Kerala State Co-operative Bank Ltd. v. Kerala Lok Ayukta Legislature Complex & Jayakumar B.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** **WP(C).No. 23431 of 2016 (D)** **----------------------------** **PETITIONER(S): -------------** **THE KERALA STATE CO-OPERATIVE BANK LTD., HEAD OFFICE, COBANK TOWERS, PALAYAM, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.GEORGE POONTHOTTAM, SC, KSCB** **RESPONDENT(S):** **--------------** **1. KERALA LOK AYUKTA LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033, REPRESENTED BY THE REGISTRAR.** **2. JAYAKUMAR B., THUMPODE VEEDU, KALLAYAM P.O., THIRUVANANTHAPURAM-695 043.** **R1 BY SMT.RENU. D.P., SC, LOK AYUKTA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.T.O.** **WP(C).No. 23431 of 2016 (D) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------P1 TRUE COPY OF THE COMPLAINT NO.294/2013 PREFERRED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. P2 TRUE COPY OF THE WRITTEN STATEMENT IN COMPLAINT NO.294/2013 (WITHOUT ANNEXURES), FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P3 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT IN COMPLAINT NO.294/2013 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P4 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 14.6.2016. P5 TRUE COPY OF THE ORDER IN WPC NO.17860/2016 DATED 6.6.2016 PASSED BY THIS HON'BLE COURT.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** **St/-** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.23431 of 2016 ----------------------------------------------Dated this the 14[th] day of July, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner, Kerala State Co-operative Bank Ltd. [hereinafter called 'the Bank'], seeking to quash Ext.P4 order passed by the Upa Lok Ayukta dated 14.06.2016, whereby the petitioner was directed to issue loan closure certificate and repay an amount of Rs.30,000/- paid by the 2[nd] respondent towards the closure of loan on the basis of the benefit accrued to the petitioner in a Settlement Scheme, and for other related reliefs. Brief facts for the disposal of the writ petition are thus: 2. Petitioner is a scheduled Bank registered under the Kerala Co-operative Societies Act, 1969. The 2[nd] respondent had defaulted repayment of the loan availed by him. Consequently, action was taken by the Bank to recover the amount due from his salary and retirement benefits. However, on 24.08.2012, 2[nd] respondent remitted an amount of Rs.1,30,000/- to the loan account under the One Time Settlement (OTS) scheme for the year 2012. As per the 2 **W.P.(C) No.23431 of 2016** calculation of the Bank, an amount of Rs.1,73,392/- had to be remitted before the expiry of the scheme. The 2[nd] respondent did not remit the balance amount on or before the last date set out under the scheme. 3. It is contended that, 2[nd] respondent preferred a complaint before the 1[st] respondent Lok Ayukta, stating that the retirement benefits are not being disbursed by his employer for the reason that the petitioner Bank has refused to issue non-liability certificate. Petitioner entered appearance and filed a counter affidavit traversing through the facts relating to recovery proceedings initiated against the 2[nd] respondent. That apart, a contention was raised that the complaint itself is not maintainable, and the prayer sought for in the complaint cannot be granted as it being outside the scope and jurisdiction of the 1[st] respondent. However, the 1[st] respondent, without taking into consideration the pleadings put forth by the petitioner, had issued an order directing the petitioner to issue loan closure certificate to the 2[nd] respondent in respect of his loan account and to reimburse an amount of Rs.30,000/-. It is thus aggrieved by Ext.P4, this writ petition is preferred. 3 ## **W.P.(C) No.23431 of 2016** 4. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the 1[st] respondent. Perused the documents and pleadings. 5. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. The predominant contention advanced by the learned counsel for the petitioner is that, the 1[st] respondent has no manner of jurisdiction to entertain a complaint of this nature. Learned counsel has invited my attention to the Preamble of the Kerala Lok Ayukta Act, 1999 and contended that, the subject matters which Lok Ayukta is entitled to entertain is relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public servants in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto. Therefore, it is the contention of the learned counsel that the petitioner Bank venturing in commercial and contractual matters will not come under the jurisdiction of the Lok Ayukta Act and therefore the 1[st] respondent should not have entertained the complaint submitted by the 2[nd] respondent. Moreover, learned counsel has invited my attention to Sec.12 4 **W.P.(C) No.23431 of 2016** ## (1) of the Act, which read thus: _“_ _**12** ._ _**Reports of Lok Ayukta etc.** --(1) If, after investigation of any action in respect of which a complaint involving grievance has been made, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that such action has resulted in injustoce or undue hardship to the complainant or to any other person, the Lok Ayukta or an Upa-Lok Ayukta shall, by a report in writing, recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time, as may be specified in the report and also intimate the complainant about its having made the report.”_ 6. A proposition was canvassed by referring to Sec.12 (1) that the Lok Ayukta is vested with power only if it is satisfied that after investigation of any action in respect of which a complaint involving grievance has been made, injustice or undue hardship is caused to the complainant or any other person, the Lok Ayukta or an Upa-Lok Ayukta can only provide a report in writing and recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time. Therefore, the contention of the learned counsel is that, Lok Ayukta or an Upa-Lok Ayukta cannot issue any direction to any competent authority, but it can only provide a report with **W.P.(C) No.23431 of 2016** 5 respect to the injustice committed to the complainant. However, on a reading of the said provision, it is categoric and clear that, the Lok Ayukta or Upa-Lok Ayukta is vested with powers to issue necessary direction and ensure a report from the competent authority that the grievance of the complainant is remedied or redressed. Therefore, the contention that the Lok Ayukta has only power to make a report cannot be sustained. That apart, sub-section (2) of the said section mandates that the competent authority to whom a report is sent under sub-section (1) shall, within one month of the expiry of the said period specified in the report, intimate or cause to be intimated, as the case may be, to the Lok Ayukta or Upa-Lok Ayukta the action taken on the report. So also, sub-section (5) of Sec.12 read thus: _“12(5). If the Lok Ayukta or Upa-Lok Ayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in subsections (1) and (3), he shall close the case, under intimation to the complainant, the public servant and the competent authority concerned; but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the competent authority concerned and the complainant.”_ 6 **W.P.(C) No.23431 of 2016** 7. On a reading of sub-section (5), it leads me to a safe conclusion that the Lok Ayukta has to ensure that an action is taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), and then only the case can be closed under intimation to the complainant, the public servant and the competent authority concerned. The second limb of sub-section (5) further makes it clear that if there is no compliance of the report made by the the Lok Ayukta or Upa-Lok Ayukta and if it is not satisfied, the Lok Ayukta is empowered to make a special report upon the case to the Governor and also inform the competent authority concerned and the complainant. Therefore, on a harmonious construction of sub-sections (1) to (5) of Sec.12, it can be seen that the report intended in the said provision is the direction to comply with the findings in the report. 8. Moreover, on going through Sections 10, 11 and 13 to 15 of the Lok Ayukta Act, I am of the considered opinion that plenary powers are provided to the Lok Ayukta as well as Upa-Lok Ayukta. Therefore, the issue with respect to the directions to comply with its order, are implied under law. As **W.P.(C) No.23431 of 2016** 7 per Sec.14, both Upa-Lok Ayukta and Lok Ayukta are vested with powers even to declare that a public officer shall be removed from service under certain contingencies. In that view of the matter, I am of the definite opinion that all powers are vested with the Lok Ayukta and Upa-Lok Ayukta to ensure that its orders are complied with. In that view of the matter, I am of the considered opinion that, the contention raised by the petitioner that Lok Ayukta has no manner of jurisdiction to entertain the complaint filed by the 2[nd] respondent, cannot be sustained under law. 9. It is also contended by the learned counsel for the petitioner that consequent to the introduction of Sec.69 of the Kerala Co-operative Societies Act, the 1[st] respondent had no manner of jurisdiction to entertain the complaint since Sec.69 excludes 'any other authority' in any matter with respect to transactions with a Co-operative Bank or a Co-operative society. 10. So far as the contention with respect to Sec.69 is concerned, under the Kerala Lok Ayukta Act, power is conferred under Sec.7 to investigate into any matters recited thereunder. However, as per Sec.8, the Lok Ayukta is 8 **W.P.(C) No.23431 of 2016** excluded from investigating into the matters recited thereunder and as provided under the Second Schedule of the Act. 11. Perusal of these two provisions takes me to the conclusion that the 1[st] respondent is vested with powers to entertain Ext.P1 complaint, especially due to the fact that it will not come under the exclusion provided under Sec.8 and further that officers of the petitioner come under the 'public servant' defined under Sec.2(o)(v) of the Act. When parallel remedies are available under law, the choice is that of the litigant. The authorities considering the _lis_ , only need to look into whether they are empowered under law to entertain a litigation and whether any prohibition is created. Petitioner is not having a case that 1[st] respondent is not vested with powers to entertain the complaint. Therefore, the contention with respect to Sec.69 of the Kerala Co-operative Societies Act, in my considered opinion, cannot be sustained. 12. On a perusal of Ext.P4 order of the 1[st] respondent, it is categoric and clear that on the basis of the Settlement Scheme launched by the Government for settlement of loan transactions of the Co-operative Banks and societies viz. 9 **W.P.(C) No.23431 of 2016** “Ashwas 2012”, 2[nd] respondent was liable to pay the principal amount and equivalent amount towards interest alone, which thus means, even if the interest accrued is more than Rs.50,000/-, the 2[nd] respondent was not liable to pay the same. However, the 2[nd] respondent has remitted an amount of Rs.1,30,000/-, when the scheme was launched without exactly calculating the amount the 2[nd] respondent was liable to pay. However, 1[st] respondent found that 2[nd] respondent was liable to pay only Rs.1,00,000/- (Rupees one lakh only) and therefore it was ordered that the retention of Rs.30,000/- by the petitioner is illegal. Thereupon only it was directed to return the said amount. So also, 1[st] respondent has found that since the petitioner did not issue a Loan Closure certificate, terminal benefits of the 2[nd] respondent were not released. First respondent passed the impugned order after identifying that the 2[nd] respondent had a grievance to be settled, and on realizing that the 1[st] respondent is vested with powers to entertain the complaint, the relief was granted. 13. Learned Standing Counsel for the 1[st] respondent has contended that, Ext.P4 order does not suffer from any illegality or arbitrariness warranting interference of this Court under **W.P.(C) No.23431 of 2016** 10 Article 226 of the Constitution of India. Learned counsel has also invited my attention to the judgment of the Apex Court in _**'Rama Rao v. The Lok Ayukta and others'**_ [AIR 1996 SC 2450], to canvass the proposition that Lok Ayukta is empowered to issue directions to the competent authority by way of an interim order or final order. Therefore, it is contended that Ext.P4 order was passed after being satisfied that the 1[st] respondent is vested with powers to proceed with the grievance voiced by the 2[nd] respondent. I find force in the said contentions. 14. Reckoning the above facts and circumstances and law involved in the subject matter, I am of the considered opinion that there are no legal or other factual circumstances warranting interference of this Court in Ext.P4 order passed by the 1[st] respondent, exercising the power of judicial review under Article 226 of the Constitution of India. Resultantly, writ petition fails and accordingly the same is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/14.07.2016