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Karnataka High Court · body

2019 DIGILAW 1360 (KAR)

Chandrashekar R. v. State Of Karnataka

2019-06-20

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. In all these writ petitions, the petitioners sought to quash the order dated 16.5.2016 passed by the Ombudsman in Complaint Nos.150/176/201/271/275/278/279/2015-16 and the order dated 20.10.2016 passed by the Ombudsman Appellate Authority in Appeal No.25/2016-17. 2. The petitioner in W.P. No.12046/2017 & W.P. No.12395-96/2017 joined service in the Karnataka Public Works Department and on deputation worked in the Srinivasapura Taluk Panchayath Raj Engineering Department (PRED) Sub-Division Office and at present, he is working on deputation in Bruhat Bangalore Mahanagara Palike as Assistant Executive Engineer from 26.11.2016. 3. The 1st petitioner in W.P. No.10844-10851/2017 is the President of Lakshmipura Grama Panchayath, Srinivaspura taluk, Kolar district and Petitioner Nos.2 to 4 are the employees/former employees of Lakshmipura Grama Panchayath and Petitioner Nos.5 and 6 are the employees of Taluk Panchayath, Srinivaspura taluk. 4. The petitioner in W.P. No.21036-21038/2017 is working as Junior Engineer in Srinivasapura Taluk Panchayath Raj Engineering Department Sub-Division office. 5. The complaints were made against the petitioners and others before the Ombudsman, Zilla Panchayath, Kolar, who was specially constituted under Mahatma Gandhi National Rural Employment Guarantee Act ('MGNREGA' for short), alleging some irregularities in MGNREGA Scheme viz., (i) no payment wages to labourers; (ii) work was not entrusted for full 100 days according to the Scheme and also not paying unemployment allowances in the event of not giving work for 100 days; (iii) Delay in payment of wages for a more than three months after the execution of work; (iv) Executing the work by using the machinery/ JCB; (v) The P.D.O. rejecting the Form No.6 and also not issuing Job Card and demanding money to issue the Job Card; (vi) The J.E. - Nagaraj demanding commission of 10 to 15%; (vii) Not providing an opportunity to select works to be carried out in MGNREGA Scheme; (viii) Failure to provide employment to the agricultural labourers but executing the work through Contractor; (ix) Depositing the amount to the account of labourers maintained at Bank and withdrawing the amount giving only Rs.200/- to the account holders; (x) Cheating by misusing the Bank account of the Job card holders; (xi) The P.D.O., Secretary, President, J.E., Computer Operator and powerful persons of the village colluding in committing irregularities; (xii) The P.D.O., J.E., President of Grama panchayath prepared the bill without executing the work; (xiii) A.E.E, A.E., E.O and other higher officers' signatures are forged and prepared the bill etc. 6. It is further contended that based on the complaints of irregularities against the petitioners, notice was issued and accordingly the petitioners filed reply. The Ombudsman without enquiry and without framing point for consideration and providing an opportunity to the petitioners, passed the impugned order dated 16.5.2016 imposing penalty and directed to recover the amount from the petitioners as under: Sl.No. Name Amount 1 Smt. Adilakshmamma, President Rs.10,43,961/- 2 Sri P.V. Vishwanatha Reddy, Panchayath Development Officer Rs. 9,57,037/- 3 Sri Ravikumar, Computer Operator Rs. 57,851/- 4 Sri Muniveeregowda, MIS Coordinator Rs. 39,700/- 5 Sri Nagaraj K.N. Technical Assistant Engineer, Taluk Panchayath Rs. 38,276/- 6 Sri Shivaraj, Technical Assistant Engineer, Taluk Panchayat Rs. 17,847/- 7 Sri Krishnamurthy, TAE, Junior TP Rs. 1,57,491/- 8 Sri Shivashankaraiah, Assistant Director Rs. 1,42,242/- 9 Sri Krishnappa, Junior Engineer Rs. 5,84,083/- 10 Sri Chandrashekar .R Assistant Executive Engineer Rs. 5,99,383/- 7. Aggrieved by the said order passed by the Ombudsman, the petitioners filed appeals before the Karnataka Ombudsman Appellate Authority. The Appellate Authority dismissed the appeals filed by the petitioners and confirmed the orders passed by the Ombudsman and further enhanced the amount to be recovered from the petitioners, as under: Sl.No. Name Amount 1 Smt. Adilakshmamma, President Rs.15,00,000/- 2 Sri P.V. Vishwanatha Reddy, Panchayat Development Officer Rs. 50,00,000/- 3 Sri Ravikumar, Computer Operator Rs. 50,000/- 4 Sri Muniveeregowda, MIS Coordinator Rs. 50,000/- 5 Sri Nagaraj K.N. Technical Assistant Engineer, Taluk Panchayath Rs. 50,000/- 6 Sri Shivaraj, Technical Assistant Engineer, Taluk Panchayath Rs. 50,000/- 7 Sri Krishnamurthy, TAE, Junior TP Rs. 5,00,000/- 8 Sri Shivashankaraiah, Assistant Director Rs. 4,00,000/- 9 Sri Krishnappa, Junior Engineer Rs. 20,00,000/- 10 Sri Chandrashekar .R Assistant Executive Engineer Rs. 50,00,000/- Hence the present writ petitions are filed for the reliefs sought for. 8. The State Government has not filed statement of objections. 9. Sri M. Narayana Reddy, learned counsel for Respondent - Chief Executive Officer, Kolar Zilla Panchayat, Kolar has filed objections and contended that all the petitioners have committed irregularities and misused the funds of the State Government specified under the MGNREGA Scheme for labourers and after enquiry, the Ombudsman has rightly passed the impugned order imposing penalty against the petitioners and the same is upheld by the Appellate Authority and enhanced the recovery amount and the impugned orders passed by the Ombudsman and the Appellate Authority are justified and sought for dismissal of the writ petitions. 10. 10. I have heard the learned counsel for the parties to the lis. 11. Sri D.N. Nanjunda Reddy, learned senior counsel appearing for the petitioner in the 1st matter and Sri Subramanya Bhat .M, learned counsel for the petitioners in the 2nd matter and Sri Shivareddy K.N., learned counsel for the petitioners in the 3rd matter vehemently contended that at the outset Ombudsman, MGNREGA, Zilla Panchayat, Kolar has no jurisdiction to impose penalty or recover the amount from the petitioners. At the most, Ombudsman considering materials on record, may recommend to the Government and ultimately it is for the Government to take disciplinary/appropriate action in accordance with law. They would further contend that unfortunately on the appeal filed by the petitioners, the Appellate Authority while confirming the order passed by the Ombudsman, very strangely enhanced the recovery amount, even in the absence of any appeal filed by the respondents for enhancement and it is impermissible. Therefore they submit that the order passed by the Ombudsman is totally without jurisdiction and the Ombudsman has no jurisdiction to impose penalty and recover the amount. Further, in the appeal filed by the petitioners, the Appellate Authority has no power to enhance the recovery amount. Therefore sought to allow the writ petitions. 12. Sri D.N. Nanjunda Reddy, learned senior counsel further contended that Government of India, Ministry of Rural Development, MGNREGA Division by letter dated 21.1.2010 has issued clarification on certain issues raised in the meeting held on 14.1.2010 relating to implementation of Ombudsman process by the State and Clarification No.6 relates to disciplinary proceedings regarding Ombudsman. As per the said clarification, Ombudsman is not a judicial body and Ombudsman should direct the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action. The findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary. It was added that if the Ombudsman refers a complaint to the Government, it will be granted due importance and regard, but the Ombudsman cannot directly hand out punishments. Therefore, he sought to allow the writ petitions. 13. The findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary. It was added that if the Ombudsman refers a complaint to the Government, it will be granted due importance and regard, but the Ombudsman cannot directly hand out punishments. Therefore, he sought to allow the writ petitions. 13. Per contra, Sri Y.D. Harsha, learned AGA while adopting the objections filed by the Kolar Zilla Panchayat contended that in all these writ petitions, the petitioners are holding responsible posts and various developmental works were entrusted to them in Srinivaspura taluk and under the MGNREGA Scheme, it is their duty that the Scheme should be implemented in the right spirit and the salary, daily wages should be distributed properly. The Ombudsman considering various irregularities, misuse of funds, corruption, has rightly come to the conclusion that the petitioners are involved in irregularities and imposed penalty and initiated recovery from them. The same was affirmed by the Appellate Authority enhancing the recovery amount. Therefore he sought to dismiss the writ petitions. 14. Sri M. Narayana Reddy, learned counsel for the Zilla Panchayat submits that the Scheme introduced by the Central Government for the benefit of the rural villages and for the benefit of the labourers under the MGNREGA Scheme and the authorities in all fairness should have implemented the Scheme in the right spirit and the enquiry held by the Ombudsman clearly indicates that all these petitioners are involved in various irregularities including corruption. Therefore he sought to dismiss the writ petitions. 15. Having heard the learned counsel for the parties, it is not in dispute that MGNREGA Scheme is introduced by the State Government to provide employment to unskilled labourers in the rural areas. The works in which unskilled labourers are given employment is executed by the Department of Rural Development & Panchayath Raj. Ombudsman specially constituted under the MGNREGA scheme to redress the grievances/complaints in the execution of works under the Scheme. Several complaints were filed by the unskilled labourers of the Lakshmipura Gram Panchayath of Srinivaspura Taluk, making allegations in respect of irregularities committed by the petitioners and other officials under the Scheme. Ombudsman specially constituted under the MGNREGA scheme to redress the grievances/complaints in the execution of works under the Scheme. Several complaints were filed by the unskilled labourers of the Lakshmipura Gram Panchayath of Srinivaspura Taluk, making allegations in respect of irregularities committed by the petitioners and other officials under the Scheme. On the complaints made by the aggrieved persons regarding various irregularities including corruption, not paying salary within time, Ombudsman held detailed enquiry and passed the impugned order and proceeded to recover the amount shown against each of the petitioners in the order. Aggrieved by the said order passed by the Ombudsman, the petitioners filed appeals before the Karnataka Ombudsman Appellate Authority. The Appellate Authority dismissed the appeals filed by the petitioners and confirmed the orders passed by the Ombudsman. Very strangely enhanced the amount to be recovered from the petitioners in the appeal filed by the petitioners, which is impermissible in Law. 16. At this juncture, it is appropriate to state that the Government of India, Ministry of Rural Development, MGNREGA Division by letter dated 21.1.2010 has issued clarification on certain issues raised in the meeting held on 14.1.2010 relating to implementation of Ombudsman process by the State and Clarification No.6 relates to disciplinary proceedings regarding Ombudsman, which reads as under: "6. Disciplinary proceedings regarding Ombudsman: Ombudsman is not a judicial body and Ombudsman should direct the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action. The findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary. It was added that if the Ombudsman refers a complaint to the Government, it will be granted due importance and regard, but the Ombudsman cannot directly hand out punishments." 17. It is also relevant to refer the order dated 7.9.2009 passed by the Government of India under Section 27(1) of National Rural Employment Guarantee Act for establishment of the office of Ombudsman for redressal of grievances and also the instructions for NREGA Ombudsman formulated under Section 27 of the NREG Act. Clause 13 of the Instructions relate to Award by the Ombudsman and Appeal. As per Clause 13.1 of the Instructions, if the facts are not admitted by the parties in a case, Ombudsman may pass an award after affording the parties reasonable opportunity to present their case. Clause 13 of the Instructions relate to Award by the Ombudsman and Appeal. As per Clause 13.1 of the Instructions, if the facts are not admitted by the parties in a case, Ombudsman may pass an award after affording the parties reasonable opportunity to present their case. He shall be guided by the evidence placed before him by the parties, the reports of social audits, if any, the provisions of NREG Act and Scheme and practice, directions, and instructions issued by the State Government or the Central Government from time to time and such other factors which in his opinion are necessary in the interest of justice. As per Clause 13.2 of the Instructions, the award passed under clause 13.1 shall be a speaking order consisting of the following components 13.2.1- Details of the parties of the case 13.2.2 - Brief facts of the case 13.2.3 - Issues for consideration 13.2.4 - Findings against issues along with reasons 13.2.5 - Direction to the concerned NREGA Authority such as performance of its obligations like expediting delayed matters, giving reasons for decisions and issuing apology to complainants, taking of disciplinary and punitive action against erring persons etc. except imposition of penalties under the NREG Act. 18. In view of the guidelines/clarification dated 21.1.2010 issued by the Government of India, Ministry of Rural Development (Mahatma Gandhi NREGA Division) stated supra, Ombudsman is not a judicial body and he should direct the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action and the findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary, but the Ombudsman cannot directly hand out punishments. Therefore the contention of the learned Government Advocate with regard to initiation of recovery from the petitioners, cannot be accepted. 19. A careful reading of the clarification issued by the Government of India dated 21.1.2010 and the powers of the Ombudsman stated supra, it is clear that the Ombudsman can only recommend to the State Government to take disciplinary action and he cannot directly hand out punishments. The impugned order passed by the Ombudsman is contrary to the guidelines/instructions issued by the Central Government on 7.9.2009 and 21.1.2010. 20. The impugned order passed by the Ombudsman is contrary to the guidelines/instructions issued by the Central Government on 7.9.2009 and 21.1.2010. 20. In view of the above, the impugned order passed by the Ombudsman in all these writ petitions in so far as levying penalty and directing recovery from the petitioners, is erroneous and liable to be quashed. The Government can treat the impugned order passed by the Ombudsman as recommendation or direction to the State Government to take appropriate disciplinary action in the matter including recovery. Further, the order passed by the Appellate Authority confirming the order passed by the Ombudsman and strangely enhancing the recovery amount, cannot be sustained. Accordingly, the impugned order passed by the Appellate Authority in all these petitions is liable to be quashed in so far as the petitioners. 21. For the reasons stated above, all the writ petitions are allowed in part. The impugned order dated 16.5.2016 passed by the Ombudsman in all these writ petitions in so far as it relates to levying penalty and directing recovery from the petitioners, is hereby quashed. The remaining other aspects in the impugned order passed by the Ombudsman, are intact and left undisturbed. The 1st respondent - State Government shall treat the impugned order dated 16.5.2016 passed by the Ombudsman in these writ petitions as a direction/recommendation and pass appropriate orders after affording opportunity to all the petitioners strictly in accordance with law. 22. In view of the above, the impugned order passed by the Ombudsman Appellate Authority enhancing the recovery amount, cannot be sustained and accordingly the same is quashed in so far as the petitioners are concerned. Consequently, the impugned orders dated 17.11.2016 and 11.4.2017 passed by the respondent - Kolar Zilla Panchayath in W.P. Nos.12046/2017 & W.P. Nos.12395- 96/17 AND W.P. Nos.21036-21038/2017, are hereby quashed. All the contentions of the parties are left open to be urged before the Government in accordance with Law.