Ashok Bhushan, CJ.
1. These appeals raise common questions of law and facts and hence, were heard together and decided by this common judgment. W.A.No.1381 of 2006 has been filed against the judgment dated 1.3.2006 in W.P.(C) No.23692 of 2005, whereas, all other appeals have been filed against the common judgment of the learned Single Judge dated 13.9.2007 delivered in W.P.(C) No.21379 of 2006 and seven other writ petitions of 2007. All the writ petitions arise out of the orders passed by the Kerala Lok Ayukta deciding the complaints. It shall be sufficient to note in detail the facts in W.A.No.1381 of 2006 and facts in W.A.No.86 of 2008 for deciding all the other writ appeals.
W.A.No.1381 of 2006
2. Nine policemen of the District Armed Reserve Police, Thiruvananthapuram were dismissed by order of the Government dated 26.6.1974 in exercise of power under sub clause (c) of the proviso to Clause (2) of Article 311 of the Constitution of India. Ali Akbar, the husband of the first respondent - Abida Beevi, was also one of the nine policemen, who were dismissed by order dated 26.6.1974. The dismissal order of nine policemen were not challenged before any court or any authority. However, some of them submitted representation before the Government. The Government, vide its order dated 30.7.1990 reviewed its earlier order, by which, the dismissal was revoked and they were reinstated in service. In the order, it was further mentioned that orders as to how the period of absence in the cases of above policemen is to be regularised will be issued separately. Another Government Order dated 1.6.1992 was issued ordering that the period of dismissal shall be treated as break in service without forfeiture of past service. The husband of the first respondent, Ali Akbar, by that time, died on 28.8.1988. One of the policemen, N.Sasidharan Nair again submitted representation against the Government Order dated 1.6.1992, whereupon, the Government issued another order dated 1.4.2000 directing that the period of dismissal, that is; from 26.6.1974 to 30.7.1990 of the above nine policemen of District Armed Reserve, Thiruvananthapuram will be treated as qualifying service for the purpose of pension, in relaxation of rules. The first respondent, Abida Beevi, filed a complaint No.1341 of 2004 before the Kerala Lok Ayukta praying for arrears of salary of late Ali Akbar from 26.6.1974 to 28.8.1988 along with interest. The complaint was resisted by the Government. It was stated that the Government Order dated 1.4.2000 was issued in relaxation of existing rules with a lenient view to help the reinstated constables including the deceased. It was also stated that no more leniency would be shown to them. It was stated that this employee was not eligible for arrears of salary as complained of. The Kerala Lok Ayukta by order dated 9.5.2005 decided the complaint holding that the deceased, husband of the complainant, was entitled for arrears of salaryfrom 26.6.1974 to 28.8.1988 and a direction was issued to compute the salary and to pay the same to his legal heirs, that is; the complainant.
3. Aggrieved by the order of the Kerala Lok Ayukta , W.P. (C) No.23692 of 2005 was filed by the Commissioner of Police, the Principal Secretary to Government, Home Department and the Chief Secretary to Government of Kerala. The petitioners before the learned Single Judge contended that the Kerala Lok Ayukta have no jurisdiction to decide the complaint and hence, the order deserves to be set aside. It was further contended that according to KSR Part III, no further relaxation is entitled to be given to the reinstated constables. The learned Single Judge, on the first contention of the petitioners, observed that even if it is assumed that the Lok Ayukta has no jurisdiction, if the order passed by it renders justice, this Court need not interfere with it. It was further observed that if the complainant had approached this Court, this Court would have passed an order directing to grant the reliefs granted as per Ext.P3 order of the Kerala Lok Ayukta. Relying on the judgment of the Apex Court in Mohammed Swalleh v. IIIrd Additional District Judge [1988 (1) SCC 40] and few other judgments, the writ petition has been dismissed. The writ petitioners, aggrieved by the said judgment, have come up in W.A. No.1381 of 2006.
W.A. No.86 of 2008 and other appeals
4. W.A. No.86 of 2008 and other appeals have been filed against the common judgment dated 13.9.2007 rendered by the learned Single Judge in eight writ petitions filed by all the appellants in W.A. No.1381 of 2006. All the seven appeals have been filed by the policemen, who were among the nine constables of District Armed Reserve Police, Thiruvananthapuram, who were dismissed from service by Government Order dated 26.6.1974. The sequence of facts and issuance of various Government orders regarding the above nine constables have already been noticed while noticing the facts of W.A.No.1381 of 2006 and needs no repetition. The only additional fact, which need to be noticed is that all the appellants had filed complaints before the Kerala Lok Ayukta being complaint Nos.1403 of 2005 to 1409 of 2005, in which complaints, the complainants had prayed for arrears of salary during the period from 26.6.1974 to 8.8.1990 and further prayed for refixation of their salary and consequential pensionary benefits along with interest. All the complaints were allowed by the Kerala Lok Ayukta by order dated 24.4.2006. The Kerala Lok Ayukta, for allowing the complaints, has also relied upon the judgment of the learned Single Judge in W.P.(C) No.23692 of 2005, that is; The Commissioner of Police and others v. Abida Beevi and another, against which, appeal had alreadybeen filed as W.A.No.1381 of 2006. Challenging the order of the Kerala Lok Ayukta dated 24.4.2006 passed in the complaints filed by the seven constables, different writ petitions were filed by the Commissioner of Police and others before this Court.
5. The contention reiterated before the learned Single Judge was that the Kerala Lok Ayukta has no jurisdiction to entertain the complaints. The complainants before the learned Single Judge have also placed reliance on the judgment of the learned Single Judge in W.P.(C) No.23692 of 2005, The Commissioner of Police and others v. Abida Beevi and another. The learned Single Judge, vide common judgment dated 13.9.2007 held that the Kerala Lok Ayukta has no jurisdiction to entertain the complaints filed by the complainants. The learned Single Judge felt to be bound by the Division Bench judgment of this Court in State of Kerala v. Bernard [2002 (3) KLT 254] and relying on the said Division Bench judgment, the learned Single did not follow the earlier judgment of the learned Single Judge in Commissioner of Police and others v. Abida Beevi and another, consequently, set aside the order passed by the Kerala Lok Ayukta and allowed the writ petitions. Aggrieved by the judgment of the learned Single Judge dated 13.9.2007, W.A.No.86 of 2008 and other writ appeals have been filed.
6. All the appeals stemmed from very same facts and circumstances and the complaints filed by the constables and their legal heir were found in favour of them by the Kerala Lok Ayukta and aggrieved by the same, the matter was taken up before this Court. The sequence of events as noted above indicated that two learned Single Judges' decided the writ petitions filed by the State Authorities aggrieved by the order of the Kerala Lok Ayukta, taking two different view. W.P.(C) No.23692 of 2005 filed by the Commissioner of Police and others was dismissed upholding the order of the Kerala Lok Ayukta, whereas, the similar order passed by the Kerala Lok Ayukta has been set aside by the learned Single Judge vide judgment dated 13.9.2007 in W.P.(C) No.21379 of 2006 and other writ petitions.
7. The State has also filed W.A.No.1381 of 2006 against the judgment dated 1.3.2006, which judgment was stayed by the Division Bench of this Court vide order dated 9.10.2006, which order is still in force.
8. We have heard Smt.Girija Gopal, the learned Special Government Pleader appearing for the State and Sri.A.Rajasimhan for the respondents in W.A.No.1381 of 2006 and for the appellants in all other writ appeals.
9. The constables and their legal heirs, who had filed complaints before the Kerala Lok Ayukta shall hereinafter be referred to as the 'complainants', whereas, the Commissioner of Police and other State authorities, who were the petitioners in the writ petitions shall hereinafter be referred to as the 'State'. During the submissions, the learned counsel for the parties have placed reliance on various judgments of this Court and the Apex Court, which shall be referred to while considering the submissions in detail.
10. From the submissions of the learned counsel for the parties and pleadings on record, the following are the issues, which arise for consideration in these writ appeals :-
(i) Whether the complaint filed before the Kerala Lok Ayukta claiming arrears of salary by Abida Beevi, the widow of late Ali Akbar, from 26.6.1974 to 28.8.1988 and the complaints filed by all the other complainants praying for arrears of salary from 26.6.1974 to 30.7.1990 were entertainable by the Kerala Lok Ayukta and the orders passed by the Kerala Lok Ayukta allowing the complaints were within the jurisdiction of the Kerala Lok Ayukta, as conferred by the Kerala Lok Ayukta Act, 1999 ?
(ii) Whether, in event, it is held that the Kerala Lok Ayukta has no jurisdiction to allow the complaints, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India could have refused to interfere with the order on the ground that the orders issued by the State Government refusing payment of arrears of salary while reinstating the constables, was illegal and not in accordance with law ?
(iii)Whether the learned Single Judge, while deciding W.P.(C) No.23692 of 2005, Commissioner of Police and others v. Abida Beevi and another, rightly exercised his discretion in not interfering with the order of the Kerala Lok Ayukta holding that the husband of the complainant was entitled to get arrears of salary ?
Issue No.1
11. The first issue is whether the Lok Ayukta has jurisdiction to entertain the complaints filed by the Abida Beevi and other complainants as noted above. Before we look into the relevant statutory provisions of the Kerala Lok Ayukta Act, 1999 (hereinafter referred to as the '1999 Act'), it is relevant to look into the averments in the complaint filed by the Abida Beevi as Complaint No.1341 of 2004 dated 13.9.2004, which complaint refers to sequence of events from dismissal of nine police constables on 27.6.1974 till the issuance of the Government Order dated 1.4.2000. The following are the prayers, which were made in the said complaint :-
PRAYERS
In the light of the above mentioned facts and circumstances, it is most humbly prayed that, this Hon'ble Lok Ayukta may be pleased to pass an order allowing the following prayers :-
1. An order directing the respondents to issue the arrears of salary of late Ali Akbar PC 3583 of District Armed Reserve, Thiruvananthapuram from 26.6.1974 to 28.8.1988 to the complainant.
2. An order directing the respondents to pay a reasonable rate of interest ordered by this Hon'ble Lok Ayukta for the said amount to the complainant.
3. Such other reliefs which this Hon'ble Lok Ayukta deem fit and proper in the interest of justice.
Another complaint, which need to be noticed is the complaint filed by the appellant in W.A.No.86 of 2008, that is; Complaint No.1406 of 2005. The appellant was also one of the constables, who was dismissed on 26.6.1974. The complaint recites all the facts from the date of dismissal till the issuance of the Government Order dated 1.4.2000. The complainant also relied on the order passed by the Kerala Lok Ayukta in the complaint filed by the Abida Beevi. In the Complaint No.1406 of 2005, the following prayers have been made :-
i) An order directing the respondents to issue the entire salary and other allowances to the complainant during the period of illegal termination of service from 26.6.1974 to 8.8.1990.
ii) An order directing the respondents to re-fix the salary of the complainant from 9.8.1990 to 30.9.2002 and pensionary benefits including the monthly pension till date, and pay the arrears therein to the complainant.
iii) An order directing the respondents to pay reasonable rate of interest to the said amount as fixed by this Hon'ble Lok Ayukta.
iv) Such other reliefs which this Hon'ble Lok Ayukta deem fit and proper in the interest of justice.
Thus the principal prayer in all the complaints before the Kerala Lok Ayukta was payment of arrears of salary from the date of dismissal to the date of reinstatement and with regard to the case of Abida Beevi, from the date of dismissal to the date of death of Ali Akbar.
12. Now, we proceed to refer to the scheme of 1999 Act. Sec.2 is the 'definition' clause. Sec.2(b) defines 'allegation', which is to the following effect :-
allegation , in relation to a public servant, means any affirmation that such public servant -
(i) has abused his position as such public servantto obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or
(iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant.
Sec.2(h) defines 'grievance' and 2(k) defines 'maladministration',
which are as follows :-
2(h) grievance means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration.
2(k) maladministration means action taken or purporting to have been taken in the exercise of administrative functions in any case where -
(i)such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay.
Sec.7 provides for 'matters which may be investigated by the Lok Ayukta and the Upa-Lok Ayuktas'. The scheme of the Act indicates that the complaint involving a grievance or an allegation can be entertained and proceeded with. Sec.8 enumerates matters not subject to investigation . Sec.8, which is relevant for the present case, is quoted as below :-
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 onwhich 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 complainantsatisfies that he had sufficient cause for not making thecomplaint 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 beenimproperly exercised.
13. On a perusal of the complaints filed before the Lok Ayukta in the present cases, it is clear that the complainants haveraised a grievance regarding non-payment of arrears of salary.The complaints did not contain any of the allegations against public servant or any other officials. Sec.8(1) refers to Second Schedule. The Second Schedule of the Act reads as follows :-
SECOND SCHEDULE
[See Section 8(i)(a)]
(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 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.
(e) Grant of honours and awards.
For the present case, the relevant clause to the Second Schedule is clause (d). Sec.8(1) contains an injunction against Lok Ayukta and Upa-Lok Ayukta from not conducting any investigation under the Act in the case of complaint involving a grievance in respect of any action specified in the Second Schedule. Clause (d) to Second Schedule contains the following matters, which are referred to in Sec.8(1), they are :- action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants ......... . The complaints in the present case related to pay, since what was sought for was arrears of salary consequent to the reinstatement of the dismissed constables. Since the above being clearly excluded from the jurisdiction of Lok Ayukta, the Lok Ayukta could not have proceeded to decide the complaint. Clause (d) to the Second Schedule also contains an exception, which exempted various items from the Second Schedule. The exception contained in clause (d) is as follows :- actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service . Thus, on the one hand, there is prohibition in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants. But, the phrases, which are used after the word 'but' are exempted from such provision.
14. Now, the question to be considered is as to whether the subject matter of the complaints are covered by any of the exception clause. The exception clause is with regard to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. In the complaints, giving rise to these writ appeals, the claims were not for pension, gratuity, provident fund or any other claims, which arises on retirement, removal or termination of service. The claim specifically was with regard to arrears of salary consequent to reinstatement of the constables by revocation of the dismissal order. Thus, the claim of salary was consequent to reinstatement. Hence, it is not covered by any exempted clause.
15. Sec.8 of the 1999 Act came for consideration in the various judgments of this Court dealing with the 1999 Act. The first judgment, which need to be noticed is the Division Bench judgment of this Court in Kamalu v. State of Kerala [2000 (3) KLT 227]. Referring to Sec.8 and the Second Schedule, the following was stated in paragraph 22 :-
xx xxx xxx xx
Item (d) in the above Second Schedule deals with the action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants which is outside the purview of the powers of the Lok Ayukta oran Upa Lok Ayukta in view of the specific bar contained in sub-s.(1) of S.8. What is permitted to be investigated is only the actions relating to claims for pensions, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service, which is not the case before us.
Another Division Bench judgment of this Court, which had elaborately considered the various provisions of the 1999 Act including Sec.8, is the judgment of this Court in State of Kerala v. Bernard [2002 (3) KLT 254]. In the above case, the complaint was filed complaining that there was undue and inordinate delay in the disbursement of pension, DCRG, arrears of pension and pay revision arrears. The complaint was allowed by the Kerala Lok Ayukta. In the said judgment, the Division Bench made the following observation in paragraph 14 :-
Apart from the fact that the impugned order appears to be beyond the jurisdiction of the Lok Ayukta, we find the order even otherwise unsustainable. We have not been shown any provision under which interest becomes automatically payable for delayed payments. May be, as an equitable principle, the person entitled to disbursement of money on a particular date should be compensated by way of interest for delayed payment, when there is no satisfactory explanation for the delay. The question, however, is, is the Lok Ayukta empowered to pass such an order? In the first place, the Lok Ayukta has no jurisdiction to make an adjudicatory 'order'. Secondly, the power to direct payment of interest on amounts adjudicated and found to be payable must be found in a statute. S.34 of the Civil Procedure Code read with the Interest Act, empowers the Civil Court to make an order awarding interest on delayed payments found due after adjudication. Inasmuch as the Lok Ayukta's power is neither adjudicatory, nor is he empowered to make a binding order, that provision is of no avail. The only legitimate exercise of the Lok Ayukta on the complaint of the respondent could have been to see if, in equity, some compensation, by way of interest or otherwise, be paid to the respondent. This could have been done only upon a clear finding that there was unexplained delay in disbursement on account of default or negligence on the part of the concerned public servant/s in the discharge of duties. We find that the only reason given for directing payment of interest was that the claims had been admitted by the District Treasury Officer. There is no apportionment of the blame, which was vitally necessary if the equitable claim to interest or compensation was to be entertained. In the circumstances, we are of the view that, without making a finding that there was delay or default for no good reason on the part of the District Treasury Officer or any other public servant in making the payment of the terminal dues to the respondent, even the report or recommendation based on equity for payment of interest could not have been made by the Lok Ayukta.
Another Division Bench judgment of this Court reported in Kerala State Civil Supplies Corporation v. Kerala Lok Ayukta [2006 (1) KLT 692], which squarely applies to the facts of the present case. In the above case, the complaint was filed by the 2nd respondent before the Lok Ayukta claiming that he was entitled to continue in service as Helper till he attains the age of 60 years since the Corporation did not allow him to continue in service till 60 years. Since there was maladministration on the part of the petitioners, the Lok Ayukta allowed the complaint of the 2nd respondent and directed the petitioner to reinstate the 2nd respondent forthwith. Paragraphs 3 and 4 give the facts, which are quoted as below :-
3. The 2nd respondent was a Class IV employee of the petitioner-Corporation which is a fully Government owned Company registered under the Companies Act, 1956. At one point of time, considering his qualifications, the 2nd respondent was appointed as Driver in the Corporation with effect from 1-8-1996, in which post he was to undergo probation for a period of two years within a continuous period of three years. Since the performance of the 2nd respondent during the period of probation, even after the same was extended for a further period of six months, was not satisfactory, his probation was terminated and he was reverted to the post of Helper with effect from 15-3-1999. The normal retirement age in the Corporation was 58 years. The 2nd respondent was due to attain the age of superannuation on 31-12-1999. However, being an exserviceman, he claimed that he is entitled to continue in service till he attains the age of 60 years on the strength of a Government Order, namely, G.O(P) 535/90/Fin.dated 25-10-1990, which stipulated that exservicemen who were in armed forces prior to 7-4-1970and who has been appointed as last grade employees in the last grade service in the State after 7-4-1970 would be eligible for the benefit of a rule providing for continuation in service up to the age of 60 years, provided they continue to be in the last grade service. The petitioner-Corporation entertained a doubt as to whether this benefit would be applicable to the 2nd respondent in so far as for a brief period, he was actually working as Driver, which did not come in the last grade service. Therefore, by Ext.P2 letter, the Corporation sought the opinion of the Principal Secretary to Government in the matter. By Ext.P3 clarification, the Government informed the Corporation that they have examined the matter in detail and agreed to the proposal to extend the service of the 2nd respondent till he attains the age of 60 years as a special case in relaxation of the Rules. However, in spite of the said clarification, the 2nd respondent was not allowed to continue in service beyond 31-12-1999 when the second respondent attained the age of 58 years.
4. The 2nd respondent thereupon filed a complaint before the Lok Ayukta complaining of maladministration in the matter of non-compliance of the directions of the Government by the petitioner Corporation. Accepting the case of the 2nd respondent, the Lok Ayukta found that the refusal of the Corporation to obey Ext.P3 order of the Government and ordering retirement of the 2nd respondent before attaining the age of 60 years constitute maladministration as defined under the Lok Ayukta Act and on that finding, directed the Corporation to allow the 2nd respondent to continue in service as Helper tillhe attains the age of 60 years by reinstating him forthwith. This order is under challenge in this Original Petition.
The Corporation challenged the order of the Lok Ayukta in a writ petition. It was contended before this Court that in view of item (d) to the Second Schedule read with Sec.8 of the 1999 Act, there was no jurisdiction with the Lok Ayukta to entertain the claim regarding continuance in service till the age of 60 years. The Division Bench upheld the contention and held that the complaint filed by the 2nd respondent could not have been dealt with by the Lok Ayukta. The following was held in paragraph 7 :-
On a consideration of the arguments of learned counsel as also the relevant provisions of the Kerala Lok Ayukta Act, 1999, we are of opinion that the petitioner is well founded in its contention. Although, the Lok Ayukta had jurisdiction to conduct any investigation under the Act in case of a complaint involving a grievance which is defined under S.2(h) to mean a claim by a person that he sustained injustice or undue hardship in consequence of maladministration, such jurisdiction is circumscribed by the provisions of Sections 7 and 8 which enumerates the matters which may be investigated by the Lok Ayukta and Upa Lok Ayukta and matters not subject to such investigation respectively. Under S.8(1), it is specifically provided that the Lok Ayukta or 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 a matter specified in the Second Schedule. Item (b) of the Second Schedule consists of 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 arise on retirement, removal or termination of service. Going by these provisions, even if there is mal-administration, if the grievance complained of as mal-administration relates to an action enumerated in item (d) of Second Schedule, the Lok Ayukta's jurisdiction in respect of that matter is specifically excluded from the purview off the investigation of the Lok Auyukta unless it relates to claims for pension, gratuity, provident fund or any claims which arises on retirement, removal r termination of service. Although, counsel for the 2nd respondent raised a contention that the grievance complained of relates to retirement of the 2nd respondent, by virtue of the exception, the matter should be construed to be within the jurisdiction of the Lok Ayukta, we are not satisfied that the contention of the 2nd respondent is sustainable. What is excepted from item (d) is actions relating to claims for pension etc., or to claims for pension etc., or to claims which arise on retirement, removal or termination of services. The claim of the 2nd respondent to continue in service upto the age of 60 years is certainly not one relating to claims for pension etc., or claims which arise on retirement, removal or termination of services. In that view, we have no hesitation in holding that the issue involved in the complaint before the Lok Ayukta filed by the 2ndrespondent was a matter specifically excluded from the matters which were subject to the investigation of the Lok Ayukta under S.8 of the Act. Therefore, the Lok Ayukta could not have dealt with the complaint filed by the 2nd respondent and, therefore, Ext.P8 order of the Lok Ayukta was without jurisdiction and hence unsustainable.
The Division Bench, however, proceeded to consider the claim on merits also and while setting aside the order of the Lok Ayukta observed that it would be open for the 2nd respondent to agitatehis claim before appropriate authority.
16. Another Division Bench judgment, which needs to be noticed is the judgment in State of Kerala v. John Joseph [2011 (3) KLT 23]. In the said case, the complaint was filed by the first respondent before the Lok Ayukta against the notice issued by the District Registrar regarding valuation of the property of the firstrespondent, which was sought to be registered before the Sub Registrar. The District Registrar has enhanced the value of the property, which was challenged before the Lok Ayukta. The LokAyukta allowed the complaint of the first respondent and held that the District Registrar has no jurisdiction to enhance the value. Considering the law in the above context, the Division Bench made the following observation in paragraphs 16, 17, 18, 19 and 20 :-
16. Coming to the jurisdiction of the Lok Ayukta, S.7 of the Kerala Lok Ayukta Act, 1999, describes the jurisdiction of the Lok Ayukta which authorises the Lok Ayukta to investigate any action which is taken by or with the general or specific approval of the various persons specified under S.7 in any case where a complaint involving a grievance or an allegation is made in respect of such action.
17. The expressions 'grievance' and 'allegation' are defined under Sections 2(h) and 2(b) respectively as follows :-
S.2(h) grievance means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration.
S.2(b) allegation , in relation to a public servant, means any affirmation that such public servant -
(i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or
(iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant.
18. It can be seen from the definitions that the expression allegation necessarily involves an improper motive in law such as corruption, favouritism, nepotism, etc. whereas grievance is a claim that a person sustained injustice or undue hardship as a consequence of mal-administration.
Mal-administration itself is defined under S.2(k) as follows :-
S.2(k) maladministration means action taken or purporting to have been taken in the exercise of administrative functions in any case where -
(i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(ii)there has been willful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay.
19. The power purported to have exercised by the District Registrar by the proceedings impugned before the Lok Ayukta may or may not be strictly within the jurisdiction of the District Registrar. It is a question which we do not propose to go into the instant appeal. For the purpose of the present appeal, it is sufficient to note that, even acts of erroneous exercise of an authority purportedly conferred by a statute, in our opinion, cannot be classified as mal-administration within the meaning of the Lok Ayukta Act. It is clear from the language of the definition of the expression 'mal-administration' that unreasonable, unjust, oppressive or improperly discriminatory action taken or purportedly taken in exercise of administrative functions alone amount to mal-administration. The power conferred under S.45B in our opinion is clearly a quasi-judicial function. It may be stated here that a decision of the District Registrar under S.45B(2) is an appealable decision under S.45B(4). Therefore, if the complainant before the Lok Ayukta is of the opinion for any reason that the decision of the District Registering Officer is beyond the jurisdiction conferred under S.45B or for any other reason untenable in law, the same could have been validly raised before the appellate authority referred to above apart from various other remedies indicated above.
20. In the background of the above discussions, we are of the opinion that the complaint made before the Lok Ayukta does not contain any 'allegation' or 'grievance' within the meaning of those expressions occurring in the Kerala Lok Ayukta Act, 1999.
17. In the cases before us, although in W.P.(C) No.23692 of 2005, the question of jurisdiction of the Lok Ayukta was challenged. But, the said question was not specifically answered by the learned Single Judge. However, the learned Single Judge proceeded to make the following observation :-
........Even assuming the Lok Ayukta has no jurisdiction, if the order passed by it renders justice, this Court need not interfere with it. If the complainant had approached this Court, this Court would have passed an order, directing to grant the reliefs granted as per Ext.P3 order.
Whereas, in W.P.(C) No.3616 of 2007 and connected cases, the question of jurisdiction of Lok Ayukta was considered by the learned Single Judge. The learned Single Judge, after considering the scheme of 1999 Act, held that there has to be satisfaction of the Lok Ayukta that there is maladministration, which is a jurisdictional factor. The learned Single Judge held that in the absence of such finding by the Lok Ayukta regarding the existence of maladministration, the Lok Ayukta would not have proceeded to decide the complaint. Further, relying on the Division Bench judgment in Bernard's case (supra), the learned Single Judge held that Ext.P3 order passed by the Lok Ayukta would qualify itself as an order, which is beyond the jurisdiction of the Lok Ayukta, since the present was not a case dealing with Sec.14 of the 1999 Act. The learned Single Judge made the following observation in paragraph 22 :-
........... Thus, satisfaction of the Lok Ayukta that there is maladministration, as the term has been defined in the enactment is, therefore, the jurisdictional factor with which alone the Lok Ayukta can proceed under Section 12(1) of the Act.
We do not find any reason to disagree with the above view taken by the learned Single Judge in its judgment dated 13.9.2007. Moreover, we have already noticed that in the facts of the present case, the complaints were clearly barred to be entertained by virtue of Sec.8(1) read with Second Schedule item No.(d). Thus, we conclude that the Lok Ayukta has no jurisdiction to entertain the complaint regarding arrears of salary and orders passed by the Lok Ayukta was completely without jurisdiction.
Issue Nos.2 and 3
18. Learned counsel appearing for the complainant has vehemently argued that even if it is argued that the Lok Ayukta has no jurisdiction to decide the complaint, the learned Single Judge in Commissioner of Police and others v. Abida Beevi and another (W.P.(C) No.23692 of 2005) has rightly exercised its discretion in not interfering with the order passed by the Lok Ayukta. It is contended that the jurisdiction of this Court under Article 226 is vide enough to do justice where ever it is found that injustice has been done. It is submitted that the learned Single Judge in Abida Beevi's case (supra) having found that the order of the State Government refusing to pay arrears of salary was illegal, no illegality was committed by the learned Single Judge in dismissing the writ petition filed by the State authorities. It is true that the jurisdiction of this Court under Article 226 is wide enough and can be exercised to do justice where ever an injustice is found.
19. The Apex Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh and others [AIR 1966 SC 828] have laid down the following :-
........ If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolution passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
The judgment, which has been referred to by the learned Single Judge in Abida Beevi's case (supra) is the judgment in Mohammad Swalleh and others v. Third Addl. District Judge, Meerut and another [(1988) 1 SCC 40]. In the said case, the Prescribed Authority rejected the application filed by the landlord for eviction of the tenant. The Prescribed Authority held that the application under Sec.43(2)(rr) was not maintainable. The appeal was filed against the order of the Prescribed Authority before the District Judge, which was allowed by the District Judge. Aggrieved by the order of the District Judge, writ petition was filed before the High Court. The High Court held that no appeal lay from the decision of the Prescribed Authority, but, the High Court refused to interfere with the order of the District Judge on the premise that the order of the Prescribed Authority was invalid. The following was observed in paragraph 7 of the judgment :-
It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.
Against the judgment of the High Court, an appeal was filed before the Apex Court. The Apex Court held that this was not a case to exercise jurisdiction by the Apex Court and the High Court has taken correct view of the matter. In the above case, it is clear that the Apex Court itself has come to the conclusion that the order of the Prescribed Authority was clearly erroneous.
Paragraph 6 of the said judgment is relevant, which is to the following effect :-
We are of the opinion that the High Court was right. It will be appropriate at this stage to refer to the provisions of Section 43(2)(rr) of the New Act which are as follows :
Where any permission referred to in Section 3 of the Old Act has been obtained on any ground specified in sub-section (1) or sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, (whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Section 22 :
Provided that no application under this clause shall be maintainable on the basis of a permission granted under Section 3 of the Old Act, where such permission became final more than three years before the commencement of this Act :
Provided further that in computing the period of three years, the time during which the applicant has been prosecuting with due deligence any civil proceeding whether in a court of first instance or appeal or revision shall be excluded.
In view of the aforesaid, we are of the opinion that the Prescribed Authority was clearly in error in upholding that objection of the tenant that as the previous suit had been filed by the tenant on the basis of permission and the same had been dismissed, the application under Section 43(2)(rr) of the Act 13 of 1972, was not maintainable. It was clearly erroneous contention. It would frustrate the very purpose of the express provision of Section 43(2)(rr). Finality of order in judicial proceeding is one of the essential principles which the scheme of the administration of justice must strive for. See in this connection the observation in D.K.Soni v. P.K.Mukerjee [(1988) 1 SCC 29].
In the above case, thus, the High Court exercised jurisdiction in not interfering with the order of the District Judge, after having recorded that the order of the Prescribed Authority, against which, appeal was filed was clearly erroneous and illegal. Thus, the above two judgments of the Apex Court clearly reiterated theproposition that the jurisdiction of the High Court under Article 226 cannot be exercised in a manner, so as to restore an illegal order.
20. The learned Single Judge in Abida Beevi's case (supra) purporting to follow the aforesaid principle has refused to interfere with the order of the Kerala Lok Ayukta. The learned Single Judge, while exercising its discretion, made the following observation in paragraph 3 :-
............ If the complainant had approached this Court, this Court would have passed an order, directing to grant the reliefs granted as per Ext.P3 order.
Thus, the basis in the judgment of the learned Single Judge is that if the complainant had come to the High Court seeking reliefs as were claimed in the complaint, the High Court would have allowed the claim. Whether the learned Single Judge made the above observation in the right perspective of the facts of the case is the question to be answered by us.
21. The learned Single Judge has observed that the Government has clearly found that the order of termination is illegal. The learned Single Judge proceeded to observe that the illegal order is void ab initio and it never had any effect. Hence, quoted a passage in H.W.R. Wade's Administrative Law, 8th Edition, which is to the following effect :-
A tribunal had now, in effect, no power to decide any question of law incorrectly : any error of law would render its decision liable to be quashed as ultra vires. This radical conclusion was first drawn by Lord Diplock in a published lecture, saying that the Anisminic case renders obsolete the technical distinction between errors of law which go to jurisdiction and errors of law which do not.
The above observation was made in the context of the decision rendered by a Tribunal. The said observation cannot be applied with regard to an order of dismissal, which was subsequently reviewed and revoked. The payment of salary and the period during which, the employee was dismissed are the subject matters, which has been specifically dealt with by the statutory rules, namely, Kerala Service Rules and when the dismissal order is set aside, as a result of an appeal was reviewed, the consequences as enumerated in statutory rules were to follow and there is no occasion to term the order as 'void ab initio' or that it had no effect.
22. The sequence of events as noticed above would indicate that the dismissal order dated 26.6.1974 was reviewed on the ground that the procedure should have been followed before making an order under sub clause (c) of the proviso to clause (2) of Article 311 of the Constitution of India. But the same was not followed while issuing the order dated 26.6.1974. In the order, however, it was specifically mentioned as to how the period of absence in the case of above policemen will be regularised, by issuing separate orders. It is useful to refer to paragraphs 2, 3
and 4 of the order dated 30.7.1990, which is to the following effect :-
2. On the basis of a representation submitted by Shri Stephadas, Chennivila Veedu, Thamalam, Thiruvananthapuram, one of the Policemen dismissed from service, the Governor has reviewed the orders issued in the above G.O.
3. The Governor is satisfied that the procedure that should be followed before taking action under Article 311 (2) of the Constitution, prescribed in G.O.(P) No.112/72/Home dated 11-7-1972 as amended by G.O.(P) No.72/74/Home dated 26-4-1974, had not been strictly adhered to while issuing orders in the above read G.O. Further there was no material to show that the security of the State would have been jeoparadised if an enquiry was conducted before taking action against the policemen. In the above circumstances the Governor has been pleased to revoke the orders dismissing the above nine policemen and to re-instate them in service.
4. Orders as to how the period of absence, in the case of the above policemen, is to be regularized will be issued separately.
Subsequent to the aforesaid order dated 30.7.1990, another order was issued by the State on 1.6.1992 holding that the period ofdismissal will be treated as break of service without forfeiture of past service. The last paragraph of the said order reads as under :-
It has been reported by the Director General of Police that Sri.Ali Akbar (PC 3583) and Sri.Ravikumar (PC 3855) have expired. By the representations read as 3rd paper above the other police constables have requested Government to regularise the period spent by them under dismissal. Government have examined the case in detail and are pleased to order that the period ofdismissal will be treated as break of service without forfeiture of past service.
Again subsequently, further representations were made and taking a lenient view in the matter, the period of dismissal from 26.6.1974 to 30.7.1990 of nine policemen was treated as qualifying service for the purpose of pension in relaxation of the rules. In the order dated 1.4.2000, it is stated as follows :-
Government have examined the various aspects of the case of the petitioners in detail in consultation with Finance Department and they are of the view that requests of the petitioners merits a lenient view and sympathetic consideration on humanitarian grounds. Government are therefore pleased to order that the period of dismissal, i.e. From 26-6-74 to 30-7-90 of the above 9 policemen of District Armed Reserve, Thiruvananthapuram will be treated as qualifying service for the purpose of pension in relaxation of rules,as a special case.
23. From the above sequence of events, it is clear that the Government had consciously dealt with the long period from 26.6.1974 to 30.7.1990, which was a period of about 16 years and ultimately treated as qualifying service for the purpose of pension. But the Government consciously decided not to pay arrears of salary. In view of the above facts, there cannot be any question of treating the earlier order dated 26.6.1974 as void or non-est. The order of dismissal was reviewed as permitted by hestatute and the period of absence has also been dealt with by the Government as per the statutory rules. Hence, the learned Single Judge was not right in his observation that the order is to be treated as void ab initio and the natural consequence is to grant salary in all the subsequent periods. Further, there was no specific challenge to any of the Government orders dated 30.7.1990, 1.6.1992 and 1.4.2000 before the learned SingleJudge.
24. There is one more aspect of the matter, due to which, it could not be said that even if the appellants had approached theCourt against the orders of the Government, the High Court would have declared that they were all entitled for arrears of salary. The complaints were filed before the Lok Ayukta by Abida Beevi in September, 2004 and other complainants in the year 2005. The State has revoked the dismissal and reinstated the constables on 30.7.1990 without any arrears of salary. Subsequently, on 1.6.1992, an order was passed and the period was taken as break of service without forfeiture of past service. All the consequences of the above decisions taken by the Government was well known to the complainants. The matter was never agitated before this Court, whereas the constables were well aware that they have been denied the arrears of salary for the past 16 years in the year 1990 itself, when they were reinstated vide order dated 30.7.1990 without any arrears of salary. The complaint before the Lok Ayukta was filed after 14 years of re-instatement.
25. In any view of the matter, in the last order of the Government dated 1.4.2000, the period of dismissal from 26.6.1974 to 30.7.1990 was treated as qualifying service for the purpose of pension. Thus, the State has consciously denied the payment of arrears of salary. Right from the first order issued on 30.7.1990, the writ jurisdiction could have been invoked by the aggrieved persons within a reasonable time. It is doubtful that, on the date, when the complainants approached the Lok Ayukta, had they approached the High Court, the High Court would have entertained the claim on merits, after such long lapse of time. We, thus, do not subscribe the view taken by the learned Single Judge that had the appellants approached the High Court instead of approaching the Lok Ayukta, this Court would have passed an order directing to grant the relief as granted by the Lok Ayukta.
26. Learned counsel for the complainants has also placed reliance on the judgment of the Apex Court in J.N. Srivastava v. Union of India and another [(1998) 9 SCC 559] for the proposition that the principle that 'no work, no pay' shall not be applicable in a case, where, request of an employee for withdrawal of notice for voluntary retirement was wrongly rejected. It was held that the officer was entitled for all the salary till the normal age of superannuation. The following was stated in paragraph 3 of the said order :-
The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3.10.1989 which was to come into effect from 31.1.1990. It is true that this proposal was accepted by the authorities on 2.11.1989. But thereafter before 31.1.1990 was reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11.12.1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26.12.1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31.1.1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India [1987 Supp SCC 228]. In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31.1.1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12-1989 and when the retirement came into effect on 31.1.1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26-12-1989 and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31.1.1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. It was submitted by learned Senior Counsel for the respondent-authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of no work, no pay , this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work after 31.1.1990. The respondents are directed to make available all the requisite monetary benefits to the appellant as per thepresent order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the respondents at the earliest.
The above case has no application to the facts of the present case and render no help to the complainants. The Apex Court held that the request for voluntary retirement has been withdrawn with effect from 31.1.1990 and as a result, he shall be treated to have continued in service till the age of superannuation in 1994. In the present case, there had been specific orders passed by the Government for treating the periods.
27. In view of the foregoing discussions, we are of the view that W.P.(C) No.23692 of 2005 was not a case, where, despite the order of the Lok Ayukta being without jurisdiction, the High Court ought to have exercised its discretion in not interfering in the said order on the premise that the orders of the State Government, in which, the period of absence was treated firstly as break of service and secondly, as qualifying service for the purpose of pension were illegal and void. We, thus, do not subscribe the view taken by the learned Single Judge in Abida Beevi's case (supra) and W.A.No.1381 of 2006 deserves to be allowed.
28. Coming to W.A.No.86 of 2008 and other appeals, the learned Single Judge of this Court has held that the complaints before the Lok Ayukta were not maintainable and the order of the Lok Ayukta was set aside. The learned Single Judge did not follow Abida Beevi's case (supra) relying on the Division Bench judgment in Bernard's case (supra). We fully endorse the view taken by the learned Single Judge in the judgment dated 13.9.2007.
In the result, W.A.No.1381 of 2006 is allowed. The judgment of the learned Single Judge dated 1.3.2006 is set aside and W.P.(C) No.23692 of 2005 is allowed. The order of the Kerala Lok Ayukta dated 9.5.2005 is set aside and the complaint No.1341 of 2004 stands dismissed. W.A.No.86 of 2008 and all other appeals are dismissed.