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2016 DIGILAW 3210 (ALL)

PREM CHAND SAINI v. STATE OF U. P.

2016-09-20

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri S.P. Singh, learned counsel for the petitioner and learned standing counsel for the State-respondents. 2. By means of this writ petition, prayer has been made to issue writ of certiorari quashing the impugned notice dated 18.5.2016 issued by respondent No. 3/District Panchayat Raj Officer, Saharanpur as well as consequential citation dated 22.8.2016 issued by respondent No. 6/Tehsildar, Behat, District Saharanpur. 3. Through charge-sheet dated 18.5.2016, issued by the respondent No. 3, the petitioner has been required to file his reply within a week with regard to irregularities committed in the performance of work under the Mahatma Gandhi National Rural Employment Gaurantee Act, 2005 (In short MNREGA) with direction to deposit 1/3 amount of Rs. 2,68,254/- i.e. Rs. 89,410/-. In absence of reply it has also been ordered to take disciplinary action against the petitioner whereas by the consequential citation the petitioner has been required to deposit of Rs. 89,410/- alongwith interest. 4. While assailing the notice and citation learned counsel for the petitioner contends that the impugned notice is without jurisdiction as the respondent No. 3 has no authority to scrutinize the work under the MNREGA scheme. In his submissions, for irregularities committed in performance of work under the MNREGA there is separate provision and the respondent No. 3 is not ombudsman within the meaning of MNREGA. 5. The petitioner happened to be Pradhan of the village Panchayat Salarpura, Block Gangoh, District Saharanpur and continued as such till the year 2015 when new election took place. In his submissions, the impugned notice has been issued in a proceeding under Section 95(1)(g) of U.P. Panchyat Raj Act, 1947 (in short the Act) and the said proceeding cannot be allowed to continue against the petitioner as the aforesaid proceeding is meant for removal of Pradhan, Up-Pradhan and Members and once the term of the Pradhan has expired the proceeding ought to have been dropped. 6. So far as first submission is concerned, from the perusal of the impugned charge-sheet/notice it transpires that the charge is related to the performance of work under the MNREGA. In the aforesaid Act a complete mechanism has been provided under para 10.1 to 10.7 for filing complaint regarding irregularities committed in the performance of work under the MNREGA, which deals with procedure of filing of complaint as under : 10. In the aforesaid Act a complete mechanism has been provided under para 10.1 to 10.7 for filing complaint regarding irregularities committed in the performance of work under the MNREGA, which deals with procedure of filing of complaint as under : 10. Procedure for filing the complaint 10.1 Any person, who has a grievance against the MNREGA Authority, may, himself or through his authorised representative, make a complaint against the MNREGA Authority in writing to the Ombudsman or to any MNREGA authority superior to the authority complained against. 10.2 the complaint shall be duly signed by the complainant and his authorised Representative, if any, and shall state clearly the name and address of the complainant, the name of the office and official of the Nodal Department against whom the complaint is made, the facts giving rise to the complaint supported by documents, if any, relied on by the complainant and the relief sought from the Ombudsman. 10.3 A complaint made through electronic means shall also be accepted by the Ombudsman and a print out of such complaint shall be taken on the record of the Ombudsman. 10.4 A printout of the complaint made through electronic means shall be signed by the complainant at the earliest possible opportunity before the Ombudsman takes steps for disposal. 10.5 The signed printout shall be deemed to be the complaint and it shall relate back to the date on which the complaint was made through electronic means. 10.6 No complaint to the Ombudsman shall lie if the complaint is in respect of the same subject-matter which was disposed by the office of the Ombudsman in any previous proceedings whether or not received from the same complainant or alongwith any one or more complainants or any one or more of the parties concerned with the subject-matter. 10.7 No complaint shall be made to the MNREGS Ombudsman on an issue which has been or is the subject-matter of any proceeding in an appeal, revision, reference or writ before any Tribunal or Court. 10.7 No complaint shall be made to the MNREGS Ombudsman on an issue which has been or is the subject-matter of any proceeding in an appeal, revision, reference or writ before any Tribunal or Court. Ombudsman has been defined in Chapter IV of the MNREGA Rules, 2006 which speaks about the procedure of redressal of grievance, which is reproduced herein under : PROCEDURE FOR REDRESSAL OF GRIEVANCES 9.Grounds on which complaint shall be filed: 9.1 A complaint pertaining to any one or more of the following subjects alleging deficiency in the implementation of the MNREG Scheme may be filed with the Ombudsman: 9.1.1 Gram Sabha 9.1.2 Registration of house holds and issue of job cards 9.1.3 Custody of job cards 9.1.4 Demand for work 9.1.5 Issue of dated acknowledgement receipt against submission of application for work. 9.1.6 Payment of wages 9.1.7 Payment of unemployment allowance 9.1.8 Discrimination on the basis of gender 9.1.9 Worksite facilities 9.1.10 Measurement of work 9.1.11 Quality of work 9.1.12 Use of machines 9.1.13 Engagement of contractors 9.1.14 Operation of accounts in the bank or post offices 9.1.15 Registration and disposal of complaints 9.1.16 Verification of muster rolls 9.1.17 Inspection of documents 9.1.18 Use of funds 9.1.19 Release of funds 9.1.20 Social audit 9.1.21 Maintenance of record 9.2 State Nodal Department may include any other ground on which a complaint may be filed with the Ombudsman. 7. Chapter 2 of the Rules talks about the establishment of the office of MNREGA Ombudsman. Rule 2.1 talks about recommendation of the Selection Committee. Rule 2.2 talks about the appointment, tenure and removal. For the purposes of this case, Rule-2 and 3 of Chapter II of the Rules, 2006 are relevant and the same are reproduced herein under : ESTABLISHMENT OF THE OFFICE OF MNREGS OMBUDSMAN 2. 2.1 On the recommendations of the Selection Committee consisting of the following persons: (a) Chief Secretary of the State Government - Chairperson (b) Representative of Union Ministry of Rural Development — Member (c) Eminent Civil Society Person nominated by Union Ministry of Rural Development. (d) Secretary, State Nodal Department — Member Convenor the State Government may appoint on or more persons, but not more than three persons, as the Ombudsman in a District. 2.2 Appointment, Tenure and Removal. 2.2.1 The Selection Committee shall prepare a panel of suitable persons for consideration for appointment as Ombudsman. (d) Secretary, State Nodal Department — Member Convenor the State Government may appoint on or more persons, but not more than three persons, as the Ombudsman in a District. 2.2 Appointment, Tenure and Removal. 2.2.1 The Selection Committee shall prepare a panel of suitable persons for consideration for appointment as Ombudsman. Deputy Ombudsman shall also be appointed from the same panel based on his merit position. Prior to appointment, the panel prepared by the Selection Committee may be published on the official website of the State to invite comments from the public. On expiry of 30 days of publication, the comments may be examined by the Selection Committee. All comments and objections may be settled within 30 days of the date of expiry of the period for inviting comments. Anonymous comments and objections may not be considered. 2.2.2 The Selection of Ombudsman shall be made from among person of eminent standing and impeccable integrity with at least twenty years of experience in public administration, law, academics, social work or management. 2.2.3 No person who is a member of a political party shall be considered for appointment as Ombudsman. 2.2.4 The persons selected as Ombudsman must be physically active and capable of conducting field tours, inspections and visits to remote rural locations in the districts. 2.2.5 The Ombudsman shall be appointed for a tenure of 2 years extendable by one year based on performance appraisal or till the incumbent attains the age of 65 years, whichever is earlier. There shall be no re-appointment. Performance appraisal shall be made by the Selection Committee. A copy of the performance appraisal report shall be furnished to the State Employment Guarantee Council. 2.2.6 On unsatisfactory performance, the Ombudsman may be removed by the State Government on the recommendation of the Selection committee. 3. Autonomy of Ombudsman—The Ombudsman shall be independent of the jurisdiction of the Central or State Government. 8. Herein this case, from the perusal of impugned notice/citation it does transpires that the District Panchayat Raj Officer or the District Magistrate has been appointed as ombudsman as required under Rule 2.2.1 to 2.2.3 of Chapter-II of the Rules, 2006 therefore, in my considered opinion he had no jurisdiction to issue charge-sheet/notice dated 18.5.2016 with respect to the irregularities in performance of the work under the MNREGA. 9. 9. The matter may be examined from another angle, the MNREGA is a Special Act and central legislation and the provision of U.P. Panchayat Raj Act is State legislation. Since the work has been performed under the Special Act, therefore, the provisions contained under the Special Act will prevail over the general provision of the State Act. The law in this regard has been settled by the Apex Court in Commissioner of Income Tax Patiala and others v. Shahzada Nand & Sons and others, AIR 1966 SC 1342 , Kunal Singh v. Union of India and another, AIR 2003 SC 1623 , P. Raghava Kurup and another v. V. Ananthakumari and others, 2007 (9) SCC 179 , and Sundaram Finance Ltd. and others v. T.Thankam, AIR 2015 SC1303. 10. So far as the second submission regarding continuation of proceeding under Section 95(1)(g) of the Act is concerned, in this regard it may be noted that the petitioner was elected as Pradhan in the year 2010 and his tenure expired in the year 2015 after the new election of the Pradhan. The proceeding under Section 95(1)(g) of the Act is meant for removal of Pradhan, Up-Pradhan and Members. The Rules with respect to the procedure for filing complaint and conclusion of the inquiry for removal, has been framed known as U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhans & Members) Inquiry Rules, 1997. 11. In this case notices have been issued to the petitioner on 18.5.2016 by the respondent No. 3, therefore in my considered opinion after expiry of tenure of Pradhan of five years there is no occasion to continue the proceedings for his removal even if the proceeding was initiated during the tenure of Pradhan as there is no provision for continuance of the proceedings under Section 95(1)(g) of the Act or Rules, 1997, therefore the impugned notice is without jurisdiction. 12. In view of the foregoing discussions the proceeding under Section 95(1)(g) of the Act cannot be allowed to continue after the expiry of term of the Pradhan even if it has been initiated prior to the expiry of the term. 13. In view of the foregoing discussions, the charge-sheet/notice dated 18.5.2016 issued by respondent No. 3 and consequential citation dated 22.8.2016 issued by respondent No. 6 are hereby quashed. The writ petition succeeds and is allowed. 13. In view of the foregoing discussions, the charge-sheet/notice dated 18.5.2016 issued by respondent No. 3 and consequential citation dated 22.8.2016 issued by respondent No. 6 are hereby quashed. The writ petition succeeds and is allowed. However this order will not preclude the State-respondents to proceed in accordance with law.