WP(C)/28239/2010 of SECRETARY TO GOVERNMENT LSGD Vs K.K.UNNITHAN on 31 December 2012

J U D G M E N T

This writ petition is filed challenging the order passed bythe Lok Ayukta in a complaint filed by the respondent herein.

2. The grievance of the respondent was that he retiredfrom service as a Village Extension Officer on 31.3.1980. Hewas in service from 29.1.1952 to 31.1.1960 as Social EducationOrganiser which period also ought to have been considered asqualifying service for the purpose of pension. In Ext.P1complaint filed before Lok Ayukta, it is contended that as perG.O.(MS) No. 83/78/G. Edn. dated 22.6.1978, the said post wastreated as Full-time contingent service and therefore the saidservice can be counted for pension. The petitioner alsosubmits that he had taken up the matter with the concernedauthorities, but no orders have been passed and that he hadfurnished all the documents to the DPI and other authorities.

3. The appellant had filed a statement before the LokAyukta, inter alia contending that since the complainant had retired from service on 31.3.1980 about 30 years back,no details pertaining to his service as Village ExtensionOfficer in Rural Development Department is availableand when his service book is not available forverification, it is not possible to come to a conclusion as towhether he had undergone pre-service training for GramaSevaks in the Extension Pre-training service. Accordingto them the documents relating to Pre-service Trainingof the complainant could not be traced out. Hence it wascontended that in a matter relating to delay of about29 years in approaching the Lok Ayukta, no orders couldbe passed. Further it is stated that as per G.O.(Rt) No.96/71/DD dated 21.01.1971 it was ordered that pre-service training period of Village Extension Officer couldbe counted for increment, pension and gratuity, but theposition was subsequently changed as per G.O.(P) No.88/77/DD dated 30.6.1977 wherein it was inter aliaordered that the period of pre-service training wouldnot count for pension, increment or other service benefitsas the period does not come under the purview of duty as defined in Rule 12(7) of Part I of the Kerala ServiceRules. The Lok Ayukta, however, relying upon the G.O.(Rt) No. 96/71/DD dated 21.1.1971 opined that thecomplainant was entitled for computing the period oftraining prescribed for Grama Sevak as qualifying servicefor the purpose of pension as well. According to the LokAyukta, the 1977 G.O. does not anywhere indicate thatit supercedes the 1971 G.O.

4. In respect of the delay in filing the complaint,

the Lok Ayukta had come to the conclusion that sinceSection 8 (2) (c) of the Kerala Lok Ayukta Act, 1999(hereinafter referred to as the Act) refers only tocomplaint involving an allegation, the bar of limitationwill not apply since the petitioner has set forth a“grievance” for which no limitation is prescribed underSection 8(1) of the Act.

5. Taking into consideration the factual circumstances, the Lok Ayukta held that thecomplainant is entitled to reckon the period from29.01.1952 to 31.01.1958 for fixing his monthly pension and the respondents are directed to refix the monthlypension taking into account the said period as service.Ext.P4 order is impugned by the State.

6. Heard learned Government Pleader and also learned counsel appearing for the respondents.

7. It was argued by the Government Pleader that the Lok Ayukta should not have exercised jurisdiction inthis matter by giving a positive direction in a casewhere pension had been fixed and paid when thepetitioner retired from service in the year 1980 and in amatter where the complaint is filed after 29 years, therewas no justification on the part of the Lok Ayukta tohave adjudicated the claim.

8. On the other hand, learned counsel for therespondent submits that the petitioner is entitled for thebenefit of considering the period during which therespondent was working as Grama Sevak and during thetraining period as well, for the purpose of computingpension on the basis of the 1971 G.O. and failure tocompute the said period as qualifying service, is clearly bad in law and therefore Lok Ayukta was justified inissuing directions as per Ext.P4. Further it is contendedthat the respondent had filed necessary representationbefore the competent authorities and despite the fact thatthe documents are not available with the respondent, it isfor the authorities to have considered his claim andhaving failed to do so, Lok Ayukta is justified in comingto the conclusion that the grievance of the complainant isnot barred by limitation.

9. Learned Government Pleader had also relied upon the judgment in State of Kerala and Others v.Sheela S. and others (2009(2) ILR 660) to contend forthe position that directions cannot be issued by the LokAyukta and it can only file a report as provided under S.12 of the Act.

10. The question that evolves to be considered in the present writ petition is whether the Lok Ayukta canissue a direction in the form of Ext.P4 in relation to amatter when the respondent had retired from service inthe year 1980, without proper verification of the service records of the petitioner.

11. Apparently, the service book of the petitioner is not available or rather, it is not traceable. The Government had clearly indicated in the statement that byvirtue of 1977 G.O. the benefit of pre-service trainingwas taken away from the purview of duty as definedunder Rule 12(7) of Part I K.S.R. That being the situationat no stretch of imagination it can be considered that theperiod of service claimed by the petitioner can betreated as service of duty for the purpose of computingthe pension.

12. That apart, the Lok Ayukta can only file a report

if at all it is found that there is any mal administration orgrievance for the complainant and cannot issue positivedirections as held by this Court in State of Kerala andOthers v. Sheela S. and others (Supra).

13. In regard to the delay in filing the complaint areference to the provisions of the Act will be useful.Going by the provisions of S.8(1) of the Act, it is clear thatthe Lok Ayukta has no jurisdiction to conduct any investigation under the Act, in the case of a complaintinvolving a grievance in respect of any action, if suchaction relates to any matter specified in the SecondSchedule. Sub section (2) imposed a restriction on theLok Ayukta to investigate into the matters covered bysub-clause (a) to (c) and sub-clause (c) indicates thatany complaint involving an allegation made after theexpiry of five years from the date on which the actioncomplained against is alleged to have taken place andproviso further indicates that such a complaint can beentertained after the expiry of the period if thecomplainant satisfies that he has got sufficient cause.The word “allegation” is defined under S.2(b) as under:

“(b) “allegation” in relation to a publicservant, means any affirmation thatsuch public servant,-

(i) has abused his position as such publicservant to obtain any gain or favour tohimself or to any other person or tocause undue harm or hardship to anyother person;

(ii) was actuated in the discharge of hisfunctions as such public servant bypersonal interest or improper or corruptmotives; or

(iii) is guilty of corruption, favouritism, nepotism or lack of integrity in hiscapacity as such public servant; xxxxxx The word “grievance” is defined under S.2(h)

as under:

“(h) “grievance” means a claim by aperson that he sustained injustice orundue hardship in consequence of mal-administration;”

No doubt, grievance is a claim by a person that he has sustained injustice or undue hardship inconsequence of mal-administration.

Mal-administration is defined under S.2(k) asunder:

“mal-administration” means action takenor purporting to have been taken in theexercise of administrative functions inany case where.-

(i) such action or the administrativeprocedure or practice adopted in suchaction is unreasonable, unjust, oppressiveor improperly discriminatory; or

(ii) there has been wilful negligence orundue delay in taking such action or theadministrative procedure or practiceadopted in such action involves unduedelay;”

14. Therefore, complaint of grievance should be as a consequence of mal-administration. In the present case, there is no allegation in the complaint that therewas any mal-administration on the part of the officersconcerned. Even going by the meaning of “allegation”or “grievance” as defined under the Act, I do not find any such complaint. The only complaint is thatcertain period of his service was not computed for the

purpose of “qualifying service” and despite havingsubmitted certain representations, the same had notbeen considered. Therefore even going by the allegationsin the complaint, the same should not have beenentertained by the Lok Ayukta.

15. Even if a view is taken that there is no barof limitation for a complaint of “grievance”, still thecomplaint should not have been entertained, if there isdelay and laches on the part of the complainant.Admittedly, the respondent retired from service in theyear 1980 and going by the records he had submittedan application in the year 1994. Thereafter also he hadkept quiet. It might be a case where sympathy hasto be shown, but in a case where there is a delay ofabout 29 years, the Court's or Tribunal's or statutoryauthorities cannot permit persons who had slept overtheir rights to agitate a claim which had become stale.

In such circumstances, I am of the view that the Lok Ayukta was not justified in passing Ext.P4 order. Inthe result, the writ petition is allowed and Ext.P4 is setaside.

A.M.SHAFFIQUE, JUDGE.

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