Institute of Human Resources Development (IHRD) & Dr. Suresh Kumar P. v. Dr. T.K. Mani

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 WP(C) NO. 17943 OF 2022 ``` ## **`PETITIONERS:`** ``` 1THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT-IHRD TC.86/1949(2), NH BYE PASS JUNCTION, CHAKKAI, PETTAH P.O., THIRUVANANTHAPURAM– 695 024, REPRESENTED BY ITS DIRECTOR. ``` ``` 2DR. SURESH KUMAR P. DIRECTOR, IHRD, TC.86/1949(2), NH BYE PASS JUNCTION,CHAKKAI, PETTAH P.O., THIRUVANANTHAPURAM, PIN – 695 024 ``` ``` BY ADVS. DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR R.RAJANANDINI MENON SHAHNAS K.P ABHIRAMI S. ``` ## **`RESPONDENT:`** ``` DR. T.K.MANI S/O. LATE T.G KUMARAN, THUNDIYIL VEEDU, SNDP ROAD, PALLILAMKARA, HMT COLONY P.O., KALAMASSERY, ERNAKULAM, PIN – 683 503. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **WP(C).17943/2022** **2** ## **JUDGMENT** Dated this the 6[th] day of June, 2022 ## **S. Manikumar, CJ** Instant writ petition is filed for the following reliefs: - “i. to issue a writ of certiorari calling for the records leading to the issuance of Exhibit P-5 notice dated 21.03.2022 by the Kerala Lok Ayukta and quash the same. - ii. issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the complaint filed by the respondent before the Lok Ayukta is not maintainable.” 2. Short facts leading to the filing of the writ petition are as under: 2.1. The Institute of Human Resources Development (IHRD), petitioner No.1 herein, is an autonomous educational institution, established by the Government of Kerala, in the year 1987, and registered under the provisions of Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. Second petitioner is its Director. Aggrieved by Exhibit-P5 **WP(C).17943/2022** **3** notice dated 21.03.2022, issued by the Kerala Lok Ayukta directing appearance of the 2[nd] petitioner on 7.6.2022 and to file statements, they have approached this Court. 2.2. Exhibit-P5 notice is issued based on a complaint made by the respondent herein, who was a former Principal of Model Engineering College, Ernakulam, under the 1[st] petitioner institution, seeking arrears of salary and such other benefits in respect of pay. 2.3. According to the petitioners, respondent entered the service on 16.07.1993 as an Assistant Professor and retired on 30.04.2012 as Principal. He preferred Exhibit-P1 complaint dated 06.12.2021 before the Kerala Lok Ayukta seeking to recalculate his salary by sanctioning the additional increment with retrospective effect and disburse the pending amount, in terms of salary arrears, to calculate and release salary arrears for the period 2006-2009, in accordance with the VI Pay Revision and interest and penalty interest for the delayed payment. 2.4. Petitioners have further stated that the respondent **WP(C).17943/2022** **4** herein has earlier approached this Court by filing W.P.(C) No.14123 of 2020 seeking for a direction to consider his representation for salary increment applicable to Ph.D holders and to re-fix the gratuity and salary increment. By judgment dated 28.07.2020, a learned single Judge directed the petitioners herein to reconsider and dispose of the representation made by the respondent. 2.5. Pursuant to the same, the second petitioner considered the representation and passed order dated 05.10.2020 (Exhibit-P3) wherein, it was stated that arrears of gratuity and admissible increment for acquisition of Ph.D program as per AICTE norms have already been paid to the respondent vide proceedings dated 24.07.2020 and 02.09.2010. 2.6. Subsequently, letter dated 22.12.2020 (Exhibit-P4) was sent to the respondent by the then Principal, Model Engineering College intimating that advance increment for acquisition acquiring Ph.D program as per AICTE norms has already been sanctioned to him along with similar Ph.D holders in IHRD **WP(C).17943/2022** **5** Engineering Colleges vide proceedings dated 2.9.2010 and the same was entered in the service book (P.No.41) of the respondent and authenticated. 2.7. While so, the petitioners have received the impugned notice dated 21.03.2022 (Exhibit-P5) directing for appearance on 7.6.2022, and to file statements. Hence, this writ petition. 3. Referring to Section 8 and clause (d) of the Second Schedule of the Kerala Lok Ayukta Act, 1999, petitioners have submitted that matters relating to appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants are not matters subject to investigation by the Lok Ayukta and that the Lok Ayukta cannot look into matters relating to pay and increments. Therefore, Exhibit-P5 notice issued by the Lok Ayukta is without jurisdiction and liable to be set aside. 4. In support of their contentions, petitioners have relied on the decisions in **University of Kerala v. N.R. Anil Kumar** [2020 (2) KLT 37], **Commissioner of Police, Tvm. and Others v. Abida Beevi and Another** [2016 (2) KHC 537] and **State of** **WP(C).17943/2022** **6** ## **Kerala v. Bernard** [2002 KHC 765]. 5. Heard Ms.Lakshmi Sreedhar, learned counsel for the petitioners and perused the pleadings and the material on record. 6. Exhibit P3 proceedings of the Director, Institute of Human Resources Development, dated 05.10.2020, is extracted hereunder: ## “ **Institute of Human Resources Development Prajo'e Towers, Vazhuthacaud Thiruvananthapuram-14** ## **PROCEEDINGS** IHRD - Model Engineering College, Ernakulam - Judgment dated 28.07.2020 of the Hon'ble High Court on the W.P(C) No.14123/2020 filed by Dr. T. K. Mani, formerly Principal, Model Engineering College, Emakulam - Complied with - Orders issued. ------------------------------------------------------------------------------------------------------ ## No.EA2/4881/2020/HRD Dated, Thiruvananthapuram, 5[th] October 2020 - ------------------------------------------------------------------------------------------------------ - Read: 1. Judgment dated 28.07.2020 of the Hon'ble High Court on the W.P(C) No. 14123/2020 filed by Dr. T. K. Mani formerly Principal, Model Engineering College, Ernakulam. 2. Request dated 24.08.2020 from Dr. T. K. Mani. 3. This office proceedings No. FinB2/9709/2012/HRD dated 21.07.2020. 4. Letter No. A6/867/2018/MEC dated 18.09.2020 from the Principal, Model Engineering College, Ernakulam. ## **ORDER** The Hon'ble High Court in the Judgment dated 28.07.2020 on the W.P.(C) No.14123/2020 filed by Dr. T. K. Mani formerly Principal, Model Engineering College, Ernakulam ordered to consider and dispose his representation dated 09.06.2020 in accordance with Law. The petition dated 9.06.2020 is considered that, an amount of **WP(C).17943/2022** **7** Rs.1,51,939/- (Rupees one lakh fifty one thousand nine hundred and thirty nine only) as excess salary drawn by him pertaining to wrong fixation of pay as reported by the Principal, Model Engineering College, Ernakulam who is the drawing and disbursing Officer of his salary in view of Accountant General audit. The said amount was deducted from the Gratuity amount sanctioned to him as per proceedings No.FinB2/9709/2012/HRD dated 29.09.2018. On the basis of the petition submitted by the petitioner with supporting documents, the Principal, Model Engineering College, Ernakulam has again verified the fixation statement with all relevant rules/records and found that, the excess amount drawn by the petitioner is only for Rs. 40,447/- (Rupees Forty thousand four hundred and forty seven only) and recommended this office to release the balance amount of Rs.1,11,492/- (Rupees one lakh eleven thousand four hundred and ninety two only). He also forwarded revised calculation statement with the details of pay due/drawn particulars. As recommended by the drawing and disbursing officer sanction has been accorded to him to release the balance amount due to Dr. T.K.Mani vide this office proceedings No.FinB2/9709/2012/HRD dated 21.07.2020. Accordingly, an amount of Rs.1,11,492/- (Rupees one lakh eleven thousand four hundred and ninety two only) due to the petitioner has been paid through SBI CUSAT Branch on 24.07.2020 and got acknowledged. 2. Further, the admissible advance increment for acquisition of his Ph.D programme as per AICTE norms have already paid to him as per this office proceedings No. EA2/9898/2010/HRD dated 02.09.2010. The delay caused in this regard was purely on administrative reasons and not intentional as alleged. 3. The Judgment dated 28.07.2020 of the Hon'ble High Court is thus complied with. **==> picture [114 x 38] intentionally omitted <==** 7. Exhibit-P5 is the impugned notice dated 21.03.2022 issued by the Kerala Lok Ayukta calling upon the Director, Institute of Human Resources Development to appear in person on 7.6.2022. Said notice reads thus: **WP(C).17943/2022** **8** ## “FORM II ## KERALA LOK AYUKTA COMPLAINT No. .....209/2021A....... Between Dr. T. K. Mani : Complainant And Dr. Suresh Kumar P., Director, Institute of Human Resource Development : Respondents To Dr. Suresh Kumar P. Take notice that you have been arrayed as sole respondent in the above mentioned Complaint filed before this Forum. After conducting preliminary enquiry, the Lok Ayukta/the Upa Lok Ayukta has taken cognizance of the Complaint and ordered investigation into the complaint. As per Section 10 of the Kerala Lok Ayukta Act, the Lok Ayukta or an Upa Lok Ayukta may, by a search warrant, authorize any Police Officer to conduct a search or carry out an inspection in accordance with the provisions of the Code of Criminal Procedure. Warrant issued in this respect shall, for all purposes, be deemed to be a warrant issued by a court under section 93 of the Code of Criminal Procedure. Under Section 14 of the Act, where, after investigation into a complaint involving allegations of Corruption, favouritism, lack of integrity the Lok Ayukta or an Upa Lok Ayukta is satisfied that the allegations against the public servant are substantiated; it is competent for the Lok Ayukta or the Upa Lok Ayukta to declare that the public servant concerned shall not continue to hold the **WP(C).17943/2022** **9** post held by him. You are directed to appear in person or through counsel at 10.30 a.m. On 7.6.2022. You are also directed to file statements (verified and attested statements) on or before the above date. Government officials arrayed as respondents in their official capacity shall file statements through the Senior Government Pleader attached to the office of the Special Attorney, Kerala Lok Ayukta. But officials arraigned eonominee by names will not be permitted to appear through Government Pleader unless there is specific government orders in that regard. Given under the hand seal of the office on the 21[st] day of March, 2022. By Order Sd/Deputy Registrar” ## 8. Section 8 of the Kerala Lok Ayukta Act, 1999 reads thus: “ **8. Matters not subject to investigation.** - (1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. (2) The Lok Ayukta or an Upa-Lok Ayukta shall not investigate,- (a) any action in respect of which a formal and public inquiry **WP(C).17943/2022** **10** has been ordered with the prior concurrence of the Lok Ayukta or an Upa-Lok Ayukta, as the case may be; - (b) any action in respect of a matter which has been referred to inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952); - (c) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that a complaint referred to in clause(c) may be entertained by the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause. (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa-Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima-facie be regarded as having been improperly exercised.” 9. Second Schedule to the Kerala Lok Ayukta Act, 1999 reads thus: “(a) Action taken for the purpose of investigating crime relating to the security of the State. **WP(C).17943/2022** **11** (b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a court or not. (c) Administrative action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligation. (d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other mattes relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. (e) Grant of honors and awards.” 10. Though a contention has been made that the respondent had already approached this court, by filing W.P. (C)No.14123 of 2020, to consider the representation, and pursuant to the judgment dated 28.07.2020 in the said writ petition, the same has been acted upon by giving a reply, the above statutory provisions, viz., Section 8 of the Kerala Lok Ayukta Act, 1999 read with the Second Schedule, empower the Lok Ayukta to investigate a complaint into the grievances relating to gratuity or any claims which arises on retirement, in **WP(C).17943/2022** **12** other words, a right to a retired person to make a complaint to the Lok Ayukta. 11. Merely because the respondent had already approached this court, to consider his representation, that will not take away his right under the statute. Petitioners can respond to the complaint. Judgments referred to by the learned counsel for the petitioners relate to appointment which is clearly excluded from the purview of the Lok Ayukta. For the reasons stated supra, we are of the view that the petitioners have not made out a _prima facie_ case to entertain the writ petition. Accordingly, writ petition is dismissed. No costs. Pending interlocutory applications, if any, shall stand closed. Sd/- **S. Manikumar Chief Justice** Sd/- **Basant Balaji Judge** ## **vpv** **WP(C).17943/2022** **13** ## **`APPENDIX OF WP(C) 17943/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P-1TRUE COPY OF THE COMPLAINT DATED 06/12/2021 MADE BY THE RESPONDENT. ``` ``` Exhibit P-2TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 28/07/2020 IN WPC NO. 14123/2020. ``` ``` Exhibit P-3TRUE COPY OF THE ORDER OF THE SECOND PETITIONER DATED 5/10/2020. ``` ``` Exhibit P-4TRUE COPY OF THE LETTER DATED 22/12/2020 ISSUED TO THE RESPONDENT BY THE THEN PRINCIPAL, MODEL ENGINEERING COLLEGE. ``` ``` Exhibit P-5TRUE COPY OF THE NOTICE DATED 21/03/2022 ISSUED BY THE KERALA LOK AYUKTA. ``` //true copy// P.A. to Judge