Karnataka High Court
Sri K K Aiyappa vs The Commissioner on 10 February, 2023
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WP No. 29131 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.29131 OF 2015 (GM-RES)
BETWEEN:
SRI K.K. AIYAPPA
AGED ABOUT 41 YEARS,
K. NIDUGANE GRAMAPANCHAYATH MEMBER,
S/O. LATE K. KALAIAH,
R/AT: HEBETTEGERI VILLAGE,
K. NIDUGANE POST,
MADIKERI TALUK,
KODAGU - 571 201. ... PETITIONER
(BY SRI PRABHUGOUD B.T., ADVOCATE FOR
SMT. RACHITA NANAIAH M., ADVOCATE)
AND:
1. THE COMMISSIONER ,
STATE SECRETARY UNDER THE
M.G. NREGA SCHEME,
Digitally signed by
MAHALAKSHMI B M RURAL DEVELOPMENT COMMISSIONRATE OFFICE,
2ND FLOOR, 3RD PHASE,
Location: HIGH
COURT OF M.S. BUILDING,
KARNATAKA BANGALORE - 560 001.
2. THE CHIEF EXECUTIVE OFFICER,
KODAGU JILLA PANCHAYATH,
KOGADU - 571 201.
3. THE TALUK EXECUTIVE OFFICER
MADIKERI TALUK PANCHAYATH,
MADIKERI,
KODAGU - 571 201.
4. THE PANCHAYATH DEVELOPMENT OFFICER
K. NIDUGANE GRAMAPANCHAYATH,
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WP No. 29131 of 2015
MADIKERI TALUK,
KODAGU - 571 201.
5. P.M. GEORGE
SECRETARY,
K. NIDUGANE GRAMAPANCHAYATH,
MADIKERI TALUK,
KODAGU - 571 201.
6. C.J. PRADEEP
EX-PRESIDENT,
AGED ABOUT 47 YEARS,
S/O. JANARDHAN,
KARANGERI VILLAGE,
MAKKANDUR POST,
MADIKERI TALUK,
KODAGU - 571 201.
7. MAHADEVA C.A.
JUNIOR ENGINEER,
P.R.D.,
JILLA PANCHAYATH ENGINEERING DIVISION,
MADIKERI TALUK,
KODAGU - 571 201. ... RESPONDENTS
(BY SRI K.S. ARUN, HCGP FOR R-1 TO R-4;
SRI B.S. BASAVARAJ, ADVOCATE FOR R-5;
R-6 AND R-7 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED 16.06.2015 PASSED BY THE KARNATAKA OMBUDSMAN
APPELLATE TRIBUNAL, BANGALORE IN APPEAL
NO.K.O.A.A./04/2014-15 PRODUCED VIDE ANNEXURE-A AND
CONSEQUENTLY PLEASED TO CONFIRM THE ORDER DATED
26.03.2014 PASSED BY THE OMBUDSMAN, MG NREGA, S.J.S.Y.
BUILDING, NEAR SUDARSHAN CIRCLE, MADIKERI-571201 IN
COMPLAINT NO.2013-07/136/2013-14 VIDE ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
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WP No. 29131 of 2015
ORDER
The petitioner in this writ petition is assailing the order dated 16.06.2015 passed by the Karnataka Ombudsman Appellate Tribunal in Appeal No.K.O.A.A/04- 2014-15 vide Annexure-A and consequently to confirm the order dated 26.03.2014 passed by the Ombudsman, MG NREGA, in complaint No.2013-07/136/2013-14 vide Annexure-B.
2. Brief facts leading to filing of the present petition are:
Petitioner is a member of the K.Nidugane Grampanchayath, wherein Respondent No.5 to 7 were working in different posts, who by misusing their power and neglecting the rules and regulations in the Mahatma Gandhi National Rural Employment Guarantee Act (MG NREGA), approved the work of construction of retaining wall to the public toilet near Abbi Falls, which was not eligible under the said MG NREGA Scheme. Respondent No.1 is the main incharge person in the State. -4- WP No. 29131 of 2015
Respondent Nos.2 to 4 are the subordinates for implementing the MG NREGA Scheme in their respective areas. MG NREGA Scheme has been brought by the Government in order to support the family of the economically backward rural people by giving them employment. The 4th Respondent panchayath then headed by the Respondent Nos.5 and 6 took a decision to take up the construction of retaining wall to the public toilet under MG NREGA Scheme, even though the said work does not fall under the said Scheme. The said work was estimated by the 7th Respondent, the 5th and 6th Respondent aware of the object of the scheme still got constructed the retaining wall. Even after the completion of work, it was still shown in the NMR register that the work is still going on and drew money.
3. Petitioner found some foul play in the execution of the work and brought the same to the knowledge of the Hon'ble Ombudsman Madikeri. The Ombudsman registered the Petitioner's complaint and visited Nidugame -5- WP No. 29131 of 2015 Grampanchayath and found some strength in the complaint and issued the Show Cause Notice, after receiving the reply, not satisfied issued a calling letter asking the Respondents to furnish any further information. Petitioner and Respondents appeared before the Ombudsman and the Ombudsman recorded the statement of the parties. Based on the evidence and documents on record the Ombudsman passed an order and shown instances wherein which the Respondents were under faults including the employment of proper persons etc., and made the Respondents jointly liable and ordered to recover Rs.1,79,079/- with interest. The Respondents being aggrieved approached the Karnataka Ombudsman Appellate Tribunal, Bangalore, without making the Petitioner the party to the proceedings.
4. The Appellate Tribunal without conducting spot inspection, without verifying the documents and evidence and without looking for the reason assigned by the Ombudsman, arbitrarily allowed the appeal. Recently the -6- WP No. 29131 of 2015 order of the Karnataka Ombudsman Appellate Tribunal Bangalore came to the knowledge of the petitioner who immediately obtained the copies under Right to Information Act and found the Order of the Appellate Tribunal is contrary to the object of MG NREGA. The Petitioner being aggrieved by the order, challenge the correctness of the said order.
5. Learned counsel for the respondent has filed the statement of objections stating that the Writ Petition is not maintainable either in law or fact and the same is liable to be dismissed. It is stated that due to heavy rain and to avoid land sliding, the retention wall is badly needed to protect the public toilets and it is the primary responsibility of the Gram Panchayath to maintain and protect the toilet in public interest. As such retention wall was constructed by Gram Panchayath after following the procedures under MG NREG Acts and rules and hence the contention of the petitioner as stated in the petition is false and baseless. The Gram Panchayath has identified -7- WP No. 29131 of 2015 and constructed the retaining wall to the Public toilet near Abbi Falls only after obtaining the approval of Gram Sabha as well as the approval of the Executive Officer of Madikeri Taluk. Even a public notice was displayed in the notice board as per guidelines NMR attendance was marked and signatures of the workers were obtained on completion, certified by junior engineer and recorded. The payment has also been made via Electronic Fund Management System (e-FMS) and for the plastering work of the wall, man power is essential as such the NMR has been extended.
6. It is stated that the State Ombudsman Appellate Authority after conducting detailed investigation on the said issue, stated that the conclusion taken by the District Ombudsman is totally wrong. This works comes under the category of "FLOOD CONTROL AND PROTECTION WORK" of the MG NREGA. The order of Ombudsman to recover the full cost of the work from the President and the Execution Officers is against justice and -8- WP No. 29131 of 2015 this can not be sustained. Mr.P.M.George, Panchayat Development Officer and Sri Mahadeva, Junior Engineer, have filed an appeal before the State Ombudsman Appellate Authority, challenging the orders passed by the District Ombudsman. Hence the contention of petitioner not making the necessary parties in the Appeal is not correct. The Petitioner is Ex-president and a present member. He has not objected the work selected. He consented to the work selection because of public importance. He could have complained when the work was is in progress. District Ombudsman has acted upon and passed order only relying upon the complaint and verified the work only after completion. During verification the ombudsman noticed that the work was not done by the contractor and has jumped on conclusion without verifying the relevant documents and passed an order and it is not on his part to pass such an order. Karnataka State Ombudsman Appellate Authority has investigated the issue, verified the relevant documents and set aside the order of the District Ombudsman. State Ombudsman -9- WP No. 29131 of 2015 Appellate Authority has full powers to register and investigate the complains received against the orders of the District Ombudsman and also empowered to set aside the orders. All other averments are denied as false and baseless and sought to dismiss the writ petition.
7. Heard the learned counsel for the parties to the lis.
8. It is the grievance of the petitioner that in the appeal preferred by the respondent Nos.5 to 7, before the Karnataka Ombudsman Appellate Tribunal is without making the complainant as a party to the proceedings. Learned counsel would submit that the complaint was lodged by the petitioner before the Ombudsman, Kodagu and on enquiry conducted, it was found that the respondent Nos.5 to 7 are guilty and are liable to be reimbursed Rs.1,79,079/- with interest. This being so, it is stated that the appellate authority while reversing the order ought to have atleast heard the petitioner keeping in mind the object and scheme of the MG NREG Act. Learned
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WP No. 29131 of 2015counsel would submit that the order of the appellate authority is illegal arbitrary and contrary to the law and against the principles of natural justice.
9. Per contra learned counsel for the 4th respondent would contend that the appellate Authority has rightly investigated and on verification of the documents has set-aside the order of District Ombudsmen. Learned counsel would contend that the appellate authority has exercised full powers and passed orders which is in accordance with law and would justify the order passed by the appellate authority.
10. Having heard the learned counsel for the parties, it is the main contention of the petitioner that the before passing of the order by the appellate authority the complaint on which basis the enquiry was held against respondent Nos.5 to 7 and in all fairness the respondents when preferred an appeal before the appellate authority ought to have impleaded the complainant and the same is violative of principles of natural justice.
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WP No. 29131 of 2015
11. Keeping the principles of natural justice in mind, the order of the appellate authority is a clear violation of principles of natural justice while passing the impugned order. Accordingly, this Court is of the considered view that the orders passed by the first appellate authority at Annexure-A needs to be set-aside and consequently, the respondent Nos.5 to 7 are directed to implead the complainant before the appellate authority and the appellate authority to reconsider the matter afresh in accordance with law after affording sufficient and reasonable opportunity to the petitioner and the respondent Nos.5 to 7 to put forth their contentions. Accordingly, this Court pass the following:
ORDER i. The writ petition is allowed-in-part. ii. The order passed by the Karnataka Ombudsman Appellate Tribunal in Appeal No.K.O.A.A/04- 2014-15 dated 16.06.2015 vide Annexure-A is hereby quashed.
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iii. The respondent Nos.5 to 7 to implead the present petitioner in the appeal No. K.O.A.A/04-
2014-15 and the appellate authority to reconsider the matter afresh in accordance with law after affording sufficient and reasonable opportunity to the petitioner and the respondent Nos.5 to 7 to put forth their contentions and pass order strictly in accordance with law, within time frame of eight weeks from the date of receipt of certified copy of this order. iv. All contention of the parties are kept open No order as to costs.
Sd/-
JUDGE MBM