Allahabad High Court
Ghanshyam Pandey vs Union Of India Thru. Joint ... on 30 November, 2017
Bench: Devendra Kumar Upadhyaya, Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 5 Case :- MISC. BENCH No. - 8189 of 2016 Petitioner :- Ghanshyam Pandey Respondent :- Union Of India Thru. Joint Secy.,Mnrega,Ministry Of Rural De Counsel for Petitioner :- Vijay Kumar Yadav Counsel for Respondent :- C.S.C.,A.S.G.,Prachi Dixit,Rakesh Kumar Maurya,Surendra Pratap Singh,Surya Prakash Singh Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Rajesh Singh Chauhan,J.
Heard learned counsel for the petitioner, learned Additional Chief Standing Counsel representing the State-respondents, Sri Rakesh Kumar Maurya, learned counsel representing Union of India and Smt Prachi, learned counsel representing the respondent nos.8-Rajesh Kumar Verma.
Despite respondent no.7 having sufficiently been served, no one has put in appearance on his behalf. Respondent nos.9 and 10 are represented by Sri Surendra Pratap Singh and Sri Surya Prakash Singh, however, no one is present on their behalf.
This petition challenges an order dated 04.04.2016 passed by the State Government whereby implementation of the award dated 28.02.2016 passed by the Ombudsman appointed under the instructions issued by the Government of India in the Ministry of Rural Development, Department of Rural Development, MANREGA Division on 16.01.2014 to deal with the complaints in relation to works related to MANREGA Scheme has been ordered to be deferred till appeal against the said award is decided by three member Appellate Authority to be constituted under the aforesaid instructions issued by the Government of India on 16.01.2014.
The sole submission of learned counsel for the petitioner is that under the scheme notified vide instructions dated 16.01.2014, it is the three member Appellate Authority alone, which has got the jurisdiction to hear any appeal/representation which may be preferred against the award of Ombudsman and that the State Government does not have any jurisdiction to interfere in the award passed by the Ombudsman.
It has been stated by learned counsel for the petitioner that there is no material available on record which even remotely suggest that three member Appellate Authority has passed any order for staying or deferring the award of the Ombudsman and that the State Government lacks any jurisdiction to pass the impugned order, as such the writ petition deserves to be allowed.
Detailed counter affidavit on behalf of the State authorities has been filed wherein it has nowhere been indicated that the letter/order dated 04.04.2016 has been issued/passed on any consideration of any appeal against the award of the Ombudsman dated 28.02.2016 by three member Appellate Authority. In fact the counter affidavit filed on behalf of the State is silent as to whether three member Appellate Authority as envisaged in the instructions issued by the Government of India in its notification dated 16.01.2014 has been constituted at all or not. No sufficient explanation comes forth in the counter affidavit filed by the State authorities as to how the State Government assumed any jurisdiction to interfere in any manner with the award passed by the Ombudsman created under the Government of India instructions dated 16.01.2014.
Counter affidavit has also been filed by the respondent nos.9 and 10 stating therein that the petitioner being a complainant does not have any locus to challenge the impugned order and that at the instance of the petitioner, this petition is not maintainable. It has also been stated in the counter affidavit filed by the respondent nos.9 and 10 that certain individuals who are affected by the award passed by the Ombudsman have not been impleaded in this case as a party, as such for this reason also this petition is not maintainable.
Smt Prachi, learned counsel representing the respondent no.8 has stated that the complaint made by the petitioner is nothing but a result of personal enmity because of the local village politics relating to the election to the office of Pradhan.
So far as the objections raised in the counter affidavit filed by the respondent nos.9 and 10 are concerned, we may state that since the entire proceedings before the Ombudsman were initiated on the information given/complaint made by the petitioner, on the basis of which, the award dated 28.02.2016 has been passed by the Ombudsman and the State Government by the impugned order dated 04.04.2016 has deferred the implementation of the award without any jurisdiction vested in it, we hold that the petitioner does have locus to file the instant petition challenging the order passed by the State Government on 04.04.2016.
As regards the objection raised by respondent nos.9 and 10 that certain individuals who are affected by the award passed by the Ombudsman have not been impleaded as a party to this petition and hence, the petition suffers from vice of non-joiner of necessary party, we are of the opinion that since the impugned order appears to have been passed on an application moved against the award of Ombudsman by only two persons, namely, Rajesh Kumar Verma and Kashi Ram who have been arrayed as respondent nos.7 and 8, respectively in this petition, the writ petition cannot said to have any defect as has been sought to be canvassed in the counter affidavit filed by the respondent nos.9 and 10. The said objection is also rejected.
The sole question for consideration before this Court in this matter is as to whether the State Government has been vested any authority to interfere with an award passed by the Ombudsman created under the instructions issued by the Government of India vide notification dated 16.01.2014. The Government of India vide notification dated 16.01.014 has issued instructions for Ombudsman which have been formulated under Section 27 of MANREGA Act with the object of establishing a system for redressal of grievances and disposal of complaints in relation to implementation of the MANREGA Act and the Schemes made under the said Act by respective States. Thus the said instructions contained in the notification of the Government of India dated 16.01.2014 are statutory in nature. The instructions provide for appointment of one or more persons as Ombudsman in a district on the recommendation of the Selection Committee.
Clause-3 of the said instructions provides for Autonomy of Ombudsman, according to which except as provided in the MANREGA Act, instructions, officials of Central or State Government shall not have any authority to issue any direction or instruction to an Ombudsman with regard to discharge of his duties.
Clause-3.1 of the instructions contained in the notification dated 16.01.2014 is quoted hereunder:-
"3. .........
3.1 Except as provided in the MANREGA Act and these instructions, officials of Central or State Government shall not have authority to issue any direction or instruction to an Ombudsman with regard to the discharge of his duties".
Clause-8 of the said instructions provides for Powers and Responsibilities of the Ombudsman which includes receiving complaints and disposal thereof in respect to MANREGA related schemes.
Chapter IV of the said instructions provides a detailed procedure for redressal of grievances. It also makes a mention of the grounds on which complaint can be filed to the Ombudsman.
Clause-10 provides for Procedure for filling the complaint. Clause-12 of the instructions provides for disposal of complaints. In terms of Clause-13, the Ombudsman is empowered to pass an award whereby he can issue direction to concerned MANREGA authority regarding performance of its obligation and under the said instruction, the Ombudsman can recommend expediting the delayed works and matters and also taking of disciplinary and punitive action against the erring persons. Clause-13.4 mandates the State Government to set up a three member Appellate Authority for hearing representations by any party aggrieved by an awards of the Ombudsman. Clause 13.4 is quoted hereunder:-
"13.4 State Government shall set up a three member Appellate Authority, consisting of an academician, retired civil servant and a civil society representative, to consider representation by nay party aggrieved by the awards of the Ombudsman. Such a representation shall be disposed of within a period of two months by the appellate authority. Office of the appellate authority shall be located in the office of the nodal department of the State Government implementing MGNREGA. Expenses of such an appellate authority shall be borne by States from the 6% administrative expenditure permitted under section 22 (10 (c) of the MGNREGA."
Under Clause-13.7 of the said instructions, the Ombudsman is even empowered in appropriate cases to refer the matters relating to illegal gratification, bribery or misappropriation to the authority competent to sanction criminal prosecution of the persons involved in the case.
Under Clause-14.1 of the instructions the State Government has been required to set up a system within the nodal department to monitor the action taken on the awards of Ombudsman. Wherever action is not taken on the Award, disciplinary action has been envisaged to be initiated against the officers concerned. Clause 14.1 of the instructions issued by the Government of India on 16.01.2014 is also quoted hereunder:-
"14.1 State Government shall set up a system within the nodal department to monitor the action taken on the awards of Ombudsman. Wherever action is not taken on the Award, which has become final, disciplinary action shall be taken against the officers concerned."
The scheme, thus, contained in the instructions on Ombudsman issued on 16.01.2014 by the Government of India clearly establishes the fact that the functions of the Ombudsman are outside the purview of any interference or even supervision or superintendence by the State Government or its officers. The instructions, as observed above, are statutory in nature which confer an autonomous status on the Ombudsman whose actions and awards are subject only to the appeal/representation which may be heard by three member Appellate Authority to be constituted by the State Government in terms of the provisions contained in Clause 13.4 of the instructions. The State Government or its officers have, thus, been consciously kept out of the scheme embodied in the instructions issued by the Government of India dated 16.01.2014. The functions which are being discharged by the Ombudsman and even by the Appellate Authority are thus, autonomous in character as the schemes under the MANREGA Act are implemented by the State Government or through its officers or its agencies.
The mechanism which has been evolved by the Government of India by issuing instructions on 16.01.2014 has a statutory backing for the reason that these instructions have been issued under Section 27 of MANREGA Act. The mechanism for redressal of grievances given in the said statutory scheme embodied in the instructions issued on 16.01.2014 provide for dealing with complaints, passing of an award and recommending certain actions including disciplinary action and criminal actions against the erring officials by the Ombudsman and also hearing of appeal/representation by the three member Appellate Authority to be established by the State Government.
From a bare perusal of the scheme embodied in the instructions dated 16.01.2014, we are satisfied that the functions of Ombudsman or even the three member Appellate Authority has deliberately been kept out of the supervisory or administrative control of the State Government or its officers.
On the other hand, the State Government has been mandated to set up a system with the nodal department to monitor the action taken on the awards of Ombudsman. The said provision is contained in Clause-14.1 of the instructions which clearly requires the State Government to set up a system for monitoring the actions which may be required to be taken on the awards of Ombudsman. The said provision further provides that in case the State Government finds that action as recommended/suggested/directed by the Ombudsman is not taken, the disciplinary action shall be taken against the officers concerned. Thus, in terms of the scheme, the State Government has been required to provide aid and assistance to the functions of the Ombudsman not to create any hindrance.
We are of the considered opinion that any interference in the award made by the Ombudsman is permissible only by three member Appellate Authority and not by the State Government or any of its officers in their individual capacity, may be the officer concerned is higher in rank than the rank of the officer who is appointed as Ombudsman. The underline purpose of having such a system whereby the State Government or its officers have been kept out of the functions of the Ombudsman is, in our opinion, to provide for an unbiased and transparent system for dealing with the complaints which are generated, most of the times, on account of inaction or unlawful action of the State officers, who are entrusted with implementation of the scheme in the MANREGA Act. The autonomy given to the Ombudsman goes in tune with the general legal principles of fairness in the State action.
So far as the facts of the instant case are concerned, admittedly under the scheme embodied in the instructions dated 16.01.2014, the State Government has not been vested with any authority or jurisdiction or power to interfere with the award made by the Ombudsman.
The counter affidavit filed by the State authorities in this case nowhere states that the direction contained in the impugned order passed by the State Government dated 04.04.2016 have been issued on any decision taken to the said effect by three member Appellate Authority. The impugned order dated 04.04.2016 is, thus, completely without jurisdiction.
Resultantly, the writ petition is allowed. The impugned order dated 04.04.2016 passed by the State Government as is contained in annexure no.1 to the writ petition, is hereby quashed. However, any person including respondent nos.7 to 10 who may be aggrieved by the award of Ombudsman dated 28.02.2016 will be at liberty to challenge the same before the appropriate forum/court/authority in appropriate legal proceedings which may be legally permissible.
There will be no order as to costs.
Order Date :- 30.11.2017 Renu/-
(Rajesh Singh Chauhan,J) (Devendra Kumar Upadhyaya,J)