The Kerala High Court rejected the writ petition on the ground that the Lok Ayukta was acting within its scope and not arbitrarily.
The Kerala High Court on 20th April,2021 comprising division bench of Justice P.B.Suresh Kumar and Justice K.Babu rejected the writ petition challenging that the petitioner has abused his position as a public servant.
“Ext.P8 report submitted by the Kerala Lok Ayukta to the Chief Minister of the State under Section 12(3) of the Kerala Lok Ayukta Act, 1999 (the Act) in a complaint lodged by the first respondent against the petitioner and others, is under challenge in this proceedings under Article 226 of the Constitution.”
According to the facts of the present case, the petitioner was elected to the Kerala Legislative Assembly in the election held on 16.05.2016 and has been a member of the Council of Ministers of the State since 25.05.2016. The case of the first respondent in the complaint is that the petitioner has violated the oath of office by abusing his position as a Minister and indulging in favouritism and nepotism in appointing the fifth respondent as the General Manager of the Kerala State Minorities Development Finance Corporation (the Corporation).
Therefore, the prayer in the complaint was for an investigation into the matter and to submit a report to the competent authority with its recommendations as provided for under Section 12(3) of the Act and for a declaration under Section 14 of the Act that the petitioner is not entitled to continue as a Minister.
“It is alleged by the first respondent in the complaint that the Corporation is one constituted by the Government of Kerala for the welfare of the minorities; that the academic qualification prescribed by the Government for appointment to the post of General Manager was Graduation with MBA or CS/CA/ICWAI; that the said qualification was prescribed after thorough deliberation and with the approval of the Council of Ministers; that persons possessing the said qualification were holding the office of the General Manager ever since its establishment.
…immediately on assumption of office by the petitioner as the Minister in charge of the Minority Development Department, which is the administrative department of the Corporation, the Government issued an order on 18.08.2016 modifying the educational qualification prescribed for appointment to the post of General Manager by adding B.Tech with PGDBA (Post Graduate Diploma in Business Administration) as an alternative educational qualification based on a note issued by the petitioner directing such a modification”- stated the petition.
It was further alleged in the complaint that there was no proposal from the Corporation to the Government for modifying the educational qualification for the post and that the educational qualifications for the post was modified by the petitioner with a view to facilitate the appointment of the fifth respondent, a cousin of the petitioner who possess only the additional qualification added by the Government in terms of the order dated 18.08.2016. Thereupon, on 25.08.2016, the Corporation issued a notification inviting applications for appointment to the post of General Manager.
It is also alleged in the complaint that the educational qualification for the post was modified by the petitioner solely for the purpose of facilitating the appointment of the fifth respondent who possesses only the alternative academic qualification prescribed for the post at the instance of the petitioner.
The main contentions being that the petitioner has abused his position as a public servant to favour the fifth respondent who is his close relative and that the action of the petitioner in modifying the qualification and appointing the fifth respondent as General Manager of the Corporation was actuated by personal interest and the said conduct would amount to favouritism, nepotism and lack of integrity in the discharge of the functions of the petitioner as a Minister of the State.
On consideration of the arguments advanced by the parties to the proceedings and on an evaluation of the materials on record, the Lok Ayukta found that the action taken by the petitioner to modify the qualification for appointment to the post of General Manager of the Corporation was without there being any proposal or suggestion from the Corporation and that the same was with a view to make the fifth respondent who is his cousin eligible for appointment to the said post and that, but for the said modification in the qualification, the fifth respondent would not have been eligible for appointment as General Manager in the Corporation.
It was further found by the Lok Ayukta that the said actions would amount to favouritism, nepotism and also lack of integrity on the part of the petitioner in his capacity as a Minister of the State and that the conduct of the petitioner would also amount to violation of the oath of office taken by him as a Minister to discharge his duties without fear or favour, affection or ill will.
“The Lok Ayukta, in the circumstances, held that the allegation of abuse of power, favouritism, nepotism and violation of oath of office have been substantiated against the petitioner and consequently, it was declared that the petitioner is not entitled to continue as a member of the Council of Ministers. A report was accordingly submitted in terms of Section 12(3) of the Act by the Lok Ayukta to the Chief Minister, the competent authority of the public servant involved. As noted, the said report is under challenge in the writ petition.”- stated the petition.
The learned counsel for the petitioner has relied on the Kerala High Court judgment in K.Chandrasekharan v. C.Sasidharan Pillai and another and University of Kerala v. N.R.Anil Kumar, 2020 and observed that, “there has to be a preliminary enquiry into every complaint and after preliminary enquiry, if the Lok Ayukta proposes to conduct any investigation into the same, it shall forward a copy of the complaint to the public servant and also to the competent authority of the public servant concerned and shall afford to the public servant, an opportunity to offer his comments on the complaint in terms of Sub-section (3) of Section 9 of the Act.”
It was also contended by the learned counsel that the factual findings rendered by the Lok Ayukta are solely based on the chronology of events inferred based on the oral arguments advanced by the learned counsel for the parties and the statute does not contemplate such a procedure for drawing a report under Section 12(3) of the Act. As regards the merits of the matter, it was contended that merely for the reason that the fifth respondent possessed only the additional alternative qualification ordered to be incorporated by the petitioner for appointment to the post, it cannot be inferred that the action taken by the petitioner almost two years before the appointment was vitiated by favouritism or nepotism.
The various contentions raised by the learned counsel for the petitioner were to be considered in the light of the object and the background of the Act as also the various principles governing the exercise of judicial review under Article 226 of the Constitution.
The contention that the affidavit filed in support of the complaint is defective:
The materials on record do not indicate that the petitioner has raised the objection aforesaid at any time later in the proceedings also. The petitioner has no case that any prejudice has been caused to him in the proceedings for want of a proper affidavit. In such circumstances, the procedural defects of the instant nature cannot be raised even in an appeal or revision statutorily provided against the decisions of the statutory authorities/Tribunals.
The contention of the petitioner that the affidavit filed by the first respondent in the complaint was not in accordance with sub-section (2) of Section 9 of the Act is therefore rejected.
The contention that the complaint is not maintainable:
An 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 would amount to maladministration in terms of Section 2(k) of the Act.
It is seen that the Lok Ayukta has dealt with and rejected the contention raised by the petitioner as regards the maintainability of the complaint in the aforesaid lines and the view taken by the Lok Ayukta in this regard is perfectly in order.
The contention raised by the petitioner as regards the maintainability of the complaint is also therefore rejected.
The contention raised by the petitioner as regards the maintainability of the complaint is also therefore rejected.
The materials on record indicate that on 08.02.2019, after hearing the counsel for the first respondent and the learned Special Attorney for the Government, the Lok Ayukta decided to conduct a preliminary enquiry in the complaint and directed the Government to produce the relevant files.
The petitioner has no case that the decision of the Lok Ayukta is affected in any manner on account of the omission on the part of the Lok Ayukta in forwarding a copy of the complaint to the petitioner and affording him an opportunity to offer his comments on the complaint again after the admission of the complaint. The contention aforesaid is also therefore rejected.
Taking into account the present circumstance the bench held that,
We have already found that the Lok Ayukta was acting within the scope of its powers while arriving at its conclusion. In the circumstances, we are of the view that the petitioner has not made out any ground for interference in the final opinion formulated by the Lok Ayukta in this proceedings under Article 226 of the Constitution.
The writ petition, in the present circumstances, was deemed to be without any merit and the same was accordingly dismissed in limine.
Case title : Dr. K.T.Jaleel v. Sri. V.K Muhammed Shafi & ors.