Himachal Pradesh High Court
Bhag Singh & Ors vs State Of H.P. & Ors on 4 July, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 8490 of 2012
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Date of decision: 04.07.2019
Bhag Singh & Ors. ...... Petitioners.
Versus
State of H.P. & Ors. ...... Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioners : Mr. Surender Saklani, Advocate.
For the respondents
r : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Amit
Kumar Dhumal, Deputy Advocate
General and Mr. Sunny Dhatwalia,
Assistant Advocate General, for
respondents No. 1, 2 and 4 and
none for respondents No.3 and 5.
Ajay Mohan Goel, J. (Oral)
By way of this petition, the petitioner has inter alia prayed for the following relief:-
" i) That a writ of certiorari may very kindly be issued and impugned inquiry dated 9.3.2012 as contained in Annexure P-1 and impugned order date d6.8.2012 as contained in Annexure P-7 may very kindly be quashed and set aside".
2. Brief facts necessary for adjudication of the present petition are that petitioner No.1 was an elected representative of 1 Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:21:28 :::HCHP 6Zila Parishad, Kangra from the year 2005 to the year 2010. A scheme wasintroduced by the Government of India, under the .
nomenclatures of MNREGA. A Participatory Committee was to be constituted for the purpose of execution of the work to be undertaken by MNREGA. Petitioner No.1 was appointed as the president of the Participatory Committee, whereas petitioners No.2 to 6 were appointed as members of the said Committee.
The project assigned to the said Committee was for execution of the work of construction of Kuhal from Bahanur Khad to the house of one Shri Ram Saran, in Ward No.1, Gram Panchayat, Jassour, Tehsil and District Kangra, H.P. The work is stated to have been completed in June, 2010 and payment etc. thereafter, stood released to the respective parties.
3. It appears that a complaint was filed by respondent No.5 with regard to certain alleged illegalities committed by the Participatory Committee in the course of the execution of the said work. This complaint was enquired into by respondent No.3 i.e. Ombudsman (MNREGA). Pursuant thereto, an award was announced by Ombudsman (MNREGA), dated 9.3.2012 and on the basis of the award so passed by respondent No.3, dated 9.3.2012 (Annexure P-1), respondent No.2 passed order dated 6.8.2012 (Annexure P-7), ordering recovery of an amount of Rs.1,72,198/- from the present petitioners and also imposing fine ::: Downloaded on - 29/09/2019 00:21:28 :::HCHP 6 upon them. Feeling aggrieved, the petitioners have filed this petition.
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4. Learned Counsel for the petitioners has primarily argued that the impugned orders i.e. the award passed by the Ombudsman, as also the subsequent order dated 6.8.2012, passed by respondent No.2, are not sustainable in the eyes of law, as the award Annexure P-1 was not passed by the Ombudsman, on the basis of the contents of the complaint and the response of the present petitioners to the said complaint, but was passed on the basis of a report submitted to the Ombudsman on his own asking, by the Block Development Officer, which has been referred to in the impugned award also as a reassessment report, which has vitiated the entire proceedings because the petitioners were neither informed that any such reassessment is being ordered nor were they associated with the process of said reassessment. Thus, the contention of learned counsel for the petitioners is that they have been virtually condemned unheard by the Ombudsman and because the award has been announced on the basis of the reassessment report, in the preparation of which, they were not associated, the award is liable to quashed and set aside as the petitioners mandatorily had a right to be associated with the process of reassessment, because the reassessment was directly relatable to the allegations made against the present petitioners ::: Downloaded on - 29/09/2019 00:21:28 :::HCHP 6 by respondent No.5. As per learned counsel, the principle of natural justice demanded that the petitioners ought to have been .
associated with the process of reassessment also, as any order which was to be passed by the Ombudsman, based upon the said reassessment, but obvious, was to have civil consequences as far as the petitioners were concerned. Learned Counsel has further argued that as the subsequent order passed by the Deputy Commissioner is based upon the award so passed by the Ombudsman, which is per-se is illegal, the subsequent order is not sustainable in the eyes of law and therefore, the same is also liable to be quashed and set aside.
5. Though, learned Assistant Advocate General has not been able to demonstrate from the record that the petitioners were associated with the process of reassessment so ordered by the Ombudsman, however, he has argued that before the order was passed by the Deputy Commissioner, i.e. Annexure P-7, due opportunity of being heard was given to the petitioners and therefore, the petitioners cannot be permitted to take the plea of being condemned unheard.
6. I have heard learned counsel for the parties and have also gone through the impugned order as well as the documents appended with the plaint.
7. Primarily, the grievance of the petitioners is qua the award having been announced by the Ombudsman by relying ::: Downloaded on - 29/09/2019 00:21:28 :::HCHP 6 upon a reassessment report submitted by the Block Development Officer, in the preparation of which, they were not .
associated. There is nothing on record to demonstrate that during the course of investigation of the complaint by the Ombudsman, when reassessment was ordered by the Ombudsman, there was either any notice to this effect given to the petitioners or any steps were taken either by the Ombudsman or by the Block Development Officer concerned, to associate the petitioners with the process of reassessment. This clearly demonstrates that the reassessment was carried by the Block Development Officer at the back of the petitioners.
8. Not only this, the issue wise findings, which have been returned in the impugned award Annexure P-1 by the Ombudsman, demonstrates that the same are solely based upon the reassessment report of the Block Development Officer. In this view of the matter, there is merit in the contention of learned counsel for the petitioners that the impugned order passed by the Ombudsman is not sustainable because the same is based upon a report, in the preparation of which, the petitioners were not associated. Therefore, but obvious, as the impugned award has been passed on the strength of the said reassessment report, which was prepared at the back of the petitioners, the same is bad in law and is liable to quashed and set aside.
::: Downloaded on - 29/09/2019 00:21:28 :::HCHP 69. Similarly, as Annexure P-7 is based upon the award passed by the Ombudsman, the same also cannot be said to be .
sustainable in law because if the genesis of the subsequent order has been found to be bad by the Court, the edifice cannot be held to be legal. The contention of the learned Assistant Advocate General that a show cause notice was issued to the petitioners, cannot cure the inherent defect in Annexures P-1 and P-7. Accordingly, this petition is allowed. Award dated 9.3.2012 (Annexure P-1) and order dated 6.8.2012 (Annexure P-7) are ordered to be quashed and set aside. However, as these two orders are being set aside on technical ground, therefore, the matter is remanded back to the Ombudsman, with the direction that he shall pass a fresh award after reopening the case and giving opportunity of being heard to all the parties. It is clarified that the award shall not be based upon any material which is collected at the back of the parties. Petition stands disposed of in above terms, so also the pending miscellaneous application(s), if any.
(Ajay Mohan Goel), Judge July 4, 2019 (Rishi) ::: Downloaded on - 29/09/2019 00:21:28 :::HCHP