Kerala State Co-operative Employees Pension Board v. Kerala Lok Ayukta and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** ## **WP(C).No.21115 OF 2013(L)** ## **PETITIONER:** **KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD T.C.NO.27/156,157, KALA NIVAS, CHINMAYA LANE, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-695 001 REPRESENTED BY ITS SECRETARY.** ## **BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR** ## **RESPONDENTS:** - **1 KERALA LOKYUKTA THE OFFICE OF THE KERALA LOK AYUKTA, LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695001.** - **2 C.SASIDHARAN NAIR JAYA NIVAS, T.C.21/595(1), PALLITHANAM, NEDUMANGADU, KARAMANA, THIRUVANANTHAPURAM-695001.** - **3 THE ASSISTANT REGISTRAR GENERAL CO-OPERATIVE SOCIETIES, OFFICE OF THE DISTRICT AND REGISTRAR GENERAL, CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** - **4 THE THIRUVANANTHAPURAM SERVICE CO.BANK NO.T.131, HEAD OFFICE, PRESS ROAD, THIRUVANANTHAPURAM-695 001.** **R1 BY SMT.RENU.D.P., SC, LOK AYUKTA R1 BY ADV.SRI.D.SAJEEV R1 BY ADV.SRI.M.SASINDRAN R1 BY ADV.SRI.SURESH WILFRED R2 BY ADV.R.K.MURALEEDHARAN SRI.SURIN GEORGE IPE, SR.G.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-1-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.21115 OF 2013(L) :: 2 :: ## **JUDGMENT** ## **Dated this the 20[th] day of January 2021** ## **S.MANIKUMAR, C.J.** Petitioner is the Secretary of Kerala State Co-operative Employees Pension Board. Ext.P2 order passed by the Kerala Lok Ayukta/first respondent is under challenge in this writ petition. By Exhibit P2 order dated 22.3.2013, Lok Ayukta directed the petitioner to sanction and disburse provisional pension to the second respondent. 2. Short facts leading to the filing of the writ petition are that the petitioner is the Secretary of Kerala State Co-operative Employees Pension Board established by the Government for the payment of pension to the employees of the societies in the manner provided therein and may appointed different dates for the applications of the scheme to different classes of society. The 2[nd] respondent is retired from the 4[th] respondent Bank on 31.8.2010, as a branch manager. 3. As per the decision taken by the committees of the 4[th] respondent, the pension docket of the 2[nd] respondent was forwarded to the petitioner through the 3[rd] respondent as per the provisions of the Co-Operative WP(C).No.21115 OF 2013(L) :: 3 :: Employees Self Financing Pension Scheme, 1993. The 2[nd] respondent was involved in several financial misappropriation cases by misusing the position as a branch manager and on departmental enquiries, his increment was withheld. He was reverted as an accountant. 4. In a complaint filed by the 2[nd] respondent before the 1[st] respondent, it was also alleged that the 4[th] respondent and the petitioner herein, failed in disbursing the pension and other terminal benefits on account of the vigilance cases presently pending against the 2[nd] respondent. The petitioner, who appeared before the 1[st] respondent contended that there is no provision in the Self Financing Pension Scheme to grant provisional pension other than the proportionate pension introduced by the Government in the year 2010 through a government order vide G.O.P.No.185/2010. 5. In the statement filed by the petitioner before the 1[st] respondent, it was specifically contended that the 2[nd] respondent is a person involved in five vigilance cases alleging misappropriation of funds and the pensionary benefits cannot be disbursed on account of these vigilance cases. However, the 1[st] respondent on a wrong presumption of law held that the 2[nd] respondent is entitled to the pensionary benefits as clarified by the G.O.P. No. 803/2002 issued by the Govenment in consonance with the pensions in WP(C).No.21115 OF 2013(L) :: 4 :: Rule 3 A(a) part 3 of the Kerala Service Rules. The 1[st] respondent also on a wrong assumption held that G.O.P. No. 803/2002/FIN was issued by the Government by way of clarification of G.O.P.No.185/2010. The 1[st] respondent, by following the rules in K.S.R. found that the 2[nd] respondent is entitled for a provisional pension and accordingly directed the petitioner to sanction and disburse provisional pension to the 2[nd] respondent and posted the complaint for action taken report on 13.3.2013. 6. Mr.V.V.Nandagopal Nambiar, learned counsel for the petitioner submitted that there is no statutory provision enabling grant of provisional pension as ordered by the Upa Lok Ayukta in Ext.P2 order dated 22[nd] March, 2013 in Complaint No.535 of 2011 and hence the same may be quashed. 7. Learned counsel for the petitioner further submitted that the Lok Ayukta has no authority and power to issue directions in the natue of Exhibit P2, in view of the declaration of law made by Division Bench of this Court in _**State of Kerala v. Bernard**_ reported in _**2002 (3) KLT 254**_ and learned Single Judge of this court in _**George v. Sarala Kumari**_ reported in _**2007 (4) KLT 924,**_ and hence the impugned order is liable to be set aside. 8. Heard learned counsel for the parties and perused the materials available on record. WP(C).No.21115 OF 2013(L) :: 5 :: ## 9. Operative portion of the order impugned in this writ petition, i.e., Ext.P2, is reproduced hereunder: 4. Complainant retired from service on 31.8.2010 and the third respondent bank forwarded pension docket to the office of the first respondent as early as on 16.7.2010 for the purpose of taking necessary action regarding sanctioning of pension benefits to the complainant. It is not disputed that vigilace cases against the complainant are pending before the Vigilance court. The second respondent says in the statement about criminal cses pending before the Judicial Magistrate of the First Class, Thiruvananthapuram also. The contention raised by the respondents is that the complainant is not entitled to get regular pension now because vigilance cases are pending against him. The counsel appearing for the complainant would submit that provisional pension can be sanctioned to the complainant even though vigilance cases are pending against him. The above claim made for granting provisional pension is resisted by the respondents by saying that there is no provision in the pension scheme which would say that provisional pension can be sanctioned to a person who retired from service against whom vigilance cases are pending. The contention of the complainant is that even though there is no provision in the pension scheme for granting provisional pension in G.O.(P)No.803/02 which is relied on by the respondents for not sanctioning regular pension there is mention about sanctioning of provisional pension when vigilance cases are pending. Along with the statement filed by the third respondent copy of G.O.(P) No.803/2002/Fin. dated 30.12.2002 was produced. WP(C).No.21115 OF 2013(L) :: 6 :: Respondents rely on the above government order for contending that pensionary benefits cannot be granted to the complainant for the reason that cases are pending against him before court and that only after the disposal of the cases pension can be finally settled. 5. Ext.R1 (G.O.(P)No.803/02/Fin.) was issued by way of clarification of G.O.(P) No.185/02/Fin: dated 27.03.2002. In Ext.R1 it is stated that as per G.O.(P) No.185/02 Government had issued specific directions for the speedy settlement of the pensionary claims in pending cases of departmental action, vigilance enquiry etc. and a doubt had been raised regarding the applicability of the orders contained in the Government order in cases which are pending before the Vigilance Courts, Vigilance Tribunals and other Courts. For clearing the above doubt government issued Ext.R1 Government order clarifying that the cases which are pending before Courts/Vigilance Tribunals/Vigilance courts did not come under the purview of G.O.(P)No. 185/02 and the pensionary benefits of employees against whom cases are pending before judiciary can be finally settled only after the disposal of the cases. That government order is in consonance with provision in Rule 3A(a) Part III of KSR which reads as follows: "Where any departmental or judicial proceeding is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension WP(C).No.21115 OF 2013(L) :: 7 :: not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon". The above Rule in KSR provides for payment of provisional pension to the employees against whom cases are pending in Courts. The submission made for and on behalf of the complainant is that in the light of the above Rule and also in the light of Ext.R1 government order which is relied on by the respondents provisional pension may be granted to the complainant. 6. Though there is no specific contention raised in the statements fled by respondents that KSR is not made applicable to the employees of Co-operative Societies, the counsel appearing for the respondents submit that KSR is not made applicable to the employees of the third respondent bank. The counsel appearing for the complainant is not able to point out any order or Rule which says that KSR is made applicable to the employees of the third respondent bank. But the respondents say in the statement as well as at the time of arguments that the complainant is not entitled to get regular pension in the light of G.O.(P)No.803/02/Fin (Ext.R1). That government order is one issued in respect of the granting of pension to government employees. For the purpose of contending that complainant is not entitled to get regular pension Ext.R1 government order is relied on by the respondents. But they WP(C).No.21115 OF 2013(L) :: 8 :: conveniently ignore the statement in the when government order that provisional pension can be sanctioned when cases are pending against an employee in Courts. There is specific provision in Ext.R1 that only provisional pension can be sanctioned when cases are pending in Courts. In the light of the above facts there is no justification for refusing provisional pension to the complainant. Complainant is entitled to get regular pension only after the conclusion of criminal cases pending before courts 7. In the result, direction is given to respondents to sanction and disburse provisional pension to the complainant. For action taken report, 14.05.2013.” 10. On this day, learned counsel appearing for the parties admitted that there is no statutory provision, enabling grant of provisional pension to the second respondent. Placing on record, we are in agreement with the learned counsel for the petitioner that the first respondent has erred in applying to the abovementioned Government Orders and the Rule 3A(a) Part II of Kerala Service Rules to the facts of this case. 11. That apart, in _**State of Kerala v. Bernard**_ reported in _**2002 (3) KLT 254,**_ this court held thus: “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 WP(C).No.21115 OF 2013(L) :: 9 :: 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. Section 34 of the Civil Procedure Code read with the Interest Act/empowers the Civil Court to make an order awarding interest on delayed payments found due after adjudication. Inasmuch as the Lok Ayukta'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 Ayukta 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 given for directing payment of interest was that the claims had been admitted by the District Treasury 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 for no good reason on the part of the District Treasury 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 WP(C).No.21115 OF 2013(L) :: 10 :: Ayukta. 15. A further question that has been raised is, whether in a matter of individual grievance of the nature ventilated by the respondent, is it the Lok Ayukta or the Upa Lok Ayukta who has to take cognizance for the purpose of investigation, finding or report. This is also a matter which needs to be examined in the light of the judgment of the Division Bench of this Court in Dr. V.C. Kamalu and Ors. v. State of Kerala, 2000 (2) KLJ 164. Though the decision of the Division Bench of the Bombay High Court in Dr. Vishwasrao Chudaman Patil v. Lok Ayukta, State of Maharashtra, reported in AIR 1985 Bombay 136, rendered under the Maharashtra Lokayukta and Upa Lokayukta Act, 1971 was cited, we find that the Division Bench of this Court in Dr. V.C. Komalu and Ors. (supra) has disagreed with the view taken by the Bombay High Court on the ground that the provisions of the two Acts are not pari materia. We, therefore, rest our conclusions and the judgments on the construction of the Kerala Lok Ayukta Act, 1999, and the attendant circumstances to which we have referred. 16. In the circumstances, we are satisfied that the order of the Lok Ayukta needs to be interfered with. We quash and set aside the impugned order of the Lok Ayukta. The complaint is revived on the file of the Lok Ayukta and shall be dealt with by the Lok Ayukta or Upa Lok Ayukta as may be decided in accordance, with Section 7 of the Act, in the light of the judgment in Dr. Kamalu and Ors. (supra), and disposed of in accordance with the law as laid down by us.” WP(C).No.21115 OF 2013(L) :: 11 :: ## 12. In yet another decision in _**George v. Sarala Kumari**_ reported in _**2007 (4) KLT 924**_ , the court held thus: “10. In this case the Lok Ayukta has issued directions to effect the payment by the officers of the Corporation to the Bank to which amount was due from the 3 rd respondent. The learned counsel for the Lok Ayukta vehemently argued referring to the judgments of this Court in Sreenivasan Venugopalan v. M.M.Pareed Pillay [2009 (2) KHC 671], Kerala State Co-operative Bank v. Kerala Lok Ayukta [2016 (4) KHC 88], K.S.R.T.C v. Padmavathy [2008 (1) KLT 584], Bright S. v. Chief Secretary to Government of Kerala and others [ILR 2016(1) Kerala 1017], unreported judgments of this Court in the judgment dated 28.06.2016 in W.P.(C).No.9971 of 2016, which was confirmed in Writ Appeal No.1329 of 2016, the judgment dated 18.09.2015 in W.P. (C). No.36209 of 2009 asserting that directions can be issued by the Lok Ayukta when it was found that injustice was caused to the complainants on account of mal administration of the officers. On a perusal of the judgments referred by the learned counsel, it is seen that the judgments rendered in K.S.R.T.C v. Padmavathy [2008 (1) KLT 584], Bright S. v. Chief Secretary to Government of Kerala and others ILR [2016 (1) Kerala 1017], Sreenivasan Venugopalan v. M.M.Pareed Pillay [2009 (2) KHC 671] and Kerala State Co-operative Bank v. Kerala Lok Ayukta [2016 (4) KLT 488] were in cases where the jurisdiction of the Lok Ayukta to pass positive orders did not come up for consideration. In the judgment of this Court in Kerala v. Parvathy Krishna and another 2014 (2) KLT 199 relied on by the learned counsel for the petitioner, this Court had considered all these aspects and referring to the judgment in State of Kerala v. Bernad [2002 (3) WP(C).No.21115 OF 2013(L) :: 12 :: KLT 254] and several other judgments it was held that the jurisdiction of the Lok Ayukta is confined to forwarding of reports to the competent authority and in the said case even an interim order with a positive direction was found to be without jurisdiction of the Lok Ayukta. In the division Bench judgment reported in Bright S. v. Chief Secretary to Government of Kerala and others [ILR 2016(1) Kerala 1017] also this Court had followed judgment in Bernad's case where it was held that no positive directions can be issued by the Lok Ayukta. In the other cases the question considered was whether Lok Ayukta had jurisdiction to entertain the complaints in respect of pension etc., and referring to Section 8 of the Act it was found that the Lok Ayukta had jurisdiction to entertain it even in Bernad's case the Lok Ayukta was found to have jurisdiction to entertain the complaint and proceed with the investigation based on the complaint. The issue decided was with respect to the jurisdiction to issue positive orders. The said judgment in Bernad's case is not seen reversed. In that view of the matter, despite the contentions addressed by the learned counsel for the Lok Ayukta, I am unable to sustain the order Ext.P2, since it only contains positive directions for which no power is conferred on the Lok Ayukta. 11. Under the above circumstances, Ext.P2 order is set aside. From the order it is not clear whether the Lok Ayukta has passed an interim order or final order though it appears to be a final order. Therefore, in case the Lok Ayukta has not passed a final order it is up to the Lok Ayukta to proceed with the investigation and pass fresh orders. With the above observations, this writ petition is disposed of.” WP(C).No.21115 OF 2013(L) :: 13 :: 13. In the light of the above discussion and decisions, we are of the view that the directions issued by the Upa Lok Ayukta in Ext.P2 order dated 22[nd] March, 2013 in Complaint No.535 of 2011 requires intereference. Accordingly, we set aside Ext.P2 order. Writ petition is disposed of. **SD/S.MANIKUMAR CHIEF JUSTICE** **SD/SHAJI P. CHALY JUDGE** jes WP(C).No.21115 OF 2013(L) :: 14 :: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE R1. EXHIBIT P2 TRUE COPY OF THE ORDER DT.22-3-2013 IN COMPLAINT NO.535/2011 OF R1. EXHIBIT P3 TRUE COPY OF THE REPORT FILED BY THE PETITIONER BEFORE R1. EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE PETITIONER.** // TRUE COPY // P.S. TO JUDGE