JUDGMENT : 1. This writ petition is filed by the petitioners, who were elected members of Mananthavady Grama Panchayat, challenging Exhibit P5 order passed by the Ombudsman for Local Self Government Institutions dated 24/10/2009 in Complaint No.488/2009, and Exhibit P2 order passed by the Ombudsman in Original Petition No.49/2011 dated 18/08/2011. 2. The subject issue relates to award of a contract by the Panchayat Committee on the basis of the recommendation made by the Purchase Committee consisting of the elected members, for installation and replacement of sodium vapour lamps, tube lights etc. within the limits of the Panchayat. Complaint No.488/2009 is registered on the basis of a reference made by the State Government in accordance with the powers vested with the Ombudsman under section 271J of the Kerala Panchayat Raj Act, 1994 and Original Petition No.49/2011 is filed by one C.S.Hamsa -the 5th respondent, a resident within the limits of the Grama Panchayat . 3. While, in the referred complaint, the Secretary as well as all the elected members were parties; in the complaint filed by Hamsa, the Secretary and the President of the Grama Panchayat alone were parties. Exhibit P2 order is Only an offshoot of Exhibit P5 order passed by the Ombudsman whereby directions were issued to recover an amount of Rs.79,810/-from the members of the Panchayat Committee equally; an amount found to be due towards the loss suffered by the Panchayat on account of the contract awarded to the highest bidder. 4. Short facts leading to the filing of the writ petition are as follows; 5. As per a tender notice dated 22.1.2004, tenders were invited from the public for installation and maintenance of street lights within the Panchayat limits; and the successful bidder had to replace sodium vapour lamps, double/single tube lights, and provide the requisite fittings for the same. In fact, initially, the tender notice was responded to only by one Bijoy Sam, consequent to which retender was issued. Accordingly, one Bijoy Sam has quoted an amount of Rs.4,95,310/-and undertaken that he will install 250Watt sodium vapour lamps manufactured by “Philips company”, each costing Rs.3,939/-and single tube lights and double tube lights costing Rs.1,539/-etc. In fact, initially, the tender notice was responded to only by one Bijoy Sam, consequent to which retender was issued. Accordingly, one Bijoy Sam has quoted an amount of Rs.4,95,310/-and undertaken that he will install 250Watt sodium vapour lamps manufactured by “Philips company”, each costing Rs.3,939/-and single tube lights and double tube lights costing Rs.1,539/-etc. Yet another tenderer, one C.P.Mathew, quoted an amount of Rs.5,75,120/-, with the specifications of 24 months guarantee for the sodium vapour lamps manufactured by “Morelike” company having a cost of Rs.5560/-each and double tube lights and single tube lights costing Rs.2,170/-and Rs.1,310/-respectively. The Panchayat Committee, in violation of the tender conditions, has accepted the tender of C.P.Mathew, who was the highest tenderer. 6. Therefore, in the referred complaint, it was stated that the Panchayat by accepting the tender of the highest bidder, has violated the conditions of the Manual of Tender proceedings. On receipt of notice in the referred complaint, only the 1st, 3rd, 7th, 9th, 11th and 13th respondents alone have appeared, and apparently, filed a statement contending that Sri.Bijoy Sam who was awarded the tender for the previous year has not replaced the lamps and has not provided guarantee to replace the lights. However, facts remain, none of them has cared to tender any evidence before the Ombudsman in order to establish the defence put forth by them and the reasons for accepting the tender submitted by the highest bidder. Thereupon, the Ombudsman has found that the members of the Panchayat have failed to establish their defence for accepting the tender submitted by the highest bidder and therefore, directed the Secretary to recover an amount of Rs.79,810/-from the members of the Panchayat Committee, i.e., the difference in the price quoted by the highest bidder; if the members of the committee fail to pay the said amount. In fact, the said order is dated 24.10.2009, however, neither the petitioners nor any of the members of the Panchayat Committee, has challenged the said order. Apparently, the Secretary did not take action to recover the amount, and on failure to do so alone, Sri.C.S.Hamsa filed Original petition No.49/11 leading to Exhibit P2 order dated 18th August 2011 to recover the amount from the petitioners as well as the other members. It was thereupon that the petitioners preferred the writ petition before this Court. 7. Apparently, the Secretary did not take action to recover the amount, and on failure to do so alone, Sri.C.S.Hamsa filed Original petition No.49/11 leading to Exhibit P2 order dated 18th August 2011 to recover the amount from the petitioners as well as the other members. It was thereupon that the petitioners preferred the writ petition before this Court. 7. The paramount contention advanced by the petitioners is that the Ombudsman in Exhibit P5 order has proceeded on the assumption that the Panchayat is obliged to accept the lowest tender. It is further submitted that the reasons for avoiding the lowest tender and accepting tender of the highest bidder was specifically stated in Exhibit P3 resolution of the Grama Panchayat. However, the Ombudsman omitted to notice this fact and has passed the impugned order. It is also submitted that, when it was found by the Panchayat that the performance of the lowest bidder in relation to another project of the Panchayat was unsatisfactory which was specifically recorded in the minutes, and all the members unanimously agreed, and the Secretary unhesitatingly endorsed, the ombudsman ought not have held that the award of tender was bad. That apart, it is contended that the findings rendered by the Ombudsman that there is no document to hold that the previous contractor had committed any default, is not true or correct. It further submitted that Exhibits P5 & P2 orders are passed, violative of the principles of natural justice. Above all, it is contended that the Ombudsman is not vested with powers to pass an order directing to recover the alleged damages from the members of the Committee. 8. The Principal Secretary (Finance), Government of Kerala, -the 3rd respondent has filed a detailed counter affidavit supporting the orders passed by the Ombudsman and specifically submitted as follows: “5. It is submitted that the reason stated by the Panchayat Committee for rejection of the lowest bidder is baseless. On verification, it was found that project No. 118/2000-01 in respect of the fitting of street light done by TV House, no intimation had been forwarded by the Secretary to Sri. Bijoy Sam requesting to repair the street light. It is submitted that the reason stated by the Panchayat Committee for rejection of the lowest bidder is baseless. On verification, it was found that project No. 118/2000-01 in respect of the fitting of street light done by TV House, no intimation had been forwarded by the Secretary to Sri. Bijoy Sam requesting to repair the street light. Moreover, the EMD (Security amount) for the said work was refunded to Bijoy Sam on 11.02.2003 by the Secretary, Mananthavady Grama Panchayat which proved that no complaint or dissatisfaction or allegation was raised in respect of the work done by Sri.Bijoy Sam (Project No. 118/2000-01). If the work done by him was not satisfactory, the Panchayat would have kept in abeyance the reimbursement of the security amount and prevented him from participating in the tender for the new project. 6. It is humbly submitted that another reason for the rejection of tender is non-furnishing of guarantee period, is false. Both tender notification and schedule issued along with tender application were silent about the warrantee periods. It was only a lame excuse raised by the Panchayat Committee against the lowest tender in order to favour Sri.C.P.Mathew. As per Rule, tender would be submitted along with Earnest Money Deposit prescribed in the tender notification in the form of Bank Draft, National Savings Certificate or Indira/Kissan Vikas Patra. Here Sri.C.P.Mathew submitted a Canara Bank Cheque for Rs.33,000/ along with the tender application. Accepting Bank cheque as Earnest Money Deposit along with tenders is a flagrant violation of tender rules. As per rule Bank cheque should not be accepted as Earnest Money Deposit. So the tender submitted by Sri.C.P.Mathew was not at all acceptable. It is submitted that it was strange that the Secretary, Grama Panchayat on 20.3.2004 received an amount of Rs. 32,500/-from C.P.Mathew as security for the work. From the incidents explained above, it is crystal clear that Panchayat Committee had shown undue favoritism towards C.P.Mathew by accepting his invalid/ineligible tender and awarding the work. The Panchayat Committee had preconceived intention to award the work to this person by avoiding the lowest quoter and the said decision was illegal and flagrant violation of the prevailing laws and rules. In addition to that on the request of Sri.C.P.Mathew, the then Grama Panchayat Secretary, Sri.M.P.Venugopal had effected the payment of Rs. 5,75,000/-on 31.03.2004, without observing the normal procedure to be followed in implementing the project. In addition to that on the request of Sri.C.P.Mathew, the then Grama Panchayat Secretary, Sri.M.P.Venugopal had effected the payment of Rs. 5,75,000/-on 31.03.2004, without observing the normal procedure to be followed in implementing the project. The following essential documents were not seen kept along with the file. 1. Supply order. 2. The details regarding the location, where the lamps were to be fitted. 3. Certificate of purchasing committee in token of the verification of quality and quantity of items purchased 4. Stock entry in the stock register. 5. The report of the Monitoring Committee with regard to the satisfactory completion of the work. Due to the unanimous decision to reject the lowest quotation, the Panchayat Committee held on 17.02.2004 made great loss to the public fund to the tune of Rs. 79,690/-in excess than actually required for the implementation of the project.” 9. Hence seeks dismissal of the writ petition. 10. I have heard, learned counsel for the petitioners Sri.P.Samsudin, learned Senior Government Pleader Sri.Joby Joseph for the State and its officials, and perused the pleadings and material on record. 11. Learned counsel for petitioner advanced arguments on the basis of the deliberations made above. I am at first proposing to address the contention advanced by the petitioners that the Ombudsman has no power to pass the impugned orders to recover the amount. The Ombudsman for Local Self Government Institutions is appointed by the State Government in accordance with the powers conferred under Chapter XXVB of the Kerala Panchayat Raj Act, 1994. As per section 271G(1), there shall be an authority for Local Self Government Institutions, at State Level known an Ombudsman for making investigations and enquiries, in respect of charges on any action involving corruption or maladministration or irregularities in the discharge of administrative functions, in accordance with the provisions of Act, 1994 by Local Self Government Institutions and public servants working under them and for the disposal of such complaint in accordance with section 271Q. 12. As per Sub -section (2) thereto, the Government shall on the advice of the Chief Minister, appoint a person who had held the post of a Judge of the High Court as Ombudsman. 12. As per Sub -section (2) thereto, the Government shall on the advice of the Chief Minister, appoint a person who had held the post of a Judge of the High Court as Ombudsman. The 'public servant' is defined under section 271F(g) to mean, an employee or officer under the Local Self Government Institution or an elected member of the Local Self Government Institution including its President or Chairperson and includes an employee or officer of any office or institution transferred to the Local Self Government Institution under the provisions of the Act, 1994. 'Complaint' is defined under section 271F(c) to mean, a statement of allegation that a public servant or a Local Self Government Institution is guilty of corruption or maladministration and includes any reference to an allegation in respect of which suo motu enquiry has been proposed or recommendation for enquiry has been made by the Government. 'Allegation' is defined under section 271F(b), (a) in relation to a public servant means any affirmation that such public servant,- (i) has abused his position as such for any gain or favour to himself or to any other person or to cause undue harm or hardship 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; (iii) is guilty of corruption, favouritism, nepotism or lack of integrity; (iv) is guilty of any action as public servant which facilitates or causes to make any loss, waste or misapplication of money or other property of the Local Self Government Institution. 13. Section 271J deals with functions of the Ombudsman and sub-section 1(i) makes it clear that the Ombudsman is vested with powers to investigate into any allegations contained in a complaint, or on a reference from Government, or that has come to the notice of the Ombudsman; (ii) Enquire into any complaint in which corruption or maladministration of a public servant or a Local Self Government Institution is alleged. Further, as per clause (iii) of section 271J (1), Ombudsman is vested with powers to pass an order on the allegation, and as per clause (C) thereto where the irregularity involves loss or waste or misuse of the fund of the Local Self Government Institution, power is vested with the Ombudsman to realise such loss from those who are responsible for such irregularity. 14. 14. On a conjoint reading of the above-said provisions, it is specific and clear that the Ombudsman is vested with ample powers to enquire into the allegations of loss sustained by the Grama Panchayat either on a reference made by the Government or on a complaint filed by any person or anything that has come to the notice of the Ombudsman. Therefore, the contentions advanced by the learned counsel for the petitioners that the Ombudsman is not vested with powers to entertain a matter like this cannot be sustained at all. 15. Be that as it may, coming to the facts of the case discussed above, despite the receipt of the notice, apart from filing a statement by some of the members of the Committee, no one else has cared to adduce any evidence or produce any documents before the Ombudsman to justify the award of contract to the highest bidder. The statement filed before the Ombudsman is produced as Exhibit P4, from where it can be clearly gathered that the reasons assigned for overlooking the lowest bid of Bijoy was that he had not executed the previous tender of the Panchayat by the terms of the contract. 16. But facts remain, the counter affidavit filed by the Government before this Court extracted above would make it clear that the Panchayat has not taken any action against Sri.Bijoy Sam for the alleged non-execution of the contract. The Earnest Money Deposit of Sri.Bijoy Sam was even returned on 11.2.2003 by the Secretary. Furthermore, it is undisputed that neither petitioners nor any of the members of the Panchayat Committee have cared to adduce any evidence in respect of the defence put forth by them in Exhibit P4. From Exhibit P4, it is also clear that no documents were produced along with the statement of objections filed before the Ombudsman, much less Exhibit P3, the alleged minutes of the Panchayat Committee. I have also gone through Exhibit P3, a hand written resolution bearing No.3 dated 17.2.2004, however, without the seal of the Panchayat and Signature of anyone, wherein it is stated that the lamps installed by Bijoy Sam did not work properly and he has not taken any action for replacement of the lights. 17. I have also gone through Exhibit P3, a hand written resolution bearing No.3 dated 17.2.2004, however, without the seal of the Panchayat and Signature of anyone, wherein it is stated that the lamps installed by Bijoy Sam did not work properly and he has not taken any action for replacement of the lights. 17. Learned Senior Government Pleader Sri.Joby Joseph submitted that the committee members of the Grama Panchayat have not cared to justify their action before the Ombudsman by adducting proper evidence. It is also submitted that the contentions raised in the statement and in Exhibit P3 alleged to be the resolution passed by the Grama Panchayat, are not established by the petitioners or other committee members so as to enable the Ombudsman to appreciate the rival submissions and arrive at a different conclusion than the one arrived at in Exhibit P5 order. It is also submitted that since Exhibit P2 being a consequential order passed due to the failure of the Secretary to comply with the directions contained in Exhibit P5 order, there was no requirement for making all the Committee members a party. 18. I have appreciated the rival submissions made across the Bar. The deliberations made above would make it clear that the petitioners as well as others have not cared to contest the proceedings before the Ombudsman by adducing proper evidence to justify the stand adopted by them that Sri.Bijoy Sam, who was the lowest bidder, has failed to execute the contract awarded in the previous year. 19. But facts remains, from the counter affidavit filed by the State Government, it is clear that such a statement made before the Ombudsman has no factual foundation for the basic reason that Sri.Bijoy Sam seems to have executed the tender awarded to him during the previous year, and thereafter alone the EMD was refunded to him on 11.2.2003 by the Secretary without any reservations. Therefore, it can be clearly presumed that if the Panchayat was not satisfied with the work executed by Sri.Bijoy Sam, the Panchayat would not have refunded the security deposit. Therefore, it can be clearly presumed that if the Panchayat was not satisfied with the work executed by Sri.Bijoy Sam, the Panchayat would not have refunded the security deposit. I am also of the view that the tender put forth by Sri.Bijoy Sam was very specific with respect to the quality of the lamps offered by him, however, without any justifiable and appropriate reasons the lowest tender submitted by Sri.Bijoy Sam was overlooked and the tender was awarded to the highest bidder – Sri.C.P.Mathew. 20. Taking into account all the above factual circumstances alone, the Ombudsman has allowed Complaint No.488/09. It was only to implement the order in the said complaint the Original Petition No.49/2011 was filed by Mr.C.S.Hamsa. It is also equally clear that in spite of a lapse of three years, neither the petitioners nor other members have cared to challenge Exhibit P5 order of the Ombudsman dated 24.10.2009; nevertheless, it is so patent and noticeable that Exhibit P5 order was challenged in the writ petition to circumvent the execution of the last order. 21. In that view of the matter, I am of the considered opinion that petitioners have failed to establish any case before this Court to interfere with Exhibits P5 & P2 orders passed by the Ombudsman. It is also clear that the Ombudsman has provided sufficient opportunities for participation and hearing to all the members of the Panchayat Committee and the Secretary of the Grama Panchayat. Therefore, the order of the Ombudsman can only be termed as one passed complying with the principles of natural justice. Therefore, there is no arbitrariness or illegality justifying this Court to interfere with the said orders. Needless to say, the writ petition fails, accordingly, it is dismissed.