K. Sadanandan v. Abdul Hameed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **& THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939** **WA.No. 1133 of 2012 () IN WP(C).4868/2009 -------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 4868/2009 of HIGH COURT OF KERALA DATED 09-02-2012** **APPELLANT(S)/APPELLANT/IST RESPONDENT:** **-------------------------------------** ## **K. SADANANDAN** **AMBADIYIL NEW BUNGALOW, HOUSE NO.IV, 335, M.G.ROAD, ADOOR P.O., PATHANAMTHITTA.** **BY ADV. SRI.BECHU KURIAN THOMAS** **RESPONDENT(S):** **--------------** **1. ABDUL HAMEED** **ASSISTANT ENGINEER, PWD ROADS SECTION, SHASTAMCOTTA, KOLLAM, REP. BY POWER OF ATTORNEY HOLDER JUMAILATH BEEGUM, W/O.ABDUL HAMEED, AGED 42, RESIDING AT MELEVILAYIL, THIRIPPILAZHIKOM KUNDARA, KOLLAM-691 001.** **2. ASSISTANT EXECUTIVE ENGINEER PWD (ROADS) SUB DIVISION, KARUNAGAPALLY-690 544.** **3. UPA-LOK AYUKTA THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY.** **RR1 BY ADV. SMT.S.LEELA RR1 BY ADV. SRI.B.VINOD R BY SRI. P. MARTIN JOSE R BY GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** **WA.No. 1133 of 2012** **-2-** ## **APPELLANTS' ANNEXURES** ## **ANNEXURES PRODUCED ALONG WITH I.A.NO.1037/2017** **ANNEXURE A1: A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14.07.2006 ANNEXURE A2: A TRUE COPY OF LETTER DATED 06.02.2006 ANNEXURE A3: A TRUE COPY OF THE MEMO DATED 06.02.2006 ISSUED TO THE FIRST RESPONDENT ANNEXURE A4: A TRUE COPY OF THE CERTIFICATE ANNEXURE A5: A TRUE COPY OF THE APPLICATION DATED 09.01.2008 ANNEXURE A6: A TRUE COPY OF THE MEMO ALONG WITH REPORT FILED BY THE RESPONDENT STATE IN WP(C) NO.34077/2005 ANNEXURE A7: A TRUE COPY OF LETTER DATED 16.11.2006 ANNEXURES PRODUCED ALONG WITH THE COUNTER AFFIDAVIT** **ANNEXURE R1(A): A TRUE COPY OF THE GO(RT) NO.298/12/PWD DATED 27/02/2012 ANNEXURE R1(B): TRUE COPY OF THE LETTER DATED 06-11-1998 OF THE ASSISTANT ENGINEER, PWD ROADS SECTIN SASTHAMCOTTAH TO THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS DIVISION KARUNAGAPALLY** ## **RESPONDENTS' ANNEXURES** ## **NIL** ## **// TRUE COPY //** **PA TO JUDGE** ## **K.SURENDRA MOHAN & P.SOMARAJAN, JJ. --------------------------------------------W.A. No.1133 of 2012 ---------------------------------------------Dated this the 21[st] day of August, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. The first respondent in W.P.(C) No.4686 of 2009 is in appeal against the judgment of the learned Single Judge dated 09.02.2012. As per the judgment appealed against, the Writ Petition filed by the first respondent herein has been allowed and exhibit P10 report of the Upa Lok Ayukta dated 14.11.2008 in Complaint No.1492 of 2006 has been set aside. The complaint was filed by the appellant herein. 2. The appellant had taken on contract, a work by name “Budget Work 2003-04 Improvements to 7[th] Mile A.S. Road to Cheekkalkadavu Road from Ch.0/000 to 6/800 km, as per an agreement dated 26.04.2004. According to the appellant, he had completed the work in accordance with the directions of the departmental officials on 27.05.2005. He had also successfully completed extra work to the extent of more than 25% of the probable amount of contract, as ## -:2:- ## W.A. No.1133 of 2012 directed by the Departmental Officials. After completion of the work, final measurements were taken and recorded in the measurement book No.387 of 1997. It was alleged that, during the execution of the work, the first respondent who was the Assistant Engineer at that time had sought for several favours from the appellant. According to the appellant, the first respondent wanted granite metal from the appellant's crusher unit valued at 33,850/- for the₹ construction of his building. He also received an amount of ₹69,500/- as loan from the appellant. After the work was completed, an amount of Rupees four lakhs was demanded as bribe to prepare the final bill. The first respondent also wanted the loan amount of 69,000/- and the value of₹ materials supplied to be adjusted from the amount that was demanded as bribe. Since the amount was not paid, preparation and sanction of the final bill was delayed. Though the Executive Engineer and the Assistant Executive Engineer had directed the first respondent to sanction the bill, he did not oblige. Thereafter, the appellant filed the ## -:3:- ## W.A. No.1133 of 2012 Writ Petition before this Court complaining of the delay in submission of the final bill. Thereupon, the first respondent had set up a case that the work had not been completed. Therefore, the appellant sought for the recovery of an amount of Rupees one lakh as compensation from the first respondent. 4. The first respondent contested the proceedings contending that there was no delay in submission of the final bill as alleged. According to the first respondent, the work included the road portion up to Ch.6/800. The work done by the appellant was only up to Ch.5/650. Therefore, it was contended that, the work was not completed. It was pointed out that the work included construction of drainage, widening, filling, metalling and tarring of roads etc. Therefore, the allegation that the appellant had undertaken additional works was wrong. According to the first respondent, the measurements of the work done were not taken for the reason that the work done had not been completed. Local MLA had also given a letter requesting ## -:4:- ## W.A. No.1133 of 2012 that the final bill may not be passed without the entire work being completed. The allegations regarding the supply of materials, receipt of an amount as loan and demanding of bribe of Rupees four lakhs were denied. It was in view of the fact that, the work had not been completed in full that measurements had not been taken and the final bill not prepared. 5. The Upa Lok Ayukta considered the complaint in the context of the contentions put forward by the parties and found that there was inordinate delay in submitting the final bill. In view of the above, as per exhibit P10 report, the Upa Lok Ayukta recommended initiation of departmental action against the respondent for his willful negligence and undue delay in preparing the final bill. The first respondent was further directed to pay an amount of ₹25,000/- as compensation to the appellant herein and also required the Government to intimate the action taken on the report, within a period of three months of the date of receipt of a copy thereof. It was aggrieved by the said ## -:5:- ## W.A. No.1133 of 2012 report that the first respondent had filed W.P.(C) No.4868 of 2009. 6. The learned Single Judge considered the Writ Petition along with W.P.(C) No.31362 of 2010 filed by the first respondent, noted that the appellant had earlier approached this Court by filing a Writ Petition seeking a direction for settlement of his final bill and that the same was closed without prejudice to his right to file a civil suit for realisation of the amount that was still remaining payable to him. Accordingly, O.S.No.937 of 2009 filed by the appellant was pending before the Sub Court, Kollam at that time. Placing reliance on the decision of the Single Bench in **George v. Saralakumari** [2007 (4) KLT 924] and **State of Kerala v. Leela** [2009(3) KLT SN 41] set aside exhibit P10 report of the Upa Lok Ayukta has been set aside. In W.P.(C) No.31362 of 2010, the learned Single Judge found that a memo of charges had been issued to the first respondent, that he had preferred objections to the charges and that a hearing had been conducted. A report ## -:6:- ## W.A. No.1133 of 2012 submitted in the said proceedings was also referred to since the enquiry had not been completed. The learned Single Judge directed the State Government to complete the proceedings initiated against the first respondent as per the memo of charges. Though both the Writ Petitions were disposed of by the learned Single Judge by the common judgment appealed against, we notice that no appeal has been preferred against the judgment in W.P.(C) No.31362 of 2010. 7. Heard. According to the counsel for the appellant, the learned Single Judge seriously erred in quashing exhibit P10 finding that the Upa Lok Ayukta has exceeded its powers. The counsel has taken pains to point out that, the complaint of the appellant revealed the existence of a “grievance” as defined by Section 2(h) of the Kerala Lok Ayukta Act, 1999(hereinafter referred to as 'the Act' for short). Going by the definition of 'maladministration' under Section 2(k) of the Act, the delay caused by the first respondent in preparing the final bill was a matter coming ## -:7:- ## W.A. No.1133 of 2012 within the scope of the jurisdiction of Upa Lokayukta. The learned Single Judge has misapplied the dictum in **George v. Saralakumari** (Supra) to reach conclusions that are erroneous and unsustainable. Referring to exhibit P10, it is contended by the learned counsel that, what was contained therein was only a recommendation that was perfectly within the jurisdiction of the Upa Lok Ayukta conferred by Section 12 of the Act. Therefore, the counsel seeks interference with the judgment appealed against. 8. According to I.V.Pramod who appears for the first respondent on the other hand, final bill had not been prepared and submitted for the only reason that the work had not been completed in full. There is no provision for preparing a bill in respect of only a part of the work that had been completed. Our attention is drawn to the fact that, the work awarded was with respect to Ch.0/000 to 6/800 km. However, admittedly the appellant has completed the work only from Ch.0/00 to 5/650 km. It is pointed out by the learned counsel that all the other ## -:8:- ## W.A. No.1133 of 2012 allegations regarding the demand of bribe had remained unsubstantiated even before the Upa Lok Ayukta. Since no appeal had been filed by the appellant against the judgment in W.P.(C) No.31362 of 2010, it is pointed out by the learned counsel that the Government had continued the proceedings initiated against the first respondent and have completed the same, exonerating him of the charges. A copy of the GO(Rt) No.298/12/PWD dated 27.02.2012 has been handed over to us in Court, in support of the above contention. According to the learned counsel, the said Government Order was not the subject matter of challenge before any authority by any person and has therefore become final. Consequently, the first respondent who has been exonerated of the charges levelled against him cannot be held liable for the allegations made by the appellant, in these proceedings. The learned Single Judge has rightly interfered with exhibit P10 and quashed the same for the reason that the report exceeds the powers of the Upa Lok Ayukta. Therefore, it is contended that there are absolutely ## -:9:- ## W.A. No.1133 of 2012 no grounds to interfere with the judgment appealed against. 9. Heard. The complaint of the appellant before the Upa Lok Ayukta was that though he had completed the work that had been undertaken by him on 25.05.2005, final bill in respect thereof had not been prepared and submitted by the first respondent, deliberately and without any justification on extraneous considerations. It was alleged that, there were demands of illegal gratification from the side of the first respondent, which the appellant had not met. Therefore, the contention was that, the case disclosed an instance of “maladministration” as defined by section 2 (k) of the Act. According to the learned counsel, the grievance of the appellant is one that comes within the scope of the said expression contained in Section 2(h) of Act. Therefore, it is contended that the Upa Lok Ayukta had sufficient powers to grant the relief in exhibit P10. Going by the definition of mal-administration in Section 2(k) and that of grievance in Section 2(h), there cannot be any doubt that the complaint of the appellant comes within the scope ## -:10:- ## W.A. No.1133 of 2012 of the said expression. However, what was under challenge in the Writ Petition was the relief that was granted by exhibit P10. We notice that in exhibit P10, the first recommendation was to initiate disciplinary action against the first respondent for his wilful negligence and undue delay in preparing the final bill for the work done by the appellant. The question as to whether disciplinary action should be initiated against an employee is a matter that has to be decided by the disciplinary authority. Therefore, the recommendation ought to have been, to the competent authority to consider whether in view of the findings in exhibit P10, it was necessary to initiate disciplinary action against the first respondent. It has been held by this Court that, going by the wording of Section 12 no power to issue positive directions has been conferred on the Lok Ayukta and what is contemplated by Section 12 is submission of a report on which, appropriate action is to be taken. In view of the above, we do not find any infirmity in the conclusion of the learned Single Judge that Upa Lok Ayukta has ## -:11:- ## W.A. No.1133 of 2012 exceeded its authority in directing initiation of disciplinary action against the first respondent. In the above view of the matter, we do not find any grounds to interfere with the judgment of the learned Single Judge. 10. Since W.P.(C) No.4868 of 2009 and 31362 of 2010 were disposed of by the common judgment dated 09.02.2012, the action of the appellant in preferring an appeal with respect to the judgment in W.P.(C) No.4868 of 2009 alone, has given rise to a situation where the common judgment has become final in respect of W.P.(C) No.31362 of 2010. The Supreme Court has held that in such cases the principles of res judicata would get attracted. Apart from the above, on the basis of the direction issued by the learned Single Judge in W.P.(C) No.31362 of 2010 action initiated against the first respondent departmentally continued and has culminated in G.O.(Rt) No.298/12/PWD dated 27.02.2012. As per the Government Order, the first respondent has been exonerated of the charges levelled against him. With respect to the claim for additional ## -:12:- ## W.A. No.1133 of 2012 amount made by the appellant, as already noticed above, O.S.No.937 of 2009 is pending before the Sub court, Kollam. Therefore, it is for the appellant to work out his remedies in the said suit. The factual scenario being as stated above, we find no grounds to interfere with the judgment of the learned Single Judge. The Writ Appeal is accordingly dismissed. **Sd/K.SURENDRA MOHAN JUDGE** **Sd/P.SOMARAJAN JUDGE** kkj