M.R. Prabhakaran Nair v. State of Kerala and Director of Panchayats

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 13592 OF 2015`** ## **`PETITIONER:`** ``` M.R.PRABHAKARAN NAIR, AGED 54 YEARS, S/O.RAMAKRISHNAN NAIR, SECRETARY, KOLAYAD GRAMA PANCHAYATH, KANNUR DISTRICT, RESIDING AT AISWARYA HOUSE, VIMALANAGAR P.O., MANANTHAVADY, WAYNAD DISTRICT. ``` ``` BY ADVS. SRI.T.A.PRAKASH SRI.U.BALAGANGADHARAN ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2THE DIRECTOR OF PANCHYAYATS OFFICE OF THE DIRECTOR OF PANCHAYATS, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 004. ``` ``` BY SR. GP SRI.K.P. HARISH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.13592 of 2015** **2** ## **JUDGMENT** Dated this the 6[th ] day of March, 2023 ## **S.Manikumar, C.J.** In this writ petition, petitioner has sought for issuance of a writ of mandamus or any other appropriate writ, order, setting aside Exhibit P1 order passed by the Hon’ble Lok Ayukta in Suo Motu Proceedings No.1064/2014 dated 18.12.2014. 2. Short facts leading to the filing of the writ petition are as under: 2.1. Petitioner is working as the Secretary in Kolayad Grama Panchayat, Kannur District. According to him, Exhibit P1 order is passed without hearing and without even impleading him in the party array of the proceedings. It is stated that based on the complaint of one Mr.K.Muraleedharan, who is a resident of Thavinjal Grama Panchayat, suo motu proceedings have been initiated against the petitioner. The said Muraleedaran has also filed a civil case against Thavinjal Grama panchayat, when the petitioner was working as a Secretary there, and also, he has tried to influence the petitioner for getting undue advantage illegally. But, the petitioner was not inclined to accept him and, hence, the said Muraleedaran has personal grudge over the petitioner. Hence, he filed complaint against the petitioner seeking his transfer from the Thavinjal Grama panchayat. **W.P.(C)No.13592 of 2015** **3** 2.2. Petitioner has contended that by Exhibit P2 order dated 15.12.2014, the petitioner was informed by the Director of Panchayats, 2[nd] respondent, that he is transferred to Paivalike Grama Panchayat in Kasargod District, on the interference of the Kerala Lok Ayukta, in a suo motu proceedings initiated against him. It is submitted that though the petitioner appeared before the Kerala Lok Ayukta on 18.12.2014 seeking to implead him in the party array, after recording the submission of the 2[nd] respondent, vide Exhibit P1 order, the Lok Ayukta closed the suo motu proceedings without affording an opportunity of hearing to the petitioner. 2.3. The petitioner has challenged Exhibit P2 transfer order before the Kerala Administrative Tribunal by filing O.A. No. 2390 of 2014. However, the Tribunal, as per Exhibit P5 order dated 6.1.2015, directed the State/1[st] respondent to consider Exhibit P3 representation submitted by the petitioner, within a period of 3 months from the date of receipt of the copy of the order. 2.4. Contending that the Lok Ayukta has no jurisdiction to pass any order against the petitioner without hearing him and to direct the respondents to transfer the petitioner out of the District, as no disciplinary proceedings or vigilance case is pending against him, this writ petition is filed. 3. The question as to whether the Lok Ayukta can initiate suo motu proceedings has been considered by a Hon’ble Division Bench of this court in **Ramachandran Master v. Kerala Lok Ayukta** **W.P.(C)No.13592 of 2015** **4** reported in 2006 (4) KLT 166, wherein the Division Bench, at paragraphs Nos.18, 23 and 27, ordered thus: “18. The cumulative reading of the provisions of the Act and Rules as referred to above would clearly manifest that the Lok Ayukta is the person appointed under the Act to conduct investigations and inquiries, has necessarily to act under the provisions of the Act. When the Lok Ayukta may act on a complaint received by him or Upa-Lok Ayukta, the complaint has to be such which is under the Act and sub-s. (2) of S.9 dealing with provisions related to complaints and investigations clearly mentions that such a complaint has to be in such form and in such manner as may be prescribed. The word ‘prescribed’ has been defined in clause (n) of S.2 to mean prescribed by Rules made under the Act. The Government, by virtue of powers conferred upon it under S.23 of the Act, has prescribed the form and manner in which a complaint has to be made. The same is as per the Schedule reproduced above. The complaint which may be presented to the Lok Ayukta under section has to be, as far as practicable, in accordance with the form set out in the Schedule. It is further to be accompanied by an affidavit and further that a defective complaint, if not cured, has to be rejected. Based on the provisions of the Act and Rules as produced above, this Court is in a position to return a firm finding that the Lok Ayukta can enter upon an investigation only on a written complaint and further that such a complaint, as far as practicable,has to be as provided under the Schedule, which not only contains a declaration to the effect as mentioned above, but has also to be supported by an affidavit. A complaint which may not comply with the requirements of the Act and Rules cannot be entertained and thus has to be rejected, even though by virtue of the proviso appended to S.9 an opportunity to cure the defects has to be given to the complainant. If that be **5** ## **W.P.(C)No.13592 of 2015** so, it has to be held further that the Lok Ayukta would have no power to conduct any investigation with respect to any matter without a complaint as envisaged under the rules. The Lok Ayukta would, thus, have no suo motu powers to conduct any investigation. It has no jurisdiction to investigate grievance sought to be ventilated or projected in anonymous or pseudonymous letters, newspaper reports or a letter of complaint as well. We may mention that during the course of arguments the contention raised by the learned counsel representing the petitioners that the provisions contained in the Act and Rules would not confer any suo motu power on the Lok Ayukta to proceed to investigate was not much disputed, even though what was sought to be projected by the learned counsel representing the Lok Ayukta was that the procedural wrangles cannot be permitted to thwart the object of the legislation which is to eradicate corruption and mal administration in public life. 23. This Court is of the considered opinion that whereas it is indeed the legislative intent in enacting the Act of 1999 to eradicate corruption as also mal administration in public life, the object of the Act is also that the faith of the people in the administration is not lost and innocent politicians or bureaucrats are not subjected to humiliation and harassment. The Lok Ayukta, in our considered view, would have no jurisdiction to enter into inquiry or investigation when it may proceed on the basis of the complaint received from any person unless the complaint is in the form and manner as prescribed in the Rules fully detailed above. No doubt, a defective complaint can be rejected if it is not cured after giving the complainant a chance to do so, but, if the same is not either in the prescribed form with the declaration as mentioned above and further supported by an affidavit or if not cured as mentioned above, there would be no jurisdiction with the **6** ## **W.P.(C)No.13592 of 2015** Lok Ayukta to proceed in the matter. If this safeguard is not strictly adhered to, the forum of Lok Ayukta may become a store house of unnecessary, baseless, false and frivolous litigations. There is no dearth of persons actuated because of enmity, jealousy and other human evil propensities in lodging false complaints. It would be travesty of justice if on the basis of such complaints innocent office holders are maligned and their reputation damaged beyond redemption. 27. In view of the discussion as made above, we hold that the Lok Ayukta exercising powers under the Act of 1999 has no suo motu powers to conduct any investigation with regard to matters complained of and further that no inquiry or investigation can be entered by the Lok Ayukta on an anonymous or pseudonymous letters, newspaper reports or even a letter of complaint which may be received without complying with the necessary procedure as enshrined under the various provisions of the Act and Rules of 1999. While holding so, we may, however, observe that in the event the letter containing allegations is not as envisaged under the Act, the Lok Ayukta may ask the complainant, if the complaint is not anonymous or pseudonymous but by a known person, to cure the defects or support the contents of his complaint in the manner mentioned in the format of the Rules reproduced above and if the defects may be cured so as to constitute a ‘complaint’ within the meaning of the Act and Rules, the Lok Ayukta would have jurisdiction to proceed with the matter. He may also proceed on the basis of newspaper reports if the Editor or the News Correspondent through whom the news has been published, is called and asked to give complaint as envisaged in the Rules supported by a declaration and affidavit. In view of our finding that the Lok Ayukta has no power to inquire or investigate or to commence proceedings suo motu or on the **7** ## **W.P.(C)No.13592 of 2015** basis of any anonymous or pseudonymous letters or complaints which are not as per format and are not even cured after giving a chance to do so, the proceedings before the Lok Ayukta on the basis of newspaper reports and letter of complaint, are quashed.” 4. Following the abovesaid decision, by judgment dated 07.02.2023 in W.P.(C) Nos.27151 of 2013 and 29137 of 2013, we have also set aside the orders impugned therein. The decision in **Ramachandran Master** ’s case (cited supra) squarely applies to the case on hand. Following the same, the relief sought for by the petitioner in the instant writ petition is granted. Impugned proceedings and order are set aside. Accordingly, writ petition is allowed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S. Manikumar Chief Justice** Sd/- **Murali Purushothaman** **Judge** vpv **W.P.(C)No.13592 of 2015** **8** ## **`APPENDIX OF WP(C) 13592/2015`** ## `PETITIONER EXHIBITS` ``` EXT.P1.TRUE COPY OF THE ORDER DATED 18/12/2014 ISSUED BY THE KERALA LOKAYUKTA IN SUO MOTU PROCEEDINGS NO.1064/2014. ``` ``` EXT.P2.TRUE COPY OF THE TRANSFER ORDER DATED 15/12/2014 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT ``` ``` EXT.P3. TRUE COPY OF THE REPRESENTATION DATED 16/12/2014 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT THROUGH PROPER CHANNEL ``` - `EXT.P4. TRUE COPY OF THE STATEMENT DATED 17/12/2014 FILED BY THE 2ND RESPONDENT BEFORE THE LOKAYUKTA IN SUOMOTU PROCEEDINGS NO.1064/2014.` - `EXT.P5. TRUE COPY OF THE ORDER DATED 6/1/2015 PASSED BY THE KAT IN OA 2390/2014.` ``` EXT.P6. TRUE COPY OF THE TRANSFER ORDER DATED 30/1/2015 ISSUED TO THE PETITIONER ``` - `EXT.P7. TRUE COPY OF THE RESOLUTION NO.382/2014 PASSED BY THE THAVINGAL GRAMA PANCHAYATH IN THE MEETING HELD ON 27/12/2014.` //TRUE COPY// P.A. TO JUDGE