Kerala Financial Corporation v. Kerala Lok Ayukta and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940 WP(C).No. 5046 of 2014 ------------------------------- PETITIONER(S) -------------------- KERALA FINANCIAL CORPORATION HEAD OFFICE,VELLAYAMBALAM,THIRUVANANTHAPURAM 695 033 REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI, SC, KERALA FINANCIAL CORPORATION SRI.VENUGOPAL M.R., SC, KERALA FINANCIAL CORPORATION SMT. DHANYA VENUGOPAL RESPONDENT(S): ------------------------ 1. KERALA LOK AYUKTA LEGISLATIVE COMPLEX,THIRUVANANTHAPURAM, PIN 695 003, REPRESENTED BY ITS REGISTRAR. 2. SRI P GOPALAKRISHNA PILLAI B-17, UTHRADAM, S.S KOVILLANE, KOWDIAR,THIRUVANANTHAPURAM 695 003 3. SMT G YAMUNA, 'MAYA', BHAGAT SINGH ROAD, PETTAH, THIRUVANANTHAPURM 695 035 4. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001 R1 BY ADV. SMT.RENU. D.P., SC, LOK AYUKTA R2 BY SRI P GOPALAKRISHNA PILLAI (PARTY-IN-PERSON) R3 BY ADV. SRI.P.B.KRISHNAN R3 BY ADV. SRI.BINOY VASUDEVAN R4 BY SR. GOVERNMENT PLEADER SRI. ARAVINDAKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5046 of 2014 (E) APPENDIX ## PETITIONER(S)' EXHIBITS -----------------------------------EXHIBIT P1 TRUE COPY OF THE G.O(MS) NO 1174/01/FIN DATED 16-10-2001 - EXHIBIT P2 TRUE COPY OF THE REGULATONS OF PENSIONS TO EMPLOYEES AND OFFICERS OF THE KERALA FINANCIAL CORPORATION - EXHIBIT P3 TRUE COPY OF THE G.O(MS) NO 669/2001/FIN DATED 5-04-2001 - EXHIBIT P4 TRUE COPY OF THE LETTER NO. PENSION/226/02 DATED 03-06-2002 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT - EXHIBIT P5 TRUE COPY OF THE LETTER NO 29003/INFORMATION 2/2011/FIN DATED 27-04-2011 ISSUED FROM THE GOVERNMENT - EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE DISCUSSION BY THE SUB COMMITTEE WITH THE REPRESENTATIVES OF THE SERVICE ORGANIZATIONS HELD ON - 19-11-2004 - EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE MEEETING HELD ON 02-12-2004 - EXHIBIT P8 TRUE COPY OF THE FINANCIAL STATEMENT TAKEN FROM THE ANNUAL REPORT OF KERALA FINANCIAL CORPORATIOPN - EXHIBIT P9 TRUE COPY OF THE COMPLAINT DATED 19-10-2011 SUBMITTED BY THE 2ND AND 3RD RESPONDENT BEFORE THE 1ST RESPONDENT - EXHIBIT P10 TRUE COPY OF THE RELEVANT EXTRCT OF THE MINUTES OF THE MEETING OF THE BOARD OF DIRECTORS HELD ON 10-05-2002 - EXHIBIT P11 TRUE COPY OF THE STATEMENT DATED 14-03-2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - EXHIBIT P12 TRUE COPY OF THE STATEMENT DATED 13-08-2012 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT - EXHIBIT P13 TRUE COPY OF THE EXTRACT MINUTES OF THE 573[RD] BOARD MEETING HELD ON 4-12-2013 - EXHIBIT P14 TRUE COPY OF THE REPORT DATED 18-12-2013 IN COMPLAINT NO 2277/2011 OF THE 1ST RESPONDENT ## RESPONDENT'S EXHIBITS ------------------------------------ - EXHIBIT R2(a) TRUE COPY OF THE PENSION SCHEME IN KERALA STATE CO-OPERATIVE BANK. EXHIBIT R2(b) TRUE COPY OF THE BALANCE SHEET FOR THE PERIOD - EXHIBIT R2(c) TRUE COPY OF THE NEW PENSION SCHEME PROPOSED AND THE LETTER DATED 24.5.2014 - EXHIBIT R2(d) TRUE COPY OF THE INFORMATION RECEIVED UNDER RIGHT TO INFORMATION ACT DATED 17.6.2010 - EXHIBIT R2(e) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT FOR REVISION OF PAY ALLOWANCES OTHER BENEFITS DATED 30.5.2013. // TRUE COPY // P.A. TO JUDGE ## **Hrishikesh Roy, Ag. CJ & A.K. Jayasankaran Nambiar, J** ------------------------------------------------W.P(C). No. 5046 of 2014 (E) ------------------------------------------------Dated this the 19[th] day of July, 2018 ## J U D G M E N T ## A.K. Jayasankaran Nambiar, J The Kerala Financial Corporation is the petitioner in the instant writ petition, which impugns Ext.P14 report/order of the Kerala Lok Ayukta. By the said report, the Lok Ayukta, acting on a complaint by the second and third respondents in the writ petition, found that the Financial Corporation had earlier taken a decision for adopting a Pension Scheme for employees, which decision had received the approval of the Government of Kerala. Thereafter, when the Government of Kerala remitted the matter back to the Financial Corporation for the purpose of notifying the regulations in accordance with Section 48 of the State Financial Corporation Act, 1951, the Corporation reassessed its financial exposure in terms of the draft regulation, and finding that the Corporation would have to make a one time contribution of Rs.3.63 Crores to the Pension Fund, as against the amount of Rs.25 Lakhs that was earlier assessed, the Corporation resolved by Board Resolution dated 10.5.2002 (Ext.P10), not to go ahead with the Pension Scheme. The Lok Ayukta was of the view that, since the Financial Corporation was not against the implementation of the Pension Scheme to the employees of the Corporation, and only wanted to defer the decision to a later stage, and the decision that was taken to grant pension had the approval of the State Government, the Corporation could not now turn around and deny the complainant _**W.P(C).5046/2014**_ 2 and other similarly situated employees, the benefit of the pension scheme. On the said reasoning, the Lok Ayukta directed the redressal of the grievance of the petitioner and similarly situated officers, who retired from the office of the Corporation, by implementing, within three months from the date of the report of the Lok Ayukta, the Pension Scheme that had received the approval of the State Government. 2. In the writ petition, the grievance of the petitioner Financial Corporation is essentially that, the report/order of the Lok Ayukta, to the extent it directs implementation of the Pension Scheme, under circumstances where there is no finding in the report/order as regards any mal-administration on the part of the petitioner Corporation, is vitiated by a lack of jurisdiction in the Lok Ayukta to pass such an order. It is further pointed out that, the Lok Ayukta is not, at any rate, vested with the power to adjudicate upon a legal issue and issue any positive recommendation to implement the Pension Scheme, that too within a time frame. Reliance is placed on the decision of this Court in George v. Saralakumari [2007 (4) KLT 924] followed by Commissioner of Police, Thiruvananthapuram and Others v. Abida Beevi and Another [2016 (2) KHC 537] as also Sudha Devi.K v. District Collector, Thiruvananthapuram and others [2017 (2) KHC 850]. Learned counsel for the petitioner would also point out that there was inordinate delay on the part of the complainants in approaching the Lok Ayukta in 2011, aggrieved by the decision of the Board, dated 10.5.2002. It is further stated that, although there is a power in the Lok Ayukta to condone the delay beyond the period of five years, the said power had to be exercised for valid reasons, which in the instant case did not exist. 3. Per contra, Sri. P.B. Krishnan, learned counsel for the 3[rd] respondent would _**W.P(C).5046/2014**_ 3 point out that Ext.P14 report/order of the Lok Ayukta discusses those aspects that would point to a suggestion of mal-administration on the part of the petitioner Corporation, and to that extent it cannot be stated that there was no finding of maladministration as against the petitioner Corporation in the order of the Lok Ayukta. On the merits of the case before the Lok Ayukta, it is contended that, the petitioner Corporation had, through the decision taken for implementation of a pension scheme, and its action of forwarding the same to the State Government for its approval and thereafter obtaining the approval of the State Government, virtually initiated the proceedings contemplated under Section 48 of the State Financial Corporation Act, 1951 with regard to the power of the Board to make regulations in terms of the Act, especially with regard to establishment and maintenance of provident fund or other benefit funds for employees of the Corporation. It is stated that, notwithstanding that the Corporation did not, thereafter, comply with the specific provision of Section 48(3) of the Act and S.48 (A) of the Act dealing with the laying of rules and regulations before the State legislature, the petitioner Corporation was at any rate estopped from modifying their earlier decision to introduce the pension fund. It is also contended, based on reference to the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 read with the Employees provident Funds Scheme, 1952 as also the Employees' Pension Scheme, 1995, that the petitioner Corporation is one that obtained an exemption as envisaged under Section 17 of the Employees Provident Funds Act, on the finding that they were providing better benefits in terms of Provident Fund and Pension to their employees, in comparison to what the employees would have otherwise obtained under the Employees' Provident Fund and _**W.P(C).5046/2014**_ 4 Miscellaneous Provisions Act, and the Schemes framed thereunder, and hence, it was not open to the Corporation to thereafter withdraw from its decision to introduce a Pension Fund for the benefit of its employees. 4. The 2[nd] respondent, who appears in person would highlight the provisions of the Employees Provident Funds and Miscellaneous Provisions Act as also the Schemes framed thereunder and adopt the contentions of the learned counsel for the 3[rd] respondent. 5. Learned Senior Government Pleader, Sri. Aravindakumar Babu, on behalf of the 4[th] respondent, in addition to the contentions put forth by the learned counsel for the petitioner, Smt. Dhanya Venugopal, would point out that the Lok Ayukta erred in deciding the issue with regard to the claim by the 2[nd] and 3[rd] respondents for the benefit of a pension fund, as the said subject was excluded from the purview of jurisdiction of the Lok Ayukta under Section 8 of the Kerala Lok Ayukta Act, 1999 read with Second Schedule thereto. In particular, it is pointed out that under the second schedule, the Lok Ayukta can undertake an investigation only in cases of a complaints involving grievance in respect of any action that relates to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. In the instant case, it is submitted that the claim relates not to pension, but to the implementation of a pension fund and hence, the complainants did not, and could not, have a claim for pension in respect of a fund that had not yet been implemented by the Corporation. The said contention is raised as an additional point to highlight that the Lok Ayukta did not have jurisdiction to entertain the complaint preferred by the 2[nd] and 3[rd] respondents. _**W.P(C).5046/2014**_ 5 6. We have heard the learned counsel for the petitioner, Smt. Dhanya Venugopal, Sri. P. Gopalakrishna Pillai (2[nd] respondent), who appears in person, Sri. P.B. Krishnan, the learned counsel for the 3[rd] respondent and the learned Senior Government Pleader, Sri. Aravindakumar Babu for the 4[th] respondent. 7. On a consideration of the facts and circumstances of the case and the submissions made at the Bar, we find that the main challenge against the report/order of Lok Ayukta in the writ petition is with regard to the lack of jurisdiction in the Lok Ayukta to pass an order in the nature of Ext. P14. Taking note of the contentions advanced by the learned counsel for the petitioner as also the learned Senior Government Pleader, as noticed in an earlier part of this judgment, we are of the view that mal-administration on the part of the Financial Corporation was a jurisdictional fact the existence of which had to be found, so as to clothe the Lok Ayukta with the jurisdiction to investigate the matter further, and draw up a report in terms of the Act. This position is well settled through the decisions of this Court in George v. Saralakumari [2007 (4) KLT 924] as also in Commissioner of Police, Thiruvananthapuram and Others v. Abida Beevi and Another [2016 (2) KHC 537] . In George v. Saralakumari [2007 (4) KLT 924] it was stated thus in paragraph 28 : 28. As mentioned by me supra, the Lok Ayuktha can proceed from the stage of S.12(1) of the Act. Even if it is to make a report as such, it must be satisfied that there is a 'grievance' made out in the case in question, by reason of an 'injustice' or undue 'hardship' caused either to the complainant or to any other person and such injustice or undue hardship is in consequence of a 'maladministration'. In other words, the satisfaction of the Lok Ayuktha requisite in terms of S.12(1) of the Act must specifically relate to the existence of a 'mal-administration' having resulted in 'injustice' or 'undue hardship', as the case may be. Obviously, when a statutory authority is _**W.P(C).5046/2014**_ 6 empowered to make a report, which has also statutory consequences as such, the satisfaction requisite must be discernible from the proceedings which takes the shape of an 'order', as in the present case, or comes in the form of a report in terms of S.12(1) of the Act. It is here, that I am constrained to note that there is not a whisper in Ext.P3 that there has been any 'mal-administration', as the term is defined in S.2(k) of the Act, which brought about an 'injustice or undue hardship', as the case may be. Obviously, the satisfaction of the Lok Ayuktha regarding the existence of mal-administration is not an empty formality. If mal-administration is to be found, the public servant/servants, who are responsible for maladministration should also be identified. The provisions of the Act provide that such persons, who are responsible for the mal-administration, should be given notice and should also be heard by the Lok Ayuktha. Obviously, such notice and hearing of the concerned public servant, who is responsible for the mal-administration must be before the stage at which the Lok Ayuktha makes a report under S.12(1). In the instant case, there is no finding by the Lok Ayuktha in Ext.P3 that there has been any maladministration. There is also no finding that a public servant, who is identified as such, is responsible for such mal-administration. Consequently, I am of the view that there has been a jurisdictional error, which has vitiated Ext.P3. Similarly, in Commissioner of Police, Thiruvananthapuram and Others v. Abida Beevi and Another [2016 (2) KHC 537] paragraph 17 reads as follows : "17. In the cases before us, although in W.P.(C) No.23692 of 2005, the question of jurisdiction of the Lok Ayukta was challenged. But, the said question was not specifically answered by the learned Single Judge. However, the learned Single Judge proceeded to make the following observation :- “........Even assuming the Lok Ayukta has no jurisdiction, if the order passed by it renders justice, this Court need not interfere with it. If the complainant had approached this Court, this Court would have passed an order, directing to grant the reliefs granted as per Ext.P3 order.” Whereas, in W.P.(C) No.3616 of 2007 and connected _**W.P(C).5046/2014**_ 7 cases, the question of jurisdiction of Lok Ayukta was considered by the learned Single Judge. The learned Single Judge, after considering the scheme of 1999 Act, held that there has to be satisfaction of the Lok Ayukta that there is maladministration, which is a jurisdictional factor. The learned Single Judge held that in the absence of such finding by the Lok Ayukta regarding the existence of maladministration, the Lok Ayukta would not have proceeded to decide the complaint. Further, relying on the Division Bench judgment in **Bernard's case** (supra), the learned Single Judge held that Ext.P3 order passed by the Lok Ayukta would qualify itself as an order, which is beyond the jurisdiction of the Lok Ayukta, since the present was not a case dealing with Sec.14 of the 1999 Act. The learned Single Judge made the following observation in paragraph 22 :- “........... Thus, satisfaction of the Lok Ayukta that there is maladministration, as the term has been defined in the enactment is, therefore, the jurisdictional factor with which alone the Lok Ayukta can proceed under Section 12(1) of the Act.” We do not find any reason to disagree with the above view taken by the learned Single Judge in its judgment dated 13.9.2007. Moreover, we have already noticed that in the facts of the present case, the complaints were clearly barred to be entertained by virtue of Sec.8(1) read with Second Schedule item No.(d). Thus, we conclude that the Lok Ayukta has no jurisdiction to entertain the complaint regarding arrears of salary and orders passed by the Lok Ayukta was completely without jurisdiction." 8. In Ext.P14 report/order of the Lok Ayukta, we find that, apart from the observation with regard to the circumstances under which the Corporation had initially taken a decision to implement the scheme, and later resiled from the said decision, there is only an opinion of the Lok Ayukta that the Corporation cannot now say that they cannot pay pension. There is no finding whatsoever with regard to the particular action or inaction on the part of the Corporation, which amounted to maladministration, leading to a loss or hardship to the complainant. In our view, the _**W.P(C).5046/2014**_ 8 absence of such a finding with regard to the existence of a jurisdictional fact, vitiates the report/order of the Lok Ayukta as one without jurisdiction. 9. We must also note that the absence of a finding on the aspect of delay in filing the complaint before the Lok Ayukta, more so in the context of a specific averment in the counter affidavit filed by the Financial Corporation pointing out the belated nature of the complaint, also vitiates the report/order of the Lok Ayukta. When the contention regarding delay, taken in the context of examining the jurisdiction of Lok Ayukta, was brought to its notice, the Lok Ayukta ought to have examined the said aspect and rendered its finding in the matter before proceeding further with the examination of the complaint. We also note that the directions issued by the Lok Ayukta in paragraph 14 of the impugned report/order are such as would take it outside the ambit of the term “recommendation” as contemplated under the Lok Ayukta Act. The decisions of this Court in State of Kerala v. Bernad [2002 (3) KLT 254] and Sudha Devi.K v. District Collector, Thiruvananthapuram and others [2017 (2) KHC 850] are authorities for the view that the Lok Ayukta can only make a report to the authority concerned, with a recommendation, and it is not competent to issue positive directions under Section 12 of the Act. The recommendation cannot partake the nature of positive directions, much less peremptory in nature. 9. Before parting with the case, we might add that, while we have heard elaborate arguments on the merits of the case, we deem it unnecessary to deal with the said contentions since we are allowing the writ petition on the limited finding that Ext.P14 report/order of the Lok Ayukta, that is impugned in the writ petition, is one that is passed without jurisdiction. The contentions on merits are left open to be _**W.P(C).5046/2014**_ 9 considered in appropriate proceedings. The writ petition is thus allowed as above. Sd/Hrishikesh Roy, Acting Chief Justice Sd/- A.K. Jayasankaran Nambiar, Judge sou.