The Kerala State Electricity Board v. A. Nanoo and The Kerala Lok Ayukta

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 29399 of 2007(Y) -------------------------- PETITIONER: ------------ THE KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENTS: ------------- 1. A.NANOO, AGED 60 YEARS, S/O. AYYAPPAN, (RETIRED SUB ENGINEER, KSEB), VISHNU KRIPA, CHITTATTINKARA, KIZHUVILAM, ATTINGAL. 2. THE KERALA LOK AYUKTA, THIRUVANANTHAPURAM. BY ADV. SMT.P.K.RADHIKA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29399 of 2007 ## APPENDIX ## PETITIONER'S EXHIBITS EXT.P1A TRUE COPY OF THE SHO CAUSE NOTICE DATED 2.11.02 ISSUED BY THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KALPETTA TO THE FIRST RESPONDENT EXT.P2A TRUE COPY OF THE PROCEEDINGS OF THE EXECUTIVE ENGINEER IN CHARGE, ELECTRICAL CIRCLE, KALPETTA DATED 25.2.03 EXT.P3A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 31.1.04 ISSUED BY THE CHIEF ENGINEER (HRM) TO THE FIRST RESPONDENT EXT.P4TRUE COPY OF THE PROCEEDINGS DATED 5.6.04 OF THE CHIEF ENGINEER (HRM) EXT.P5TRUE COPY OF THE COMPLAINT NO.2641/05 DATED 19.12.05 EXT.P6TRUE COPY OF THE STATEMENT DATED 22.2.06 FILED BY THE CHIEF ENGINEER (HRM) BEFORE THE 2ND RESPONDENT IN COMPLAINT NO.2641/05 EXT.P7TRUE OPY OF THE REPLY STATEMENT DATED 27.4.06 FILED BY THE FIRST RESPONDENT HEREIN BEFORE THE 2ND RESPONDENT HEREIN IN COMPLAINT NO.2641/05 EXT.P8TRUE COPY OF THE ADDITIONAL STATEMENT DATED 6.6.06 OF THE CHIEF ENGINEER (HRM) OF THE PETITIONER FILED BEFORE THE 2ND RESPONDENT IN COMPLAINT NO.2641/05 EXT.P9TRUE COPY OF the REPLY STATEMENT DATED 26.3.07 FILED BY THE 1ST RESPODNENT HEREIN BEFORE THE 2ND RESPONDENT HEREIN IN COMPLAINT NO.2641/05 EXT.P10TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 20.6.07 IN COMPLAINT NO.2641/05 (TRUE COPY) P.A TO JUDGE ## **V.GIRI, J** ------------------- ## W.P.(C).29399/2007 -------------------Dated this the 14[th] day of March, 2008 ## **JUDGMENT** The first respondent retired from the service of the Electricity Board as Sub Engineer on 31.5.2002. Though his retirement benefits were sanctioned and pension was disbursed, DCRG due to him was not disbursed and accordingly, he approached the Lok Ayukta with complaint No.2641/2005 praying for a direction to disburse the retirement benefits due to him and also give him an adequate compensation for the belated disbursal of the benefits. 2. A statement was filed by the Electricity Board before the Lok Atukta contending that as per the details of liability furnished by the Executive Engineer, Electrical Division, Attingal, the total liability reported against the complainant before the Lok Ayukta, namely the first respondent herein, comes to an amount of Rs.5,65,537/- + interest. It was also pointed out that disciplinary proceedings and vigilance enquiry against the petitioner W.P.(C).29399/2007 2 are pending. DCRG due to the petitioner is Rs.2,70,134/- and commuted value of pension is Rs.2,42,244/-. Pension to the tune of Rs.6,315/- has been sanctioned to the petitioner and the same is being disbursed as well. But since the CVP and DCRG are less than the amount fixed as the liability, same has not been disbursed so far. Exts.P2 and P4 are referred to as the two other proceedings under which liability was fixed on the petitioner. 3. Lok Ayukta proceeded to consider the complaint and found in Ext.P10 that the DCRG cannot be withheld for more than one year after retirement. Reference was made to a decision of this Court in **Sugathan v. Kochin Devaswom Board (2005 (1) KLT 46).** Accordingly, there was a direction to pay the entire DCRG to the complainant without prejudice to the right of the Board to realize its loss in accordance with the provisions of law. There was a direction as regards the CVP as well. Ext.P10 has been challenged in this writ petition. Counter affidavit has been filed by the original complainant supporting Ext.P10. W.P.(C).29399/2007 3 4. I heard learned counsel for the petitioners Sri.Asok M. Cherian and the learned counsel for the first respondent Smt.Radhika. 5. Learned counsel for the petitioners submits that Ext.P10 order is without jurisdiction. Lok Ayukta is not competent to pass orders of adjudication as such. A reference in this regard is made to a Division Bench decision of this Court in **Kamalu v. State of Kerala (2000 (3) KLT, 227)** and subsequent decisions of this Court reported in **George A.T. and Others v. Saralakumari P. and Another (2007 (4) ILR 442)** and **Aravindaksha Panicker v. Accountant General (2007 (4) KLT 1031).** It is contended that the jurisdiction of Lok Ayukta is only to make a recommendation under Section 12 of the Act or otherwise submit a report under Section 14 of the Act. However, Lok Ayukta could assume jurisdiction even in relation to the above matters only if it is able to give a specific finding regarding the existence of mal administration having tainted the action in question. W.P.(C).29399/2007 4 6. Learned counsel for the first respondent submits that the jurisdiction of the Lok Ayukta to entertain the claims regarding terminal benefits has been upheld by this Court in **Managing Director, KSRTC v. Padmavathy T. reported in (2008 (1) ILR (Ker), 378).** That the Lok Ayukta has jurisdiction to entertain the claims regarding the retirement benefits cannot be questioned going by clause (d) of second schedule of the Act as has been found by this Court in **Padmavathy’s** case. But the question is whether the order passed by the Lok Ayukta in Ext.P10 is otherwise sustainable. It is the specific case of the Electricity Board that an amount of Rs.5,65,537/- was fixed as the liability of the petitioner and the amount fixed as liability was in excess of the total amount due by way of DCRG and CVP. It is pointed out that Exts.P2 and P4 liability certificates were issued on 25.2.2003 and 5.6.2004, within three years of retirement. Rule 3 of Part-III of the K.S.R enables fixation of liability within a period of three years from retirement, and consequent adjustment from the DCRG. Exts.P2 and P4 herein were not the W.P.(C).29399/2007 5 subject matter of challenge in the complaint before the Lok Ayukta, nor could the Lok Ayukta exercise the powers of judicial review in relation to Exts.P2 and P4. Once there is a fixation of liability and it is so urged by the employer then unless fixation of such liability is found to be vitiated and consequently set aside, Government would be entitled to adjust the amount so fixed as liability from the DCRG. This is permissible in terms of Note 2 to Rule 3 of Part-III of K.S & S.S.R. Assuming that the first respondent was aggrieved by Exts.P2 and P4, the remedy available to him was to challenge it in appropriately instituted proceedings, before a Court that could interfere with such proceedings exercising powers of judicial review. It was not possible before the Lok Ayukta as such. 7. Lok Ayukta has no powers of adjudication as such. This view was taken by the Division Bench of this Court in **Kamalu v. State of Kerala (2000 (3) KLT, 227).** It has been followed by this Court on subsequent occasion as well in **State of Kerala v. Barnard (2002 (3) KLT 254).** Division Bench of this Court W.P.(C).29399/2007 6 specifically held that the area where the Lok Ayukta could exercise the power legitimately is Sub Section (1) of Section 14 of the Act which deals with the declaration that the Public servant is not entitled to hold office. Even under Section 12 of the Act, it is only open to the Lok Ayukta to make a recommendation. Ext.P10 is neither a recommendation under Section 12 nor a report under Section 14 of the Act. The said order is not sustainable in view of the law laid down in the case of **Barnard** . 8. I also note that there is no finding anywhere in Ext.P10 that there has been mal administration on the part of the officials of the Electricity Board in the matter of disbursal of DCRG. Such finding has been found to be a jurisdictional factors in the case of **George A.T. and Others v. Saralakumari P. and Another (2007 (4) ILR 442).** 9. For all these reasons I find that Ext.P10 is unsustainable. Accordingly, the same is quashed. But I make it clear that this shall not stand in the way of the W.P.(C).29399/2007 7 first respondent taking appropriate steps challenging fixation of the liability under Exts.P2, P4 or any other proceedings seeking other appropriate reliefs in the matter of DCRG and CVP. I have interfered only on the question of jurisdiction of the Lok Ayukta and not on merits. Writ petition is allowed as above. **V.GIRI, Judge** mrcs