record, a learned Single Judge, by order dated 05.01.2015, has referred W. P. (C) No. 32030 of 2014 to this Court. ## 2. Order of the learned Single Judge in W. P. (C) No. 32030 of 2014 dated 05.01.2015 is reproduced:- “The issue involved in this case is whether the 'Lok Ayukta' or for that matter, the Upa Lok Ayukta' is having any suo motu power to initiate proceedings under the Kerala Lok Ayukta Act, 1999, in exercise of the powers under Section 7(2) of the said Act. 2. The petitioner contends that the 'Upa Lok Ayukta' has invoked the suo motu power and has issued a show-cause notice to the petitioner, as to why disciplinary proceedings shall not be caused to be initiated against the petitioner. The case is that, there is no such power for the Lok Ayukta or Upa Lok Ayukta in view of the law declared by a Division Bench of this Court in **Ramachandran Master vs. Kerala Lok Ayukta [2006(4) KLT 166 ]** . It is also pointed out that, even if it is presumed that such power is vested with such authority, the maximum possible W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -4- action could only be for giving 'recommendation' under Section 12; whereas in the case of the petitioner, the respondent University (Employer of the petitioner) has already placed the petitioner under suspension initiating disciplinary action; and that Ext.P5 Memo of charges has been given; in response to which, Ext.P6 statement of defence has been submitted. As such, the proceedings being pursued by the 'Upa Lok Ayukta' are otiose and hence the challenge. 3. Pursuant to the interim order passed by this Court on 28.10.2014 in W.P.(C) No.28125 of 2014, filed by the petitioner (which case has been disposed of today as infructuous, in view of subsequent developments leading to this writ petition) directing the Upa Lok Ayukta to consider the question of maintainability and pass an order, the matter has been elaborately considered by the Upa Lok Ayukta, who passed Ext.P2 order dated 11.11.2014. According to the Upa Lok Ayukta, even though there is no such suo motu power upon the 'Lok Ayukta' under Section 7(1) of the Act, such power is discernible as flowing from Section 7(2) upon the Upa Lok Ayukta, in view of the specific wordings in the said sub section. Reference is also made to the relevant provision in the Karnataka Lok Ayukta Act, 1984. Placing reliance on the second limb of Section 7(2), it is stated that, such suo motu power can be exercised 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.** W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -5- 4. Section 7(1) of the Act confers power upon the 'Lok Ayukta' in respect of higher level authorities and in respect of others concerned, who do not come within the purview of Section 7(1), the power is vested upon the 'Upa Lok Ayukt' under Section 7(2). But the power conferred upon the Lok Ayukta under the Karnataka Lok Ayukta Act, 1984, by virtue of sub clause (b) of Section 7(1) is conspicuously absent in the case of the Kerala Lok Ayukta Act, 1999; leading to the inference drawn by the Upa Lok Ayukta, as per Ext. P2, to the effect that even though the Statute does not contemplate any such suo motu power upon the Lok Ayukta, it is available to be exercised by the 'Upa Lok Ayukta'. Prima facie, going by the wordings under Section 7(2), it could be possible to contend that such power is vested upon the Upa Lok Ayukta. But, when no such power is vested upon the Lok Ayukta under the Act, whether it is an inadvertent omission or a conscious act or draftsman's error is a matter to be considered, for which a proper counter affidavit has to be filed by the third respondent/State as well. It is also seen, that the second limb of Section 7(2) was not specifically brought to the notice of the Division Bench, while the decision was rendered in **Ramachandran Master vs. Kerala Lok Ayukta (2006(4)KLT 166)** . In the above circumstance, this Court finds that, it would only be appropriate to cause the matter to be considered by a Division Bench for authenticity and to declare the law in this regard. Accordingly, the Registry is directed to place the matter before the Hon'ble the Acting Chief Justice for appropriate W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -6- orders.” 3. Being aggrieved by the suo motu proceedings initiated by the Upa Lok Ayukta on the basis of a news item published in ‘Malayala Manorama’ daily dated 04.07.2014, raising certain allegations in the matter of awarding moderation marks for securing a ‘Class’ in M. A. Sociology (SDE) examination conducted by the University of Kerala in July / August 2012, W. P. (C) No. 32030 of 2014 has been filed. 4. W. P. (C) No. 23787 of 2016 has been filed challenging the suo motu proceedings initiated by the Upa Lok Ayukta, on the basis of a news item reported in ‘Mathrubhumi’ daily dated 03.07.2014, raising certain allegations regarding mal-practice and corruption in awarding marks by a Teacher of a Self Financing Engineering College, in collusion with certain employees of the University of Kerala, by substituting answer paper entrusted with her for revaluation, with new answer papers, for certain students in the 7[th] semester examination of B.Tech Electrical and Electronics examination conducted in June 2013. 5. As both the writ petitions are filed raising the question as to W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -7- whether the Kerala Lok Ayukta has power to initiate suo motu proceedings, they are taken up together and disposed of by this common judgment. 6. The question as to whether Kerala Lok Ayukta has powers to initiate suo motu proceedings, has been considered by a Hon'ble Division Bench of this Court in **Ramachandran Master v. Kerala Lok Ayukta** reported in **2006 (4) KLT 166** wherein, the Division Bench in paragraph Nos. 18, 23 and 27 ordered thus:- “18. The cumulative reading of the provisions of the Act and Rules as referred to above would clearly manifest that the Lok Ayukta is the person appointed under the Act to conduct investigations and inquiries, has necessarily to act under the provisions of the Act. When the Lok Ayukta may act on a complaint received by him or Upa-Lok Ayukta, the complaint has to be such which is under the Act and sub-s.(2) of S.9 dealing with provisions related to complaints and investigations clearly mentions that such a complaint has to be in such form and in such manner as may be prescribed. The word ‘prescribed’ has been defined in clause (n) of S.2 to mean prescribed by Rules made under the Act. The Government, by virtue of powers conferred upon it under S.23 of the Act, has prescribed the form and manner in which a complaint has to be made. The same is as per the Schedule reproduced above. The complaint which may be W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -8- presented to the Lok Ayukta under section has to be, as far as practicable, in accordance with the form set out in the Schedule. It is further to be accompanied by an affidavit and further that a defective complaint, if not cured, has to be rejected. Based on the provisions of the Act and Rules as produced above, this Court is in a position to return a firm finding that the Lok Ayukta can enter upon an investigation only on a written complaint and further that such a complaint, as far as practicable,has to be as provided under the Schedule, which not only contains a declaration to the effect as mentioned above, but has also to be supported by an affidavit. A complaint which may not comply with the requirements of the Act and Rules cannot be entertained and thus has to be rejected, even though by virtue of the proviso appended to S.9 an opportunity to cure the defects has to be given to the complainant. If that be so, it has to be held further that the Lok Ayukta would have no power to conduct any investigation with respect to any matter without a complaint as envisaged under the rules. The Lok Ayukta would, thus, have no suo motu powers to conduct any investigation. It has no jurisdiction to investigate grievance sought to be ventilated or projected in anonymous or pseudonymous letters, newspaper reports or a letter of complaint as well. We may mention that during the course of arguments the contention raised by the learned counsel representing the petitioners that the provisions contained in the Act and Rules would not confer any suo motu power on the Lok Ayukta to proceed to investigate was not much disputed, even though what was sought to be projected by the learned counsel representing the Lok Ayukta was that the W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -9- procedural wrangles cannot be permitted to thwart the object of the legislation which is to eradicate corruption and mal administration in public life. 23. This Court is of the considered opinion that whereas it is indeed the legislative intent in enacting the Act of 1999 to eradicate corruption as also mal administration in public life, the object of the Act is also that the faith of the people in the administration is not lost and innocent politicians or bureaucrats are not subjected to humiliation and harassment. The Lok Ayukta, in our considered view, would have no jurisdiction to enter into inquiry or investigation when it may proceed on the basis of the complaint received from any person unless the complaint is in the form and manner as prescribed in the Rules fully detailed above. No doubt, a defective complaint can be rejected if it is not cured after giving the complainant a chance to do so, but, if the same is not either in the prescribed form with the declaration as mentioned above and further supported by an affidavit or if not cured as mentioned above, there would be no jurisdiction with the Lok Ayukta to proceed in the matter. If this safeguard is not strictly adhered to, the forum of Lok Ayukta may become a store house of unnecessary, baseless, false and frivolous litigations. There is no dearth of persons actuated because of enmity, jealousy and other human evil propensities in lodging false complaints. It would be travesty of justice if on the basis of such complaints innocent office holders are maligned and their reputation damaged beyond redemption. W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -10- 27. In view of the discussion as made above, we hold that the Lok Ayukta exercising powers under the Act of 1999 has no suo motu powers to conduct any investigation with regard to matters complained of and further that no inquiry or investigation can be entered by the Lok Ayukta on an anonymous or pseudonymous letters, newspaper reports or even a letter of complaint which may be received without complying with the necessary procedure as enshrined under the various provisions of the Act and Rules of 1999. While holding so, we may, however, observe that in the event the letter containing allegations is not as envisaged under the Act, the Lok Ayukta may ask the complainant, if the complaint is not anonymous or pseudonymous but by a known person, to cure the defects or support the contents of his complaint in the manner mentioned in the format of the Rules reproduced above and if the defects may be cured so as to constitute a ‘complaint’ within the meaning of the Act and Rules, the Lok Ayukta would have jurisdiction to proceed with the matter. He may also proceed on the basis of newspaper reports if the Editor or the News Correspondent through whom the news has been published, is called and asked to give complaint as envisaged in the Rules supported by a declaration and affidavit. In view of our finding that the Lok Ayukta has no power to inquire or investigate or to commence proceedings suo motu or on the basis of any anonymous or pseudonymous letters or complaints which are not as per format and are not even cured after giving a chance to do so, the proceedings before the Lok Ayukta on the basis of newspaper reports and letter of complaint, are quashed.” W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 **==> picture [21 x 9] intentionally omitted <==** 7. Following the abovesaid decision, by judgment dated 07.02.2023 in W. P. (C) Nos. 27151 and 29137 of 2013, we have set aside the orders impugned therein. On the facts and circumstances of the cases, it could be deduced that without complaint filed by anybody, Lok Ayukta ought not have issued order dated 11.11.2014 in complaint No. 992 of 2014 and order dated 04.07.2014 in complaint No. 993 of 2014, and in such circumstances, the decisions cited (supra), squarely applies to the cases on hand. Following the same, the impugned orders are set aside. Accordingly, the writ petitions are allowed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -12- ## **`APPENDIX OF WP(C) 32030/2014`** |**`PETITIONER`**|**`EXHIBITS`**| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF INTERIM ORDER OF THIS`**| ||**`HON'BLE COURT DATED 5/11/2014 IN WPC`**| ||**`NO.28125/2014`**| |**`EXHIBIT P2`**|**`TRUE COPY OF THE ORDER DATED 11/11/2014`**| ||**`OF THE UPA LOK AYUKTA IN COMPLAINT`**| ||**`NO.992/14`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE NOTICE ALONG WITH`**| ||**`PROCEEDINGS IN COMPLAINT NO.992/14 OF`**| ||**`KERALA LOK AYUKTA`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE SUSPENSION ORDER OF THE`**| ||**`2ND RESPONDENT DATED 5/7/2014`**| |**`EXHIBIT P5`**|**`TRUE COPY OF THE MEMO OF CHARGES`**| |**`EXHIBIT P6`**|**`TRUE COPY OF THE STATEMENT OF DEFENCE`**| |**`EXHIBIT P7`**|**`TRUE COPY OF THE ORDER APPOINTING`**| ||**`ENQUIRY OFFICER.`**| |**`EXHIBIT P8`**|**`TRUE COPY OF THE HEARING NOTICE`**| |**`EXHIBIT P9`**|**`TRUE COPY OF THE STATEMENT FILED BY THE`**| ||**`2ND RESPONDENT BEFORE THE UPA LOK AYUTHA`**| W. P. (C) Nos. 32030 of 2014 & 23787 of 2016 -13- ## **`APPENDIX OF WP(C) 23787/2016`** ``` PETITIONER EXHIBITS EXHIBIT P1.COPY OF THE NOTICE DATED 23.5.15. EXHIBIT P2.COPY OF THE SUSPENSION ORDER OF THE 2ND RESPONDENT DATED 5.7.14. EXHIBIT P3.COPY OF THE FIR NO. 870/14. ```