Karnataka High Court
Chandrashekar R vs State Of Karnataka on 20 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 837, 2019 (3) AKR 769
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
W.P. Nos.12046/2017 & 12395-12396/2017 (GM-RES)
C/W
W.P. Nos.10844-10851/2017 (LB-RES) &
W.P. Nos.21036-21038/2017(GM-RES)
IN WP Nos.12046/2017 & 12395-12396/2017:
BETWEEN:
CHANDRASHEKAR R
S/O R. RANGARAJU
AGED ABOUT 42 YEARS,
ASSISTANT EXECUTIVE ENGINEER,
PRED SUB-DIVISION
SRINIVASAPURA TALUK-
KOLAR DISTRICT
AT PRESENT
ASSISTANT EXECUTIVE ENGINEER
BBMP, WHITEFIELD SUBDIVISION
RAMAGONDANAHALLI
BANGALORE
... PETITIONER
(BY SRI D.N. NANJUNDA REDDY, SENIOR ADVOCATE FOR
SRI VIJAYASIMHA REDDY D.V., ADVOCATE)
2
AND:
1. STATE OF KARNATAKA
RURAL DEVELOPMENT AND
PANCHAYATH RAJ DEPARTMENT
2ND FLOOR, 3RD STAGE
M. S. BUILDING,
BANGALORE 560001.
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT
2. STATE OF KARNATAKA
KARNATAKA PUBLIC
WORKS DEPARTMENT (PWD)
3RD FLOOR, VIKASA SOUDHA
BANGALORE 560001
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT
3. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
4TH FLOOR, VIKASA SOUDHA
BANGALORE 560001.
REPRESENTED BY ITS
PRINCIPAL SECRETRY TO GOVERNMENT
4. CHIEF EXECUTIVE OFFICER
KOLAR ZILLA PANCHAYATH,
KOLAR-563101.
5. THE EXECUTIVE OFFICER
SRINIVASAPURA TALUK PANCHAYATH
SRINIVASAPURA-563135.
KOLAR DISTRICT.
3
6. THE PANCHAYATH DEVELOPMENT OFFICER
LAKSHMIPURA GRAM PANCHAYATH
LAKSHMIPURA VILLAGE,
NEELAVANKI HOBLI
SRINVASAPURA TALUK-563135.
KOLAR DISTRICT.
7. SRI SYED GULAMISAAB
MAJOR
BURAKAYALAKOTE,
LAKSHMIPURA GRAM PANCHAYATH
LAKSHMIPURA VILLAGE
NEELAVANKI HOBLI,
SRINVASAPURA TALUK,
KOLAR DISTRICT-563135.
8. SRI S. R. RAGHAVENDRA
S/O RAMAIAH,
AGED ABOUT 32 YEARS,
STATE GENERAL SECRETARY
HUMAN RIGHTS PROTECTION &
ANTI CORRUPTION COMMITTEE
NO.389/A, 1ST CROSS,
LAKSHMI ROAD, BAGIYAPPA GARDEN.
SHANTHINAGAR,
BENGALURU 560027
9. SMT ADILAKSHMAMMA
PRESIDENT, MAJOR,
LAKSHMIPURA GRAM PANCHAYATH
LAKSHMIPURA VILLAGE, NEELAVANKI HOBLI
SRINIVASAPURA TALUK-563135.
KOLAR DISTRICT.
10. SRI P. V. VISHVANATH REDDY,
PDO/SECRETARY, MAJOR,
4
LAKSHMIPURA GRAM PANCHAYATH
SRINIVASAPURA TALUK
KOLAR DISTRICT 563135.
AT PRESENT
SRINIVASAPURA TALUK PANCHAYATH
SRINIVASAPURA-563135.
KOLAR DISTRICT
11. SRI RAVI
COMPUTER OPERATOR , MAJOR,
LAKSHMIPURA GRAM PANCHAYATH
LAKSHMIPURA VILLAGE
NEELAVANKI HOBLI,
SRINIVASAPURA TALUK,
KOLAR DISTRICT-563135.
12. SRI K. N. NAGARAJ,
TECHNICAL ASSISTANT ENGINEER
SRINVASAPURA TALUK PANCHAYATH
SRINVASAPURA TALUK-563135
KOLAR DISTRICT.
13. SRI SHIVASHANKARAIAH
ASSISTANT DIRECTOR, MAJOR,
SRINIVASAPURA TALUK PANCHAYATH
SRINIVASAPURA TALUK,-563135.
KOLAR DISTRICT.
14. SRI KRISHNAMURTHY,
TECHNICAL ASSISTANT ENGINEER
SRINIVASAPURA TALUK PANCHAYATH
SRINIVASAPURA TALUK-563135.
KOLAR DISTRICT.
15. SRI SHIVARAJU
TECHNICAL ASSISTANT ENGINEER, MAJOR,
5
SRINIVASAPURA TALUK PANCHAYATH
SRIVASAPURA TALUK-563135.
KOLAR DISTRICT.
16. SRI MUNIVEEREGOWDA,
M I S COORDINATOR, MAJOR,
SRINIVASAPURA TALUK PANCHAYATH
SRINIVASAPURA TALUK-563135.
KOLAR DISTRICT.
17. SRI I M LAKSHMI MOHAN,
THEN EXECUTIVE OFFICER, MAJOR,
SRINIVASAPURA TALUK PANCHAYATH
SRINIVASAPURA TALUK-563135.
KOLAR DISTRICT.
18. SRI KRISHNAPPA,
S/O KONAPPA,
AGED ABOUT 50 YEARS,
JUNIOR ENGINEER
PRED SUB DIVISION
SRINIVASAPURA TALUK-563135.
KOLAR DISTRICT.
... RESPONDENTS
(BY SRI M.D. HARSHA, AGA FOR R1 TO R3;
SRI M. NARAYANA REDDY, ADVOCATE FOR R4 TO R6;
R7 AND R9 ARE SERVED;
SRI A.R. SHASHIKUMAR, ADVOCATE FOR R8;
SRI M. SUBRAMANYA BHAT, ADVOCATE FOR R10, R11 &
R12; VIDE ORDER DATED 27.11.2018 NOTICE TO R13,
R14 & R17 IS DISPENSED WITH;
R15, R16 & R18 ARE SERVED)
6
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 16.5.2016 PASSED BY THE
OMBUDSMAN KOLARA IN COMPLAINT AT ANNEXURE-A AND
ORDER DATED 20.10.2016 PASSED BY THE KARNATAKA
OMBUDSMAN APPELLATE AUTHORITY IN APPEAL
NO.O.A.A.CASE/25/2016-2017 AT ANNEXURE-B AND ALSO
MEMORANDUM DATED 17.11.2016 ISSUED IN PURSUANCE
OF THE ANNEXURE A AND B ISSUED BY THE EXECUTIVE
OFFICER, SRINIVASAPURA TALUK PANCHAYATH AT
ANNEXURE-C.
IN WP Nos.10844-10851/2017
BETWEEN:
1. SMT. ADILAKSHMAMMA,
W/O.SRI.RAMANARAYANAPPA,
AGED ABOUT 47 YEARS,
PRESIDENT, LAKSHMIPURA GRAMA PANCHAYATH,
SRINIVASAPURA TALUK,
KOLAR DISTRICT AND
RESIDING AT UPPARAHALLI VILLAGE,
LAKSHMIPURA POST, NELAVANKI HOBLI,
SRINIVASAPURA TALUK,
KOLAR DISTRICT-563134.
2. P. V. VISHWANATHA REDDY
S/O LATE SRI.CHINNA VENKATARAMANAPPA,
AGED ABOUT 52 YEARS,
7
WORKING AS PANCHAYATH
DEVELOPMENT OFFICER,
INCHARGE, LAKSHMIPURA
GRAMA PANCHAYATH,SRINIVASAPURA TALUK,
KOLAR DISTRICT,
AND RESIDING AT HOUSE NO.157,
VENKATESHWARA LAYOUT,
NEAR S F S SCHOOL,
SRINIVASAPURA, KOLAR DISTRICT-563135.
3. RAVIKUMAR
S/O.VENKATARAMA,
AGED ABOUT 31 YEARS,
FORMERLY WORKING AS COMPUTER OPERATOR,
LAKSHMIPURA GRAMA PANCHAYATH,
SRINIVASAPURA TALUK,
KOLAR DISTRICT,AND RESIDING AT
GOWDATATAGADDA VILLAGE,
MANCHINILLA KOTE POST,
NELAVANKI HOBLI,SRINIVASAPURA TALUK,
KOLAR DISTRICT-563134.
4. MUNIVEEREGOWDA,
S/O.KRISHNEGOWDA G,
AGED ABOUT 36 YEARS,
FORMERLY WORKING AS MIS COORDINATOR,
TALUK PANCHAYATH, SRINIVASAPURA,
KOLAR DISTRICT,
AND RESIDING AT DALASANUR VILLAGE AND POST,
SRINIVASAPURA TALUK,
KOLAR DISTRICT-563126.
5. NAGARAJ K N
W/O.CHIKKANARASIMHAIAH,
AGED ABOUT 29 YEARS,
WORKING AS TECHNICIAL ASSISTANT ENGINEER,
8
TALUK PANCHAYATH, SRINIVASAPURA TALUK,
KOLAR DISTRICT,
AND RESIDING AT HOUSE NO.45,
KAMBALAHALLI VILLAGE,
DODDAGANJUR POST, CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT-563125.
6. SHIVARAJ
S/O.GOPALAPPA,
AGED ABOUT 29 YEARS,
FORMERLY WORKING AS TECHNICAL ASSISTANT,
TALUK PANCHAYATH,
SRINIVASAPURA TALUK,
KOLAR DISTRICT,
AND RESIDING AT
POOVANDALLI VILLAGE,
KAMADHENAHALLI POST,
KOLAR TALUK, KOLAR DISTRICT-563101.
7. KRISHNAMURTHY,
S/O.BALAPPA,
AGED ABOUT 26 YEARS,
FORMERLY WORKING AS TECHNICAL ASSISTANT,
TALUK PANCHAYATH,
SRINIVASAPURA TALUK, KOLAR DISTRICT,
AND RESIDING AT GAJALADINNE VILLAGE,
K N S POST, KOLAR TALUK,
KOLAR DISTRICT-563101.
8. SHIVASHANKARAIAH
S/O.BOJANNA,
AGED ABOUT 59 YEARS,
WORKING AS ADDITIONAL SECRETARY,
KODAGU JILLA PANCHAYATH,
MADIKERE, AND RESIDING AT
9
13/16, 3RD CROSS,NAGADEVANAHALLI,
BANGALORE-56.
... PETITIONERS
(BY SRI SUBRAMANYA BHAT M., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYATHRAJ,
REPRESENTED BY THE SECRETARY,
VIKASA SOUDHA,
BANGALORE-01.
2. THE OMBUDSMAN
MGNREGA,
ZILLA PANCHAYATH OFFICE,
KOLAR-563101.
3. THE OMBUDSMAN APPELLATE AUTHORITY
OFFICE OF COMMISSIONERATE,
RURAL DEVELOPMENT DEPARTMENT,
2ND FLOOR, M. S. BUILDINGS,
BANGALORE-01,
REPRESENTED BY THE PRESIDENT.
4. THE CHIEF EXECUTIVE OFFICER
KOLAR ZILLA PANCHAYTH,
KOLAR-563101.
... RESPONDENTS
(BY SRI M.D. HARSHA, AGA FOR R1;
SRI M. NARAYANA REDDY, ADVOCATE FOR R4;
10
NOTICE TO R2 AND R3 DISPENSED WITH VIDE ORDER
DATED 31.07.2017)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE INTERIM ORDER DATED 16.05.2016 PASSED BY THE
RESPONDENT-2 VIDE ANNEXURE-B AND THE ORDER
DATED 20.10.2016 PASSED BY THE APPELLATE
AUTHORITY.
IN WP Nos.21036-21038/2017
BETWEEN:
B. KRISHNAPPA
S/O KONAPPA,
AGED ABOUT 48 YEARS,
JUNIOR ENGINEER, PRE SUB DIVISION,
SRINIVASAPURA TOWN& TALUK,
KOLAR DISTRICT-563 135.
... PETITIONER
(BY SRI SHIVAREDDY K. N., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF RURAL DEVELOPMENT &
PANCHAYATH RAJ
REPRESENTED BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT, M.S.BUILDING,
BENGALURU-01.
11
2. THE OMBUDSMAN
MGNREGA,
ZILLA PANCHAYATH,
KOLAR-563 101.
3. THE KARNATAKA OMBUDSMAN
APPELLATE AUTHORITY
REPRESENTED BY ITS PRESIDENT & MEMBERS
OFFICE OF COMMISSIONERATE,
RURAL DEVELOPMENT DEPARTMENT
2ND FLOOR, 3RD PHASE, M.S.BUILDING,
BENGALURU-01.
4. THE CHIEF EXECUTIVE OFFICER,
KOLAR ZILLA PANCHAYATH,
KOLAR-563 101.
... RESPONDENTS
(BY SRI M.D. HARSHA, AGA FOR R1;
SRI M. NARAYANA REDDY, ADVOCATE FOR R4;
R2 & R3 ARE SERVED)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 16.5.2016 PASSED BY R-2
HEREIN IN A COMPLAINT AT ANNEXURE-A AND FURTHER
ORDER DATED 20.10.2016 PASSED BY R-3 HEREIN IN
APPEAL NO.25/2016-17 AS PER ANNEXURE-B AND THE
ORDER DATED 11.4.2017 PASSED BY R-4 AT ANNEXURE-C.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
12
ORDER
In all these writ petitions, the petitioners sought to quash the order dated 16.5.2016 passed by the Ombudsman in Complaint Nos.150/176/ 201/271/275/ 278/279/2015-16 and the order dated 20.10.2016 passed by the Ombudsman Appellate Authority in Appeal No.25/2016-17.
2. The petitioner in W.P. No.12046/2017 & W.P. No.12395-96/2017 joined service in the Karnataka Public Works Department and on deputation worked in the Srinivasapura Taluk Panchayath Raj Engineering Department (PRED) Sub-Division Office and at present, he is working on deputation in Bruhat Bangalore Mahanagara Palike as Assistant Executive Engineer from 26.11.2016.
3. The 1st petitioner in W.P. No.10844-10851/2017 is the President of Lakshmipura Grama Panchayath, Srinivaspura taluk, Kolar district and Petitioner Nos.2 to 4 13 are the employees/former employees of Lakshmipura Grama Panchayath and Petitioner Nos.5 and 6 are the employees of Taluk Panchayath, Srinivaspura taluk.
4. The petitioner in W.P. No.21036-21038/2017 is working as Junior Engineer in Srinivasapura Taluk Panchayath Raj Engineering Department Sub-Division office.
5. The complaints were made against the petitioners and others before the Ombudsman, Zilla Panchayath, Kolar, who was specially constituted under Mahatma Gandhi National Rural Employment Guarantee Act ('MGNREGA' for short), alleging some irregularities in MGNREGA Scheme viz.,
i) no payment wages to labourers;
ii) work was not entrusted for full 100 days according to the Scheme and also not 14 paying unemployment allowances in the event of not giving work for 100 days;
iii) Delay in payment of wages for a more than three months after the execution of work;
iv) Executing the work by using the
machinery/ JCB;
v) The P.D.O. rejecting the Form No.6 and also
not issuing Job Card and demanding money to issue the Job Card;
vi) The J.E. - Nagaraj demanding commission of 10 to 15%;
vii) Not providing an opportunity to select works to be carried out in MGNREGA Scheme;
viii) Failure to provide employment to the agricultural labourers but executing the work through Contractor;
ix) Depositing the amount to the account of
labourers maintained at Bank and
15
withdrawing the amount giving only
Rs.200/- to the account holders;
x) Cheating by misusing the Bank account of
the Job card holders;
xi) The P.D.O., Secretary, President, J.E.,
Computer Operator and powerful persons of the village colluding in committing irregularities;
xii) The P.D.O., J.E., President of Grama panchayath prepared the bill without executing the work;
xiii) A.E.E, A.E., E.O and other higher officers' signatures are forged and prepared the bill etc.
6. It is further contended that based on the complaints of irregularities against the petitioners, notice was issued and accordingly the petitioners filed reply. The Ombudsman without enquiry and without framing point for 16 consideration and providing an opportunity to the petitioners, passed the impugned order dated 16.5.2016 imposing penalty and directed to recover the amount from the petitioners as under:
Sl. Name Amount
No.
1 Smt. Adilakshmamma, President Rs.10,43,961/-
2 Sri P.V. Vishwanatha Reddy, Rs. 9,57,037/-
Panchayath Development Officer
3 Sri Ravikumar, Computer Operator Rs. 57,851/-
4 Sri Muniveeregowda, Rs. 39,700/-
MIS Coordinator
5 Sri Nagaraj K.N. Rs. 38,276/-
Technical Assistant Engineer,
Taluk Panchayath
6 Sri Shivaraj, Rs. 17,847/-
Technical Assistant Engineer,
Taluk Panchayat
7 Sri Krishnamurthy, TAE, Junior TP Rs. 1,57,491/-
8 Sri Shivashankaraiah, Rs. 1,42,242/-
Assistant Director
9 Sri Krishnappa, Rs. 5,84,083/-
Junior Engineer
10 Sri Chandrashekar .R Rs. 5,99,383/-
Assistant Executive Engineer
17
7. Aggrieved by the said order passed by the Ombudsman, the petitioners filed appeals before the Karnataka Ombudsman Appellate Authority. The Appellate Authority dismissed the appeals filed by the petitioners and confirmed the orders passed by the Ombudsman and further enhanced the amount to be recovered from the petitioners, as under:
Sl. Name Amount
No.
1 Smt. Adilakshmamma, President Rs.15,00,000/-
2 Sri P.V. Vishwanatha Reddy, Rs. 50,00,000/-
Panchayat Development Officer
3 Sri Ravikumar, Computer Operator Rs. 50,000/-
4 Sri Muniveeregowda, Rs. 50,000/-
MIS Coordinator
5 Sri Nagaraj K.N. Rs. 50,000/-
Technical Assistant Engineer,
Taluk Panchayath
6 Sri Shivaraj, Rs. 50,000/-
Technical Assistant Engineer,
Taluk Panchayath
7 Sri Krishnamurthy, TAE, Junior TP Rs. 5,00,000/-
18
8 Sri Shivashankaraiah, Rs. 4,00,000/-
Assistant Director
9 Sri Krishnappa, Rs. 20,00,000/-
Junior Engineer
10 Sri Chandrashekar .R Rs. 50,00,000/-
Assistant Executive Engineer
Hence the present writ petitions are filed for the reliefs sought for.
8. The State Government has not filed statement of objections.
9. Sri M. Narayana Reddy, learned counsel for Respondent - Chief Executive Officer, Kolar Zilla Panchayat, Kolar has filed objections and contended that all the petitioners have committed irregularities and misused the funds of the State Government specified under the MGNREGA Scheme for labourers and after enquiry, the Ombudsman has rightly passed the impugned order imposing penalty against the petitioners and the same is upheld by the Appellate Authority and enhanced the 19 recovery amount and the impugned orders passed by the Ombudsman and the Appellate Authority are justified and sought for dismissal of the writ petitions.
10. I have heard the learned counsel for the parties to the lis.
11. Sri D.N. Nanjunda Reddy, learned senior counsel appearing for the petitioner in the 1st matter and Sri Subramanya Bhat .M, learned counsel for the petitioners in the 2nd matter and Sri Shivareddy K.N., learned counsel for the petitioners in the 3rd matter vehemently contended that at the outset Ombudsman, MGNREGA, Zilla Panchayat, Kolar has no jurisdiction to impose penalty or recover the amount from the petitioners. At the most, Ombudsman considering materials on record, may recommend to the Government and ultimately it is for the Government to take disciplinary/appropriate action in accordance with law. They would further contend that unfortunately on the 20 appeal filed by the petitioners, the Appellate Authority while confirming the order passed by the Ombudsman, very strangely enhanced the recovery amount, even in the absence of any appeal filed by the respondents for enhancement and it is impermissible. Therefore they submit that the order passed by the Ombudsman is totally without jurisdiction and the Ombudsman has no jurisdiction to impose penalty and recover the amount. Further, in the appeal filed by the petitioners, the Appellate Authority has no power to enhance the recovery amount. Therefore sought to allow the writ petitions.
12. Sri D.N. Nanjunda Reddy, learned senior counsel further contended that Government of India, Ministry of Rural Development, MGNREGA Division by letter dated 21.1.2010 has issued clarification on certain issues raised in the meeting held on 14.1.2010 relating to implementation of Ombudsman process by the State and Clarification No.6 21 relates to disciplinary proceedings regarding Ombudsman. As per the said clarification, Ombudsman is not a judicial body and Ombudsman should direct the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action. The findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary. It was added that if the Ombudsman refers a complaint to the Government, it will be granted due importance and regard, but the Ombudsman cannot directly hand out punishments. Therefore, he sought to allow the writ petitions.
13. Per contra, Sri Y.D. Harsha, learned AGA while adopting the objections filed by the Kolar Zilla Panchayat contended that in all these writ petitions, the petitioners are holding responsible posts and various developmental works were entrusted to them in Srinivaspura taluk and under the MGNREGA Scheme, it is their duty that the Scheme should 22 be implemented in the right spirit and the salary, daily wages should be distributed properly. The Ombudsman considering various irregularities, misuse of funds, corruption, has rightly come to the conclusion that the petitioners are involved in irregularities and imposed penalty and initiated recovery from them. The same was affirmed by the Appellate Authority enhancing the recovery amount. Therefore he sought to dismiss the writ petitions.
14. Sri M. Narayana Reddy, learned counsel for the Zilla Panchayat submits that the Scheme introduced by the Central Government for the benefit of the rural villages and for the benefit of the labourers under the MGNREGA Scheme and the authorities in all fairness should have implemented the Scheme in the right spirit and the enquiry held by the Ombudsman clearly indicates that all these petitioners are involved in various irregularities including corruption. Therefore he sought to dismiss the writ petitions.
23
15. Having heard the learned counsel for the parties, it is not in dispute that MGNREGA Scheme is introduced by the State Government to provide employment to unskilled labourers in the rural areas. The works in which unskilled labourers are given employment is executed by the Department of Rural Development & Panchayath Raj. Ombudsman specially constituted under the MGNREGA scheme to redress the grievances/complaints in the execution of works under the Scheme. Several complaints were filed by the unskilled labourers of the Lakshmipura Gram Panchayath of Srinivaspura Taluk, making allegations in respect of irregularities committed by the petitioners and other officials under the Scheme. On the complaints made by the aggrieved persons regarding various irregularities including corruption, not paying salary within time, Ombudsman held detailed enquiry and passed the impugned order and proceeded to recover the amount shown against each of the petitioners in the order. 24 Aggrieved by the said order passed by the Ombudsman, the petitioners filed appeals before the Karnataka Ombudsman Appellate Authority. The Appellate Authority dismissed the appeals filed by the petitioners and confirmed the orders passed by the Ombudsman. Very strangely enhanced the amount to be recovered from the petitioners in the appeal filed by the petitioners, which is impermissible in Law.
16. At this juncture, it is appropriate to state that the Government of India, Ministry of Rural Development, MGNREGA Division by letter dated 21.1.2010 has issued clarification on certain issues raised in the meeting held on 14.1.2010 relating to implementation of Ombudsman process by the State and Clarification No.6 relates to disciplinary proceedings regarding Ombudsman, which reads as under:
"6. Disciplinary proceedings regarding Ombudsman: Ombudsman is not a judicial body and Ombudsman should direct the State 25 Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action. The findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary. It was added that if the Ombudsman refers a complaint to the Government, it will be granted due importance and regard, but the Ombudsman cannot directly hand out punishments."
17. It is also relevant to refer the order dated 7.9.2009 passed by the Government of India under Section 27(1) of National Rural Employment Guarantee Act for establishment of the office of Ombudsman for redressal of grievances and also the instructions for NREGA Ombudsman formulated under Section 27 of the NREG Act. Clause 13 of the Instructions relate to Award by the Ombudsman and Appeal. As per Clause 13.1 of the Instructions, if the facts are not admitted by the parties in a case, Ombudsman may pass an award after affording the parties reasonable 26 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 NREG 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. As per Clause 13.2 of the Instructions, the award passed under clause 13.1 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 obligations like expediting delayed matters, giving reasons for decisions and issuing apology to complainants, taking of disciplinary and punitive 27 action against erring persons etc. except imposition of penalties under the NREG Act.
18. In view of the guidelines/clarification dated 21.1.2010 issued by the Government of India, Ministry of Rural Development (Mahatma Gandhi NREGA Division) stated supra, Ombudsman is not a judicial body and he should direct the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action and the findings of Ombudsman will be investigated and action will be taken by the Government if deemed necessary, but the Ombudsman cannot directly hand out punishments. Therefore the contention of the learned Government Advocate with regard to initiation of recovery from the petitioners, cannot be accepted.
19. A careful reading of the clarification issued by the Government of India dated 21.1.2010 and the powers of 28 the Ombudsman stated supra, it is clear that the Ombudsman can only recommend to the State Government to take disciplinary action and he cannot directly hand out punishments. The impugned order passed by the Ombudsman is contrary to the guidelines/instructions issued by the Central Government on 7.9.2009 and 21.1.2010.
20. In view of the above, the impugned order passed by the Ombudsman in all these writ petitions in so far as levying penalty and directing recovery from the petitioners, is erroneous and liable to be quashed. The Government can treat the impugned order passed by the Ombudsman as recommendation or direction to the State Government to take appropriate disciplinary action in the matter including recovery. Further, the order passed by the Appellate Authority confirming the order passed by the Ombudsman and strangely enhancing the recovery amount, cannot be sustained. Accordingly, the impugned order passed by the 29 Appellate Authority in all these petitions is liable to be quashed in so far as the petitioners.
21. For the reasons stated above, all the writ petitions are allowed in part. The impugned order dated 16.5.2016 passed by the Ombudsman in all these writ petitions in so far as it relates to levying penalty and directing recovery from the petitioners, is hereby quashed. The remaining other aspects in the impugned order passed by the Ombudsman, are intact and left undisturbed. The 1st respondent - State Government shall treat the impugned order dated 16.5.2016 passed by the Ombudsman in these writ petitions as a direction/recommendation and pass appropriate orders after affording opportunity to all the petitioners strictly in accordance with law.
22. In view of the above, the impugned order passed by the Ombudsman Appellate Authority enhancing the 30 recovery amount, cannot be sustained and accordingly the same is quashed in so far as the petitioners are concerned. Consequently, the impugned orders dated 17.11.2016 and 11.4.2017 passed by the respondent - Kolar Zilla Panchayath in W.P. Nos.12046/2017 & W.P. Nos.12395- 96/17 AND W.P. Nos.21036-21038/2017, are hereby quashed.
All the contentions of the parties are left open to be urged before the Government in accordance with Law.
Sd/-
JUDGE Gss/-