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2019 DIGILAW 89 (KER)

Santhakumari v. Ombudsman

2019-01-25

P.V.ASHA

body2019
JUDGMENT : Ext.P3 award passed by the 1st respondent is under challenge in this writ petition. 2. The petitioner was the 8th respondent in a suomotu proceedings initiated by the 1st respondent Ombudsman MGNREGS (Mahatma Gandhi National Rural Employment Guarantee Scheme). The Ombudsman received a complaint over telephone in respect of the work carried out by the workers under the Scheme in Amballur Grama Panchayat. On receipt of the complaint he visited the Grama Panchayat and inspected the ongoing worksite belonging to the petitioner on 27.9.2012 along with the Program Officer and Accredited Overseer. It was seen that the property in which work was carried out belonged to the petitioner, who is a member of an affluent family; her husband retired from Rubber Board and she has got two sons, of which one is working in USA as Engineer and the other one is a Doctor in Lakeshore Hospital, Ernakulam. The 1st respondent issued notice to (1) Programme Officer of the Grama Panchayat, (2) Block Program Officer of Mulanthuruthy Block, (3) District Program Co-ordinator, Ernakulam, (4) Member of the Ward XV, Amballur Grama Panchayat, (5) President of the Amballur Grama Panchayat, (6) President of the Ernakulam District Panchayat (7) Husband of the petitioner. Petitioner was impleaded later as 8th respondent. Initially respondents 1, 2, 4, 5 and 7 mentioned in the award had entered appearance. The Program Officer of the Panchayat filed a statement before the Ombudsman stating that the 8th respondent had submitted an application before the Panchayat based on which a job card was issued to her and she had requested to do work in her property utilising MGNREGS workers. The Panchayat had thereupon provided 15 workers with a musterroll on 18.09.2012. 3. The award was passed initially on 18.01.2013 directing the petitioner to remit the sum of Rs.42,369/-. Thereupon petitioner submitted Ext.P2 representation requesting for granting four months time to remit the same. Thereafter the Ombudsman passed Ext.P3 revised award. 4. The Ombudsman pointed out that the name of the 8th respondent was not included in the musterroll. 3. The award was passed initially on 18.01.2013 directing the petitioner to remit the sum of Rs.42,369/-. Thereupon petitioner submitted Ext.P2 representation requesting for granting four months time to remit the same. Thereafter the Ombudsman passed Ext.P3 revised award. 4. The Ombudsman pointed out that the name of the 8th respondent was not included in the musterroll. The Ombudsman considered the point whether the 8th respondent who belongs to an affluent family could have been allotted workers under the Scheme; whether the Program Officer could have allotted workers for carrying out the work in her property; whether all the farmers holding less than 5 acres of land and willing to do unskilled manual work are eligible to get job card and to utilize the workers to carry out the work in their property. The Ombudsman found that affluent persons and Priests will not come under the purview of marginal farmer or small farmer and therefore workers under the scheme cannot be utilized for carrying out the work, referring to the definition of small or marginal farmers as defined in the Agriculture Debt Waiver and Debt Relief Scheme, 2008. Stating that the Debt Waiver Scheme was introduced to release farmers from debt trap, it was found that benefit under the MGNREG Scheme could be given only to indebted farmers holding less than 5 acres of land and not to those farmers who are financially sound to engage unskilled workers paying more than Rs.300/- per day as wages. It was held that benefit of the Scheme is not intended to be given to all families holding less than 5 acres of land in rural area. Referring to clause I of schedule II of the MGNREG Act, it was found that issuance of job card to the petitioner was not in tune with the purpose of the Act as application for registration and job card can be filed only by an indebted farmer. Since it was found that the petitioner had got the work in her property carried out utilising the MGNREGS workers it was decided to recover the cost incurred for the same, from the petitioner. Since it was found that the petitioner had got the work in her property carried out utilising the MGNREGS workers it was decided to recover the cost incurred for the same, from the petitioner. A sum of Rs.13,132/- was found to be the cost spent for carrying out the work in the property in the year of inspection and a sum of Rs.29,237/- in the preceding financial year 2011-12; altogether a sum of Rs.42,369/- was found to have been spent towards the work carried out in her property. Therefore it was directed that the petitioner has to remit the said amount in the MGNREG fund of Grama Panchayat and in case she did not remit the same within a period of three months Revenue Recovery proceedings would be initiated against her and for that respondents 1 to 6 would also be liable. 5. Even though petitioner had filed a petition to review the award, it was rejected as per Ext.P4 order stating that the intention of the Scheme is for enhancement of livelihood security of household in rural areas by providing atleast 100 days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work. It was found that the petitioner who is a member of an affluent family was not entitled to get the job card merely by stating that she is willing to do coolie work and such a statement was found not genuine or bonafide, from her appearance itself and stated that her intention was only to get undue benefit under the scheme. While passing Ext.P3 award Ombudsman stated that under section 27 of the MGNREG Act though there is no provision to execute the award passed by the Ombudsman, under clause 8.1.5 of Instructions on Ombudsman, the Ombudsman is competent to lodge FIR against the erring parties. 6. The award is challenged by the petitioner on various grounds. Petitioner challenges the authority of the Ombudsman to initiate any suomotu action against petitioner and also to order recovery of the cost of work from a farmer whom the Panchayat found eligible. It is also contended that action can be taken by the Ombudsman only on a complaint in writing. In the absence of a complainant who is physically present before the Ombudsman, it is contended that, the entire proceedings leading to the award are null and void. 7. It is also contended that action can be taken by the Ombudsman only on a complaint in writing. In the absence of a complainant who is physically present before the Ombudsman, it is contended that, the entire proceedings leading to the award are null and void. 7. The 2nd respondent - Programme officer of the Grama Panchayat filed a counter affidavit stating that the petitioner is a resident of Amballur Grama Panchayat and she holds the property of less than 5 acres. As per the Scheme any person holding property less than 5 acres is entitled to apply for the Scheme and workers are provided with at least 100 days work. It is stated that when the petitioner submitted an application under the Scheme, Panchayat made an enquiry and a job card was issued to her. According to the 2nd respondent, the job card can be issued to any person who is interested to do work. The petitioner thereafter submitted an application-Ext.R2(a), Ration Card- Ext.R2(b) and Tax Receipt-Ext.R2(c) based on which musterroll was prepared for carrying out the work and thus 15 workmen were sent for carrying out the work. According to them they have made enquiry before the workers were engaged. 8. In view of the contentions raised, it is relevant to examine the powers of Ombudsman and definition of “Complaint” given in Ext.P1 Instructions on Ombudsman. Complaint is defined as follows: “1.4 Complaint means a representation in writing containing a grievance alleging deficiency in the implementation of NREG Act or Scheme”. Therefore going by clause 1.4, the Ombudsman can take action only on a complaint; that complaint should be in writing; it should be one relating to a grievance alleging the deficiency in implementation of NREG Act or Scheme. Clause 8 in Chapter II of the instructions, provides for the powers and duties of Ombudsman. Clause 8.1.1 provides that Ombudsman is empowered to receive complaints from NREGA workers and others on any matters specified in clause 10. Clause 8 in Chapter II of the instructions, provides for the powers and duties of Ombudsman. Clause 8.1.1 provides that Ombudsman is empowered to receive complaints from NREGA workers and others on any matters specified in clause 10. Clause 8.1.3 reads as follows: 8.1.3 Require the NREGA Authority complained against to provide any information or furnish certified copies of any document relating to the subject matter of the complaint which is or is alleged to be in his possession; provided that in the event of failure of such authority to comply with the requisition without any sufficient cause, the Ombudsman may, if he deems fit, draw the inference that the information, if provided or copies if furnished, would be unfavourable to the concerned NREGA Authority. 9. Clause 8.1.4 empowers the Ombudsman to issue directions for conducting spot investigation. Clause 8.1.6 empowers him to initiate proceedings suomotu in the event of any circumstance arising within his jurisdiction that may cause any grievance. Clause 8.1.8 empowers the Ombudsman to direct redressal, disciplinary and punitive actions. Clause 9 provides for the procedure for redressal of grievances. Clause 9.1 provides for 21 subjects of which deficiencies can be alleged in a complaint, as given in clause 9.1.1 to 9.1.21. Clause 9.1.2 is “registration of households and issue of job card”. 10. Clause 10 provides for the procedure for filing complaint. Under Clause 10.1, complaint can be made by any person who has a grievance against NREGA Authority by himself or through his representative in writing to the Ombudsman or to any NREGA authority superior to the authority complained against. Clause 10.2 provides that the complainant shall state his name and address and that complaint shall be made with supporting documents if any. In the event of complaints through electronic means, clause 10.3 and 10.4 provides that a print out shall be kept in the records of the Ombudsman and the Ombudsman shall get it signed by the party at the earliest opportunity, before Ombudsman takes steps for disposal. Clause 10.5 provides that the signed print out shall be deemed to be the complaint. Clause 12 provides for disposal of complaints, which reads as follows: “ 12. Disposal of complaints 12.1 On receipt of the complaint, Ombudsman may refer the complaint to the appropriate NREGA Authorities for disposal within 7 days. Clause 10.5 provides that the signed print out shall be deemed to be the complaint. Clause 12 provides for disposal of complaints, which reads as follows: “ 12. Disposal of complaints 12.1 On receipt of the complaint, Ombudsman may refer the complaint to the appropriate NREGA Authorities for disposal within 7 days. In the event of failure of the NREGA Authority to dispose the complaint, the matter may be taken up by the Ombudsman for disposal. 12.2 The Ombudsman shall cause a notice of the receipt of any complaint along with a copy of the complaint to be sent to the NREGA Authority complained against. 12.3 When facts of the case are admitted by the parties, the Ombudsman shall dispose the case in accordance with law”. 11. Clause 13 provides for award by the Ombudsman. Under Clause 13.1, Ombudsman is to pass award after giving opportunity to parties to present their case. The Ombudsman shall be guided by the evidence placed before him by the parties, the reports of social audit, if any, the provisions of NREG Act and scheme and practice, directions and instructions issued by the State Government or Central Government from time to time and such other factors which in his opinion are necessary in the interest of justice. 12. Clause 13.2.5 provides for the factors to be included in the award. One among that is: “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 NREGA Act. Clause 13.4 provides that a copy of the award shall be sent to the complainant and the NREGA Authority complained against. 13. In this case there is no complaint in writing. There is no print out of the complaint with signature as required in the case of an electronic complaint, which has to be signed by complainant within the meaning of the provisions contained in clause 10.1 to 10.4 of Ext P1. In effect there is no complaint or complainant within the meaning of those terms as given under various provisions of Clause 10. Clause 13.2.5, does not empower the Ombudsman to take any punitive action or otherwise against a farmer or even the alleged farmer. In effect there is no complaint or complainant within the meaning of those terms as given under various provisions of Clause 10. Clause 13.2.5, does not empower the Ombudsman to take any punitive action or otherwise against a farmer or even the alleged farmer. Erring person mentioned therein cannot be the owner of the land in which work is carried out. 14. The Ombudsman has come to the conclusion that petitioner is not eligible for the benefit under the Scheme as she is not a small or marginal farmer as defined under the Agricultural Debt Waiver and Debt Relief Scheme, 2008, who is indebted. Referring to paragraph IB(iv),IC and clause a and b of paragraph ID of Schedule I of the Act and 2008 Scheme, it was found that the benefit of the Debt Waivers' scheme is intended only to indebted farmers and therefore the extent of land of a farmer alone cannot be criteria for issuing a job card. Therefore according to the Ombudsman, work under the MGNREG Scheme can be carried out only in the property of a small or marginal farmer, who is indebted. A farmer cultivating land having an extent upto 1 hectare is a marginal farmer and a farmer cultivating land more than 1 hectare and less than 2 hectare is small farmer, as defined in the Agricultural Debt Waivers Scheme. No definition is given to indebted farmer in that scheme. At any rate if at all the job card was not issued in accordance with law, petitioner cannot be found fault with. There is no provision also seen in the instructions which empower him to direct recovery of cost from the farmer or even from a worker. Though it is seen that though the Ombudsman is empowered to to initiate suo moto action, against any action arising within his jurisdiction, that may cause grievance, no power is seen conferred on Ombudsman to initiate RR proceedings against an allottee. 15. The MGNREG Act and scheme provides for social audit and various provisions under the scheme for awarding work, job card etc, and its monitoring at different levels. However, no provision is seen for penalising a land owner for availing work under the scheme. 15. The MGNREG Act and scheme provides for social audit and various provisions under the scheme for awarding work, job card etc, and its monitoring at different levels. However, no provision is seen for penalising a land owner for availing work under the scheme. Though the interpretation given by the Ombudsman with respect to the purpose and intent of the scheme cannot be faulted, no provision is seen in the MGNREG Act or scheme or the instructions to Ombudsman, based on which the award can be sustained. In the absence of any provision which empowers the Ombudsman to direct recovery from a person like petitioner who was issued a job card rightly or wrongly, the award directing the petitioner to remit the cost of work is without authority. Hence the award Exts.P3 and P4 to the extent it relates to petitioner are set aside.