The Managing Director, Kerala State Financial Enterprises Ltd v. M.A.Kasimm and The Kerala Lok Ayukta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938** **WP(C).No. 26671 of 2010 (H)** **----------------------------** **PETITIONER(S): -------------** **THE MANAGING DIRECTOR, KERALA STATE FINANCIAL ENTERPRISES LTD, BHADRADA, MUSEUM ROAD, CHEMBOOKAVU, TRICHUR.** **BY ADV.SRI.C.V.ALEXANDER** ## **RESPONDENT(S):** **-------------** **1. M.A.KASIMM, LAILA MANZIL, MADRASSA LANE, SASTHAMANGALAM, TRIVANDRUM-695001.** **2. THE KERALA LOK AYUKTA,** **THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR, PIN-695001.** **R1 BY ADV. SRI.LIJU. M.P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 26671 of 2010 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **---------------------** - **P1: COPY OF THE COMPLAINT FILED BY THE R1 BEFORE THE R2** - **P2: COPY OF THE COUNTER STATEMENT FILED BEFORE THE R2 BY THE PETITIONER HEREIN** - **P3: COPY OF THE REPLY STATEMENT FILED BY THE R1 BEFORE THE R2 HEREIN** - **P4: COPY OF THE ORDER DATED 1/7/10 PASSED BY THE R2.** **RESPONDENTS' EXHIBITS** **---------------------** - **R1: COPY OF THE statement OF SERVICE BENEFITS AND LIABILITY ISSUED BY K.S.F.E.** - **R2: COPY OF THE NON LIABILITY CERTIFICATE ISSUED BY PERURKADA SERVICE CO-OP.BANK** - **R3: COPY OF THE NON LIABILITY CERTIFICATE ISSUED BY TRIVANDRUM DISTRICT CO-OP.BANK** - **R4: COPY OF THE COURT ATTACHMENT LIFTING ORDER ISSUED BY SUB JUDGE, KOTTARAKKARA.** - **R1(A): COPY OF THE LETTER GGS-4 DATED 10/6/03 ISSUED BY THE WRIT PETITIONER** - **R1(B): COPY OF THE LETTER DATED 1/9/2007 ISSUED FROM PEROORKADA SERVICE CO-OP. BANK, THIRUVANANTHAPURAM** - **R1(C): COPY OF THE LETTER DATED 12/7/2007 ISSUED FROM SUB COURT, KOTTARAKKARA** - **R1(D):COPY OF THE LETTER DATED 1/9/2007 ISSUED BY MANAGER THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD.** - **R1(E):COPY OF THE LETTER DATED 8/1/2009 ISSUED BY SERNIOR MANAGER THE KERALA STATE CO-OP. BANK LTD.** ## **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.V.ASHA, J.** ----------------------------------------------------W.P(C) No.26671 of 2010-H ---------------------------------------------------Dated this the 27[th] day of September, 2016 ## **JUDGMENT** The petitioner K.S.F.E has filed this Writ Petition challenging Ext.P4 order passed by the Lok Ayukta in Complaint No.213 of 2009, filed by the 1[st] respondent herein, who is the widower of late Laila, who was an employee of the petitioner herein. By Ext.P4, the Lok Ayukta directed the petitioner to pay an amount of Rs.1,27,525/- to the complainant along with interest @ 9% per annum from 12.7.2007. 2. From Ext.P4 it is seen that, the Lok Ayukta had directed the petitioner on 09.02.2010, to file a statement with respect to the contention of the complainant that the liabilities of the deceased wife except the one to Bank of India had already been cleared. Seeing that no statement was filed pursuant to that direction, the Lok Ayukta disposed of the complaint as per Ext.P4 order, directing to pay the balance amount due to the complainant. W.P(C) No.26671 of 2010-H 2 3. The petitioner challenges Ext.P4 order on the ground that the Lok Ayukta does not have any jurisdiction to issue any directions and that the complaint was not liable to be entertained in view of the expressed prohibition under Section 8 of the Kerala Lok Ayukta Act, 1999. It is the further contention that in the light of the judgment of this Court in **George v. Saralakumari** [2007(4) KLT 924], positive directions could not have been issued to the petitioner. 4. The petitioner has pointed out that there were several liabilities for the deceased Laila. She stood as surety for various transactions of loans/chitties from KSFE as well as other banks. She had also availed loan from KSFE, State Co-operative Bank, Peroorkada Staff Co-operative Society and she herself had auctioned several chitties/availed loans from the KSFE itself, which were in default. Apart from that, there was a liability to the Bank of India, Chullimanoor branch. It was also stated that there was originally an attachment from Kottarakkara Sub Court, of the share of one of the legal heirs of Smt.Laila, which was later lifted by remitting a sum of Rs.30,250/-. In the counter statement filed, the petitioner stated that a sum of Rs.1,21,000/from out of the terminal benefits due to the deceased was W.P(C) No.26671 of 2010-H 3 withheld for satisfying the attachment orders of Sub Court, Kottarakkara in O.S.No.49 of 2003. It was further stated that a sum of Rs.25,000/- along with interest to the State Co-operative Bank, Peroorkada, a sum of Rs.69,500/- to the Bank of India, Chullimanoor branch, etc. were also not adjusted. The details of the terminal benefits due to the deceased and her liabilities were furnished in paragraph 8 of the counter statement filed by the 1[st] respondent herein, according to which, the total amount due to the 1[st] respondent was Rs.4,15,380/- and out of that after adjusting a sum of Rs.3,24,630/-towards various liabilities, the balance amount of Rs.90,750/-, was not released since the liability towards Bank of India was not satisfied. 5. It was after Ext.P2 statement was filed that the the 1[st] respondent submitted before the Lok Ayukta that the liability towards Bank of India was already cleared and the Lok Ayukta directed the petitioner to file a statement on that submission and in the absence of any statement, passed Ext.P4 order directing payment of Rs.1,21,525/-. 6. In this writ petition the 1[st] respondent has filed a counter affidavit stating that the deceased Laila died on account of brain tumor after prolonged treatment, for which financial W.P(C) No.26671 of 2010-H 4 assistance was necessary from different sources. He has produced Ext.R1(a) letter issued by the petitioner on 10.06.2003 in which it was stated that, the total liability of late Laila was a sum of Rs.4,66,918/- plus interest, under the 12 heads mentioned therein; apart from that there is an order of the Sub Court, Kottarakkara to attach a sum of Rs. 1,21,000/- from her terminal benefits towards the debts of the husband of the deceased in O.S.No.49 of 2003 of Sub Court, Kottarakkara. The 1[st] respondent further stated that the writ petitioner themselves cleared the dues in respect of items 1 to 7 and 9 for which a sum of Rs.2,94,380/- was adjusted and the balance amount came to Rs.1,21,000/-. It was further stated that the amount mentioned in respect of O.S.No.49 of 2003 in the Sub Court, Kottarakkara was cleared by the 1[st] respondent directly. Ext.R1(b) Letter dated 1.9.2007 from the Peroorkada Service Co-operative Bank is produced to show that the loan No.P.795 availed from it was cleared off and Ext.R1(c) dated 12.7.2007 of the Sub Court, Kottarakkara would show that the attachment of the sum of Rs.1,21,000/- from the terminal benefits of the petitioner was already released. The 1[st] respondent also produced Ext.R1(d) letter dated 1.9.2007 from the District Co-operative Bank, W.P(C) No.26671 of 2010-H 5 Trivandrum informing that the loan availed in favour of Binu.M.Kasim for which the deceased was one of the sureties was already closed. Ext.R1(e) letter dated 08.01.2009 shows that the Kerala State Co-operative Bank Ltd. had closed Samriddhi loan No.3.513.4604 for which the deceased was a surety and there is no liability in her name. On the basis of these letters it is the contention of the 1[st] respondent that, the contentions raised by the petitioner cannot be correct. 7. In the above circumstances, the learned counsel for the petitioner points out that there is a statement in Ext.P1 complaint of the petitioner that, out of the balance amount of Rs.1,57,775/-, a sum of Rs.30,250/- was disbursed at the request of the 1[st] respondent's daughter to discharge the liability towards the Kerala State Co-operative Bank by way of demand draft which was directly given by the petitioner bank. Pointing out this, the learned counsel for the petitioner submits that the contention with respect to the liability to the extent of Rs.30,250/- is not correct. 8. However, the petitioner has admitted in Ext.P2 that a sum of Rs.90,750/- can be withdrawn if the loan account towards Bank of India Chullimanoor is closed. Thus it is clear that W.P(C) No.26671 of 2010-H 6 terminal benefits on account of the deceased Laila is remaining with the petitioner bank. 9. The writ petition is filed raising the contention that the Lok Ayukta does not have any jurisdiction over the issue involved in the case, as Section 8 of the Kerala Lok Ayukta Act, 1999, specifically excludes the same. But going by the provisions contained in clause (d) under second schedule of the Act, actions relating to claims for pension, gratuity provident fund or to any claims arising on retirement, removal or superannuation which are not excluded. Clause (d) reads as follows: “Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters 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.” Thus it is clear that the issue regarding terminal benefits were not excluded from the purview of the Lok Ayukta. 10. The next issue is regarding the authority of the Lok Ayukta to issue directions to make payment in the light of the judgment in **George v. Saralakumari** [2007 (4) KLT 924]. Even in that case, this court considered the issue regarding the eligibility of the complainant therein and the liability of the W.P(C) No.26671 of 2010-H 7 employer to make the payment which were under consideration. In this case, the dispute is only with respect to a sum of Rs.30,000/-. The petitioner cannot have any legal objection for making payment of the admitted amount of Rs.90,750/- (Rupees Ninety thousand seven hundred and fifty only), which they have retained from the terminal benefits to the first respondent together with interest. Since the said amount was lying with the petitioner from 12.07.2007 onwards, petitioner is liable to compensate the 1[st] respondent for the delay in payment and therefore the said sum will carry interest @ 9% per annum from 12.07.2007. The payment shall be made within two months from the date of receipt of a copy of this judgment. Ext.P4 order shall stand modified to the above extent. The writ petition is disposed of accordingly. Sd/- **(P.V.ASHA, JUDGE)** rtr/