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2000 DIGILAW 348 (KER)

Kamalu v. State of Kerala

2000-07-10

A.V.SAVANT, K.S.RADHAKRISHNAN

body2000
Judgment :- A.V. Savant, C.J. Heard all the learned counsel, Mr. S. Sreekumar for the petitioners, Mr. M.K. Damodaran, the learned Advocate General, for respondents 1 to 3 and Mr. Georgekutty Mathew, for the fourth respondent. 2. This petition under Art.226 of the Constitution seeks to challenge the interim order dated 27th, May, 2000 - Ext. P1 passed by the Kerala Lok Ayukta in Complaint No. 108 of 2000. At the top of the said order, the words "Kerala Lok Ayukta"are used to denote the Hon'ble Lok Ayukta and Upa Lok Ayukta acting together in exercise of their powers under sub-s.(1) of S.7 of the Kerala Lok Ayukta Act, 1999 (for short, the Act). In the scheme of the provisions of the sub-s.(1) of S.7, the exercise of power is jointly by the Lok Ayukta and one of the Upa Lok Ayuktas sitting in a Division Bench. For the sake of convenience, they are referred to as the "Kerala Lok Ayukta". 3. By way of amendment, further relief prayed for is that the records leading to Ext. P2 complaint dated 23.3.2000, pending before the Kerala Lok Ayukta, should be quashed. The reason for this amendment relief is ground H, taken by way of amendment, that the complaint Ext. P2 filed before the Kerala Lok Ayukta does not come within the purview of S.7(1) of the Act and hence it was not maintainable before the Kerala Lok Ayukta. Under a separate order passed today, we have allowed the amendment petition, C.M.P. No. 30229 of 2000. 4. We need to mention, at the outset, that the Registry has taken an objection regarding the maintainability of the Petition under Art.226 of the Constitution. Objection is in the following words: "O.P. against an order of Lok Ayukta is not maintainable. Hence returned. Time 15 days. 1.6.2000". "Maintainability is referred to Division Bench and is pending. May be posted before the Bench. Resubmitted 1.6,2000". In view of the above, the matter has been placed before us, firstly on the point of maintainability of a Writ Petition under Art.226 of the Constitution against a statutory authority like the Kerala Lok Ayukta constituted under the Act and secondly, on the point of maintainability of the complaint Ext. P2 before the Kerala Lok Ayukta. 5. In view of the above, the following two questions of law arise for our consideration: 1. P2 before the Kerala Lok Ayukta. 5. In view of the above, the following two questions of law arise for our consideration: 1. Whether a Writ Petition under Art.226 of the Constitution is maintainable challenging the order passed by a statutory authority like the Kerala Lok Ayukta under the Kerala Lok Ayukta Act, 1999; 2. Whether on the facts averred in Complaint No. 108 of 2000 dated 23rd March 2000 - Ext. P2 filed by the fourth respondent Dr. Joseph Scaria, the Kerala Lok Ay ukta had jurisdiction under S.7(1) of the Act or whether it was Upa Lok Ayukta acting under sub-s.(2) of S.7 of the said Act, who was competent to entertain the complaint." In order to appreciate the controversy, a few facts may be stated. We make it clear, at the outset, that we express no opinion on the merits of the grievance raised in the original complaint. 6. On 23rd March, 2000, the fourth respondent, Dr. Joseph Scaria presented a complaint before the Kerala Lok Ayukta alleging that first petitioner before us, Dr. Smt. V.C. Kamalu, District Animal Husbandry Officer, Palakkad, had indulged in acts of maladministration, wilful omission, abuse of power, and official harassment. It is then alleged that petitioners 2 and 3 before us, Mr. A.U. Mamachan, Field Officer, District Veterinary Centre, Palakkad and Mr. B.H. Prasad, U.D.. Clerk, District Animal Husbandry Office, Palakkad, had illegally confined Dr. Rajan Chungath with the active connivance of the first petitioner to pressurise him to sign an official document in order to disburse honorarium of one Mr. Narayanankutty, Inspector, Society for Prevention of Cruelty towards Animals (SPCA) and thereby obtained undue pecuniary advantage to him. The third ground alleged for invoking the jurisdiction of the Kerala Lok Ayukta is maladministration, wilful omission, and inaction on the part of respondent 1 and 2 - State of Kerala and its Director of Animal Husbandry in not taking disciplinary action against the three petitioners for their criminal misconduct. The last ground alleged is the maladministration, wilful omission and inaction on the part the Superintendent of Police, Palakkad, in not reporting the matter to the Director of Animal Husbandry, for suspension of the three petitioners, as they are involved in a serious criminal case. 7. The fourth respondent before us, Dr. The last ground alleged is the maladministration, wilful omission and inaction on the part the Superintendent of Police, Palakkad, in not reporting the matter to the Director of Animal Husbandry, for suspension of the three petitioners, as they are involved in a serious criminal case. 7. The fourth respondent before us, Dr. Joseph Scaria, is the President of the Animal Husbandry Officers Association, Kerala, which is a society registered under the Societies Registration Act, 1860. He has filed the original complaint Ext. P2. According to the averments in the complaint, the Chief Veterinary Officer of the District Veterinary Centre, Palakkad, Dr. Rajan Chungath, was gheraoed by the petitioners 1 to 3 and some other members of the staff attached to his office on 17.2.2000. Dr. Rajan Chungath was compelled to sign a paper authorising payment of honorarium to one Mr. Narayanankutty, said to be the senior Inspector of SPCA. It is stated in the complaint that the first petitioner Dr. Smt. V.C. Kamalu, who was the District Animal Husbandry Officer, Palakkad, was acting in collusion with miscreants and had been actively supporting and encouraging them in their unlawful act of keeping complainant Dr. Rajan Chungath, in wrongful confinement compelling him to sign a paper without even allowing him to go to the toilet or even to take some water, though he was a kidney patient. 8. Pursuant to the direction of the Kerala Lok Ayukta on 25.3.2000, the Inspector General of Police, attached to the Lok Ayukta, directed his Superintendent of Police to make an enquiry into the matter and submit a report. The Supdt. of Police conducted an enquiry and submitted first, a preliminary report and later, a detailed report, after questioning Dr. Rajan Chungath, and concerned parties. In short, the enquiry report submitted by the Superintendent of Police shown that the incident narrated in the complaint of the fourth respondent regarding gheraoing Dr. Rajan Chungath on 17.2.2000 and his being pressurised to sigh a paper was, prima facie, true. The report implicates all the three petitioners for their acts in respect of which Crime No. 57 of 2000 has been registered with the Town North Police Station, Palakkad on 19.2.2000 for offences punishable under Ss.143, 147, 347, 294(b), 506(1) read with S.109 IPC. All the accused, including the three petitioners, surrendered before the Judicial Magistrate First Class, Palakkad, and were enlarged on bail. All the accused, including the three petitioners, surrendered before the Judicial Magistrate First Class, Palakkad, and were enlarged on bail. The police investigation is stated to be pending in the said crime, and we express no opinion in that behalf. 9. What is challenged before us is the interim order Ext. P1 dated 23.5.2000 passed by the Kerala Lok Ayukta. Under the said order, the Director of Animal Husbandry, Vikas Bhavan, Trivandrum, has been directed to transfer the three petitioners "from out of Palakkad District". The transfer was to be effected without any delay and the report was to be submitted to the Kerala Lok Ayukta within a stipulated period. There is a further order to the Director of Animal Husbandry to transfer the other officers, if any, directly involved in the incident on 17.2.2000, namely forcefully confining a superior officer Dr. Rajan Chungath, and compelling him to sign a paper authorising disbursement of money. It is this interim order directing the petitioners transfer from out of Palakkad District, that is challenged before us. 10. As stated above, two questions of law arise for our consideration. As far as the first question is concerned, that need not detain us long. This petition is filed under Art.226 of the Constitution. The reliefs prayed are for (i) quashing the pending Complaint No. 108 of 2000, Ext. P2 dated 23.3.2000, on the ground that the said complaint is not maintainable before the Kerala Lok Ayukta and (ii) quashing the interim order, Ext. P1 dated 27.5.2000. The relevant part of Art.226 of the Constitution reads as under: "226. Power of High Courts to issue certain Writs.- (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (IA) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (2) The power conferred on a High Court by clause (1) or clause (1 a) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Art.32". (emphasis supplied) It will be evident from the provisions of clause (1) of Art.226 that notwithstanding anything contained in Art.32 of the Constitution dealing with the powers of the Apex Court to issue directions, orders or writs, every High Court has the power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. 11. The Kerala Lok Ayukta is a statutory authority under the Act. The said authority has been constituted in accordance with the provisions of S.3 of the Act, which reads as under: "3. Appointment of Lok Ayukta and Upa Lok Ayuktas.- (1) For the purpose of conducting investigations and inquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as Lok Ayukta and two other persons to be known as Upa Lok Ayuktas. (2) A person to be appointed as Lok Ayukta shall be a person who has held the office of judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister, in consultation with the Speaker of the Legislative Assembly of the State and the Leader of Opposition in the Legislative Assembly of the State. (3) A person to be appointed as an Upa Lok Ayukta shall be a person who holds or has held the office of a judge of the High Court and shall be appointed on the advice tendered by the Chief Minister, in consultation with the Speaker of the Legislative Assembly of the State and the Leader of Opposition in the Legislative Assembly of the State. Provided that the Chief Justice of the High Court concerned shall be consulted, if a sitting judge is appointed as an Upa Lok Ayukta. (4) A person appointed as Lok Ayukta or Upa Lok Ayukta shall, before entering upon his office, make and subscribe, before the Governor or a person appointed by him in that behalf, an oath or affirmation in the form set out for the purpose in the First Schedule." 12. S.4 of the Act provides that the Lok Ayukta or Upa Lok Ayukta will not hold any office of trust or profit or carry on any business or practice any profession. S.5 stipulates the term of office and other service conditions of the Lok Ayukta and Upa Lok Ayuktas. S.6 deals with the removal of Lok Ayukta or Upa Lok Ayukta. We will deal with S.7, when we come to the second question framed for our consideration. There can be no dispute that the Kerala Lok Ayukta is a statutory authority constituted under S.3 of the Act. If that be so, it is difficult to appreciate the objection raised by the Registry that a Writ Petition under Art.226 of the Constitution is not maintainable against an order passed by the Kerala Lok Ayukta. We will refer to a few decisions on the point. 13. In Rajastan State Electricity Board v. Mohanlal, AIR 1967 SC 1857, a Constitution Bench of the Apex Court was considering the question as to whether the Electricity Board of Rajastan was the State within the meaning of Art.12 of the Constitution. The Board was constituted under the Electricity (Supply) Act, 1948, and was a body Corporate. In para 5 of the judgment at page 1862, the Apex Court dealt with the meaning of the word "authority" given in Webster's Third New International Dictionary and observed as under: "5. The Board was constituted under the Electricity (Supply) Act, 1948, and was a body Corporate. In para 5 of the judgment at page 1862, the Apex Court dealt with the meaning of the word "authority" given in Webster's Third New International Dictionary and observed as under: "5. The meaning of the word 'authority' given in Webster's Third New International Dictionary, which can be applicable is a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue - producing public enterprise. This dictionary meaning of the word 'authority' is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression 'other authorities' is wide enough to include within its every authority created by a statute and functioning within the territory of India, or under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words "other authorities" are used in Art.12 of the Constitution." In para 6 of the decision, after discussing the law laid down in Smt. Ujjam Bai v. State of U.P., AIR 1962 SC 1621 and K.S. Ramamurthy Reddiar v. The Chief Commissioner, Pondicherry, AIR 1963 SC 1464, the Apex Court concluded as under at page 1863: "These decisions of the court support our view that the expression 'other authorities' in Art.12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities..." (Emphasis supplied) 14. The question came up for consideration again before a Constitution Bench of the Apex Court in Sukhdev Singh and Ors. v. Bhagatram & Ors., AIR 1975 SC 1331. The question was whether the Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation were "authorities" within the meaning of Art.12 of the Constitution. On a consideration of the earlier decisions, it was held in paragraph 39 of the judgment that: "39. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. On a consideration of the earlier decisions, it was held in paragraph 39 of the judgment that: "39. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making a profit for the public benefit." Reliance was placed on the Halsbury's Laws of England, 3rd Edn. Vol. 30, para 1317 at p. 682. It was, therefore, held that the expression 'other authorities' used in Art.12 of the Constitution was wide enough to include within its every authority created by a statute and functioning within the territory of India, or under the control of the Government of India. The expression 'other authorities' will include all constitutional or statutory authorities on whom powers are conferred by law. 15. In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, a Seven Judge Constitution Bench of the Apex Court considered the entire scheme of the powers of judicial review as a part of the basic structure of the Constitution. The scope of powers of the High Court under Art.226 in respect of orders passed by the Tribunals constituted under Art.323A and 323B was reconsidered in the light of the earlier decision in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386. On a review of the entire case law, the Apex Court came to the conclusion that the doctrine of basic structure was evolved in Kesavananda Bharathi's case, AIR 1973 SC 1461. It was held that the power of judicial review vested in the High Courts under Art.226 and in the Apex Court under Art.32 was always considered to be an integral part of our constitutional scheme, and was therefore an integral and essential feature of the Constitution, constituting part of its basic structure. It was therefore held that the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. It was further held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and Tribunals within their respective jurisdiction was also part of the basic structure of the Constitution. It was further held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and Tribunals within their respective jurisdiction was also part of the basic structure of the Constitution. The relevant observations are to be found in paragraphs 76 to 80 of the judgment at pages 1148 to 1150 of AIR. 16. Again in Union of India v. Himmat Singh Chahar, (1999) 4 SCC 521, the Apex Court was considering the High Court's power of judicial review under Art.226 of the Constitution. The power was sought to be exercised to judicially review a finding recorded by the Court Martial under the Army Act, 1950, the Navy Act, 1957 or the Air Force Act, 1950. While reiterating that the High Court had power to judicially review a finding recorded in such proceedings, the limitations inherent of such powers in the case of findings of the authorities/ tribunals under the Army Act, Navy Act or Air Force Act were emphasised. The relevant observations are found in paragraph 4 of the judgment at page 525. 17. In fairness to all the learned counsel appearing before us, it must be stated that none of them questioned the powers of this Court under Art.226 of the Constitution to entertain a Writ Petition against an order, including an interim order, passed by a statutory authority like the Kerala Lok Ayukta. Hence we answer the first question in the affirmative as under: A Writ Petition under Art.226 of the Constitution is maintainable challenging the order passed by a statutory authority like the Kerala Lok Ayukta under the Kerala Lok Ayukta Act, 1999. As indicated earlier, the words "Kerala Lok Ayukta" in this judgment refer to the Lok Ayukta and the Upa Lok Ayukta acting together in exercise of their powers under sub-s.(1) of S.7 of the Kerala Lok Ayukta Act, 1999. As indicated earlier, the words "Kerala Lok Ayukta" in this judgment refer to the Lok Ayukta and the Upa Lok Ayukta acting together in exercise of their powers under sub-s.(1) of S.7 of the Kerala Lok Ayukta Act, 1999. We may only add that the provisions of sub-s.(2) of S.20 to the effect that no proceedings of the Lok Ayukta or an Upa Lok Ayukta shall be held to be bad for want of forum and, except on the ground of jurisdiction, no proceedings or decision of the Lok Ayukta or an Upa Lok Ayukta shall be liable to be challenged, reviewed, quashed or called in question in any court, cannot affect the powers of judicial review of the High Courts under Art.226 or that of the Supreme Court under Art.32 of the Constitution, in the light of the above decisions. Hence the first question is answered in the affirmative. 18. Coming to the second question as to whether the Kerala Lok Ayukta had jurisdiction under S.7(1) of the Act to entertain the complaint filed by the fourth respondent on 23rd March, 2000, making a grievance in respect of an incident of 17.2.2000, we must refer to the scheme of the provisions of the Act. We have already indicated the scheme of the first six sections while answering the first question. S.7 is the relevant section on the second question. It reads as under: 7. Matters which may be investigated by the Lok Ayukta and the Upa Lok Ayuktas. (1) Subject to the provisions of this Act, the Lok Ayukta and one of the Upa Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action is taken by or with the general or specific approval or (i) the Chief Minister; or (ii) A Minister; or (iii) A Member of the State Legislature; or (iv) A Secretary; or (v) An office-bearer of apolitical party at the State level; or (vi) An officer referred to in sub-clause (iii) of clause (d) of S.2. In any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa Lok Ayuktas together and the decision of the majority therein shall prevail. (2) Subject to the provisions of this Act, an Up a Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister, or a Minister or a Member of the State Legislature or a Secretary or an Office bearer of a political party at State level or an officer referred to in sub-clause (iii) of clause (d) of S.2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Up a Lok Ayukta, the subject of a grievance or an allegation. (3) Notwithstanding anything contained in sub-ss.(1) and (2), the Lok Ayukta or an Upa Lok Ayukta may investigate any action taken by or with the general or specific approval or a public servant, if it is referred to him by the-Government. (4) The Lok Ayukta may, by general or special order, assign to each of the Up a Lok Ayuktas the matter which may be investigated by them under this Act. (5) Notwithstanding anything contained in sub-ss.(1) to (4), when an Up a Lok Ayukta is unable to discharge his functions owing to absence, illness, or any other cause, his functions may be discharged by the other Up a Lok Ayukta, and in the absence of both, by the Lok Ayukta. (6) Notwithstanding anything contained in any other provisions of this Act, no investigation made by an Up a Lok Ayukta under this Act and no action taken or things done by him i n respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order. (7) For the removal of doubts, it is hearby clarified that the term'Lok Ayukta' wherever it is used in this Act, in relation to any of the persons referred to in sub-s.(1) shall mean the Lok Ayukta and, as the case may be, one or both of the Up a Lok Ayuktas as provided in that subsection." 19. We have already indicated, at the outset in paragraph 2, that the words 'Kerala Lok Ayukta' used in this judgment denote the Lok Ayukta and Upa Lok Ayuktas acting together in exercise of their powers under sub-s.(1) of S.7 of the Act. Under the said provisions, the exercise of powers is jointly by the Lok Ayukta, and one of the Upa Lok Ayuktas sitting in a Division Bench. It is thus clear that under sub-s.(1) of S.7, the matters which can be brought before the Kerala Lok Ayukta have been classified into different categories, and the jurisdiction is subject to certain conditions being fulfilled. If an action is taken by, or with the general or specific approval of, (i) the Chief Minister, or (ii) a Minister; or (iii) a Member of the State Legislature; or (iv) a Secretary; or (v) an office bearer of a political party at the State level; or (vi) an officer referred to in sub-clause (iii) of clause (d) of S.2, the Kerala Lok Ayukta may investigate such action, in any case where a complaint involving a grievance or an allegation is made in respect of such action. It is further provided that where there is difference of opinion between the Lok Ayukta and the Upa Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa Lok Ayuktas together and the decision of the majority therein shall prevail. 20. It is further provided that where there is difference of opinion between the Lok Ayukta and the Upa Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa Lok Ayuktas together and the decision of the majority therein shall prevail. 20. Sub-s.(2) of S.7 dealing with the powers of the Up a Lok Ayuktas specifies that an Up a Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being (i) the Chief Minister or (ii) a Minister or (iii) a Member of the State Legislature or (iv) a Secretary or (v) an office bearer of a political party at State level or (vi) an officer referred to in sub-clause (iii) of clause (d) of S.2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa Lok Ayukta. the subject of a grievance or an allegation. It appears to us, therefore, that the jurisdiction of Upa Lok Ayukta is in respect of any action which is taken by officers/ public servants lesser in status than those mentioned specifically in sub-s.(1) of S.7, namely, (i) the Chief Minister; or (ii) a Minister; or (iii) a Member of the State Legislature, or (iv) a Secretary; or (v) an office bearer of a political party at the State level; or (vi) an officer referred to in sub-clause (iii) of clause (d) of S.2. As per the Scheme of provisions of S.7 in respect of higher functionaries, starting with the Chief Minister, the jurisdiction vests in the Kerala Lok Ayukta under S.7(1) of the Act. In respect of actions of or by the approval of officers or any public servants excluding the above functionaries covered by sub-s.(1) of S.7, the jurisdiction has been conferred on the Upa Lok Ayukta. It is true that under sub-s.(3) of S.7, the Lok Ayukta or an Upa Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government. If, therefore, there is a reference by the State Government, the test for deciding the question of jurisdiction of the Lok Ayukta or Upa Lok Ayukta would differ. If, therefore, there is a reference by the State Government, the test for deciding the question of jurisdiction of the Lok Ayukta or Upa Lok Ayukta would differ. Under sub-s.(4) of S.7 of the Lok Ayukta may, by general or special order, assign to each of the Upa Lok Ayuktas the matter which may be investigated by them. It is equally true that under sub-s.(5), if an Upa Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa Lok Ayukta, and in the absence of both, by the Lok Ayukta. On a plain reading of the scheme of S.7, it is clear to us that in respect of the complaint filed by the fourth respondent, the Kerala Lok Ayukta cannot exercise jurisdiction since the case does not satisfy the test laid down in sub-s.(1) of S.7 of the Act. It may be that an Upa Lok Ayukta would be competent to entertain the complaint that was filed by the fourth respondent under sub-s.(2) of S.7. It is necessary to briefly refer to some of the definitions in the Act in support of this view. 21. S.2 of the Act is the defining provision. It may be that an Upa Lok Ayukta would be competent to entertain the complaint that was filed by the fourth respondent under sub-s.(2) of S.7. It is necessary to briefly refer to some of the definitions in the Act in support of this view. 21. S.2 of the Act is the defining provision. In so far as the relevant words are concerned, they are defined in the following terms: (a) 'action' means any action including administrative action taken by way of decision recommendation or finding or in any other manner and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly; (b) 'allegation', in relation to a public servant, means any affirmation that such public servant, (i) has abused his possession as such public servant to obtain any gain of favour to himself for to any other persons or to cause undue harm or hardships 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; (c) Chief Minister (d) 'competent authority', in relation to a public servant, means (i) in the case of the Chief Minister or a Member of the State Legislature, or an office bearer of a political party, at the state level, the government acting in his discretion (ii) in the case of a Minister or Secretary, the Chief Minister; (iii) in the case of an officer of the All India Services, employed in connection with the affairs of the State , the Minister concerned; (iv) in the case of a Government servant, other than a Secretary, the Government of Kerala (v) in the case of any other public servant, such authority, as may be prescribed. (e) 'corruption'... (e) 'corruption'... (0 'Government servant' means a person who is a member of the diviil sarwkiesrfifie Sttone of Kerala or who holds a civil post or is serving in connection woin ttltoe adffiaB of line State of Kerala and includes any such person whose services aie tanmgNIramiQy pllaaocJ at the disposal of the Government of India, the Government of amoJibesr Sltate; a Ikooill authority or any person, whether incorporated or not, and atom aimy posom inn ate service of the Central or another State Government oralocal or services are temporarily placed at the disposal of the Government of Kerala. Explanation.-For the purpose of mis clause We term' the Union Territories; (g) 'Governor' : (h) 'grievance' means a claim by a person that he sustained imjimstnoe or unuiu; karaybbp in consequence of mal-administration; (i) 'local authority' 0) 'LokAyukta (k) 'mal administration' means action taken or purporting to haw; team tmfcom iki tite 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; 0) 'Minister' (m) 'politicalparty (n) 'prescribed' (o) 'public servant' means a person who is or was, at any time,-ffl the Chief Minister; (ii) a Minister; (iii) a member of the Legislative Assembly of the State of Kerala; (iv) a government servant; (v) the Chairman and the Vice Chairman (by whatever name called) or a member of a local authority in the State or a statutory body or corporation established by or under any law of the State Legislature, including a co-operative society, or a Government company within the meaning of S.617 of the Companies Act, 1956 (Central Act 1 of 1956) and such other Corporations or Boards, as the Government may, having regard to its financial interest, in such Corporations or Boards, by level; (x) the Chairman or Manager or Secretary or Correspondent having control over the administration of a private school, whether under individual or corporate management, which receives or has received aid or grant from the Government under the Kerala Education Act, 1958 (6 of 1959), and the rules made thereunder; (xi) the Chairman or Manager or Secretary or Correspondent having control over the administration of a private college, whether under unitary or corporate management, which is affiliated to a University in the State and is governed by the Private Affiliated Colleges (Arts and Science Colleges) Staff Direct Payment of Salary Rules 1972; (xii) the Chairman or Manager or Secretary or Correspondent having control over the administration of a private college, whether under unitary or corporate management, affiliated to a University in the State and which receives aid or grant from the Government of Kerala; or (xiii) the Chairman or Manager or Secretary or Correspondent having control over the administration of a Private Engineering College or Private Polytechnic, whether under unitary or corporate management, affiliated to a University in the State or the State Board of Technical Examination, Kerala, as the case may be, and is governed by the Rules for payment of Salaries to the Staff of the Private Engineering Colleges and Polytechnics, 1972; (p) 'Secretary' means a Secretary to the Government of Kerala and includes a Chief Secretary, an Additional Chief Secretary, a principal Secretary, a Special Secretary, an Additional Secretary and a Joint Secretary." 22. The scheme of the above definitions will make it clear that it is the Kerala Lok Ayukta who may investigate any action which is taken by or with the general or specific approval of, the six dignitaries/ officers mentioned in sub-s.(1) of S.7. Admittedly, it is not the grievance of the fourth respondent that the conduct of the petitioners which is complained of before the Kerala Lok Ayukta satisfies the tests laid down in sub-s.(1) of S.7 of the Act so as to vest the Kerala Lok Ayukta with jurisdiction. We may in this connection refer to S.8 dealing with matters which are not subject to investigation. S.8 reads as under: "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 on which 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 complainant satisfies that he had sufficient cause for not making the complaint 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 are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised. The Second Schedule referred to in S.8(1) reads as under: SECOND SCHEDULE (See Section 5(1)) (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". 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 or an Upa Lok Ayukta in view of the specific bar contained in sub-s.(1) of S.B. What is permitted to be investigated is only the actions relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service, which is not the case before us. 23. S.9 of the Act is again subject to the other provisions of the Act. A person is permitted to make a complaint before the Lok Ayukta or an Upa Lok Ayukta. Though the word "complaint" is not defined in the Act, the wide amplitude of the dictionary meaning of the word "complaint" has to be read subject to the provisions of Ss.7 and 8 referred to above. A person is permitted to make a complaint before the Lok Ayukta or an Upa Lok Ayukta. Though the word "complaint" is not defined in the Act, the wide amplitude of the dictionary meaning of the word "complaint" has to be read subject to the provisions of Ss.7 and 8 referred to above. Whereas S.9 deals with the procedural aspect of making a complaint in accordance with the provisions of the Act to the Lok Ayukta and one of the Upa Lok Ayuktas, S.8 specifically excludes certain matters from the purview of the Lok Ayukta and Upa Lok Ayukta. S.10 deals with the issue of search, warrant, etc. S.11 deals with evidence and powers of the Lok Ayukta or Upa Lok Ayukta on par with the powers of Civil Court in certain matters. The rest of the provisions are not relevant here. 24. The petitioners' contention is that the scheme of the above mentioned provisions does not justify the Kerala Lok Ayukta entertaining the complaint in the facts.of the present case. None of the facts stated in item 5 of the complaint consisting of acts of maladministration, illegal conduct or wilful omission, etc. satisfies the tests laid down in S.7(1) to enable the Kerala Lok Ayukta to exercise jurisdiction. At the highest, it is the Upa Lok Ayukta who can exercise jurisdiction under sub-s.(2) of S.7. 25. The learned Advocate General submitted that on a true construction of the scheme of the provisions of Ss. 7, 8 and 9 read together, in the facts of the present case, it is not the Kerala Lok Ayukta who will have jurisdiction under S.7(1), but it is an Upa Lok Ayukta who will have jurisdiction to entertain the said complaint under S.7(2): 26. We may in this behalf refer to a decision of the Bombay High Court in Vishwasrao v. Lok Ayukta, State of Maharashtra, AIR 1985 Bom.136. That was a case where the petitioner, Dr. Vishwasrao Chundaman Patil had applied for appointment to the post of Honorary Paediatrician Inn the District ItepttaD 'aft Hmfle in pursuance of an advertisement issued by the State GiwerametmtL tube pdWimmr w» selected at the scrutiny and was called for interview along with some ofensi. That was a case where the petitioner, Dr. Vishwasrao Chundaman Patil had applied for appointment to the post of Honorary Paediatrician Inn the District ItepttaD 'aft Hmfle in pursuance of an advertisement issued by the State GiwerametmtL tube pdWimmr w» selected at the scrutiny and was called for interview along with some ofensi. he was selected by the selection board and was appointed to tine said jmmjl Altar but jarred flniis duties, he received a letter from the State GmemmtEs&t informing HBiinnn tfalt fese was an interim stay granted by the Lok Ayukta and hence Us apporatacndt stood smi^pofflteL The petitioner, Dr. Vishwasrao, thereafter got a notice fiom tine Lok Ayuktha, puinrsuMiratt to which he appeared and challenged the jurisdiction of the Lok Ayuakltai to craitentatiiim the complaint in view of S.8 of the Mafarastora Lok Aymkla aid il'j [M LaJk Act, 1971. The petitioner raised the question of jurisdidtiioim Undone nltoe- ILoiik Aydkna which was answered against him to the effect tJfaiat the Lok Aywkto Itadl juMii,-idliii£^m. Aggrieved by the said finding recorded by tWiriilt Petition in the High Court Maharashtra Lok Ayukta and Upa Lok Aymktas Act, 19? 1 wMi tttee Ekralk Act, B9w though we find that the provisions of S.7 and 8 arc somewtatt .siiimiiilbir„ nltnejc are molt identical in nature. In para 16 of the judgment of theltemtayHii^C< "7.(1) Subject to the provisions of this Act, the Lok Ayrata mmw ikiwesltii^tfte aray aidtiimiQ which is taken by or with the general or specific afpnoral rf 0) a Minister or a Secretary; or (ii) any public servant referred to In smb-cHamse (inj) of damiK (k)) rfS.. 2; < (3) Notwithstanding anything contained inn selb-S- (2), tfcLok Aymtoai ramif., Kcararawcnnsto be recorded in writing, investigate any action, which many be mvs^^sMy amOpHiLinilk A under that sub-section whether or not a complaint has been made to the Lok Ay ukta in respect of such action. 2; < (3) Notwithstanding anything contained inn selb-S- (2), tfcLok Aymtoai ramif., Kcararawcnnsto be recorded in writing, investigate any action, which many be mvs^^sMy amOpHiLinilk A under that sub-section whether or not a complaint has been made to the Lok Ay ukta in respect of such action. (4) Where twoor more UpaLok Ayuktas are appointed under this Act, the Lok Ay ukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act Provided thai no investigation made by an Upa Lok Ayukta under this Act and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such 27. It is trae that in paragraph 18 of the judgment of the Bombay High Court in Vishwasrao's (supra), it has been observed as under: "18. In our opinion, it is not necessary to decide any wider questions in this Writ petition, once it is held thai the complaint filed was overlapping. It is not possible for us to accept the contention of the learned counsel for the petitioner that the averments made in the complaint weredsslincl and separable. In our view, the averments made are interdependent. The languages used and the averments made leave no doubt in our mind that it was the cumulative effect of the ads and lapses on the part of the respondents which is the basis of the present complaint. Therefore the averments are overlapping and amount to 'allegation' as well as 'grievance' and therefore, it cannot be said that the view taken by the Lok Ayukta that the said complaint was not barred lander S.8{1) (a) of the Act was any way perverse or wrong " 28. Referring to the Kerala Lok Ayukta Act, 1999, on a plain construction of the provisions of S.7 read with the definitions under S.2 and the specific bar contained in S.8 of the Act, with respect, it is not possible for us to agree with the view expressed in the Bombay decision. Referring to the Kerala Lok Ayukta Act, 1999, on a plain construction of the provisions of S.7 read with the definitions under S.2 and the specific bar contained in S.8 of the Act, with respect, it is not possible for us to agree with the view expressed in the Bombay decision. At any rate, on the facts of the case before us, the grievance or the complaint of the fourth respondent does not satisfy the test laid down in sub-s.(1) of S.7 of the Kerala Act so as to enable the Kerala Lok Ayukta to exercise the powers under the act As indicated earlier, having regard to the clear-cut distinction between the functionaries/officers/public servants referred to in sub-s.(1) of S.7, who are excluded in sub-s.(2) of S.7 .of the Act, the present complaint could have been entertained by an Upa Lok Ayukta under sub-s.(2) of S.7 and not by the Kerala Lok Ayukta under sub-s.(1). We may in this connection refer to the definition of "public servant" in S.2(o), which is reproduced in para 21 above. It means a person who is or was at any time (i) the Chief Minister; (ii) a Minister; (iii) Member of the Legislative Assembly of the State of Kerala, (iv) a Government servant, (v) the Chairman and the Vice Chairman etc. However, when we come to sub-s.(2) of S.7, the jurisdiction of an Upa Lok Ayukta is to investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister, or a Minister or a Member of the State Legislature or a Secretary or an office bearer of apolitical party at State Level or an Officer referred to in sub-clause (iii) of clause(d) of S.2. As mentioned above this makes a clear distinction between the powers of the Kerala Lok Ayukta under sub-s.(1) of S.7 as against the powers of the Upa Lok Ayukta under sub-s.(2) of S.7 of the Act. Since those functionaries/officers/public servants stand on a high pedestal, it is the Kerala Lok Ayukta who may investigate any action. Where action is taken by officers excluding the above mentioned categories of public servants, it is an Upa Lok Ayukta who will have jurisdiction. Since those functionaries/officers/public servants stand on a high pedestal, it is the Kerala Lok Ayukta who may investigate any action. Where action is taken by officers excluding the above mentioned categories of public servants, it is an Upa Lok Ayukta who will have jurisdiction. If this clear distinction between the powers under sub-s.(1) of S.7 of the Kerala Lok Ayukta and the powers of the Upa Lok Ayukta under sub-s.(2) of S 7 is borne in mind, there is no doubt that on the facts of the present case, the Kerala Lok Ayukta had no jurisdiction to entertain the complaint, but the complaint can be entertained, as indicated above, under sub-s.(2) of S.7 by an Upa Lok Ayukta. 29. We have already indicated the allegations in the complaint. We refrain from expressing any opinion on the merits of the incident of 17.2.2000, when a group of persons, including the petitioners, are alleged to have confined Dr. Rajan Chungath and got some paper signed by him. In the first place, a criminal complaint is pending in that behalf. Secondly, disciplinary action is prayed for against them. Thirdly, in the view we have taken, an Upa Lok Ayukta will have jurisdiction under sub:s.(2) of S.7 of the Act. In the said circumstances, we do not think it appropriate to express any opinion on the merits of the allegations in the complaint. 30. Counsel for the fourth respondent, however, contended that the complaint has been filed "before the Hon'ble Lok Ayukta" constituted under S.3 of the Act. The contention of the fourth respondent is that under R.3 of the Kerala Lok Ayukta (Form and Manner of Complaint) Rules, 1999, hereinafter called the "Rules", it is provided that "every complaint, as far as practicable be, accordance with the form set out in the Schedule". It is true that in the Schedule under R.3, which is only an enabling provision dealing with procedural aspect, it is stated "before the Lok Ayukta constituted under Section....". However, R.8 of the Rules reads as under: "8. It is true that in the Schedule under R.3, which is only an enabling provision dealing with procedural aspect, it is stated "before the Lok Ayukta constituted under Section....". However, R.8 of the Rules reads as under: "8. Mode of presentation.- Every complaint shall be to the Lok Ayukta or UpaLok Ayukta shall be filed before the Secretary of the Lok Ayukta or sent by registered post of the Secretary of the Lok Ayukta." On a combined reading of R.3 and R.8, it is clear that every complaint shall, as far as practicable be, in accordance with the form set out in the Schedule. However, R.8 makes it clear that every complaint shall be to the Lok Ayukta or Upa Lok Ayukta shall be filed before the Secretary of the Lok Ayukta or sent by registered post to the Secretary of the Lok Ayukta. At any rate, the question of jurisdiction of the Lok Ayukta or Upa Lok Ayukta, as the case may be, must depend upon the interpretation of S.7 of the Act and not on the form prescribed under the Rules. On the facts averred in the complaint, it is the Upa Lok Ayukta who alone has the jurisdiction. It is difficult to hold that merely because the title mentions "before the Lok Ayukta", the Kerala Lok Ayukta will automatically get jurisdiction to entertain such a complaint. The contention of the fourth respondent based on the form stipulated under R.3 of the Rules, has, therefore, no substance. 31. In the view that we have taken, the second question must also be answered in the affirmative, namely, that the complaint filed by the fourth respondent Mr. Joseph Scaria, could not be entertained by the Kerala Lok Ayukta under sub-s.(2) of S.7 of the Act. On the averments in the complaint of the fourth respondent the complaint would be maintainable before an Upa Lok Ayukta under sub-s.(2) of S.7 of the Act. 32. In view of the above, the impugned order Ext. P1 dated 27.5.2000 will have to be quashed and set aside. Accordingly, the same is quashed and set aside purely on the ground that the order was without jurisdiction. We have made it clear that we have not examined the merits of the said order. 32. In view of the above, the impugned order Ext. P1 dated 27.5.2000 will have to be quashed and set aside. Accordingly, the same is quashed and set aside purely on the ground that the order was without jurisdiction. We have made it clear that we have not examined the merits of the said order. It would be for the Secretary of the Kerala Lok Ayukta who will be entitled to exercise powers in accordance with S.7(2) of the Act, and such other provisions enabling him to exercise his powers in that behalf. On the facts of the case, the fourth respondent is free to approach the concerned Upa Lok Ayukta for such interim relief as he may be entitled to in accordance with law. This order shall not be construed as expressing any opinion on the merits of the complaint of the fourth respondent or his right to obtain any interim relief on the facts of the case. That question is left open to be decided by the Upa Lok Ayukta in accordance with law. 33. Original Petition is allowed as above. No order as to costs.