K.P. Binil Bala 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** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** ## **WP(C).No.19351 OF 2017(T)** ## **PETITIONER:** **K.P.BINIL BALA, AGED 50 YEARS, LAY SECRETARY AND TREASURER CUM DRAWING AND DISBURSING OFFICER, DISTRICT HOSPITAL, KANNUR.** **BY ADVS. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR** ## **RESPONDENTS:** **1 DR.SHAHEEDA K.B., W/O. E.P. HAMZAKUTTY, AGED 52 YEARS, JUNIOR CONSULTANT AND BLOOD BANK MEDICAL OFFICER, DISTRICT HOSPITAL, KANNUR- 670 003. 2 THE KERALA LOK AYUKTA, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS REGISTRAR. ADDL. STATE OF KERALA, R3 REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **(ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 3.2.2020 IN I.A NO.9127/2017 IN W.P.(C) NO. 19351/2017.** **R1 BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH R2 BY SMT.RENU. D.P., SC, LOK AYUKTA R3 BY SR. GOVT. PLEADER SRI.ARAVINDAKUMAR BABU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC.19351/2017 2 **“C.R”** ## **JUDGMENT** Dated this the 3[rd] day of February, 2020 ## S. Manikumar, CJ Challenging the proceedings initiated by Upa Lok Ayuta in Complaint No.614/2017 (Exhibit-P2), instant writ petition has been filed seeking for the ## following reliefs: - i) “Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Complaint No.614/2017 filed before Lok Ayukta (ExhibitP2) and quash the same; - ii) Declare that Lok Ayukta or Upa Lok Ayukta has no jurisdiction to entertain Exhibit-P2 complaint submitted by the respondent. - iii) Declare that Exhibit-P2 complaint is not maintainable before the Lok Ayukta or Upa Lok Ayukta. - iv) Declare that the proceedings initiated by Upa Lok Ayukta against the petitioner in Exhibit-P2 complaint is illegal and unsustainable.” 2. When the petitioner was working as a Lay Secretary and Treasurer, as also the Drawing and Disbursing Officer at District Hospital, Kannur, an application was submitted by respondent No.1, who is a Junior Consultant and Blood Bank Medical Officer of that hospital, for salary certificate in the form issued by Kerala State Financial Enterprises, for standing as a surety in the WPC.19351/2017 3 chitty subscribed by her husband. Petitioner has stated that the salary certificate was issued. Respondent No.1 signed the agreement in the form, wherein she agreed that if default is committed, recovery shall be made from her salary at source and DCRG/Terminal benefits. However, she insisted that the petitioner should agree to recover defaulted amounts from her salary as well as the pensionary benefits. Petitioner was not amenable to the same since the respondent had only three years to retire from service. 3. Alleging that the petitioner refused to issue salary certificate in the prescribed format as required, Complaint No.614/2017 (Exhibit-P2) was filed by the 1[st] respondent, before Lok Ayukta. Though, the petitioner has raised a preliminary objection (Exhibit-P3) regarding maintainability of the complaint, Upa Lok Ayukta without considering the objection, directed her to appear on 13.06.2017. Petitioner has contended that the action of Lok Ayukta in entertaining Exhibit-P2 complaint is without jurisdiction. 4. Being aggrieved, instant writ petition has been filed on the following grounds: - A) Ext.P2 complaint is not maintainable before the Lok Ayukta and, therefore, the same is liable to be dismissed on that ground. - B) The 1[st] respondent had sought for issuance of salary certificate in the form issued by the KSFE. She had agreed that defaulted amount can be recovered from her salary at source and also WPC.19351/2017 4 from her retirement benefits including DCRG. However, she insisted that the petitioner in her capacity as the Drawing and Disbursing Officer should agree to effect the above recoveries. The petitioner can at the best effect recovery from the salary of the respondent. The respondent is due to retire from service on 30.04.2020. No recovery can be effected by the petitioner from the retirement benefits of the respondent. Therefore, she refused to agree to effect recovery from the retirement benefits. Though the petitioner was agreeable for effecting recovery from the salary alone, the respondent was not agreeable for the same. The salary certificate was issued to the respondent within time. However, thereafter complaining that the petitioner has willfully not issued salary certificate to the respondent as required, Ext.P2 complaint was filed. C) Action of the Lok Ayukta in entertaining Ext.P2 complaint cannot be sustained. Issue raised is not the one which comes within the purview of the consideration of Lok Ayukta and is, therefore, unsustainable. Section 8 deals with matters which cannot be investigated by the Lok Ayukta. Section 8(1) specifically provides that Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation under the Act in case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the second schedule. Second schedule provides that Lok Ayukta or Upa Lok Ayukta shall not conduct investigation into the action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants, but not including actions relating to the claims of pension, gratuity, WPC.19351/2017 5 provident fund or to any claims which arises on retirement, removal of termination of service. Therefore, it is clear that the issue raised in Exhibit-P2 complaint is not one, which is coming within the purview of the consideration of Lok Ayukta. - D) Action of the Lok Ayukta in entertaining Exhibit-P2 complaint cannot be sustained in view of the decision of this Court in **Commissioner of Police, Thiruvananthapuram and others v. Abida Beevi and Another** [2016 (2) KHC 537 (DB)], **Bright v. Chief Secretary of Government of Kerala** [2016 (2) KLT 554], **University of Kerala v. Parvathy Krishna and Another** [2014 (2) KHC 199 (DB)], **Tahsildar and Another v. Sunaina and Another** [2012 (1) KHC 737] and **Kamalu v. State of Kerala** [2000 (3) KLT 227].” 5. Respondent No.1 has filed a counter affidavit dated 02.03.2018, wherein it was contended as under: “A) Petitioner is the 1[st] respondent before Lok Ayukta in a petition filed by respondent No.1 herein praying for justice and action against illegal activities of a Govt. Servant towards other employees of Govt. District Hospital, Kannur. Respondent No.1 is working as Jr. Consultant and Blood Bank Medical Officer in District Hospital, Kannur. Her husband is a subscriber of Chitty vide No.40/2016 in Kerala State Financial Enterprise, Kannur, South Bazar Branch, a Kerala Govt. Institution. He bid the chitty on 09.01.2017 to meet our urgent need to pay fees for our daughter who is studying at Kempa Gouda Medical College Bangalore for MBBS Second year. In order to release the chitty amount of Rs.5,00,000/ (Rupees Five lakhs), he has to produce a surety WPC.19351/2017 6 satisfying KSFE to make sure the repayment. The respondent has decided to stand as surety. Hence, she submitted an application for Salary Certificate to the petitioner through Superintendent of District Hospital on 10.01.2017. The Superintendent is the Head of the District Hospital and petitioner is the Drawing officer of Salary and the authority to issue salary certificates to her and other staffs of the Hospital. She has found out many incidents of issuance of salary certificates to various doctors and staffs. B) The respondent further contended that she has submitted the prescribed form [Ext.R1(a)] given by KSFE to issue Salary Certificate to stand as surety to release her husband’s chitty amount from KSFE. But, the petitioner was not ready to issue salary certificate to her with attestation of her signature. She has not signed in the last portion of the Ext. R1(a) application which is the mandatory portion of the form issued by KSFE. Petitioner returned partly signed surety form to me. Thereafter, she approached Superintendent of District Hospital, who is the head of the District Hospital, to get the signature in appropriate manner. But, the Superintendent denied it, stating that it is her discretionary power and she has no authority to instruct her. Thereafter, the respondent filed a petition dated 20.1.17 [Ext.R2(b)] before the Superintendent requesting to issue salary certificate in complete form and resubmitted salary certificate form for curing the defects. She filed a petition dated 20.1.2017 [Ext.R1(c)] to DDO also. But they did not issue the required certificate with attestation saying that they are not supposed to issue such certificate. According to the 1[st] respondent, the attitude of the petitioner is illegal and discriminatory. The petitioner issued the same certificate to various WPC.19351/2017 7 doctors in the same form. The petitioner being the Drawing Officer, she is the only person who can issue such a certificate and no other person can issue such certificates. The Superintendent being the head of the institution, is duty bound to give appropriate direction to the erring employees to give proper service to the employees in the hospital. C) After refusal by the petitioner to issue salary certificate in favour of the 1[st] respondent, she has approached the District Collector, Kannur and filed a petition dated 22.11.5017 [Ext.R1(d)] for redressal of her grievances. The District Collector had issued a direction to District Medical Officer to interfere in this matter. Accordingly, the DMO has issued a letter to the petitioner dated 23.01.2017 [Exhibit.R1(e)] with a direction to consider her application. Even after involvement of the District Medical Officer, Kannur, the petitioner and the Superintendent were not ready to discharge their duty entrusted upon them. Therefore, the petitioner had issued letter to the Superintendent dated 25.01.2017 [Ext.R1(f)] with Exhibit-R1(g) notes given by the DDO dated 24.01.2017. As per the notes, there have no authority or duty to attest the second portion of the Salary Certificate. It is pertinent to note that during the same period itself, the petitioner has issued attested salary certificates to seven employees of District Hospital, including doctors. Name of that employee is mentioned by the respondent in her complaint and the petitioner did not deny the said allegations in their counter statement. It is further contended that the petitioner and the Superintendent of the District Hospital has acted in such a way that they have failed to discharge their statutory obligations. WPC.19351/2017 8 D) It was further contended that in the counter statement of the petitioner, the reason stated for denial of issuance of certificate is that the 1[st] respondent has only three years of remaining service and if any default of payment is committed, the petitioner could not recover the defaulted money. The respondent admitted that her date of retirement is 30.04.2020. Hence she has 39 months' service remaining at the time of filing the application for salary certificate. As per her last pay slip, she is entitled for Rs.1,10,794/- as monthly salary and she is receiving Rs.93,000/- after deduction as monthly salary. The chitty amount of her husband is only Rs.5 lakhs. She has already remitted 10 monthly installments of Rs.12,500/- i.e. Rs.1,25,000/- at the time of filing the petitioner for salary certificate. Hence remaining liability is only Rs.3,75,000/-. The above chitty would be closed on 9.8.2019. That means, 8 months before her retirement. However, it is relevant to note that the petitioner had issued several certificates to other employees of the hospital, who were on the verge of retirement. Moreover, she had no such contention in her reply given to the Superintendent. E) Due to non production of salary certificate in time, KSFE has not released the chitty amount. Hence, she could not pay the fees of her daughter. The act of the petitioner and Superintendent is clear injustice lack of integrity and amounts to maladministration. The petitioner and Superintendent of District Hospital are public servants and have abused their position as public servant to cause undue harassment and hardship to me and my family. The act of the petitioner and Superintendent is unreasonable, unjust, oppressive and discriminatory. Moreover, the petitioner is guilty of corruption, nepotism and lack of integrity in her capacity as such WPC.19351/2017 9 public servant. F) Respondent No.1 has further contended that two Lay Secretaries are working in the District Hospital, Kannur. Another person namely Mohanan is a Senior Lay Secretary. In almost all District Hospitals in Kerala, DDO charge, including financial matters, are discharged by Senior Lay Secretaries. Only in Kannur District Hospital, a junior Lay Secretary is discharging financial responsibilities and holding DDO Charge. This entrustment of charge is maladministration and corrupt practice as it was done by Superintendent of District Hospital. From the reliable source, the 1[st] respondent came to understand that the petitioner has issued same certificate in the same form to six persons. Moreover, the DDO of Thalassery General Govt. Hospital issued several salary certificates with attestation of DDO below the signature of Govt. employee. G) On 30.01.2017, the Superintendent of District Hospital returned the incomplete salary certificate form with a reply from petitioner and a covering letter of superintendent. The petitioner stated that she was ready to issue required salary certificate only after this respondent producing a Government order stating that the DDO is liable to sign in the second portion of said salary certificate form. lt is pertinent to note that the petitioner has been issuing several salary certificates with attestation below the declaration of employees of Govt. District Hospital, Kannur. ln the reply, the petitioner has contended that she has no knowledge that the DDO has to sign below the undertaking of that kind. The same petitioner who is pretending ignorance has already issued such salary certificates with undertaking to recovery before and after WPC.19351/2017 10 this issue. There is no logic to raise the contention that the DDO has no authority to recover the amount after retirement of an employee. It is proved that she is deliberately denying this salary certificate to this respondent. The Superintendent is the superior officer of the petitioner and responsible to direct her subordinates to observe rules and regulations during discharge of her duties. Discharging of an official duty of an officer should not be done as per such officer’s whims and fancies and to satisfy her criminal mentality. Such employees are not at all fit for sitting in the chair of a public officer. There is an order issued by Govt. of Kerala on 23.11.1971, which states that the employment certificate and recovery undertaking are to be signed by the Head of office/ Disbursing Officer Government requires the Head of Department / Officers to sign the employment certificate and agreement for recovery from pay in request of the subscribers and their proposed sureties who are Govt. employee in prescribed form. This order passed on the letter No: 5310 dated 22.07.1971 from the managing Director Kerala State Financial Enterprises Ltd. Trichur. Based on the above contentions, 1[st] respondent has sought for dismissal of the writ petition.” 6. Heard learned counsel for the parties and perused the material available on record. 7. Learned counsel for the petitioner submitted that the petitioner being the Lay Secretary and Treasurer of the District Hospital, Kannur, was required by the 1[st] respondent to give an employment certificate, wherein the 1[st] respondent undertakes that in case of default in repayment of the loan/ WPC.19351/2017 11 chitty undertaken by her husband, deductions would be made only from her salary, DCRG/Terminal benefits/VRS proceeds and from other benefits. Learned counsel has further contended that insofar as salary is concerned, the petitioner being the Disbursing Officer, can make recoveries and can certify the same. It is also contended that the issue would not fall within the definition of clause (d) of Second Schedule of the Lok Ayukta Act, 1999. 8. Learned counsel for the respondents made submissions justifying the proceedings impugned. 9. Record of proceedings shows that this Court on 13.06.2017 directed the petitioner to implead the State of Kerala, through the Secretary, Department of Finance, as an additional respondent and serve copies of the pleadings on the learned Government Pleader, within one week from that date. Pursuant to the said direction, an application was filed by the petitioner for impleadment. ## 10. Section 8 of the Kerala Lok Ayukta Act, 1999 is extracted hereunder: **“8. Matters not subject to investigation.-** (1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. ## (2) The Lok Ayukta or an Upa-Lok Ayukta shall not investigate,- WPC.19351/2017 12 (a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa-Lok Ayukta, as the case may be; (b) any action in respect of a matter which has been referred to inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952); (c) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that a complaint referred to in clause(c) may be entertained by the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause.” (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa-Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima-facie be regarded as having been improperly exercised. “ ## 11. Second Schedule of the Lok Ayukta Act is extracted hereunder: ## “SECOND SCHEDULE [See section 8 (i) (a)] (a) Action taken for the purpose of investigating crime relating to the security of the State. (b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a court or not. (c) Administrative action taken in matters which arise out of the terms of a contract governing purely commercial relations of the WPC.19351/2017 13 administration with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligation. (d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other mattes relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. (e) Grant of honours and awards.” 12. Material on record discloses that Government of Kerala on 23.11.1971 had issued an order stating that employment certificate and recovery undertaking are to be signed by the Head of Office/Disbursing officer. Said order is extracted hereunder:- ## “GOVERNMENT OF KERALA ABSTRACT The Kerala State Financial Enterprises Limited - Salary Scheme Non implementation of - Further instructions Prize money - Procedure for obtainingorders issued. ------------------------------------------------------------------------------------------------ TAXES (C) DEPARTMENT G.O.P.76/71/TD Dated, Trivandrum 23[rd] November, 1971 ------------------------------------------------------------------------------------------------ Read:- 1. G.O.P.208/70/Fin. dated 8.4.1970 2. Letter No.5310 dated 22.7.1971 from the Managing Director, Kerala State Financial Enterprises Limited, Trichur. ## **ORDER** In the G.O. read above, Government have directed all Heads of Departments and offices to recover Chitty /Kuri instalments from the salaries of class III and class iv employees of the Government who are subscribers to chitty/kuri conducted by the Kerala State Financial enterprises limited, Trichur. The Kerala State Financial Enterprises Limited has not brought to the notice of WPC.19351/2017 14 the Government that some of the Heads of Officers have declined to implement the above salary deduction scheme. As a result of nonimplementation of the scheme, defaults and delayed payments are reported to be common. The salary deduction scheme was introduced not only for the benefit of the company but also for the benefit of the employees. It also facilitates prompt payment subscriptions. Hence Government direct that such of those Heads of Departments who have not yet implemented the scheme, shall co-operate implementing it without further delay. 2. The company has further devised a simple procedure to enable Government and Quasi Government employees to receive chitty/kuri prize money. According to this procedure the company accepts as security for the release of prize money, the personal sureties of two other Government/Quasi Government employees. The subscriber and the two sureties are each required to submit along with their application for acceptance of surety, an employment certificate and an undertaking from their Head of Office/Disbursing Officer for the recovery from their pay, in the event of default by the prized subscriber in payment of future instalments. The employment certificate and recovery undertaking are to be signed by the Head of Office/Disbursing Officer. Government request Head of Departments/Officers to sign the Employment Certificates and Agreement for recovery from pay in respect of the subscribers and their proposed sureties, who are Government Employees, in the prescribed form supplied by the company. (By order of the Governor) V.Venkitanarayanan Secretary to Government” 13. Kerala Financial Enterprises Limited is a miscellaneous non-banking finance company fully owned by Government of Kerala. It is formed with the object of providing an alternative to the public from the private chit promoters in order to bring in social control over the chit fund business. Chitty is the WPC.19351/2017 15 main product of the financial company. Conduct of chitties is fully governed by the provisions of Central Chit Fund Act, 1982. Sections 24 and 69 of the Kerala Chitties Act, 1975, and Section 43 of the Chit Funds Act, 1982, which are relevant for consideration, are as under: **“24. Removal of defaulting subscribers.** - (1) If a non-prized subscriber defaults to pay his subscription in accordance with the terms of the variola for a period of one month, the foreman may, after intimating him by written notice, remove his name from the list of subscribers and substitute any other person in his place: Provided that if the defaulter pays up the defaulted instalment with interest at the rate of nine per cent per annum within one week of receipt of such notice, his name shall not be liable to be removed. (2) The foreman shall - (a) enter every removal and substitution under sub-section (1) with the dates thereof in the chitty books; and - (b) give a written notice of such removal and substitution to the defaulting subscriber within fourteen days thereof. (3) A true copy of the entry referred to in sub-section (2) shall be filed by the foreman with the Registrar within fourteen days from the date of such removal or substitution and any amount of arrears of subscriptions realised from a substituted subscriber to the extent of the amount already paid by the defaulting subscriber shall, before the date of the next succeeding instalment, be deposited by the foreman in an approved bank mentioned in the variola. (4) The foreman shall not withdraw the amount deposited under sub-section (3) except for payment to the defaulting subscriber. WPC.19351/2017 16 (5) If any foreman makes default in complying with the requirements of this section, he shall be punishable with fine which may extend to one hundred rupees.” “ **69. Recovery of amounts due from foreman.-** All amounts due from a foreman to the Government under this Act by way of any fee or as compensation for the composition of any offence against this Act shall be recoverable as arrears of public revenue due on land.” “ **43. Subscribers' dues to be first charge on chit assets.-** Any amount due to the subscriber from a foreman in relation to the chit business shall be a first charge on the chit assets.” 14. Now, let us consider a few decisions relied on by learned counsel for the petitioner. 15. In **Kamalu v. Sate of Kerala** reported in 2000 (3) KLT 227, a Hon'ble Division Bench of this Court, after analysing the provisions of the Lok Ayukta Act, 1999 and a catena of decisions held that Lok Ayukta or Upa Lok Ayukta, has no jurisdiction to entertain any complaint in respect of matters relating to appointment, removal, pay, discipline, superannuation or other matters relating to condition of service. 16. In University of **Kerala v. Parvathy Krishna and Another** reported in 2014 (2) KHC 199, a Hon'be Division Bench of this Court held that Lok Ayukta has no jurisdiction to entertain a complaint regarding revaluation of answer scripts. WPC.19351/2017 17 ## 17. In **Tahsildar and Another v. Sunayana and Another** reported in 2012 (1) KLT 869, a learned single Judge of this Court held that Lok Ayukta has no jurisdiction to determine the community status of a person. 18. In **Bright S. v. Chief Secretary To Government of Kerala and Others** reported in 2016 (2) KLT 554, a Hon'ble Division Bench of this Court held that the order impugned therein by Lok Ayukta was nothing but an adjudicatory order, directing sanctioning of pensionary benefits, which Lok Ayukta does not have. ## 19. In **Commissioner of Police, Tvm and Others v. Abida Beevi** **and Another** reported in 2016 (2) KHC 537, a Hon'ble Division Bench of this Court held that Lok Ayukta has no jurisdiction to entertain any complaint regarding arrears of salary. Short facts of the case are as under: “Nine Policemen were dismissed by an order of the Government. The dismissal order of nine Policemen were not challenged before any Court or any Authority. However, some of them submitted representation before the Government. The Government reviewed its earlier order, by which, the dismissal was revoked and they were reinstated in service. ln the order, it was further mentioned that orders as to how the period of absence in the cases of above Policemen is to be regularised will be issued separately. Another Government order was issued ordering that the period of dismissal shall be treated as break in service without forfeiture of past service. Thereafter, Government issued another order directing that the period of WPC.19351/2017 18 dismissal will be treated as qualifying service for the purpose of pension, in relaxation of Rules. Long after the period of dismissal, first respondent, wife of one of the dismissed policemen filed a complaint before the Kerala Lok Ayukta praying for arrears of salary along with interest. The Kerala Lok Ayukta decided the complaint holding that the deceased, husband of the complainant, was entitled for arrears of salary. Aggrieved, the State filed writ petition and the learned Single Judge though found that Lok Ayukta exceeded its jurisdiction, did not interfere with the orders passed by Lok Ayukta. Thus, the State has filed the present writ appeal. For the present case, the relevant Clause to the Second Schedule is Clause (d). S.8(1) contains an injunction against Lok Ayukta and Upa Lok Ayukta from not conducting any investigation under the Act in the case of complaint involving a grievance in respect of any action specified in the Second Schedule. Clause (d) to Second Schedule contains the following matters, which are referred to in S.8(1), they are: "action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants". The complaints in the present case related to pay, since what was sought for was arrears of salary consequent to the reinstatement of the dismissed constables. Since the above being clearly excluded from the jurisdiction of Lok Ayukta, the Lok Ayukta could not have proceeded to decide the complaint. Clause (d) to the Second Schedule also contains an exception, which exempted various items from the Second Schedule. The exception contained in Clause (d) is as follows: "actions relating to claims for pension, gratuity, provident fund or to any claims WPC.19351/2017 19 which arises on retirement, removal or termination of service". Thus, on the one hand, there is prohibition in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants. But, the phrases, which are used after the word ‘but’ are exempted from such provision. We do not find any reason to disagree with the above view taken by the learned Single Judge in its judgment dated 13/09/2007. Moreover, we have already noticed that in the facts of the present case, the complaints were clearly barred to be entertained by virtue of S.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. The Hon'ble Division Bench further held that Government had consciously dealt with the long period from 26/06/1974 to 30/07/1990, which was a period of about 16 years and ultimately treated as qualifying service for the purpose of pension. But the Government consciously decided not to pay arrears of salary. In view of the above facts, there cannot be any question of treating the earlier order dated 26/06/1974 as void or non est. The order of dismissal was reviewed as permitted by the Statute and the period of absence has also been dealt with by the Government as per the statutory rules. Hence, the learned Single Judge was not right in his observation that the order is to be treated as _void ab initio_ and the natural consequence is to grant salary in all the subsequent periods. Further, there was no specific challenge to any of the Government orders dated 30/07/1990, 01/06/1992 and WPC.19351/2017 20 01/04/2000 before the learned Single Judge. In any view of the matter, in the last order of the Government dated 01/04/2000, the period of dismissal from 26/06/1974 to 30/07/1990 was treated as qualifying service for the purpose of pension. Thus, the State has consciously denied the payment of arrears of salary. Right from the first order issued on 30/07/1990, the writ jurisdiction could have been invoked by the aggrieved persons within a reasonable time. It is doubtful that, on the date, when the complainants approached the Lok Ayukta, had they approached the High Court, the High Court would have entertained the claim on merits, after such long lapse of time. We, thus, do not subscribe the view taken by the learned Single Judge that had the appellants approached the High Court instead of approaching the Lok Ayukta, this Court would have passed an order directing to grant the relief as granted by the Lok Ayukta. ln view of the foregoing discussions, we are of the view that WP (C) No. 23692 of 2005 was not a case, where, despite the order of the Lok Ayukta being without jurisdiction, the High Court ought to have exercised its discretion in not interfering in the said order on the premise that the orders of the State Government, in which, the period of absence was treated firstly as break of service and secondly, as qualifying service for the purpose of pension were illegal and void. We, thus, do not subscribe the view taken by the learned Single Judge in Abida Beevi's case (supra) and WA No. 1381 of 2006 deserves to be allowed.” 20. In all the above decisions relied on by learned counsel for the petitioner, wherever Lok Ayukta or Upa Lok Ayukta, as the case may be, has WPC.19351/2017 21 exceeded its jurisdiction, this Court has interfered with the decisions of the said authority. 21. Reverting to the case on hand, it could be deduced that in the matter of issuing a salary certificate to the 1[st] respondent, Lok Ayukta has issued directions. Said subject is not covered under the first part of clause (d) of Second Schedule to Section 8 of the Lok Ayukta Act, 1999. Thus, giving due consideration to the rival submissions made by learned counsel for the parties, provisions of the Kerala Lok Ayukta Act, 1999 and the decisions relied on, we are of the view that with due respect, Lok Ayukta has exceeded its jurisdiction in issuing the directions. In the light of the above, we are inclined to interfere with the impugned proceedings. Accordingly, proceedings initiated against the petitioner in Exhibit-P2 Complaint No.614/2017, by the Upa Lok Ayukta is set aside. Writ petition is allowed. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P.CHALY JUDGE** krj WPC.19351/2017 22 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 COPY OF THE APPLICATION DATED 12.1.2017 AND EMPLOYMENT CERTIFICATE OF THE RESPONDENT.** - **EXHIBIT P2 COPY OF THE COMPLAINT NO. 614/2017 (WITHOUT EXHIBITS) FILED BEFORE THE HONOURABLE LOK AYUKTA, THIRUVANANTHAPURAM.** - **EXHIBIT P3 COPY OF THE OBJECTION IN COMPLAINT NO 614/2017 FILED BY THE PETITIONER BEFORE THE HONOURABLE LOKAYUKTA, THIRUVANANTHAPURAM.** ## **RESPONDENTS' EXHIBITS:-** - **R1(A):- COPY OF THE APPLICATION FILED BEFORE THE KSFE** - **R1(B):- COPY OF THE PETITION DATED 20.1.2017 SUBMITTED BY THIS RESPONDENT.** - **R1(C):- COPY OF THE PETITION FILED BEFORE THE DDO DATED 20.1.2017** - **R1(D):- COPY OF THE PETITION DATED 22.1.2017 FILED BEFORE THE DISTRICT COLLECTOR.** - **R1(E):- COPY OF THE LETTER DATED 23.11.17** - **R1(F):- COPY OF THE LETTER DATED 25.1.17.** - **R1(G):- COPY OF THE NOTES GIVEN BY THE DDO DATED 24.1.2017.** - **R1(H):- COPY OF THE GO.P.76/71/TD DATED 23.11.1971.** - **R1(I):- COPY OF THE STATEMENT DATED 29.5.2017.** //TRUE COPY// P.A. TO JUDGE