Remadevi v. Kerala Lok Ayukta (W.P.C. Nos. 34872/2022, 34906/2022, 34908/2022)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY # TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 ## WP(C) NO. 34872 OF 2022 ## PETITIONER: REMADEVI, AGED 57 YEARS PRESIDENT, THIRUVANANTHAPURAM, VANITHA SAHAKARANA SANGAM LTD T.1589 RESIDING AT NICHU BHAVAN, AMBALAMUKKU, PERRORKADA P.O, THIRUVANANTHAPURAM. BY ADVS.R.SUNIL KUMAR A.SALINI LAL ARUN KRISHNA J.M.DEEPAK NIKITHA SURESH ## RESPONDENTS: - 1 KERALA LOK AYUKTA REPRESENTED BY REGISTRAR REPRESENTED BY REGISTRAR, VIKAS BHAVAN, LEGISLATURE COMPLEX, THIRUVANANTHAPURAM 695 033. - 2 M.K. DEVARAJ, S/O M.KUNJAN, RESIDING AT SITHARA, TC 5/1883 (1), AMBALAMUKKU, PERORKADA P.O, THIRUVANANTHAPURAM 695 005 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022 ALONG WITH W.P.(C)NOS.34906/2022 AND 34908/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 2 :: # IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 ## WP(C) NO. 34906 OF 2022 ## PETITIONER: REMADEVI, AGED 57 YEARS PRESIDENT, THIRUVANANTHAPURAM, VANITHA SAHAKARANA SANGAM LTD T.1589 RESIDING AT NICHU BHAVAN, AMBALAMUKKU, PERRORKADA P.O, THIRUVANANTHAPURAM. BY ADVS.R.SUNIL KUMAR J.M.DEEPAK A.SALINI LAL ARUN KRISHNA NIKITHA SURESH ## RESPONDENTS: 1 KERALA LOK AYUKTA REPRESENTED BY REGISTRAR, VIKAS BHAVAN, LEGISLATURE COMPLEX, THIRUVANANTHAPURAM 695 033. 2 ALEYAMMA SIMON, W/O SIMOM KURIAN, RESIDING AT KANNANIL HOUSE, THIRUMOOLAPURAM, THIRUVALLA, PATHANAMTHITTA 689 115. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022 ALONG WITH WPC 34872/22 & 34908/22, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 3 :: # IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 ## WP(C) NO. 34908 OF 2022 ## PETITIONER: REMADEVI, AGED 57 YEARS PRESIDENT, THIRUVANANTHAPURAM, VANITHA SAHAKARANA SANGAM LTD T.1589 RESIDING AT NICHU BHAVAN, AMBALAMUKKU, PERRORKADA P.O, THIRUVANANTHAPURAM. BY ADVS.R.SUNIL KUMAR A.SALINI LAL ARUN KRISHNA NIKITHA SURESH J.M.DEEPAK ## RESPONDENT: - 1 KERALA LOK AYUKTA REPRESENTED BY REGISTRAR, VIKAS BHAVAN, LEGISLATURE COMPLEX, THIRUVANANTHAPURAM 695033. 2 M.JOSEPH CHACKO, MARATTUKALAM, PAROTTUKONAM, NALANCHIRA P.O, THIRUVANANTHAPURAM 695 015. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022 ALONG WITH W.A.NOS.34906/22 & 34872/22, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 4 :: ## JUDGMENT Dated this the 2[nd] day of November 2022 ## S.MANIKUMAR, C.J. Petitioner in these writ petitions is the President of Thiruvananthapuram, Vanitha Sahakarana Sangam Limited T 1589, a Co-operative Society functioning under Kerala Co-operative Societies Act. These writ petitions are filed by the petitioner with a prayer to set aside the contempt proceedings initiated by the Hon’ble Lok Ayukta against her in C.C.C.Nos.9, 10 and 8 of 2021 respectively. 2. Mr.R.Sunilkumar, learned counsel for the petitioner in these writ petitions submitted that a case was filed against her by the 2[nd] respondent in these writ petitions before the Hon’ble Lok Ayukta for the inaction on the part of the petitioner in not releasing a fixed deposit amount of Rs.5,00,000/- together with interest. WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 5 :: According to the petitioner, the society was facing acute financial crisis. Even though the petitioner voluntarily gave two undertakings to pay back the said amount, she could not fulfill that due to extraneous reasons. Consequently, she has been charged for civil contempt. 3. According to learned counsel for the petitioner, the Hon’ble Lok Ayukta cannot entertain a contempt petition on the ground that the undertaking given by the petitioner was a bona fide one and that the noncompliance of the same is not a wilful act from the part of the petitioner, but because of the reasons beyond her control. 4. It is also submitted that the Hon’ble Lok Ayukta has no power to invoke the jurisdiction of contempt in such a case. It is also submitted that the petitioner was acting in the capacity of the President of a co-operative society and was not acting personally while the respondent deposited the amount under fixed deposit. Hence no liability can be fixed upon the petitioner. 5. Moreover, the petitioner made an undertaking WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 6 :: before the honorable forum not on the personal behalf but on behalf of the society. Hence petitioner cannot be personally proceeded. Section 2(b) of the Contempt of Courts Act, 1971 reads as follows: “Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or other processes of court or wilful breach of an undertaking given to the court”. It is also submitted that from the above provision, it is clear that to attract the definition of a civil contempt, there should be a wilful disobedience of the direction or an undertaking of the court. 6. Material on record discloses that in the contempt petition, Upa Lok Ayukta observed that there is wilful default on the part of the petitioner in not complying with the orders. Hence the Hon’ble Lok Ayukta directed the Registry to proceed against the petitioner under Rule 9 (ii) (a) of the Contempt of Courts Act. 7. Being aggrieved, petitioner has filed these writ petitions contending, inter alia, that since there is no element of disobedience, contempt proceedings initiated WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 7 :: against the petitioner is against the provisions of the Contempt of Courts Act, 1971 and is not maintainable. Reliance is placed on the decision of the Hon’ble Division Bench of this court in 2002 (3) KLT 254 wherein, it is held that the Hon’ble Lok Ayukta has neither any adjudicatory power nor the power to enforce its recommendations or finding. The role of the Hon’ble Lok Ayukta is conferred on making a report or recommendation. 8. Reliance is also placed on the decision of the Hon’ble Division Bench of this court in State of Kerala v. Bernard reported in 2002 KHC 765 . In the said decision, it was held thus: “8. A survey of the relevant provisions lead us to the conclusion that, barring the area of investigation of a complaint involving allegation, which in other words means, a complaint made with regard to corruption, improper motives, nepotism, favouritism etc., as defined in the expression allegation in S.2(b) and covered by S.14 of the Act, the Lok Ayukta has neither any adjudicatory power nor the power to enforce his recommendation or finding. In fact, his role is confined to making a report or recommendation. He has no power of execution of his orders. In fact, it would be inappropriate to call the report/recommendation made by the Lok Ayukta as an order. Though the Lok Ayukta has been invested with certain powers WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 8 :: of the Civil Court for the purpose of enabling him to conduct the investigation with greater efficacy, we do not think that thereby the Lok Ayukta can be equated to a court. Nor do we think that investing of the power to punish for contempt under Section 19 of the Act, makes any difference to the situation. Section 19 of the Act empowers initiation of contempt proceedings under the Contempt of Courts Act, 1971. It is trite law that, there cannot be a contempt of court if the court does not make an enforceable order. It is only when a binding order, which is executable, is made and the party who is required to implement it either fails or refuses to do so, that contempt can be said to have arisen. Unless there is a provision to make such an order, the power under the Contempt of Courts Act as invested in the Lok Ayukta by Section 19 of the Act would make a difference.” ## 9. Section 9 in the Contempt of Courts Act, 1971 reads thus: “9. Act not to imply enlargement of scope of contempt.—Nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable a part from this Act. " 10. Section 19 of the Lok Ayukta Act, 1999 deals with the power to punish for contempt, which reads thus: “19. Power to punish for contempt:- The Lok Ayukta and the Upa Lok Ayuktas shall have and exercise the same jurisdiction, power and authority in respect of contempt of itself, as the High Court has and may exercise and for this WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 9 :: purpose the provisions of the Contempt of Courts Act, 1971 (Central Act 70 of 1971), shall have effect subject to the modification that the reference therein made to the High Court shall be construed to be reference therein made to the Lok Ayukta and the Upa-Lok Ayuktas, as the case may be.” 11. Learned counsel for the petitioner emphasized that if only there is an executable order, which is required to be implemented and that there is intentional failure for refusal to implement the same, provisions of the Contempt of Courts Act, 1971 cannot be revoked by the LokAyukta or the Upa LokAyukta, as the case may be. We are of the view that the above contentions can only be an explanation to the notice issued under the relevant provisions of the Contempt of Courts Act and the Rules framed thereunder. 12. On the facts and circumstances of this case, it could be seen that the writ petitioner has given an undertaking to implement an order, which is also recorded in the show cause notice dated 14.09.2022 in C.C.C.Nos.9, 10 and 8 of 2021 in Complaint Nos.998/18, 83/19 and 82/19 respectively. WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 10 :: 13. In the light of the above, we are of the view that these writ petitions are premature in nature and that the petitioner is at liberty to offer her explanation to the show cause notice dated 14.09.2022 in C.C.C.Nos.9, 10 and 8 of 2021 in Complaint Nos.998/18, 83/19 and 82/19 respectively and raise all tenable grounds to defend the same. With the above observations, we are not inclined to entertain the writ petitions. Accordingly, writ petitions are dismissed. sd/S.MANIKUMAR CHIEF JUSTICE sd/SHAJI P. CHALY JUDGE jes WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 11 :: ## APPENDIX OF WP(C) 34872/2022 ## PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER OF THE HONOURABLE LOK AYUKTA DATED 22/3/2021. - Exhibit P2 TRUE COPY OF THE ORDER OF THE HONOURABLE LOK AYUKTA DATED 2/8/2021. - Exhibit P3 TRUE COPY OF THE PETITION IN CCC:NO: 9/2021 IN COMPLAINT NO: 998/2018. - Exhibit P4 TRUE COPY OF THE ORDER OF THE HONORABLE LOK AYUKTA IN IN CCC: NO: 9/2021 DR 14.9.2022. ## A PPENDIX OF WP(C) 34906/2022 ## PETITIONER’S EXHIBITS: Exhibit P1 TRUE COPY OF THE COMPLAINT NUMBER 83/2019 FILED BEFORE THE HONORABLE LOK AYUKTA. - Exhibit P2 TRUE COPY OF THE COMMON ORDER OF THE HONORABLE LOK AYUKTA DATED 22/3/2021. - Exhibit P3 TRUE COPY OF THE COMMON ORDER OF THE HONORABLE LOK AYUKTA 2/8/2021. - Exhibit P4 TRUE COPY OF THE CONTEMPT PETITION IN CCC: NO: 10/2021 FILED BEFORE THE HONORABLE LOK AYUKTA. - Exhibit P5 TRUE COPY OF THE ORDER OF THE HONORABLE LOK AYUKTA IN CCC: NO: 10/2021 DT 14.9.2022. WP(C)NOs. 34872, 34906 & 34908 OF 2022 :: 12 :: ## A PPENDIX OF WP(C) 34908/2022 ## PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE COMPLAINT NUMBER 82/2019 LED BEFORE THE HONOURABLE LOK AYUKTA DATED 26/2/2019. Exhibit P2 TRUE COPY OF THE COMMON ORDER OF THE HONOURABLE LOK AYUKTA DATED 22/3/2021. Exhibit P3 TRUE COPY OF THE COMMON ORDER OF THE HONOURABLE LOK AYUKTA 2/8/2021. - Exhibit P4 TRUE COPY OF THE CONTEMPT PETITION IN CCC: NO: 8/2021 FILED BEFORE THE HONOURABLE LOK AYUKTA. - Exhibit P5 TRUE COPY OF THE COMMON ORDER OF THE HONOURABLE LOK AYUKTA IN CCC: NO: 8/2021 DT 14.9.2022. ## // True Copy // P.S. to Judge