Himachal Pradesh High Court
Bhim Singh vs State Of Himachal Pradesh And Others on 25 October, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 93 of 2012.
.
Date of decision: 25.10.2017.
Bhim Singh .... Petitioner
Versus
State of Himachal Pradesh and others ... Respondents
Coram :
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes
For the petitioner : Ms. Anjali Soni Verma, Advocate.
For the respondents : Mr. Vikram Thakur, Dy. AG.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioner has prayed for the following reliefs:
"i) That writ in the nature of certiorari may kindly be issued by quashing and setting aside impugned award dated 01.12.2011, Annexure P-5, passed by respondent No. 2, being illegal and arbitrary.
ii) That writ in the nature of mandamus may very kindly be issued directing the respondents not to recover an amount of Rs. 1,62,214/- from the petitioner, ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP in pursuance of award dated 01.12.2011, Annexure P-
5, passed by respondent No. 2.
.
Iii) That the respondents may very kindly be directed to produce the entire record pertaining to the case of the petitioner for the kind perusal of this Hon'ble Court.
iv) Any other order which this Hon'ble Court deems just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner and against the respondents."
2. Brief facts necessary for adjudication of the present case are that as per petitioner, he was elected as Pradhan of Gram Panchayat, Bara Gram, Block Development Office, Baijnath, District Kangra, HP in the year 2005. According to him, he has completed his term in December, 2010 and he worked as such to the best of his abilities and sincerity for the said five years. His grievance is that Ombudsman (MGNREGA) has passed an award vide which the Ombudsman has inter alia concluded that the Panchayat, of which the petitioner was Pradhan, had committed financial irregularities of a sum of 1,62,214/- which needs to be deposited in the Panchayat MGNREGA fund. According to the petitioner, the said award is not sustainable in the eyes of law as he is not guilty of any act ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP of omission in discharge of his duties as a Pradhan of the Gram Panchayat and findings contained to the contrary in the .
award are not borne out from the records of the case. It is further the case of the petitioner that the impugned award otherwise is also not sustainable in the eyes of law as the same was passed by the Ombudsman without providing any Ombudsman.
r to opportunity to the petitioner to put his defence before the
3. In order to ascertain this fact as to whether the award has been passed by the Ombudsman after affording an opportunity of being heard to the petitioner or not, this Court had directed the State to produce records of the case. Today, learned Deputy Advocate General has produced the records of the case as well as copy of a order so passed by the Joint Secretary (NREGA) under Section 27 of National Rural Employment Guarantee Act, vide which State Governments were directed by the Central Government to set up office of the Ombudsman, as per instructions enclosed with the said order.
A perusal of the instructions which are enclosed with the said ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP order inter alia demonstrates that they inter alia provide for the procedure which has to be adopted by an Ombudsman before .
passing an award. Clause 13 of the said instructions which is relevant to the facts of this case is quoted herein below.
"13. Award by Ombudsman and Appeal 13.1 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 NREGA 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.
13.2 the 'award' passed under sub-clause (13.1) above 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 ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP 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.
13.2.6 Costs, if any.
13.3 If a complaint is found to be false, malicious or vexatious, the Ombudsman shall, for reasons to be recorded in writing, dismiss the complaint and made an order that the complainant shall pay to the opposite party cost ad deemed appropriate by the Ombudsman.
13.4 A copy of the 'award' shall be sent to the complainant and the NREGA Authority complained against.
13.5 There shall be no appeal against the 'award' passed by the Ombudsman and the same shall be final and binding on the parties.
13.6 A representative of Programme Officer/District Programme Coordinator ma appear in cases where the Programme Officer/District Programme Coordinator is a party. Programme Officer/District Programme Coordinator shall appear only when a proceeding is taken up before the Ombudsman, in which case he shall be provided the opportunity of hearing.::: Downloaded on - 14/11/2017 18:11:07 :::HCHP
13.7 All cases not involving complicated questions of fact or law shall be disposed within 15 days.
.
Other cases may be disposed within 45 days.
13.8 Representation of parties by the advocates in any proceeding may be made with the prior permission of Ombudsman.
13.9 In any proceeding before the Ombudsman, if the facts reveal a case of illegal gratification, bribery or misappropriation and the Ombudsman is satisfied that the case is fit for further investigation by a criminal court, the same shall be referred by him to the authority competent to sanction criminal prosecution of the persons involved in the case. The competent authority on receipt of such a case shall forward the case to appropriate authority for further action in accordance with law."
4. Perusal of the said clause inter alia demonstrates that in case the contents of the complaint are not admitted by a party, then Ombudsman has to pass an award after affording party(s) a reasonable opportunity to present their case. In other words, there is a provision that principles of natural justice have to be followed by the Ombudsman before passing an award and no person is to be condemned unheard.
A perusal of the record of the office of Ombudsman ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP demonstrates that in fact Ombudsman himself neither conducted any inquiry nor he gave any opportunity of being .
heard to the petitioner before passing the impugned award. In fact, no proceedings in the matter were held at all by the Ombudsman and the award was announced by him simply on the basis of a fact finding report which was so submitted to the Ombudsman by BDO-cum-PO (MGNREGA), Baijnath. This is evident from communication dated 03.12.2012, addressed by the office of Ombudsman (MGNREGA), Kangra at Dharamshala to The Director-cum-Special Secretary (RD) SDA Complex, Kasumpati, Shimla-09, relevant extract of which is quoted herein below.
"In the instant case, it is intimated that the award no. MGNREGA/2011-1586-1591 dated 01-12-2011 has been announced on the basis of fact finding report submitted by BDO-cum-PO Baijnath as discussed above and copies of the same were despatched to all concerned for information and further necessary action in the matter. Vide para-3 (I) Ex-Pradhan and Secretary were directed to make the payment of wages to the 26 persons who were engaged for the execution of MGNREGA work viz c/o link road Kukar Gunda to Gadsa Bridge as per ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP ! attendance record as agreed available by the Secretary G.P. Bara Gram, with in seven days from .
the receipt of this Award and BD)-cum-PO Baijnath was advised to ensure compliance accordingly as the matter regarding non payment of wages to the MGNREGA workers was a serious matter. Besides, the above vide para 3 item (ii) it has been found on the basis of BD)-cum-PO report that the Panchayat has committed financial irregularities of Rs. 162214/- which needs to be recovered and deposited in Panchayat MGNREGA fund.
As for as question of affording opportunity of being heard to the petitioner Sh. Bhim Singh is concerned, no proceedings were taken up by the office of Ombudsman MGNREGA Kangra at Dharamshala, the Award has been prepared and announced on the basis of prelim fact finding report by BDO-cum-PO MGNREGA Baijnath. Perusal of the record submitted by BDO-cum-PO MGNREGA Baijnath viz letter No. 7385 dated 05-11-2011 which has been addressed to Sh. Bhim Singh Ex Pradhan, G.P. Bara Gram, sub Teh. Multhan reveals that Sh. Bhim Singh Ex Pradhan has been afforded opportunity to present his case on 07-10- 2011 and 16-11-2011 copy of the above letter is enclosed for reference. Thus opportunity of being heard has been provided by the BDO-cum-PO MGNREGA on the basis of above reference. No opportunity of being heard has been provided by ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP "
this office as no separate proceedings have been conducted by the Lokpal Office MGNREGA Kangra .
and the Award announced only on the basis of prelim fact finding report submitted by BDO-cum-PO Baijnath.
However, it is further submitted that, in case any other information is required from this office, necessary advised/guidelines as deem fit may be communicated to this office to enable to proceed further."
5. It is settled principle of law that no order can be passed against a person which has civil consequences without affording an opportunity of being heard to the said person.
Herein the office of Ombudsman has been set up by the State Governments pursuant to an order which has been so issued by Joint Secretary (NREGA) in terms of Section 21 of the National Rural Employment Guarantee Act. Instructions also stand issued in consonance with the provisions of Section 27 of the National Rural Employment Guarantee Act, with the objective of establishing a system for redressal of grievances and disposal of complaints relating to implementation of NREG Act and the Schemes made under the Act by the States. Now a ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP # perusal of these instructions demonstrates that these instructions have been formulated under Section 27 of the Act .
supra. In other words, these are statutory instructions. The statutory instructions inter alia envisage that before passing an award, the Ombudsman has to provide a reasonable opportunity of being heard to the party and only thereafter, it can announce an award. These instructions stand not complied with by the Ombudsman in the present case while passing the impugned award. This is for the reason that it is apparent and evident from the record that the award has neither been passed by the Ombudsman after providing reasonable opportunity of being heard to the petitioner nor any proceedings were undertaken by the Ombudsman and he announced the award solely on the basis of fact finding report submitted to him by the BDO-cum-PO MGNREGA, Baijnath.
In fact the modus adopted by Ombudsman in passing the award is in complete breach of the instructions (supra).
Ombudsman was required to himself hold an inquiry after associating all the stakeholders and after affording an ::: Downloaded on - 14/11/2017 18:11:07 :::HCHP opportunity of being heard to the affected parties and thereafter, on the basis of said inquiry, the Ombudsman was .
himself to pass an award. He could not have passed the award on the basis of a fact finding report submitted by the Block Development Officer.
6. Accordingly in view of above, impugned award dated 01.12.2011, Annexure P-5, is quashed and set aside. However, taking into consideration the fact that the award passed by the Ombudsman has been set aside by this Court on technical grounds and the issue pertains to misuse of MGNREGA funds, this Court grants liberty to the Ombudsman to proceed with the matter afresh, strictly in accordance with law and instructions in issue.
Petition stands disposed of in above terms, so also pending miscellaneous application(s), if any. No orders as to costs.
(Ajay Mohan Goel)
October 25, 2017 Judge
(narender)
::: Downloaded on - 14/11/2017 18:11:07 :::HCHP