Kerala High Court: The Division Bench comprising of P.B.Suresh Kumar and K. Babu, JJ., addressed the instant petition against the 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 in respect to a complaint lodged by one V.K Muhammed Shafi against the petitioner. The Bench stated,
“In spite of a vigilant media, it is a fact that abuse of public resources and position in public life for private gain are rampant in our State.”
Background
The petitioner was elected to the Kerala Legislative Assembly as Minister for Higher Education on 16-05-2016 and had been a member of the Council of Ministers of the State since 25-05-2016. A complaint was received against the petitioner alleging that he had violated the oath of office by abusing his position as a Minister by indulging in favouritism and nepotism in appointing one K.T Adeeb (cousin of the petitioner) as the General Manager of the Kerala State Minorities Development Finance Corporation (the Corporation).
The academic qualification prescribed by the Government for appointment to the post of General Manager was Graduation with MBA or CS/CA/ICWAI; that 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 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.
It was further alleged in the complaint that there was no proposal from the Corporation for modifying the educational qualification for the post, and the same was modified with a view to facilitates the appointment of petitioner’s cousin who possesses only the additional qualification added by the Government.
It was also submitted in the complaint that though K.T. Adeeb applied for selection pursuant to the invitation, he did not turn up for the interview and was later on appointed on deputation basis. In spite of objection raised against his appointment by the General Administration Department that K. T. Adeeb, who was then working in a Private Bank could not be appointed as the General Manager of the Corporation on deputation basis, the petitioner overruled the said objection and directed to issue orders to appoint K. T. Adeeb. Moreover, the vigilance clearance , as required in respect of persons to be appointed as General Manager in all public sector undertakings was not obtained.
Findings of Lok Ayukta
After conducting preliminary, the Lok Ayukta reached to the findings that the action of the petitioner in directing appointment of his cousin on deputation basis without inviting any application and without providing any opportunity to other eligible persons to apply for the post was an action actuated by personal interest in the discharge of the function
of the petitioner as a Minister to favour his cousin and 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. Hence, it was declared that the petitioner was 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.
Observations by the Court
The Bench, while citing the decision of the Supreme Court in Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil, (2009) 13 SCC 131, stated that the purpose of judicial review over orders of statutory bodies is to ensure that the statutory bodies act within the confines of their allocated powers. The power of judicial review is therefore not directed against the
decision, but is confined to the decision making process. The court would examine an error of fact touching the merits of the decision only when it has a direct nexus to
the decision making process.
Differentiating the judgment in K.Chandrasekharan v. C.Sasidharan Pillai, 1994 KHC 6, the Bench stated that, regarding the contention that the affidavit filed in support of the complaint was defective and was not in conformity with Rule 52 of Kerala Lok Ayukta (Form and Manner of Complaint) Rules, 1999, the Bench opined that since the petitioner had not raised any objection in this regard in his written statement and had not alleged any prejudice being caused to him for want of a proper affidavit; the procedural defects of the instant nature could not be raised in a proceedings for judicial review.
On the question of maintainability of report, the Bench was of the view that under Section 8(1) of the Act, the bar would apply only in the case of a complaint involving any grievance in respect of any action relating to any matter specified in the Second Schedule. Section 2(h) of the Act defines ‘grievance’ to mean a claim by a person that he sustained injustice or undue hardship in consequence of maladministration.
“The distinction between ‘grievance’ and ‘allegation’ falling within the scope of the Act is that the grievance should be contained in a claim by a person that he has sustained an injustice or undue hardship due to the maladministration, whereas the allegation in relation to the public servant can be raised by any person, who may not have any grievance to be redressed, qua the maladministration, the bar under Section 8(1) of the Act does not apply to such a case.”
Similarly, the contention of non-issuance of notice and violation of natural justice were also rejected by the Court holding that the Lok Ayukta had issued notice before admission of the complaint to the respondents including the petitioner and pursuant to the said notice, the
petitioner entered appearance in the proceedings and filed a written statement offering his comments on the complaint. Thus, considering the fact that Lok Ayukta had forwarded a copy of the complaint to the public servant even before the admission of the complaint, in the absence of any prejudice caused to the petitioner the same would not amount to injustice merely because of not repeating the same process and sending notice to the petitioner after the complaint was admitted.
Lastly, observing that it cannot be said that the Lok Ayukta is bound to afford to public servant an opportunity to let in evidence once the complaint is admitted, irrespective of the fact as to whether or not the Lok Ayukta needs any additional materials; the Bench, while relying on the decision of Supreme Court in Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, held that,
“The formation of an opinion on the facts is a subjective matter and if an opinion is formed based on the relevant materials, so long as the authority was acting within the scope of its powers, however meagre the materials be, the courts should not and will not interfere with the opinion formed in exercise of judicial review.”
Hence, finding the instant petition without any merit the Bench dismissed the same in limine. [K.T. Jaleel v. V.K Muhammed Shafi, 2021 SCC OnLine Ker 1817, decided on 20-04-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner: Adv. I.P.C.Sasidharan and Adv. Akshay Venu
For the Respondents: Sr. Adv. George Poonthottam, Adv. S.Kabeer, Adv. P.E.Sajal, State Attorney K.V.Sohan, Sr. Adv. P.Narayanan, Sr. Adv. V.Manu and Sr. Adv. Suman Chakravathy
