Head Mistress, Government Higher Secondary School, Kottody v. Kerala Lok Ayukta and Others

W.P.C.22631/19 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **WP(C).No.22631 OF 2019(D)** ## **PETITIONER/S:** - **1 THE HEAD MISTRESS, GOVERNMENT HIGHER SECONDARY SCHOOL, KOTTODY, KANHANGAD, KASARAGOD DISTRICT.** - **2 THE BLOCK PROGRAMME OFFICER, PADANNAKKAD, KANHANGAD.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD.** **BY SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER** ## **RESPONDENT/S:** |**1**|**THE KERALA LOK AYUKTA,**| |---|---| ||**REPRESENTED BY THE REGISTRAR, VIKAS BHAVAN,**| ||**LEGISLATURE COMPLEX, THIRUVANANTHAPURAM-695 033.**| |**2**|**K.M.LATHIKA,**| ||**HEADMISTRESS (RTD), MAANAS, NEAR G.U.P.S MATTANNUR,**| ||**KANNUR DISTRICT, PIN-670 702.**| |**3**|**AJAYA KUMAR,**| ||**BLOCK PROJECT OFFICER (DRC), PADANNAKKAD,**| ||**KANHANGAD, KASARAGOD DISTRICT-671 315.**| |**4**|**RAJANI,**| ||**ACCOUNTANT, BLOCK PROJECT OFFICE (SSA BRC),**| ||**PADANNAKKAD, KASARAGOD DISTRICT-671 315.**| ||**R2 BY ADV. SMT.T.B.REMANI**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.22631/19 2 ## **JUDGMENT** ## **A.M.Shaffique, J.** This writ petition is filed by the Head Mistress of Government Higher Secondary School, Kottody and others challenging an order passed by the Kerala Lok Ayukta. By the impugned order dated 16.07.2018 the Lok Ayukta issued following directions: “8. Therefore it is held that the complainant is entitled to get interest for the delayed payment of her DCRG. The Department of Higher Education shall pay interest to the complainant at the rate of 6% on the amount of DCRG for the period from July 1, 2014 till the date of payment. 9. It is made clear that it will be open to the Department/Government to recover the said amount from the officers responsible for the delay after instituting a proper enquiry, of course after affording sufficient opportunity of being heard to the officers concerned. However the amount as directed above shall be released to the complainant within two months from the date of receipt of a copy of this order. 10. An Action Taken Report shall be filed by respondent No.5 before this forum on or before 09.10.2018.” ## 2. The writ petitioners challenged the impugned order W.P.C.22631/19 3 contending that the Lok Ayukta has no jurisdiction to issue such an order imposing liability to pay interest on the Department of Higher Education at the rate of 6% per annum on the amount of DCRG from 01.07.2014 till the date of payment. The learned Government Pleader appearing on behalf of the appellants placed reliance on a judgment of this Court in **State of Kerala v. Bernard [2002 (3) KLT 254]** with specific reference to paragraph Nos.8 and 14, which reads as under: “8. A survey of the relevant provisions leads us to the conclusion that, barring the area of investigation of a complaint involving “allegation”, which in other words means, a complaint made with regard to corruption, improper motives, nepotism, favouritism etc., as defined in the expression 'allegation' in S.2(b) and covered by S.14 of the Act, the Lok Ayukta has neither any adjudicatory power nor the power to enforce his recommendation. He has no power of execution of his orders. In fact, it would be inappropriate to call the report/recommendation made by the Lok Ayukta as an “Order”. Though the Lok Ayukta has been invested with certain powers of the Civil Court for the purpose of enabling him to conduct the investigation with greater efficacy, we do not think that thereby the Lok Ayukta can be equated to a court. Nor do we think that investing of the power to punish for contempt under S.19 if the Act, makes any difference to the situation. S.19 of the Act empowers initiation of contempt proceedings under the Contempt of Courts Act, 1971. It is trite law that, there cannot be a contempt of court if the court does not make an enforceable order. It is only when a binding order, which is executable, is made and the party who is required to implement it either fails or refuses to do so, that contempt can be said to have arisen. Unless there is a provision to make such W.P.C.22631/19 4 an order, the power under the Contempt of Court Act as invested in the Lok Ayukta by S.19 of the Act would make no difference.” “14. Apart from the fact that the impugned order appears to be beyond the jurisdiction of the Lok Ayukta, we find the order even otherwise unsustainable. We have not been shown any provision under which interest becomes automatically payable for delayed payments. May be, as an equitable principle, the person entitled to disbursement of money on a particular date should be compensated by way of interest for delayed payment, when there is no satisfactory explanation for the delay. The question, however, is, is the Lok Ayukta empowered to pass such an order? In the first place, the Lok Ayukta has no jurisdiction to make an adjudicatory 'order'. Secondly, the power to direct payment of interest on amounts adjudicated and found to be payable must be found in a statute. S.34 of the Civil Procedure Code read with the Interest Act, empowers the Civil Court to make an order awarding interest on the delayed payments found due after adjudication. Inasmuch as the Lok Aukta's power is neither adjudicatory, nor is he empowered to make a binding order, that provision is of no avail. The only legitimate exercise of the Lok Ayuka on the complaint of the respondent could have been to see if, in equity, some compensation, by way of interest or otherwise, be paid to the respondent. This could have been done only upon a clear finding that there was unexplained delay in disbursement on account of default or negligence on the part of the concerned public servant/s in the discharge of duties. We find that the only reason giving for directing payment of interest was that the claims had been admitted by the District Treassury Officer. There is no apportionment of the blame, which was vitally necessary if the equitable claim to interest or compensation was to be entertained. In the circumstances, we are of the view that, without making a finding that there was delay or default W.P.C.22631/19 5 for no good reason on the part of the District Treassury Officer or any other public servant in making the payment of the terminal dues to the respondent, even the report or recommendation based on equity for payment of interest could not have been made by the Lok Ayukta.” 3. This is a case in which the 2[nd] respondent herein had approached the Lok Ayukta inter alia contending that she retired from service on 31.03.2014, while working as Head Mistress. She got all other retirement benefits except DCRG after retirement. However, DCRG was released on 07.02.2015. Alleging that there was willful and deliberate inaction on the part of respondents 3 and 4, that is Block Project Officer (DRC) and Accountant of the Block Project Office, the complaint came to be filed. Subsequently, respondents 3 to 5 who are the writ petitioners herein had been impleaded suo motu. The Lok Ayukta having considered the aforesaid aspect, found that the pleadings in the complaint were absolutely sketchy and no materials have been produced to arrive at a conclusion that there is maladministration. However, having observed that there is delay in payment, issued aforesaid direction. 4. Primarily, the issue is covered by the judgment of this court in **Bernard** (supra). Lok Ayukta has no jurisdiction to direct payment of interest as it does not have the power to adjudicate on liability to pay interest. If there is any maladministration, it is open for the Lok W.P.C.22631/19 6 Ayukta to issue appropriate recommendation and even direct compensation to be recovered from the delinquent officers. But there is no finding in this case with reference to any maladministration. In fact, Lok Ayukta had found that, with the available materials it is not possible to take such a view. 5. The learned counsel for the respondent further placed reliance on the statement filed by the 2[nd] respondent stating that the delay had occurred in the office, which is stated especially in paragraph 3 or Ext.P2, which reads as under. “3. Smt.Lathika has not submitted the details of the institutions where she had worked for the last three years prior to the retirement, on time which is a sheer lapse on the part by the complainant. She had submitted the details only on 23.07.2014 based on the letter sent from this office on 17.07.2014. After that this office sent letter on 28.08.2014 and 27.10.2014, to the Headmaster, Government Higher Secondary School, Kottodi requesting to furnish the LC/NLC in respect of the complaint. NLC was received from the Headmaster on 07.11.2014 on this office.” 6. But it is relevant note that the Lok Ayukta after going through the pleadings of the parties have arrived at a clear finding that with the available materials, it may not be possible to arrive at a conclusion that there was negligence on the part of the respondents in disbursing the DCRG. In such circumstances, we are of the view that W.P.C.22631/19 7 the order of the Lok Ayukta has to be set aside. In the result, this writ petition is allowed, setting aside Ext.P3 order passed by the Lok Ayukta. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** DG **Sd/A.M.SHAFFIQUE JUDGE** W.P.C.22631/19 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE COMPLAINT NO 832/2015 D FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT DATED 23.2.2015 ALONG WITH ITS ENGLISH TRANSLATION** **EXHIBIT P2 A TRUE COPY OF THE STATEMENT FILED BY THE 3RD PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION** **EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT LOK AYUKTA DATED 16.7.2018 IN COMPLAINT NO 832/2015 D.**