Allmamun Hoque vs The State Of West Bengal & Ors
2021 Latest Caselaw 1731 Cal

08.03.2021.

Item no. 7.

Court No.13 ap W.P.A. No. 4917 of 2021 (Through Video Conference) Allmamun Hoque Versus The State of West Bengal & Ors.

Mr. Rabilal Maitra, ld. Sr. Adv., Mr. Pranab Haldar, Mr. Swarvanu Saha, Mr. Sumon Pathak.

...For the petitioner.

Mr. Jahar Lal De, Mr. Debasish Chattopadhyay.

..For the State.

Affidavit-of-service filed in Court today by the

Counsel for the petitioner be taken on record.

Instructions along with documents filed by the

Counsel for the State in Court today be also taken on

record.

The writ petitioner was functioning as Village

Level Entrepreneur at Bairagachi-I Gram Panchayat

under Uttar Alinagar in Malda. The Village Level

Entrepreneurs are part and parcel of the

implementation of Mahatma Gandhi National Rural

Employment Guarantee Scheme (in short

"MGNREGS").

Pursuant to a complaint received from villagers

by the Block Development Officer, Gazole Development

Block, an inspection was conducted and based on MIS

and Field Reports. It is found that the Physical

Completion Certificates and Estimates of the Nirmal

Sahayak did not match with the Field Level

Implementation reports in respect of 50 MGNREGS

accounts. Misappropriation of funds was also found.

Collusion with the concerned Gram Panchayat

Officials was also found.

A show cause notice came to be issued to a

Computer Assistant called Krishna Chandra Roy to

explain entries as regards excess expenditure were

made that had caused misappropriation of funds.

The said Krishan Chandra Roy in turn lodged a

complaint with the Gazole Police Station sometime in

February 2020. Upon enquiries being conducted, the

petitioner by a letter in writing in the Bengali

vernacular, admitted that he had the access to the

User I.D. and Passward of the said Krishna Chandra

Roy and had made several of the incorrect said entries.

He also apologized for the same and stated that such

conduct would not be repeated.

It was found that in excess of Rs. 34 lacs was

misappropriated from the Gram Panchayat under the

aforesaid MGNREGS. Records showing refunds by one

Rubi Construction, Enjamul Hoque, A.H. Enterprise

and one Nitai Borai of different sums of money to the

Gram Panchayat have also been produced. In fact,

A.H. Enterprise has admitted to wrongful receipt of

about 12.71 lacs. The other three made refunds of Rs.

1 lac, R. 1 lac and Rs. 33,000/- each.

A formal complaint has been lodged by the Block

Development Officer with the Gazole Police Station

also in this regard which is pending investigation.

Further enquiries by the BDO revealed that Rubi

Construction is headed by Md. Tazmul Hossain and he

has misappropriated about 18.45 lacs. Enjamul Hoque

about Rs. 8.13 lacs. The said Tazmul Hossain and

Enjamul Hoque are relatives of the petitioner.

Pursuant to a show cause and reply submitted,

a hearing was held on September 22, 2020 where the

petitioner has put his signatures along with four

others.

Mr. Moitra, learned Senior Advocate appearing

on behalf of the petitioner would submit that although

hearing may have been held but no documents have

been supplied to his client. It is further argued that

after initial orders, further orders have been passed.

As to which order was passed pursuant to the hearing,

is unknown to his client.

The sheet-anchor of Mr. Moitra's argument is

that the petitioner may be a contractual employee but

is covered under Circular of the Government of the

year 2010 extended in the year September 2011 and

subsequently from time to time and lastly in the year

2018. The said Circulars permit him to continue the

work until the age of 60 years and his monthly

remuneration is fixed from time to time by the State of

West Bengal.

Specific reference is also made to a letter dated

October 12, 2018 issued by the Panchayat and Rural

Development Department to the Government of West

Bengal referring to EPF contribution for contractual

employees under the MGNREGS. He, therefore,

submits that the engagement of the petitioner is

permanent in nature and that due principle of natural

justice ought to have been complied with before

terminating his service.

Reliance is placed in this regard by Mr. Moitra

on the decision of the Supreme Court in the case of

Om Prakash Goel vs. Himachal Pradesh Tourism

Development Corporation Limited, Shimla and

another reported in (1991) 3 SCC 291 particularly,

paragraphs 4 and 5 thereof. Reliance is also placed to

a decision of Hari Ram Maurya vs. Union of India

and others reported in (2006) 9 SCC 167.

Mr. Jaharlal De, learned counsel for the State

has placed his instruction and has produced

documents referred to above.

This Court has carefully considered the rival

contentions of the parties.

What is undisputed is that the writ petitioner

was a as Village Level Entrepreneur under MGNREGS

and engaged on contract. The period of contract is for

one year renewable from time to time. The renewal of

contract is within the exclusive discretion of the

District Programme Co-ordinator. The Scheme is

implemented through the District Administration and

involves, inter alia, Rural Development Works

undertaken by the State to facilitate employment

generation. Public works are entrusted to contractors

and material is procured for such public works.

Computerized records are required to be maintained at

the village and block levels for such purposes.

Responsibility of VLEs is primarily that of Data Entry

Operator. The said VLEs do not handle any document

nor are they involved in actual money transactions.

However, the fact remains that every project for

the purpose of implementation, involves payment of

sums of money towards work done or ordered. The

petitioner's responsibility rested in computer entries of

physical documents evidencing work undertaken, work

performed and payment entitled.

Any falsification or alteration or incorrect entry

made by the petitioner or persons similarly situated

would result in wrongful gain to third parties and

wrongful loss to the State. The petitioner was

admittedly involved in making false entries that

resulted in misappropriation of funds. He did so

dishonestly by impersonating the said Krishna

Chandra Roy, unauthorisedly using the latter's User

ID and Password.

The VLEs did not actually handle cash, but their

actions can definitely facilitate an illegality or a fraud

on public funds.

This Court is convinced particularly in the

context of the petitioner's admission that he has

wrongly accessed the computerized account of the

Gram Panchayat to make fictitious entries. He has

admitted in writing the same on September 8, 2018. It

further transpires that a show cause was duly issued

to him and he has answered the same. There is

compliance of Natural Justice here.

It is indeed true that petitioner has stated in

reply to show cause that he was never responsible for

physical handling any money. That by itself cannot

absolve the petitioner of wrongfully using somebody

else's User I.D. and Password to gain unlawful access

and manipulate public records.

The complaints lodged with the Gazole Police

Station must be expedited and the Officer-in-Charge,

Gazole Police Station is directed to complete

investigation into the complaint and submit a report to

the jurisdictional Magistrate at the earliest.

In so far as the compliance of principles of

natural justice are concerned, this Court is of the view

that the entitlement of the petitioner under the

aforesaid Circulars of the Government of 2010-2011

and 2018 cannot come to the petitioner's aid. The

petitioner's entitlement thereunder has not been

accepted as yet. The petitioner is only receiving

remuneration under the appropriate Scheme. He is

also paid additional incentives for extra work done.

Even assuming though not admitting that the

petitioner's entitlement to the benefits of the

Government Circulars prescribed that he is entitled to

the age of 60, the said Circular and application thereof

by themselves will not confer protection under Article

311 of the Constitution of India on the petitioner.

The Hari Ram Maurya (supra) decision cited by

Mr. Moitra refers to temporary employees. The said

decision even otherwise cannot be treated against any

binding precedent. The decision of Om Prakash Goel

(supra) was dealing a case of termination of service of

a temporary employee as well. The petitioner

admittedly was a contractual employee and his terms

of engagement are governed by the terms of contract.

The petitioner's engagement is governed by the

terms of the MGNREGS. He cannot claim the benefit of

both, the Scheme and the Circulars of the Government

of West Bengal as aforesaid.

In any event, there has been some compliance of

principles of natural justice, inasmuch as, the

petitioner was issued show-cause, given a hearing and

then the order of termination has been made.

In the facts and circumstances of the case, no

interference is called for with the impugned order of

termination.

The writ petition must fail and is hereby

dismissed.

There will be no order as to costs.

Urgent photostat certified copy of this judgment,

if applied for, be given to the parties upon compliance

of all formalities.

(Rajasekhar Mantha, J.)