The Chief Secretary, Government of Kerala & Others v. Smt. R. Pankajakshy and Kerala Lok Ayukta

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ## & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944 ## WP(C) NO. 24101 OF 2018 ## PETITIONERS: - 1 THE CHIEF SECRETARY, GOVERNMENT OF KERALA THIRUVANANTHAPURAM, KERALA, PIN 695 001. - 2 THE REVENUE SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM,KERALA, PIN 695 001. - 3 THE DISTRICT COLLECTOR, CIVIL STATION, THIRUVANANTHAPURAM DISTRICT, KUDAPPANAKUNNU P.O., KERALA PIN 695 043. - 4 THE TAHSILDAR, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT, KERALA, PIN 695 574 - 5 THE VILLAGE OFFICER, MANNOORKARA VILLAGE OFFICE, KUTTICHAL P.O. THIRUVANANTHAPURAM DISTRICT, KERALA, PIN- 695 574 BY ADV GOVERNMENT PLEADER SRI.TEK CHAND.V ## RESPONDENTS: - 1 SMT. R. PANKAJAKSHY, KUZHIYAMKONTATHY VEEDU, MANNORKARA VILLAGE,KUTTICHAL P.O., THIRUVANANTHAPURAM DISTRICT, KERALA PIN-695 574 - 2 KERALA LOK AYUKTA, VIKAS BAHVAN, THIRUVANANTHAPURAM 695 033, BY ITS REGISTRAR BY ADVS.P.E.SAJAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24101 OF 2018 :: 2 :: ## JUDGMENT Dated this the 15[th] day of December 2022 ## S.MANIKUMAR, C.J. This writ petition is preferred by the officials of the State [the Chief Secretary; Revenue Secretary; District Collector, Thiruvananthapuram; Tahsildar, Nedumangadu Taluk and Village Officer, Thiruvananthapuram] against the order of the Lok Ayukta dated 1.9.2016 in Complaint No.943/2014. 2. Petitioners herein have sought for a direction to call for the records leading to Ext.P5 order dated 1.9.2016 in Complaint No.943/2014 on the file of the Kerala Lok Ayukta and to set aside the same, by the issuance of writ of certiorari or other appropriate writ, direction or order. 3. Short facts leading to the filing of the Complaint No.943/2014 reads thus: The respondent herein filed Complaint No.943/2014 before the Kerala Lok Ayukta, which is marked as Ext.P1, alleging that she was not paid remuneration for her service from 1.2.2007 to 25.9.2009. According to the WP(C) NO. 24101 OF 2018 :: 3 :: respondent/complainant, she has rendered her service in the Village Office, Mannoorkara, Nedumangad Taluk as part-time sweeper from 01.06.2006 and she was terminated from the service without notice on 2.10.2009. The respondents in the complaint are respectively the Chief Secretary to the Government (R1), Revenue Secretary (R2), District Collector, Thiruvananthapuram (R3), Tahsildar, Nedumangad Taluk (R4) and Village Officer, Mannoorkara (R5). The complainant has submitted that the then Village Officer, Mannoorkara under whom she worked as a casual sweeper upon the retirement of her mother, who was parttime Sweeper in the Mannoorkara Village Office, had assured her that she would receive appointment as parttime sweeper and that thereupon the wages due to her as will be paid to her in a lump. 3.1. According to the complainant, she approached the authorities for reinstatement in service and also for receiving wages for the work already put in by her, but in vain. She has relied on Ext.P1 document, which is a copy of report submitted by the 4[th] respondent - Tahsildar to the 3[rd] WP(C) NO. 24101 OF 2018 :: 4 :: respondent - District Collector in the context of a petition filed by her before the Chief Minister in his Peoples Contact Programme and pointed out that under Ext.P1, it is reported that the complainant has worked in Nedumangad Village Office as casual sweeper from 01/06/2006 till 02/10/2009 and that the complainant has not been paid wages or salary at all. Ext.P1 actually seeks the District Collector's view as to whether the arrears of salary can be paid to Smt. Pankajakshy. 3.2. She also relied on Ext.P2 legal opinion furnished by Advocate Kaleeswaram Raj through the PSC Legal Cell of Mathrubhumi Publication by name Thozhil Vartha. Ext.P2 legal opinion is based on the judgment of the Hon. High Court of Kerala in Mercy v. State of Kerala reported in 2004 (2) KLT 848 . The opinion refers to G.O.(P)No.501/05 and also G.O.(P)No.145/06. It is pointed out through the opinion that as the sweeping area in the Village Office exceeded 100 Sq. metres, the complainant is eligible for regular part time Sweeper's monthly remuneration of Rs.1250/- plus dearness allowance and also for the revised rate of WP(C) NO. 24101 OF 2018 :: 5 :: Rs.2100/- plus dearness allowance. Ext.P3 is the copy of G.O.(P)No.145/06/Fin. dated 25/03/2006, which provides under paragraph 7(ii) that the remuneration due to part time sweepers whose sweeping area is above 100 sq. metres and below 400 sq. metres, stands enhanced with effect from 25/03/2006 from Rs.1250/- plus D.A. to Rs.2100/- plus D.A. monthly. Ext.P4 is the copy of the acknowledgment received by the complainant in respect of petition she had submitted before the Chief Minister's Public Contact Programme through the District Collector. Ext.P5 is the copy of the petition submitted by the complainant to the Chief Minister's Public Grievance Cell under the Sutharya Keralam Project and Ext.P6 is the acknowledgment in respect of Ext.P5, which indicates that Ext.P7 was forwarded to the District Collector, Thiruvananthapuram. The prayer made by the complainant is that directions be issued for payment of salary and allowances to her based on G.O.(P)No.145/06 at the rate of Rs.2100/- plus D.A., the salary due to regular part time sweepers. WP(C) NO. 24101 OF 2018 :: 6 :: 4. After considering the material on record, Lok Ayukta vide order dated 1[st] September, 2016 in Complaint No.943/2014 – C directed to pay arrears of salary amounting to Rs.1,13,285/- to the respondent herein, within a period of three months from the date of receipt of the above order. 5. Being aggrieved, petitioners approached this court on the grounds inter alia that the Lok Ayukta has no jurisdiction to entertain the complaint in a service matter in particular, arrears of salary. 6. For brevity, ground nos.(C) to (E) are extracted hereunder: “C. The power and authority of the Honourable Lok Ayukta to interfere in a service matter is well settled in a catena of decisions rendered by this Honourable Court. In Kamal v. State of Kerala, the Division Bench of this Honourable Court empathetically held that action taken in respect of appointment, remuneration, pay, discipline, superannuation or other matters relating to the conditions of service of public servant is outside the purview of the Lok Ayukta or Lok Aykta Act. In the decision in Kerala State Civil Supplies Corporation reported in 2006(1) KLT 692, another Division Bench of this Honourable Court held that the complainant claiming that he is entitled to continue in service up to the age of 60 is not one relating to the claims for pension or claims which arise on retirement, removal or WP(C) NO. 24101 OF 2018 :: 7 :: termination of service and therefore the Lok Ayukta has no jurisdiction. Therefore, the Honourable Lok Ayukta ought to have been rejected the complaint for want of jurisdiction in view of the declaration of law made by this Honourable Court. It follows that Ext.P5 Order of the Lok Ayukta is liable to be interfered. D. Section 8(1) of the Lok Ayukta Acts provides Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation under this Act in the case of the complainant involving the grievances in respect of the action, if such action relates to a matter specified in the second Schedule. The item (b) of the second Schedule consists of action taken in respect of appointment, remuneration, pay, discipline, Superannuation or other matters relating to conditions of service of public servant. In view of the above specific exclusion of jurisdiction of the Lok Ayukta under Section 8(1) read with second Schedule, the Lok Ayukta ought to have been dismissed the complaint at the threshold. E. In the decision in Commissioner of Police, Thiruvananthapuram Vs.. Abida Beevi and another reported in 2016 (2) KHC 537, this Honourable Court has held that complainant raising grievances regarding the nonpayment of arrears of salary is not maintainable before the Lok Ayukta and the Lok Ayukta has no jurisdiction to entertain such complaint regarding arrears of salary. Therefore, Orders passed by the Lok Ayukta is without jurisdiction and is liable to be interfered under Article 226 of the Constitution of India. In view of the law declared by this Honourable Court that Lok Ayukta has no jurisdiction to entertain the complaint regarding the conditions of service of a employee, Ext.P5 Order is liable to be interfered.” **==> picture [364 x 51] intentionally omitted <==** WP(C) NO. 24101 OF 2018 :: 8 :: ## 7. Heard learned counsel for the parties and perused the materials available on record. ## 8. Section 8 of the Lok Ayukta Act, 1999 deals with matters not subject to investigation, which reads thus: “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,- (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.” WP(C) NO. 24101 OF 2018 :: 9 :: ## 9. Second Schedule to the Kerala Lok Ayukta Act, 1999 reads thus: (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 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 honors and awards. 10. From a conjoint reading of Section 8 and Second Schedule to the Kerala Lok Ayukta Act, 1999 which are extracted supra, it is clear that Lok Ayukta has no jurisdiction to entertain the complaint as regards arrears of salary. Certainly, Lok Ayukta is empowered to deal with subject matters emanated in Section 8(i)(d) to the Schedule. 11. Reliance is also placed on the decisions in Kamalu v. State of Kerala reported in 2000 KHC 616 ; Kerala State WP(C) NO. 24101 OF 2018 :: 10 :: Civil Supplies Corporation v. Kerala Lok Ayukta reported in 2006 KHC 209 and Commissioner of Police, Tvm and others v. Abida Beevi and another reported in 2016 (2) KHC 537 . The decisions squarely apply to the facts of this case. The decisions squarely apply to the facts of this case. 12. In the light of the above statutory provisions and the decisions stated supra, we are of the view that the Lok Ayukta ought not have entertained Complaint No.943/2014 and pass orders. 13. However, it is fairly submitted by Mr.Tek Chand, learned Senior Government Pleader that as per G.O. (P)No.154/08/Fin. dated 5.4.2008 that the first respondent would be entitled to the wages of Casual Sweepers from Rs.750 p.m. to Rs.1000 p.m. and the revised rate would be effective from 1.4.2008. Submission of learned Senior Government Pleader is placed on record. 14. G.O.(P)No.154/08/Fin. dated 5.4.2008 reads thus: ## GOVERNMENT OF KERALA Abstract CASUAL SWEEPERS—REMUNERATION--ENHANCEMENT OF RATES—SANCTIONED—ORDERS ISSUED --------------------------------------------------------------------------------------------------- WP(C) NO. 24101 OF 2018 :: 11 :: ## FINANCE (EXPENDITURE-A) DEPARTMENT --------------------------------------------------------------------------------------------------G.O.(P)No.154/08/Fin. Dated, Thiruvananthapuram,5th April, 2008 Read:--1. G.O.(P)No.430/06/Fin. Dated 25-10-2006. ## ORDER Government are pleased to enhance the wages of Casual Sweepers from Rs.750 p.m. to Rs.1000 p.m. The revised rate will be effective from 1.4.2008. By order of the Governor, ASHWINI KUMAR RAI, Secretary, Finance (Expenditure) Writ petition is allowed. However, in the interest of justice, petitioners are directed to take steps to disburse the arrears of wages payable to the first respondent or to her legal heirs, as the case may be, within a period of one month from the date of receipt of a copy of the judgment. SD/S.MANIKUMAR CHIEF JUSTICE SD/SHAJI P. CHALY JUDGE jes WP(C) NO. 24101 OF 2018 :: 12 :: ## APPENDIX ## PETITIONERS’ EXHIBITS: EXHIBITP1 TRUE COPY OF THE COMPLAINT NO.943/2014 ON THE FILE OF THE KERALA LOK AYUKTA. EXHIBIITP2 A TRUE COPY OF THE REPLY STATEMENT OF THE 1ST RESPONDENT IN THE COMPLAINT. EXHIBITP3 A TRUE COPY OF THE WRITTEN ARGUMENTS AND PLEADINGS. EXHIBIT P4 A TRUE COPY OF THE REVISED STATEMENT. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 01-09-2016. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 01-09-2016 OF LOK AYUKTA. // TRUE COPY // ## P.S. TO JUDGE