SHREE VIDYADHIRAJA VIDYA SAMAJAM and SHREE VIDYADHIRAJA HOMOEOPATHIC MDICAL COLLEGE v. STATE OF KERALA, KERALA LOK AYUKTA, ADV. V.P PANICKER, DIRECTOR, BUREAU OF VIGILANCE AND ANTI CORRUPTION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** ## **W.P(C).No.4250 of 2015 (E)** **---------------------------------** **PETITIONER(S):-** - **---------------** **1. SHREE VIDYADHIRAJA VIDYA SAMAJAM,** - **HAVING ITS OFFICE AT "ASWATHY", HINDU MISSION ROAD, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY DR.R.AJAY KUMAR.** **2. SHREE VIDYADHIRAJA HOMOEOPATHIC MDICAL COLLEGE, NEMOM P.O., THIRUVANANTHAPURAM-695 020, REPRESENTED BY ITS SECRETARY DR.R.AJAY KUMAR.** **BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.SANTHAN V.NAIR.** **RESPONDENT(S):-** - **---------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE KERALA LOK AYUKTA,** - **HAVING ITS OFFICE AT LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033, REPRESENTED BY THE REGISTRAR, LOK AYUKTHA.** **3. ADVOCATE V.P.PANICKER** - **RESIDING AT HOUSE NO.158, AKG NAGAR, PEROORKADA, THIRUVANANTHAPURAM-695 005.** **4. THE DIRECTOR,** - **BUREAU OF VIGILANCE AND ANTI CORRUPTION, HAVING HIS OFFICE AT PMG JN., VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.** **R1 & R4 BY SENIOR GOVERNMENT PLEADER SRI.P.M.SANEER. R2 BY STANDING COUNSEL SMT.RENU. D.P. R3 BY ADV. SRI.C.E.UNNIKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.4250 of 2015 (E) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS:-------------------------** **EXT.P1 : COPY OF THE COMPLAINT NO.1276/2013(D) DTD.29.11.2013 FILED BY THE 3RD RESPONDENT BEFORE THE LOK AYUKTA. EXT.P2 : COPY OF THE ORDER DTD.26.3.2014 DIRECTING "PRELIMINARY ENQUIRY" IN EXT.P2 COMPLAINT. EXT.P3 : COPY OF ATHE REVIEW PETITION DTD.5.6.2014 FILED AS IA NO.770/2014 IN COMPLAINT NO.1276/2013 BEFORE THE LOK AYUKTA. EXT.P4 : COPY OF THE ORDER DTD.9.7.2014 PASSED IN EXT.P4 REVIEW PETITION. EXT.P5 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 12.09.2013 IN CRL.R.P.NO.1096/2013.** |**RESPONDENT(S)' EXHIBITS:-**|| |---|---| |**-------------------------**|**NIL.**| |**vku/-**|**[ true copy ]**| ## K. Vinod Chandran, J ---------------------------------------W.P.(C) No.4250 of 2015-E ---------------------------------------Dated this the 27[th] day of June, 2016 ## **JUDGMENT** The petitioners, a Society and a Homoeopathic Medical College, are before this Court challenging Exhibit P4 order of the Lok Ayukta. 2. The 3[rd] respondent had filed a complaint at Exhibit P1 against the Manager of the Society, a retired Chief Secretary, the Drawing and Disbursing Officer of the Medical College and certain other officers of the Government raising allegations against the conduct of the 2[nd] petitioner-College. The contention of the petitioners is that the complaint itself is not maintainable before the Lok Ayukta and that the Lok Ayukta, by the impugned order, has ordered an investigation even before a notice was issued to the respondents, by Exhibit P2 order. A review was filed, which was declined as per Exhibit P4, which is the immediate cause of the above writ petition. - 2 - WP(C) No.4250 of 2015 3. The learned Senior Counsel appearing for the petitioners would take me through the various provisions of the Kerala Lok Ayukta Act, 1999 [for brevity “the Act”], especially the definition clauses, to contend that Exhibit P1 complaint is more in the nature of a public interest litigation and the grievances raised by the complainant, the 3[rd] respondent, could not have been entertained by the Lok Ayukta. The further ground raised is against the direction in Exhibit P2 order to the Director of Vigilance and Anti-Corruption Bureau, Thiruvananthapuram to conduct an enquiry into the allegations raised in the complaint which, according to the petitioners, does not come within the scope of “preliminary enquiry”. It is also submitted that the Lok Ayukta has assigned to itself; an investigating agency headed by Director of Investigation, with the rank of ADGP/IGP, Superintendent of Police, Deputy Superintendent of Police, Circle Inspector, etc. who could conduct the preliminary enquiry. There was no warrant for the Director of V&ACB to have been entrusted with such an enquiry. The apprehension is that this would lead to a vigilance charge being registered without even a notice to the petitioners. - 3 - WP(C) No.4250 of 2015 4. The learned Senior Counsel would also contend that the definition of “grievance” at sub-clause (h) of Section 2 of the Act would indicate that the complainant himself should have sustained an injustice or suffered undue hardship in consequence of mal-administration. However, it is to be immediately noticed that the Lok Ayukta has the power to investigate on (i) an allegation or (ii) a grievance and herein there is an allegation against a “public servant”, as has been defined in Section 2(o) of the Act. A “public servant” is defined _inter alia_ at Section 2(o)(xi) as follows: “2 (o) “public servant” means a person who is or was at any time, - (xi) the Chairman or Manager or Secretary or Correspondent having control over the administration of a private college, whether under unitary or corporate management, which is affiliated to a University in the State and is governed by the Private Affiliated Colleges (Arts and Science Colleges) Staff Direct Payment of Salary Rules, 1972”. Admittedly the 1[st] respondent in the complaint, is the Manager of an Aided College and the said college is also affiliated to an University in the State; which is also governed by the Private WP(C) No.4250 of 2015 - 4 - Affiliated Colleges (Arts and Science Colleges) Staff Direct Payment of Salary Rules, 1972. In such circumstances, the petitioners cannot have a contention that the 1[st] respondent in the complaint or the 3[rd] respondent would not come under the definition of “public servant”. This Court would not, however, express any opinion on whether the 2[nd] respondent therein would come under that definition. This Court would also not express any opinion as to whether the allegations are maintainable before the Lok Ayukta, since it would be pre-empting the Lok Ayukta from considering, after the preliminary enquiry, if at all, an investigation is necessary. 5. This Court is now called upon to decide whether the decision taken by the Lok Ayukta to handover the enquiry to the Director of V&ACB should be interfered with. The learned Standing Counsel appearing for the Lok Ayukta and the learned Counsel for the 3[rd] respondent-complainant would submit that the petitioners have approached this Court with the aforesaid grounds to frustrate the preliminary enquiry which is being carried on. It is submitted that the stay granted would result in the enquiry not being carried WP(C) No.4250 of 2015 - 5 - out and all the grounds raised in the writ petition could as well be considered by the Lok Ayukta before ordering an investigation into the matter. The learned Senior Counsel, however, would contend that it is for the Lok Ayukta to carry out such preliminary inquiry through the investigating agency of the Lok Ayukta , as per Section 9(3) of the Act. 6. The learned Standing Counsel for the Lok Ayukta would place before me a number of decisions of this Court, wherein it has been held that this Court would not interfere with the preliminary enquiry ordered by the Lok Ayukta and that the Lok Ayukta's powers under Section 16 could be exercised even at the time of a preliminary enquiry. In _**Vincent M.P. v. Shajan and Others [2015 (1) KLT 1012]**_ , a learned Single Judge of this Court has held so in paragraph 17: “17. S.16 is only an enabling provision, by virtue of which, the Lok Ayukta can call for assistance of the concerned officer and employees in discharge of the functions under the Act. Conducting 'preliminary enquiry' is also part of discharging the functions conferred upon the Lok Ayukta. The provision does not place any bar in making use of the service of the concerned officers for - 6 - WP(C) No.4250 of 2015 conducting 'preliminary enquiry' as well, if it is deemed fit by the Lok Ayukta, in view of the wide discretion conferred upon the Lok Ayukta under S.9(3) with regard to th conduct of the preliminary enquiry and the absence of any stipulation either under the Act or Rules as to the manner in which the preliminary enquiry is to be conducted”. 7. A reading of the facts of the above decision would reveal almost similar circumstances when a preliminary enquiry was sought to be carried out by a District Superintendent of Police. Therein also the petitioner contended that the service of an officer of that level could be utilised by the Lok Ayukta only in the course of an investigation and not a preliminary enquiry. The said contentions were rejected. 8. The further apprehension of the petitioner is that the enquiry now ordered by the Director, V&ACB, would lead to registration of a vigilance case against the respondents. The said apprehension would stand assuaged by the decision of the Division Bench reported in _**2015 (2) KLT (SN) 20 Joy Kaitharath Vs. State of Kerala.**_ Therein on the basis of a report filed by the - 7 - WP(C) No.4250 of 2015 Additional Director, V&ACB, in a preliminary enquiry directed by the Lok Ayukta, directions were sought, to urge the registration of a crime, through that Public Interest Litigation. The Division Bench of this court found that there was no requirement to issue any such direction since the report was only to be submitted before the Lok Ayukta which had to decide on whether an investigation has to be carried on. It was also held that the Lok Ayukta had sufficient powers for directing registration of a crime and there was absolutely no requirement for the Division Bench to act on the basis of the preliminary enquiry report filed before the Lok Ayukta. 9. In the wake of the binding decision of the learned Single Judge, this Court does not find any reason to interfere with the directions in Exhibit P2 entrusting the preliminary enquiry to the Director, V&ACB. However, the enquiry shall be confined to a preliminary enquiry, to be conducted for the purpose of filing a report before the Lok Ayukta and cannot, as of now, lead to registration of a vigilance case, since the scope of the enquiry is confined to find whether there is a _prima facie_ case against the respondents. The question of whether an investigation has to be WP(C) No.4250 of 2015 - 8 - conducted would have to be considered after the preliminary enquiry report is placed on record and after notice to the respondent-complainant. The contention taken by the petitioners that even before a preliminary enquiry is conducted, they should have been issued with notice has been rightly held to be not sustainable by the Lok Ayukta relying on a decision of the Hon'ble Supreme Court in _**Ch.Rama Rao v. The Lok Ayukta and others**_ **[AIR 1996 SC 2450].** 10. In the above circumstances, the writ petition is dismissed without any observations on the merits as to whether the complaint could be entertained before the Lok Ayukta or not, which has to be looked into by the Lok Ayukta on a consideration of the preliminary enquiry report as also the contention taken by the respondents in the Complaint; regarding the maintainability. This shall necessarily be done before an investigation is proceeded with. Parties are left to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]