Kerala State Electricity Board v. Kerala Lok Ayukta and V.P. Prabhakaran Kartha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934** **WP(C).No. 22187 of 2009 (P) ---------------------------** **PETITIONER:** - **-----------** **1. KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REP. BY ITS SECRETARY.** **2. THE CHIEF ENGINEER,** **(HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM.** **BY ADVS.SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB** **RESPONDENTS:** **------------** **1. THE KERALA LOK AYUKTA,** **REP. BY ITS DEPUTY REGISTRAR, LEGISLATIVE COMPLEX VIKAS BHAVAN P.O., THIRUVANANTHAPURAM.** **2. V.P.PRABHAKARAN KARTHA, PUNARTHAM, UNIVERSITY NAGAR KERALA AGRICULTURAL UNIVERSITY.** **R1 BY ADV. SRI.PULIKOOL ABUBACKER,SC R2 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** **WP(C).No. 22187 of 2009 (P)** **---------------------------** ## **APPENDIX** **--------** **PETITIONER'S EXHIBITS** **---------------------** **EXT.P1. COPY OF THE B.O. (FB) NO.2574/2005 (EST. IV/RECKONING SERVICE/2005), DATED 01.09.2005** **EXT.P2. COPY OF THE COMMUNICATION DATED 01.07/2008., RECEIVED FROM KEL** **EXT.P3. COPY OF THE ORDER OF THE HON'BLE KERALA LOK AYUKTA DATED 16.12.2008 IN COMPLAINT NO.19 OF 2008.** **EXT.P4. COPY OF THE ORDER OF THE HON'BLE KERALA LOK AYUKTA DATED 12.06.2009 IN I.A. NO.279/2009** **EXT.P5. COPY OF JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 26.5.2009 IN WPC NO.37236 OF 2001.** **RESPONDENT'S EXHIBITS : NIL** **---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 22187 of 2009 --------------------------------Dated this the 13th day of February, 2013 ## JUDGMENT Kerala State Electricity Board (KSEB) is the petitioner, challenging Exts.P3 and P4 orders issued by the Kerala Lok Ayukta. The 2[nd] respondent was an employee of the petitioner. He retired from service on attaining superannuation on 31.5.2007. Before entering service of the petitioner the 2[nd] respondent had served the Kerala Electrical and Allied Engineering Company Ltd. ( KEL) for a period of more than 5 years. He was relieved from KEL on 31.8.1978 and joined KSEB on 1.9.1978. Issue involved is regarding reckoning of service rendered in KEL, prior to entry in the service of the petitioner. Stand taken by the petitioner Board is that, the past service cannot be reckoned for pensionary benefits because the former employer has not shared the pro rata pension liability. Since the 2[nd] respondent was on pensionable service in KEL, the petitioner is relying on Ext.P1 order issued by them on 1.9.2005, prescribing norms regarding reckoning of past service of its WP(C). 22187 /2009 2 employees. Accordingly request of the 2[nd] respondent was declined through Ext.P2. The 2[nd] respondent had approached the Lok Ayukta complaining non consideration of the claim. On behalf of the petitioner Board a counter statement was filed before the 1[st] respondent conceding that the claim will be looked into on the basis of Ext.P1 and a decision will be taken, as and when turn reaches with respect to similar applications pending. It was submitted that a period of 6 months is needed for taking a decision in the matter. But the Lok Ayukta relied on an earlier order of the Board which is produced as Ext.R2(a) along with the counter affidavit. It observed that, sanction has already been accorded for reckoning prior service rendered by the Board employees in the State Government department/ quasi Government Organisations prior to appointment/absorption in KSEB, as qualifying service for pensionary benefits. Therefore it was observed that the 2[nd] respondent has got a vested right, which cannot be taken away by subsequent orders of KSEB, without affording an opportunity of hearing. Further contention of the petitioner Board regarding failure to make claim within the WP(C). 22187 /2009 3 time limit stipulated in Ext.P1 was also negatived. The Lok Ayukta observed that, the claim raised by the 2[nd] respondent has not been disputed by the petitioner. Finding that the 2[nd] respondent had already made submissions before the Controlling Officer as early as on 31.7.1992 and action was already initiated on the basis of such submission, the Lok Ayukta held that the 2[nd] respondent cannot be found fault with for the laches on the part of the authorities of the petitioner Board. Therefore the petitioner Board was directed to compute pensionary benefits due to the 2[nd] respondent reckoning the anterior service rendered by him at KEL, within a period of two months. Aggrieved by Ext.P3 the petitioner Board filed a review petition, which was also dismissed by the Lok Ayukta through Ext.P4 order. The petitioner relies on Ext.P5 judgment passed by this court on identical situation. It is held therein that reckoning of past service of employees in the Board is subject to the condition that pro rata contribution is paid by the previous employer. In cases where the previous service is not pensionable, such question does not arise. WP(C). 22187 /2009 4 2. In the counter affidavit of the 2[nd] respondent much reliance is placed on Ext.R2(a) order of the Board. It is contended that Ext.R2(a) does not prescribe any condition of reciprocal arrangement for payment of pro-rata pension. It is contended that Ext.P1 order is not applicable in the case of the petitioner and therefore Ext.P3 is perfectly legal and valid. 3. One of the main attack against Exts.P3 and P4 is that, under the provisions of the Kerala Lok Ayukta Act 1999 the 1[st] respondent is having no jurisdiction to adjudicate any issue or to issue any positive directions to the Government or its authorities to give any benefits to its employees . On the other hand the 1[st] respondent can only submit a report by way of recommendation to the competent authority. 4. Sri.Pulikool Aboobacker, learned Standing Counsel appearing for the petitioner Board has drawn my attention to section 12 of the Kerala Lok Ayukta Act 1999 which provides that, if after investigation the Lok Ayukta is satisfied that any action impugned in the complaint has resulted in injustice or undue hardship to the complainant or to any other person, the WP(C). 22187 /2009 5 Lok Ayukta or 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. A Division Bench of this court in **State of Kerala vs. Bernard (2002 KHC 765)** held that the Lok Ayukta has no adjudicatory power nor any power to enforce its recommendations or findings. But the role is confined in making a report containing recommendations. In the said decision it is held by this court that the Lok Ayukta cannot be equated with this court nor it is invested with powers to punish for contempt under section 19 of the Act. The above decision has been followed by this court in **State of Kerala and others vs. S. Leela and others (2009 (2) KHC 625)** 5. On the question of jurisdiction, learned counsel appearing for the 2[nd] respondent contended that, despite the fact that the Lok Ayukta had issued positive directions, interference of this court is not warranted to quash such order, in case if it is found that conclusion of the Lok Ayukta based on merits of the WP(C). 22187 /2009 6 issue can be upheld. According to him, the remedy under Article 226 is discretionary one and this court need not interfere merely on establishment of any illegality or irregularity. Interference in such matters is called for only to meet or to further ends of justice. If by interfering in matters the interest of justice are going to be unsettled, this court should withhold its discretion. Learned counsel for the 2[nd] respondent had relied on the decision of this court in **Rameshan vs. Jayavally (2007(2) KLT 325),** in order to canvass the above proposition **.** Reliance was also placed on a decision of this court in **Kerala Solvent Extractions Ltd. vs. Unnikrishnan(1993(2) KLT 208).** Referring to various decisions of the Hon'ble Supreme Court, the Division Bench observed that the High Court has the power to refuse writ, if it is satisfied that there was no failure of justice. It is stated that proceedings by way of certiorari under Article 226 are “not of course”. 6. Contention of the 2[nd] respondent is that he had entered service of the petitioner Board on 1.9.1978. Reliance is placed on Ext.R2(a) wherein the Board has taken a decision as early as WP(C). 22187 /2009 7 on 12.3.1992 to the extent of reckoning prior service rendered by the Board employees in the State Government departments/Quasi Government Organisations, as qualifying service to sanction pensionary benefits. It is contended that the said order has came into force when the 2[nd] respondent was continuing in the service of the petitioner Board. The right accrued on the basis of the said order cannot be taken away by virtue of subsequent orders. Learned counsel for the 2[nd] respondent had specifically pointed out that, before the Lok Ayukta evidence was adduced to the effect that the 2[nd] respondent had made a submission before the Controlling officer as early as on 31.7.1992 seeking to reckon his past service, which is presumably based on Ext.R2(a) order. Any subsequent order as that of Ext.P1 cannot take away the rights granted by virtue of Ext.R2(a) which is applicable to those employees who were working in the Board since 1992. The benefits granted to the employees through Ext.R2(a), cannot be taken away by virtue of retrospectivity given to subsequent order, is the contention. In order to canvass such proposition, WP(C). 22187 /2009 8 learned counsel had relied on a decision of the Hon'ble Supreme Court in **Chairman, Railway Board and others vs. C.R.Rangadhamaiah and others ( AIR 1997 SC 3828) .** 7. Learned Standing Counsel appearing for the petitioner Board raised contention that the findings of the Lok Ayukta that the Board has no power in fixing the eligibility, is totally baseless and erroneous. It is pointed out that the Board only contended that the claim of the petitioner will be looked into and a decision in the matter will be taken on the basis of Ext.P1 and Ext.P2. But the Lok Ayukta observed that there is an undertaking given by the petitioner that the claim for the 2[nd] respondent will be looked into as and when his turn comes out, which means that the Board agrees to the contention that the 2[nd] respondent is entitled to count his earlier service for computing pensionary benefits. Such an observation according to the petitioner, is totally baseless and unwarranted. Going by Ext.P1 it is clear that the petitioner Board has clarified the situation regarding reckoning prior service of its employees and it is made explicitly clear that such service can be reckoned for the purpose WP(C). 22187 /2009 9 of pensionary benefits only if the pro-rata contribution is paid by the previous employer. According to the learned counsel for the petitioner, Ext.P1 only clarifies the situation and it does not take away any benefit granted under Ext.R2(a) . Since service rendered by the 2[nd] respondent prior to entry in the service of the petitioner was not a pensionable service, previous employer will not be in a position to make payment of pro-rata contribution. Hence the 2[nd] respondent is not entitled to reckon his past service for the purpose of pensionary benefits, is the contention. 8. While considering the issue I am inclined to accept the contention that the 1[st] respondent had exceeded its jurisdiction in issuing a positive direction in Ext.P3 order, which is violative of section 12 of the Kerala Lok Ayukta Act 1999. Question remains as to whether conclusions arrived by the Lok Ayukta in Ext.P3 can be upheld in view of contentions raised on behalf of the 2[nd] respondent. On the admitted facts it is evident that, by virtue of Ext.R2(a) the petitioner Board has taken a decision as early as in 1992 to reckon the past service of its employees for the purpose of pensionary benefits. But in Ext.P1 the situation WP(C). 22187 /2009 10 has been elaborately considered in the year 2005 and norms and parameters have been set forth in the matter of reckoning past service. Whether Ext.P1 will amount to negativing benefits granted under Ext.R2(a) or as to whether it only clarifies the position, is a matter which need be adjudicated and decided considering pleadings before the Lok Ayukta. It is evident that all the above aspects were not pleaded or adjudicated. On the other hand contention raised by the petitioner Board was only to the effect that the claim of the 2[nd] respondent is under consideration and appropriate decision will be taken on the basis of such claim. It was stated before the Lok Ayukta that similar claims have been pending for disposal and the matter will be considered in accordance with its turn. But the Lok Ayukta took a decision observing that there is an indirect admission regarding liability and therefore ordered that the 2[nd] respondent is entitled to the benefits. Learned counsel for the 2[nd] respondent made an attempt to establish that since there is no specific denial of the eligibility, it amounts to an admission with respect to the liability. But I am of the view that strict rules of WP(C). 22187 /2009 11 pleadings as contemplated under the CPC cannot be invoked with respect to the proceedings before the Lok Ayukta . In support of the above contention the 2[nd] respondent had placed reliance on the decision of this court in **Venkitaramanan Potti vs. Travancore Devaswom Board ( 1993(2) KLT 374).** But I am of the view that absence of specific traversal on each of the pleadings cannot be taken as lack of pleadings refuting the claim raised. Hence I am of the opinion that the conclusion arrived by the Lok Ayukta is not on the basis of a proper adjudication on the question of entitlement of the 2[nd] respondent. 9. Since the challenge raised is only against Exts.P3 and P4, it may not be proper and justifiable on the part of this court to adjudicate upon the issue regarding claim of the 2[nd] respondent or to arrive at a decision as to whether the 2[nd] respondent is entitled for benefits based on Ext.R2(a). Those are questions which are left open for agitation since it is conceded by the petitioner Board before the Lok Ayukta that the claim of the 2[nd] respondent will be looked into and appropriate decision will be taken. I am of the view that the matter can be left for decision WP(C). 22187 /2009 12 of the petitioner Board . Interest of justice will be served if a direction is issued to consider the claim and to take an appropriate decision. 10. Therefore the writ petition is allowed. Exts.P3 and P4 are hereby quashed. The petitioner is directed to consider the claim of the 2[nd] respondent for reckoning his past service for the purpose of pensionary benefits and to take appropriate decisions on the basis of relevant orders issued by the Government and the Board. Such a decision shall be taken after affording an opportunity of hearing to the 2[nd] respondent, at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 22187 /2009 13 WP(C). 22187 /2009 14