MADHUKUMAR v. STATE OF KERALA 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 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** **WP(C).No.6960 OF 2014(T)** ## **PETITIONER:** **MADHUKUMAR, S/O.ARJUNAN, T.C 2/1865 (1), MOONNATTUMUKKU JUNCTION, KULATHOOR P.O., THIRUVANANTHAPURAM - 695 083.** **BY ADV. SRI.RONY JOSE SMT. CHITRA P GEORGE** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 MANAGING DIRECTOR, TRAVANCORE TITANIUM PRODUCTS LTD., THIRUVANANTHAPURAM - 695 021. 3 P.M.SHIKKAVUDEEN, EXECUTIVE DIRECTOR, TRAVANCORE TITANIUM PRODUCTS LTD., THIRUVANANTHAPURAM- 695 021.** **SRI.ARAVINDAKUMAR BABU, SR. Govt. Pleader R1 BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL R2 BY ADV. SRI.K.ANAND (SR.) R2 BY ADV. SMT.LATHA ANAND R3 BY ADV. SRI.K.JAJU BABU (SR.) R3 BY ADV. SMT.M.U.VIJAYALAKSHMI SRI.ROHIT MOHAN, REPRESENTING SMT LATHA ANAND FOR R2 AND SRI.SACHIN RAMESH REPRESENTING SMT M U VLJAYALAKSHMI FOR R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.6960 OF 2014 :: 2 :: ## **JUDGMENT** ## **Dated this the 2[nd] day of December 2020** ## **S.MANIKUMAR, C.J.** Being aggrieved by the decision of the Lok Ayukta in Complaint No.449/2012 dated 22[nd] November, 2013, rejecting the complaint of maladministration relating to illegal and corrupt practices carried out in the recruitment and appointment of Mr.P.N.Shikkavudeen, third respondent as General Manager (Special Grade) and then as Executive Director of Travancore Titanium, instant writ petition is filed for the following reliefs: “i. issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P7. ii. issue a writ of mandamus or other appropriate writ, order or direction directing the Lok Ayukta to enquire into Ext.P1 complaint and take appropriate action in accordance with law.” 2. We have heard Ms.Chitra P.George, learned counsel for the writ petitioner. Sum and substance of the contentions is that the appointment of the third respondent as Executive Director of Travancore Titanium was contrary to the rules and that the said appointment was secured by corrupt practice and thus, there is maladministration. In support of her submissions, reliance has also been made to a decision of the Delhi High Court in W.P.(C)No.1307 of 2017 dated 8.5.2017 [ _**Indian Council of Agricultural Research v. Haridev Prasad**_ ]. She also referred to ground No.C of the memorandum of grounds, which is extracted: “C. Lok Ayukta failed to note that continuance of a person who WP(C).No.6960 OF 2014 :: 3 :: obtains appointment to a post by fraud, gives rise to a cause of action every day he continues as such. Thus the time limit of 5 years prescribed in Section 8(3) will not apply in the case of allegation relating to 3[rd] Respondent's continuance as General Manager (Special Grade) since each day of his continuance gave rise to a cause of action. So viewed, the continuance of 3[rd] respondent as General Manager till 13-7-2011 gives rise to a cause of action and makes the complaint filed in 2012 perfectly maintainable.” 3. We have perused the impugned order dated 22[nd] November, 2013 passed by the Lok Ayukta in Complaint No.449/2012, operative portion of which reads as under: “9. The argument advanced by the learned counsel appearing for the 3[rd] respondent is that at the time when the 3[rd] respondent was appointed as Executive Director he was in the General Manager Grade and hence he was competent to be appointed as Executive Director. Exhibit P1 Job Specification in Schedule I says that appointment to Executive Director (Super Grade) shall be made from General Manager or equivalent grades by the Government and that it is not a promotion post. The contention of the 3[rd] respondent is that at the time when he was appointed as Executive Director he was in an equivalent Grade of the General Manager and he was fully qualified to be appointed as Executive Director. He relied on the order of the Chairman and Managing Director dated 17.03.2009 which is produced as Annexure A along with the statement of the 1[st] respondent to maintain that the 3[rd] respondent was in equivalent Grade mentioned in the Job Specification in Schedule I and hence it is WP(C).No.6960 OF 2014 :: 4 :: not necessary to consider his educational qualification for appointment to the post of Executive Director. In Exhibit P1 Job Specification the educational qualification for being appointed as General Manager (Works) and General Manager (technical) are given. In the case of Executive Director no educational qualification is mentioned and the essential qualification for being appointed as Executive Director is that he should be General Manager or in the equivalent grade. On going through Annexure A in the statement filed by the 1[st] respondent it can be seen that the 3[rd] respondent was in the equivalent grade as submitted by the learned counsel appearing for the 3[rd] respondent and hence he was qualified to be appointed as Executive Director. There is nothing on records to show that there was any corrupt practice on the part of the respondents in the appointment of the 3[rd] respondent as Executive Director. The maladministration alleged in the complaint is also not established. Hence the complaint is liable to be dismissed.” 4. Earlier, when the matter came up on 1.12.2020, Mr.Sachin Ramesh, learned counsel for the respondent No.3 submitted that the third respondent has left the office of Managing Director, Travancore Titanium Products Limited, Thiruvananthapuram, as early as, on 30.11.2014. 5. Heard learned counsel for the parties and perused the materials available on record. 6. Considering the entire facts and circumstances of the case, we are of the view that the judgment relied on by the learned counsel for the petitioner in _**the Indian Council of Agricultural Research v. Haridev Prasad**_ cannot be applied to the WP(C).No.6960 OF 2014 :: 5 :: instant case, as the facts involved in the case on hand are entirely different. 7. Section 8 of the Kerala Lok Ayukta Act, 1999 deals with the 'matters not subject to investigation', which reads as under: **8. Matter 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, - (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 Commission 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. 8. Second Schedule to Section 8(i)(a) of the Kerala Lok Ayukta Act, 1999 is reproduced hereunder: WP(C).No.6960 OF 2014 :: 6 :: “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 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 matters 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.” 9. In terms of the abovesaid Second Schedule read with Section 8(i)(a) of the Kerala Lok Ayukta Act, 1999, Lok Ayukta is empowered to investigate actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. 10. Instant case relates to the appointment to the post of Executive Director of Travancore Titanium. 11. Prima facie, Lok Ayukta has no jurisdiction to investigate into actions relating to the abovesaid aspect. Dehors the above, Lok Ayukta, after considering the rival submissions held that there is nothing on record to show that there was any corrupt practice on the part of the respondents in the appointment of the 3[rd] respondent as Executive Director. Maladministration alleged in the complaint was not established. Hence the complaint was dismissed. 12. It is also relevant to note that the third respondent has left from service WP(C).No.6960 OF 2014 :: 7 :: as Executive Director of Travancore Titanium Product Limited, as early as, on 30.11.2014. Considering the totality of the facts and circumstances of the case, we are not inclined to interfere with the matter at this stage. Writ petition is dismissed. **SD/S.MANIKUMAR CHIEF JUSTICE** **SD/SHAJI P. CHALY JUDGE** jes WP(C).No.6960 OF 2014 :: 8 :: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE COMPLAINT NO.449/2012 FILED BY THE PETITIONER BEFORE THE LOK AYUKTA.** - **EXHIBIT P2 TRUE COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 2ND RESPONDENT IS IN COMPLAINT NO.449/2012.** - **EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 3RD RESPONDENT** - **EXHIBIT P5 EXT.P5: TRUE COPY OF THE REPLICTION FILED BY THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE CHAPTER I, IV AND SCHEDULE I OF RECRUITMENT AND PROMOTION POLICY FOR MANAGERIAL CADRE AS AMENDED UPTO 2005.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 22/11/2013 IN COMPLAINT NO.449/2012 ON THE FILES OF THE KERALA LOK AYUKTA.** // True Copy // P.S. TO JUDGE