W.P.(C).Nos.39223 of 2003 (T) & 39245 of 2003 (V)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937 ## W.P.(C).No.39223 of 2003 (T) --------------------------------------------------- PETITIONER(S):- -------------------------- 1. [* M.K.SIVANKUTTY], DISTRICT PROJECT CO-ORDINATOR, DISTRICT PRIMARY EDUCATION PROGRAMME, IDUKKI DISTRICT AT THODUPUZHA. [CAUSE TITLE AMENDED] - DISTRICT PROJECT CO-ORDINATOR, DISTRICT PRIMARY EDUCATION, IDUKKI, THODUPUZHA. [CAUSE TITLE AMENDED AS PER ORDER DTED 23.02.2004 IN I.A.NO.2272/2004]. 2. THE STATE PROJECT DIRECTOR, DISTRICT PRIMARY EDUCATION PROGRAMME, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.S.JAMAL. RESPONDENT(S):- - ---------------------------- 1. V.V.VISWANATHAN, VADAKKEAL, PASUPPARAPUTHUVAL, PASUPPARA P.O., IDUKKI. 2. THE KERALA LOK AYUKTA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM. R1 BY ADV. SRI.T.K.ANANDA PADMANABHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2016, ALONG WITH WP(C).39245/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C).NO.39223 OF 2003-T ## **APPENDIX** PETITIONER'S EXHIBITS:------------------------------------EXT.P1 TRUE COPY OF THE COMPLAINT NO.1167/2002 FILED BEFORE THE RESPONDENT LOK AYUKTA. EXT.P2 TRUE COPY OF THE WRITTEN COMMENTS FILED BY THE 1ST RESPONDENT HEREIN IN THE COMPLAINT BEFORE THE LOK AYUKTA. EXT.P3 TRUE COPY OF THE REPORT ISSUED UNDER SECTION 12(1) OF THE ACT. RESPONDENT'S EXHIBITS:- ---------------------------------------NIL. Vku/[ true copy ] ## K. Vinod Chandran, J ---------------------------------------------------------------W.P.(C).Nos.39223 of 2003-T & 39245 of 2003-V --------------------------------------------------------------- Dated this the 05th day of January, 2016. ## **JUDGMENT** The petitioners in both the above writ petitions are the District Project Co-ordinator and the State Project Director of the District Primary Education Programme [for brevity “DPEP”], who challenge the order of the Lok Ayukta in which the 1st respondent in W.P.(C).No.39245 of 2003 was directed to be paid the salary withheld by the Government for a period of eleven months. The withholding was purportedly to effect recovery of an amount of about Rs.31,750/- plus interest due thereon, computed at the rate of 20% per annum, without any proceeding for mulcting such liability as per the Service Rules of the 1st respondent in W.P.(C). No.39245 of 2003. 2. The facts to be noticed are that, the 1st respondent in W.P.(C) No.39223 of 2003 was the President of the Parent-Teacher Association [for brevity “PTA”] of Government Lower Primary School, Pasupparaputhuval in Idukki District. The 1st respondent in W.P.(C) No.39245 of 2003 was working as a WPs(C).39223/2003 & - 2 - 39245/2003 Trainer in Block Resource Centre [for brevity “BRC”] at Kattappana, which is a regular employment under the Government. The DPEP provided funds to make construction of a school building for the said Government LPS. A Committee was constituted, wherein the President of the PTA was the President of the Committee and the Trainer of the Block Resource Centre was the Convenor. The parties are hereinafter referred to as “the President” and “the Convenor”. 3. The total cost estimated for the construction of the school was Rs.5,65,000/-. An agreement was executed between the Director, DPEP, the District Project Co-ordinator [for brevity “DPC”] - the petitioners herein - and the President and the Convenor of the Committee - the respective respondent's No.1, in each of the writ petitions - for carrying out the construction work of the school. The 1st instalment of Rs.1,95,000/- was released on 23.10.2000 and the 2nd instalment, of a like amount, on 30.11.2000. The second instalment was released only after getting a visit report of the Engineer (Civil Works). Again, after getting the recommendation of the Engineer, an amount of Rs.5,08,500/-, coming to about 90% of the sanctioned amount, was released. WPs(C).39223/2003 & - 3 - 39245/2003 Subsequently on 28.06.2001, the Engineer, DPEP is said to have prepared a visit report, without giving notice to the President and the Convenor, and on the basis of the said report, it was found that the expenditure incurred for the construction already carried out was only Rs.4,29,226/-. Hence, the President and the Convenor were deemed to have received an excess amount of Rs.79,274/-. 4. The Convenor and the President objected to such assessment especially since the inspection of the Engineer was carried out without notice to them. It is also evident from a reading of Exhibit P3 order of the Lok Ayukta that, at the time of inspection the entire work was not completed. There was a subsequent agreement executed, on the basis of which an additional amount of Rs.28,215/- was also paid to the Convenor and the President for completing the work. A site visit was made by the Engineer, again without notice to the Convenor and the President, who estimated the total work done at Rs.5,05,000/-. Since the total amount released was Rs.5,36,750/-, the balance of Rs.31,750/was computed as excess payment. This is the amount sought to be recovered from the salary due to the Convenor, for eleven months. WPs(C).39223/2003 & - 4 - 39245/2003 5. The President and the Convenor were before the Lok Ayukta against the actions of the petitioners herein, challenging the same to be without jurisdiction and also alleging that no recovery could be effected from the salary of the Convenor. The Lok Ayukta having looked into the terms of the agreement, found that there is a specific arbitration clause entitling any dispute regarding the construction, to be referred to the District Collector/Deputy Commissioner. The computation of liability, that too without notice either to the Convenor or the President, was found to be bad and it was found that the issue has to be referred to the Arbitrator as provided in the agreement. 6. With respect to the recovery of salary from the Trainer of the BRC, who had been the Convenor of the Committee carrying out the construction of the building; it was also found to be bad. There was a direction to pay the entire amounts due to the Trainer/Convenor in the order impugned herein. 7. The learned Government Pleader would contend that there could have been no adjudication of the dispute as such, going by the decision of a Division Bench of this Court in _**State of Kerala v. Bernard**_ **[2002 (3) KLT 254]** and _**State of Kerala v.**_ WPs(C).39223/2003 & - 5 - 39245/2003 _**Sheela**_ **[2009 (2) ILR Kerala 660].** It is also contended that the District Project Co-ordinator and the State Project Director of the DPEP would not be a “public servant” as defined under Section 2 (o) of the Kerala Lok Ayukta Act, 1999 [for brevity “Act of 1999”]. A further contention is taken that the issue being one, arising out of a contract, the Lok Ayukta would be prohibited from looking into such dispute as per the Second Schedule of the Act of 1999. 8. The Division Bench decision cited supra delineated the powers of the Lok Ayukta when looking into a grievance or complaint raised under the Act of 1999. It was held that there could be no adjudication of a dispute and that the powers of the Lok Ayukta are confined insofar as making a recommendation after an investigation of the grievance and proposing remedial measures to the Competent Authority and such a recommendation was found to be not a binding order which was enforceable as against a public officer whose action was under investigation by the Competent Authority or the State Government. If the recommendations were not implemented, then all that the Lok Ayukta could do, was to make a special report to the Governor, which, the Governor is obliged to place before the Legislative WPs(C).39223/2003 & - 6 - 39245/2003 Assembly. The powers of the Lok Ayukta as delineated in the aforesaid decision has to be considered along with the three aspects on which the challenge is raised against the impugned order; (i) on the question of jurisdiction, (ii) on the question of the respondents in the complaints being not public servants, and (iii) on the issue whether the Second Schedule prohibits the Lok Ayukta from entering into the subject which was considered herein. 9. As to the question of the petitioners being public servants, it cannot at all be disputed that the petitioners are government servants, coming under Section 2(f) of the Act of 1999. A government servant is a a public servant as included under clause(iv) of Section 2 (o). The mere fact that they have been made Co-ordinator and Director of a programme initiated by the State Government, specifically DPEP; that cannot divest them of the status of a “government servant”, which alone resulted in their being deputed as the District Project Co-ordinator and the State Project Director. They were also discharging their duties in the respective posts, as government servants and dealing with the affairs of the State. The contention with respect to the petitioners WPs(C).39223/2003 & - 7 - 39245/2003 being not “public servants” is of no relevance, since they are government servants as per Section 2(f). 10. The next contention is with respect to the subject matter raised being one arising out of terms of contract. A reading of the order of the Lok Ayukta would clearly indicate that the Lok Ayukta had refused to examine the terms of the contract or consider the dispute raised as to whether the construction carried on had in fact expended the monies advanced to the President and Convenor. The Lok Ayukta merely looked into the agreement to find that there is a specific arbitration clause and directed the parties to approach the Arbitrator for resolution of their disputes. Hence, the terms of the contract was not adjudicated upon. Nor was any adjudication made with respect to the violation or breach of the terms of the agreement; alleged by the official respondents in the complaint and refuted stoutly by the complainants before the Lok Ayukta. 11. The only issue considered was with respect to the withholding of salary of the 1st respondent in W.P.(C).No.39245 of 2003, to an extent of Rs.31,750/- plus interest at the rate of 20%, and whether it would amount to mal-administration or not. The WPs(C).39223/2003 & - 8 - 39245/2003 withholding of salary is not a question which arises from the contract. The Co-ordinator of the Committee, had been appointed so, only by reason of his status of the Trainer of the BRC. The salary due to him was in the capacity of a government servant, i.e., Trainer in the BRC. To make a recovery of such salary or to withhold it, so as to satisfy the dues with respect to any other liability, would have to concede to the rules governing the service of the government servant. 12. Admittedly there is no proceeding taken against the Government servant under the Service Rules applicable to him; nor has the liability been computed as per the known legal principles, with notice to the employee. The appointment of the government servant as Convenor of the Committee was only to facilitate a supervision by a representative of the government, to ensure that the construction is carried on properly and the amounts granted by the government utilized well. Especially when the Committee had, as its President the President of the PTA, who is not a government servant. A misuse of funds could definitely lead to initiation of proceedings, against the Government servant; but only under the service rules. For alleged misconduct, as the WPs(C).39223/2003 & - 9 - 39245/2003 Convener of the Committee, there can be no unilateral action taken for recovery of amounts without proper proceedings initiated under the service rules. 13. If at all there was any dispute with respect to the construction activity or with respect to the amounts expended, then the same had to be referred to the Arbitrator as noticed by the Lok Ayukta. There could have been no liability cast on the government servant, herein the Trainer; on the basis of the breach of the terms of the agreement without reference to an Arbitrator and without computing the liability in accordance with law. Herein, it is to be noticed that the Convenor and the President were never issued with notice when inspection was carried out by the Engineer. Based on the report of the Engineer of the DPEP regarding the amounts expended for the completed construction, liability was cast and recovery was effected from the Trainer. The finding of the Lok Ayukta that the same is arbitrary and in total violation of the principles of natural justice has to be affirmed. 14. True, the Lok Ayukta could have only issued a recommendation to the appropriate authority and the direction issued for releasing the withheld amounts would not be proper. WPs(C).39223/2003 & - 10 - 39245/2003 However, it is to be noticed that this Court is exercising a discretionary remedy under Article 226 of the Constitution and though there is a lack of jurisdiction on the Lok Ayukta, in the event of there being no illegality at all in the order passed, this Court could decline exercise of such discretion going by the decision of the Hon'ble Supreme Court in _**Mohd. Swalleh v. IIIrd Addl. Dist. Judge, Meerut**_ **[AIR 1988 SC 94]** and of this Court in _**Commissioner of Police v. Abida Beevi**_ **[2006 (2) KLT 112].** This Court does not find any illegality in the direction issued to pay the amounts withheld by the petitioners. In the latter of the above decisions, when the Lok Ayukta found an order to be illegal, though without jurisdiction, interference was declined, since it advanced the cause of justice. It was also held that if the petitioner had on the very same grievance, approached this Court a similar direction would have been issued. The principle applies squarely in the facts of the instant case. In the result, the writ petitions are dismissed. There shall be a direction to the petitioners herein to release the amounts withheld, which shall be done at any rate within a period of three months from the date of production of a certified copy of WPs(C).39223/2003 & - 11 - 39245/2003 this judgment. It is made clear that the said order is only in view of the fact that the Convenor/Trainer has not been proceeded against for imposition of liability as would be possible under the Service Rules; which liberty is reserved. The directions issued herein would not also affect any proceedings in arbitration by the District Collector/Deputy Commissioner as per the terms of the agreement. Parties are left to suffer their respective costs. Sd/K.Vinod Chandran Judge. vku/- [ true copy ]