Kerala High Court
Padmakshi vs The Secretary on 22 March, 2021
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
WP(C).No.32302 OF 2013(K)
PETITIONER:
PADMAKSHI,
AGED 54 YEARS,
D/O KRISHNAN,
PLAVILA PUTHUVAL,
PATTOLI MARKET P.O.,
ALAPPUZHA.
BY ADVS.
SRI.C.V.MANUVILSAN
SRI.G.SUDHEER (THURAVOOR)
RESPONDENTS:
1 THE SECRETARY,
ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA, PIN-680001.
2 ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA, PIN-680001
REPRESENTED BY ITS SECRETARY.
3 M.R.MURALEEDHARAN,
KALLUMOOTTIL PUTHVALIL,
PUTHIYAVILA,
PATTOLI MARKET P.O.,
ALAPPUZHA DISTRICT-680001.
4 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT OF KERALA,
SECRETARIAT,
THIRUVANANTHAPURAM-01.
W.P.(C) No.32302/2013 & 8713/2015
:2:
R1-2 BY ADV. SRI.S.SHANAVAS KHAN
R3 BY ADV. SRI.B.RENJITH KUMAR
GOVERNMENT PLEADER SMT.K.M RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22-03-2021, ALONG WITH WP(C).8713/2015(L), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.32302/2013 & 8713/2015
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
WP(C).No.8713 OF 2015
PETITIONER:
PADMAKSHI,
AGED 54 YEARS,
D/O. KRISHNAN,
PLAVILA PUTHUVAL,
PATTOLI MARKET P.O.,
ALAPPUZHA.
BY ADVS.
SRI.P.G.SURESH
SRI.V.HARISH
SRI.RAJAN VISHNURAJ
SRI.G.SUDHEER (THURAVOOR)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY,
GOVERNMENT OF KERALA,
SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 ELECTION OFFICER,
KUDUMBASREE DISTRICT MISSION,
ALAPPUZHA (DEPUTY COLLECTOR, DM),
COLLECTORATE,
ALAPPUZHA-688001.
3 THE SECRETARY,
ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA-690535.
W.P.(C) No.32302/2013 & 8713/2015
:4:
4 ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA-690535,
REPRESENTED BY ITS SECRETARY.
5 PRESIDING OFFICER,
KUDUMBASREE CDS,
ARATTUPUZHZA GRAMA PANCHAYATH
(AGRICULTURAL OFFICER, DEVIKULANGARA)-690535.
6 KAMALAKSHI,
PUTHIYAVILA EDACHIRAYIL HOUSE,
PATTOLI MARKET P.O.,
ARATTUPUZHA, ALAPPUZHA-690531.
R6 BY ADV. SRI.B.RENJITH KUMAR
R4 BY SRI S.SHANAVAS KHAN
R1-3 & R5 BY GOVERNMENT PLEADER
SMT.K.M.RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22-03-2021, ALONG WITH WP(C).32302/2013(K), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.32302/2013 & 8713/2015
:5:
[CR]
N. NAGARESH, J.
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W.P.(C) Nos.32302 of 2013 and 8713 of 2015
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Dated this the 22nd day of March, 2021
JUDGMENT
~~~~~~~~~ The petitioner, who was Chairperson of Area Development Society (ADS) of Ward No.4 of Arattupuzha Panchayat, is challenging Ext.P1 findings of the Ombudsman, Mahatma Gandhi National Rural Employment Guarantee Authority (MGNREGA), Alappuzha, in W.P.(C) No.32302/2013. In W.P.(C) No.8713/2015, the same petitioner is challenging Ext.P1 proceedings of the District Election Officer, Kudumbashree Mission.
2. Facts in brief relevant for deciding these writ petitions, are as follows:-
W.P.(C) No.32302/2013 & 8713/2015 :6: The petitioner was the Chairperson of Area Development Society (ADS) of Ward No.4 of Arattupuzha Panchayat. She was also a Mate of Ward No.4 among the beneficiaries of Mahatma Gandhi National Rural Employment Guarantee Scheme. The 3rd respondent preferred a complaint before the Ombudsman, MGNREGA, Alappuzha against the petitioner. The complainant alleged that the petitioner attempted to snatch an amount of `1,500/- by forging the signature of Thankamma, that she attempted to snatch an amount of `1,050/- in the name of one Sindhu and that she marked attendance of Lekshmi Bhai and Udayamma while they were actually attending a procession of CPI(M) party.
3. The Ombudsman entertained the complaint. Six witnesses were examined. Three documents were marked. The petitioner's defence before the Ombudsman was that Thankamma was suffering from illness on the relevant days. Even though Thankamma reached the site for work, she could not do work. Thankamma's husband was a cancer W.P.(C) No.32302/2013 & 8713/2015 :7: patient who passed away recently. Other employees unanimously requested the petitioner to collect money for Thankamma so as to enable Thankamma to purchase medicine. Therefore, the petitioner permitted Thankamma to put her signature in the muster roll.
4. The petitioner also admitted that Sindhu also did not work on all days. Sindhu was in hospital in connection with the surgery of her husband. Taking a humanitarian view in the matter, the petitioner permitted Sindhu to put her signature. The petitioner admitted before the Ombudsman that her conduct was not legal. It was motivated purely on humanitarian considerations. And as regards payments made to Lekshmi Bhai and Udayamma, the petitioner stated that they actually did work on the disputed days.
5. The Ombudsman in Ext.P1 findings held that to his knowledge, there is no provision in the MGNREG Act with regard to disciplinary action that may be taken against the Mates who are doing illegal acts against the provisions of the Act. The learned Ombudsman further noted that in the W.P.(C) No.32302/2013 & 8713/2015 :8: Operational Guidelines also, there is no mention regarding disciplinary action. Relying on a Government Circular dated 07.08.2012, the Ombudsman held that the Community Development Scheme (CDS), Executive Committee can take disciplinary action in such cases.
6. The learned Ombudsman, however, proceeded to consider the complaints. The Ombudsman found that the petitioner has committed illegality in permitting Thankamma and Sindhu to sign the muster roll. And as regards the complaints relating to Lekshmi Bhai and Udayamma participating in CPI(M) procession, the learned Ombudsman found that though there is no reliable evidence, the complaint raised cannot be said to be falsehood.
7. On these premises, the learned Ombudsman passed Ext.P1 making the following findings:-
"1. I find that this is a fit case in which R2 shall be permanently removed from the membership of ADS as well as from the Chairpersonship of ADS committee and that she shall also be permanently removed from the post of mate and that she shall never be selected or appointed as member of ADS or chairperson of ADS or mate hereafter. W.P.(C) No.32302/2013 & 8713/2015 :9:
2. I also find that it is a fit case in which the Panchayat Secretary is at liberty to take appropriate disciplinary action against Sindhu and Thankamma also.
3. I also find that this is a fit case in which a direction is to be given to the accredited engineer and overseer of the Arattupuzha Grama Panchayath through the Secretary to supervise and to have a special watch on Lekshmi Bhai and Udayamma in the works that may be done by them in future under the MGNREGS."
The petitioner challenges Ext.P1 on various grounds.
8. Pursuant to Ext.P1 findings dated 23.09.2013 (in W.P.(C) No.32302/2013) of the Ombudsman, the Election Officer, Kudumbashree District Mission declared the petitioner to be ineligible to be a candidate for election to any post of the three tire system of CDS, as per an order dated 25.02.2015. The petitioner thereupon filed W.P.(C) No.8713/2015, challenging the said Ext.P1 order dated 25.02.2015 of the Election Officer.
9. The issue arising in this writ petition is as to the sustainability of Ext.P1 order of the Ombudsman, MGNREGA and the sustainability of the consequential order passed by the District Election Officer, Kudumbashree Mission. W.P.(C) No.32302/2013 & 8713/2015 : 10 :
10. Respondents 1 and 2 in W.P.(C) No.32302/2013 filed a counter affidavit. Respondents 1 and 2 submitted that the petitioner has admitted that the petitioner herself had forced the beneficiaries to put signature in the muster roll of employees, without attending work. This is highly illegal and against the provisions of law. The petitioner being a Mate, she alone is responsible for maintaining the muster roll, as per paragraph 4.1.2 of Operational Guidelines, 2013. Respondents 1 and 2 stated that the findings of the Ombudsman is perfectly legal.
11. I have heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2, the learned counsel for the 3rd respondent and the learned Government Pleader appearing for the State of Kerala.
12. From Ext.P1 findings of the Ombudsman, it is seen that the petitioner has admitted the irregular marking of muster roll in respect of Thankamma and Sindhu. But, the petitioner denied the allegation of marking muster roll in respect of Lekshmi Bhai and Udayamma, for their attending W.P.(C) No.32302/2013 & 8713/2015 : 11 : a procession of a political party. The Ombudsman found that there is no satisfactory reliable evidence to prove the case of the complainant as regards Lekshmi Bhai and Udayamma, but in the same breath, said the case of the complainant cannot be said to be a falsehood.
13. Be that as it may, the question arising for consideration is whether the Ombudsman appointed under the MGNREGA can proceed against the petitioner and arrive at the findings as made in Ext.P1 in W.P.(C) No.32302/2013.
14. The Mahatma Gandhi National Rural Employment Guarantee Act, 2005 was enacted to provide enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult member volunteer to do unskilled manual work. Section 3 of the Act guarantees rural employment to households in accordance with the Scheme made under the Act. As per Section 13 of the Act, the Panchayat at district, intermediate and village levels shall be W.P.(C) No.32302/2013 & 8713/2015 : 12 : the principal authority for planning and implementation of the Schemes made under the Act, 2005.
15. Section 19 of the Act, 2005 provides that the State Government shall, by rules, determine appropriate grievance redressal mechanism at the Block level and District level for dealing with any complaint by any person in respect of the implementation of the Scheme. Section 32 empowers the State Government to make rules to carry out the provisions of the Act, including provisions for grievance redressal mechanism at the Block level and District level.
16. Section 4(3) mandates that the Scheme made under Section 4(1) shall provide for minimum features specified in Schedule I. Clause 29 of Schedule I requires that there should be an effective grievance redressal mechanism and Clause 30 requires that there shall be an Ombudsperson for each District for receiving grievances, enquiring into and pass orders as per the guidelines issued. Paragraph 13.14.5 of the Operational Guidelines, 2013 for the Mahatma Gandhi NREGA reads as follows:-
W.P.(C) No.32302/2013 & 8713/2015 : 13 : "13.14.5 Disposal of Complaints On receipt of complaint, Ombudsman will issue notice to Mahatma Gandhi NREGA Authority for appearance and making submissions. Where facts are admitted, case will be disposed by passing appropriate direction and if not admitted, Ombudsman will pass an award.
The 'award' passed shall be a speaking order consisting of the following components:
i) Details of the parties of the case.
ii) Brief facts of the case.
iii) Issues for consideration.
iv) Findings against issues along with reasons.
v) Direction to the concerned MGNREGA Authority such as performance of its obligations n like expediting delayed matters, giving reasons for decisions and issuing apology to complainants, taking of disciplinary and punitive action against erring persons, etc. n except imposition of penalties under the MGNREG Act.
a. Costs, if any.
b. Costs may be imposed in case of false, malicious and vexatious complaints.
c. In cases of corruption, Ombudsman will forward the matter to competent authority to sanction criminal prosecution of the persons involved in the case."
Thus, the Ombudsman is competent to consider a complaint and pass award and give direction to the concerned MGNREGA Authority for performance of its obligations, but W.P.(C) No.32302/2013 & 8713/2015 : 14 : "except imposition of penalties under the MGNREA Act".
17. Furthermore, even according to the Ombudsman, as per Circular No.52729/DD2/2008 dated 07.08.2012 governing disciplinary action, it is the CDS who is competent to take disciplinary action against Mates.
18. Therefore, it is evident that an Ombudsman appointed under the provisions of the Act, 2005 and paragraph 13.14.5 of the Mahatma Gandhi NREGA Operational Guidelines, 2013 has no disciplinary powers over Mates. Under Section 4(3) of the Act, 2005 read with paragraph 29 of Schedule I and Clause 13.14.5 of the Operational Guidelines, 2013, Ombudsman cannot give directions for imposition of penalties on Mates.
19. Ext.P1 findings (in W.P.(C) No.32302/2013) of the Ombudsman prescribing punishments to be imposed on the petitioner are therefore ultra vires and unsustainable and hence Ext.P1 is set aside. The order of the District Election Officer against the petitioner as contained in Ext.P1 proceedings dated 25.02.2015 (in WP(C) No.8713/2015), W.P.(C) No.32302/2013 & 8713/2015 : 15 : which are based on the order of the Ombudsman, is therefore unsustainable and set aside.
The writ petitions are allowed to the above extent. It is made clear that the authorities competent to take disciplinary action against the petitioner will be at liberty to do so, if they are so advised.
Sd/-
N. NAGARESH, JUDGE aks/18.03.2021 W.P.(C) No.32302/2013 & 8713/2015 :16: APPENDIX OF WP(C) 32302/2013 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE FINDINGS DATED 23.9.2013 BY THE OMBUDSMAN MGNREGA, IN COMPLAINT NO.16/13.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE MUSTER ROLL NO.KL-11-012-001/19734 OF MUTHUKULAM BLOCK.
W.P.(C) No.32302/2013 & 8713/2015 :17: APPENDIX OF WP(C) 8713/2015 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE ORDER NO.
KSREL/4310/2015 APPEAL(2) DATED 25-02- 2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE INTERIM ORDERS
DATED 27-12-2013 IN WPC NO.
32302/2013.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE INTERIM ORDERS
DATED 04-07-2014 IN WPC NO.
32302/2013.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE RELEVANT PAGES
OF THE ELECTION RULES OF KUDUMBASREE
CDS ISSUED BY THE 1ST RESPONDENT AS
G.O.(P)NO. 214/2014/LSGD DATED 27-11- 2014.
SR