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Rajasthan High Court · body

2012 DIGILAW 1414 (RAJ)

Sagar Mal Jain v. State of Rajasthan

2012-05-30

M.N.BHANDARI

body2012
Hon'ble BHANDARI, J.—Petitioners are aggrieved against the orders dated 3.4.2012 and 15.12.2011 wherein a recovery of Rs.79,153/- and Rs.3,22,394/- respectively is to be made from them. 2. It is submitted that petitioners, while working on the post of Gram Sevak-cum-Paden Sachiv had to undertake work under National Rural Employment Guarantee Act, 2005 (for short 'NREGA') in Gram Panchayat, Khanpur, Panchayat Samiti, Nainwa, District Bundi. A special audit and physical verification of the work was undertaken on the instruction of District Collector-cum-District Programme Coordinator, District Bundi. The special audit and physical verification was made pursuant to the direction of the State Government as certain irregularities were shown therein, thus petitioners have been asked to pay amount shown in the impugned order dated 3.4.2012. 3. Learned counsel for petitioners submits that impugned order has been passed in violation of principles of natural justice as without providing an opportunity of hearing, amount is shown recoverable from petitioners. It is apart from the fact that special audit and physical verification of the work undertaken in NREGA was without a notice to petitioners. Accordingly, impugned order deserves to be set aside on the aforesaid ground alone. 4. The other argument is in reference to Section 17 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short 'the Act of 2005'). Referring to Section 17 of the Act of 2005, it is submitted that social audit can be conducted only in terms of the Act of 2005. Thus, direction of the State Government for special audit through the Collectors – cum - District Programme Coordinators becomes illegal. The State Govt. or its agencies are not empowered to undertake special audit or physical verification, thus special audit at the instance of the Collector, Bundi becomes illegal. 5. Other than two grounds narrated above, no other ground has been raised for my consideration. 6. I have considered the submissions made above and perused the record carefully. 7. Firstly, I am dealing with second issue i.e. in reference to Section 17 of the Act of 2005. According to learned counsel for petitioners, other than Gram Shabha, nobody is having power or authority to hold audit/special audit. Since a reference of Section 17 of the Act of 2005 has been made, thus same is quoted hereunder for ready reference:- 17. (1) The Gram Sabha shall monitor the execution of works within the Gram Panchayat. According to learned counsel for petitioners, other than Gram Shabha, nobody is having power or authority to hold audit/special audit. Since a reference of Section 17 of the Act of 2005 has been made, thus same is quoted hereunder for ready reference:- 17. (1) The Gram Sabha shall monitor the execution of works within the Gram Panchayat. (2) The Gram Sabha shall conduct regular social audits of all the projects under the Scheme taken up within the Gram Panchayat. (3) The Gram Panchayat shall make available all relevant documents including the muster rolls, bills, vouchers, measurement books, copies of sanction orders and other connected books of account and papers to the Gram Sabha for the purpose of conducting the social audit. 8. Perusal of provision quoted above reveals that regular social audit would be done by Gram Sabha for all works done under Gram Panchayat concerned. The question is as to whether aforesaid provision excludes authority of State or Central Government to allow special audit or inquiry in regard to work of NREGA more so when funds are given by the Government. To address aforesaid issue, it would be relevant to refer few provisions of the Act of 2005. Section 4 of the Act of 2005 enjoins upon the State Government to notify scheme to give effect to provisions of Section 3 of the said Act. The State Government, accordingly, notified a scheme vide Notification dated 13.10.2005, namely, “Rajasthan Gramin Rozgar Guarantee Yojna 2006” (hereinafter referred to as 'the scheme'). Chapter-6 of the said scheme titled as “Quality Control and Evaluation” specifically emphasizes for quality control and evaluation. Para 32(2) of the said scheme empowers State Government to monitor physical and financial progress of the scheme in all Districts. Para 32(4) of the said scheme provides for quality audit at the State and district level by external monitors i.e., those who are not directly connected with the implementation of the scheme. Para 34(1) of Chapter-7 of the scheme titled 'Transparency and Accountability' provides for compulsory physical and financial audit of all works under the scheme as directed in Section 23(3) of the Act of 2005. Financial audit obviously includes especial audit. In paras 34(5) & 34(6) of Chapter-7 of the scheme further empowers State Employment Guarantee Council to take expeditious steps to stop serious financial irregularities, frauds, wrong measurements, false entries in Muster Roll and misuse of Government resources. Financial audit obviously includes especial audit. In paras 34(5) & 34(6) of Chapter-7 of the scheme further empowers State Employment Guarantee Council to take expeditious steps to stop serious financial irregularities, frauds, wrong measurements, false entries in Muster Roll and misuse of Government resources. The Chief Minister of the State is Ex-Officio Chairperson of the council. The scheme so introduced by the State Government, thus provides measures to be taken for physical and financial audit to check irregularities etc. The Ministry of Rural Development, Government of India also issued Operational Guidelines-2008 for proper implementation of the MGNREGA. The State Governments have been directed for appropriate steps to prevent irregularities. The Guidelines specifically authorizes State Government to monitor the scheme and for financial audit. 9. Apart from the aforesaid, even directions were given by the Hon'ble Apex Court in the case of Centre For Environment & Food Security vs. Union of India and others – Writ Petition (C) No.645 of 2007 on 12th May, 2011. In the case aforesaid, all the State Governments including Rajasthan, were directed to ensure compliance of the orders passed by the Hon'ble Supreme Court from time to time. This was to prevent corruption in NREGA. The State Government submitted an affidavit before the Hon'ble Supreme Court pursuant to the order. The Hon'ble Supreme Court therein ordered for CBI inquiry in regard to 100 villages of State of Orissa. In view of the above, an order was issued on 17.12.2009 by the State Government for inspection of work executed under NREGA and to conduct a detailed audit. Thus, action in the matter has been taken as per the provisions of law. All these facts are part of the reply given in the writ petition of Ravi Prakash vs. State of Rajasthan and others – S.B. Civil Writ Petition No.11417/2010 and submitted by the parties to decide the present matter. It is even relied by learned counsel for petitioners, who had supplied copy of the reply to the aforesaid writ petition to the Court during the course of arguments. In view of Rajasthan Gramin Rozgar Guarantee Yojna 2006, a scheme framed by the Government and provisions contained in para 32(2), 32(4), 34(1)(5) & (6) give ample powers to the State Government, accordingly, order dated 17.12.2009 was issued. In view of Rajasthan Gramin Rozgar Guarantee Yojna 2006, a scheme framed by the Government and provisions contained in para 32(2), 32(4), 34(1)(5) & (6) give ample powers to the State Government, accordingly, order dated 17.12.2009 was issued. It is pursuant to the aforesaid that the District Collector – cum – Programme Coordinator, Bundi had directed for inquiry into the matter. 10. The fact further relevant is the order of the Hon'ble Supreme Court in the case of Centre For Environment & Food Security (supra). The order was in regard to NREGA wherein directions were given when certain irregularities and corruption in NREGA were pointed by in the petition. One of the directions issued on 16.12.2010 was also in regard to the social audit to be conducted by Gram Sabha, however, it was further directed as under:- (h) Whether the Union of India or the State Government, in consultation with the Comptroller and Auditor General of India or otherwise, have conducted any general audit of accounts of the schemes at any level in terms of Section 24 of the Act? If the answers is in the affirmative, then details thereof, particularly, the objections, if any, raised by the Auditors; if any answer is in the negative, then reasons therefor. (i) Whether the Central Government has issued any directions concerning utilization of funds under NREGA while disbursing the amounts to State of Orissa? Whether these have been complied with by State of Orissa? (j) Whether the Central Government has received any complaints about working of the schemes, utilization of funds, providing of employment and payment of allowances under the provisions of the Act? If so, what action has been taken in terms of Section 27(2) of the Act? It should be stated with complete statistics and data 11. Directions aforesaid were given in reference to Sections 24 & 27 of the Act of 2005, thus it would be relevant to quote those provisions for ready reference:- “24. (1) The Central Government may, in consultation with the Comptroller and Auditor General of India, prescribe appropriate arrangements for audits of the accounts of the Schemes at all levels. (2) The accounts of the Scheme shall be maintained in such form and in such manner as may be prescribed by the State Government. 27. (1) The Central Government may, in consultation with the Comptroller and Auditor General of India, prescribe appropriate arrangements for audits of the accounts of the Schemes at all levels. (2) The accounts of the Scheme shall be maintained in such form and in such manner as may be prescribed by the State Government. 27. (1) The Central Government may give such directions as it may consider necessary to the State Government for the effective implementation of the provisions of this Act. (2) Without prejudice to the provisions of sub-section (1), the Central Government may, on receipt of any complaint regarding the issue or improper utilisation of funds granted under this Act in respect of any Scheme if prima facie satisfied that there is a case, cause an investigation into the complaint made by any agency designated by it and if necessary, order stoppage of release of funds to the Scheme and institute appropriate remedial measures for its proper implementation within a reasonable period of time.” 12. Perusal of the provisions as well as directions issued by the Hon'ble Supreme Court reveals an information if general audit of accounts of the scheme at any level was conducted. This was at the stage when issue of corruption was noticed by the Hon'ble Supreme Court and that too after filing of the reply by the Central Government and the State of Orissa therein. Relevant paras of the order are quoted hereunder:- “Not satisfied with the replies of the Central Government as well as the State of Orissa, this Court on 14th March, 2011 noticed that there are particularly two aspects to be taken care of at this stage; one is concerned with the corruption in the implementation of NREGA Scheme and the other is concerned with the implementation of the Operational Guidelines issued by the Central Government under Section 27 of the Act. In the case of State of Orissa, it was brought to the notice of the Court that huge amount has been misappropriated and, consequently, the beneficiaries of the NREGA Scheme are deprived of their dues. It must be noticed at this stage that the Comptroller and Auditor General of India (for short the 'CAG') had prepared certain reports in regard to implementation of the schemes framed under the Act. It must be noticed at this stage that the Comptroller and Auditor General of India (for short the 'CAG') had prepared certain reports in regard to implementation of the schemes framed under the Act. Similar report was prepared by the National Institute for Rural Development (NIRD) after conducting social audits in certain villages of Orissa on request of the Government of Orissa. Both these reports have pointed out the irregularities in implementation of the provisions of the Act and the schemes framed thereunder. These reports have even been accepted by the State Government and it had directed all the Collectors and District Programme Controllers (DPCs) to take necessary follow-up action. They had been instructed to submit exhaustive compliance/action-taken report in relation to the observations made by the CAG and NIRD in their respective reports and to conduct complete verification of all the allegations contained therein.” 13. The Hon'ble Supreme Court further observed as under while delivering final decision in the aforesaid case:- “The functions of the Central Council have been spelt out in Section 11 while that of the State Councils in Section 12(3). It is a statutory obligation on these Councils to advice the Government on all matters concerning the scheme and its implementation of the State including promotion of widest possible dissemination of information about the scheme made under this Act, establishment of central evaluation and monitoring system etc. In other words, this whole machinery has been set up to ensure smooth and effective implementation of the provisions of the Act. Besides constituting these Councils which are expected to function at higher level, the Legislature has required constitution of bodies and functionaries at the grass root level, i.e. District, intermediary and Gram Panchayat level. In terms of Section 17, the Gram Sabha shall monitor the execution of the work within the Gram Panchayat and there shall be regular social audit of all the projects under the scheme. In terms of Section 19, the State Government is required to make rules and determine appropriate grievance redressal mechanisms at the Block and the District levels for dealing with any complaint by any person in respect of implementation of the scheme. Chapter-V requires establishment of National and State Employment Guarantee Funds and Audit. In other words, these funds are to be created for ensuring the effective implementation of the schemes. Chapter-V requires establishment of National and State Employment Guarantee Funds and Audit. In other words, these funds are to be created for ensuring the effective implementation of the schemes. Under Section 20(2), the Central Government can credit, by way of grants or loans, such sums of money as the Central Government may consider necessary to the National Fund which will be utilized in such manner and subject to conditions, as may be provided by that Government. The intention of the Legislature is that it wants to the provisions of the Act to be enforced and fix responsibility on the persons causing impediments in its execution. Those who act contrary to the provisions of the Act are liable to conviction and fine under Section 25 which may extend to Rs.1000/-. The Central Government is further empowered to issue directions under Section 27 of the Act for effective implementation of the provisions of the Act and has powers to examine any complaint regarding issue or improper utilization of funds granted under this Act in respect of any scheme and to take remedial measures and even to stop release of funds to the scheme in such condition. The provisions of this Act have been given precedence and shall prevail notwithstanding anything inconsistent therewith in any other law for the time being in force or even in any instrument having effect by virtue of such law.” 14. The emphasis of the Hon'ble Supreme Court is for proper utilization of the funds apart from implementation of the scheme and to fix responsibility of those persons causing impediments in its execution. The effort seems to be nothing but to eliminate corruption in execution of scheme. In the aforesaid background, a hyper-technical objection cannot prevail if action is taken by the State Government for proper implementation of the Scheme, that too, after framing the scheme in the year 2006 and as per the Guidelines given therein. The effort of the State Government is to see that at all levels proper monitoring of NREGA work is undertaken and if irregularities are committed therein, then to take appropriate action after getting special audit and physical verification. The District Collector has been taken as a Coordinator of the NREGA work at the District level, thus special audit at his level or on his instructions cannot be said to be in violation of the provisions of the Act of 2005. The District Collector has been taken as a Coordinator of the NREGA work at the District level, thus special audit at his level or on his instructions cannot be said to be in violation of the provisions of the Act of 2005. Section 17 of the Act of 2005 only talks about social audit and not for special audit or inspection of the accounts and does not bar for special audit. This is also at the stage when the Hon'ble Apex Court took notice of various irregularities and corruption in implementation of the NREGA, that too, at the stage when reports were called from CAG. The courts should make interpretation of law taking note of the object for which it has been legislated. In the special audit at the instance of the State Government, if irregularities are found therein, then it cannot be ignored by this Court for the reasons given above. Accordingly, I am not convinced with the argument raised by learned counsel for petitioners. In fact, there is no bar on the State Government or for the Coordinator of NREGA to direct for inspection of accounts and physical verification of the work. Such directions are issued for proper implementation of the work and to achieve the goal for which Act of 2005 was brought. The scheme should not be frustrated at the cost of those who indulged in irregularities and corruption. 15. So far as second argument is concerned, no doubt, it is true that impugned order has been passed for recovery without affording an opportunity of hearing to the petitioners. Accordingly, I am of the opinion that the impugned order cannot be allowed to stand as respondents are under an obligation to follow principles of natural justice before passing adverse orders dated 3.4.2012 and 15.12.2011 against any person. The impugned order is accordingly set aside. However, the respondents are given liberty to pass fresh order after giving opportunity of hearing to the petitioners and this judgment will not come in their way for passing fresh order. It goes without saying that while undertaking fresh exercise as per liberty given above, it would be without bias and would be against all persons involved in it. With the aforesaid, both the writ petitions are disposed of.