Nirmala vs The Secretary
2021 Latest Caselaw 14472 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                        WP(C) NO. 18571 OF 2012


PETITIONERS :



    1       NIRMALA,
            AGED 43 YEARS,
            LENIN VIHAR, PANAYAMMOOLA,
            AMARAVILA P.O., THIRUVANANTHAPURAM.

    2       JAYAN T.,
            LENIN VIHAR, PANAYAMMOOLA, AMARAVILA P.O.,
            THIRUVANANTHAPURAM.

            BY ADVS.
            SRI.PIRAPPANCODE V.S.SUDHIR
            SRI.JELSON J.EDAMPADAM
            SMT.MEGHA A.


RESPONDENTS :



    1       THE SECRETARY,
            KOLLAYIL GRAMA PANCHAYAT,
            KOLLAYIL, THIRUVANANTHAPURAM - 695 031.

    2       KOLLAYIL ANANDAN,
            ETTUKULANGARA VEEDU, AMARAVILA P.O.,
            NEYYATTINKARA, THIRUVANANTHAPURAM - 695 503.

    3       VIJAYA DAS,
            OVERSEER, KOLLAYI GRAMA PANCHAYAT,
            KOLLAYIL, THIRUVANANTHAPURAM - 695 031.

    4       KRISHNAKUMARI,
            AMBALATHU VEEDU, DHANUVACHAPURAM P.O.,
            NEYYATTINKARA,
            THIRUVANANTHAPURAM - 695 503.
 WP(C) NO. 18571 OF 2012
                                2



    5     THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
          SAPHALYAM COMPLEX, TRIDA BUILDING, UNIVERSITY P.O.,
          PALAYAM, THIRUVANANTHAPURAM - 695 034.

          BY ADVS.
          R2 SRI.R.T.PRADEEP
          R4 BY SRI.SUMAN CHAKRAVARTHY




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.07.2021, THE COURT ON 13.07.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 18571 OF 2012
                                         3

                                   JUDGMENT

Dated this the 13th day of July, 2021

The 5th respondent-Ombudsman for Local Self Government

Institutions, by Ext.P2 order, directed recovery of an amount of Rs.1,080/-

from the petitioners jointly and severally. Though the amount is paltry,

petitioners challenge Ext.P2 as the order casts a stigma on petitioners'

credibility. A review petition was filed against Ext.P2, but it was dismissed

stating that the review was not in the proper format. The rejection of the

review petition is also challenged in this writ petition.

2. No counter affidavits have been filed by any of the

respondents. This Court is of the view that though the rejection of the

review petition was on a hyper-technicality, the reason of which itself is not

proper as no format is prescribed under the rules for filing a review, instead

of remitting the matter back to the 5 th respondent for reconsideration, the

writ petition itself could be disposed of on merits, considering the lapse of

time.

3. I heard Adv.Megha A. on behalf of the petitioners as well as

Adv.R.T.Pradeep for the first respondent and the learned counsel for the 4 th

respondent.

4. Ext.P2 order proceeded on an assumption that for the period

from 15.09.2009 to 27.09.2009, 2nd petitioner, who is the husband of the WP(C) NO. 18571 OF 2012

first petitioner had received wages for 9 days totalling to Rs.1,080/-. The 5 th

respondent proceeded on the further assumption that the first petitioner was

the ADS at the relevant point of time and that as the husband of the ADS,

both of them would have scored out the name of one Ramadevi and collected

the above mentioned amount as wages to the 2 nd petitioner. Reliance was

also placed upon the report of the Deputy Director of Panchayaths, who

based his conclusions on dissimilarities in the signature of the 2 nd petitioner.

5. In the review petition, petitioners had pointed out that though

the date 15.09.2009 to 28.09.2009 was the period actually in question, for

some ulterior purposes, 28.09.2009 was corrected as 27.09.2009. Since the

said issue is a factual dispute, I am not entering into a consideration of the

same in this writ petition.

6. In the complaint filed by the 2 nd respondent before the 5th

respondent, which is produced as Ext.P1, it was specifically stated that for

the period from 15.09.2009 to 27.09.2009, the ADS for the work was one

Krishnakumari. Though the complainant's case was that Krishnakumari was

the ADS, the learned Ombudsman proceeded on a wrong assumption that

the first petitioner was the ADS for the particular work. This wrong

assumption has affected the entire consideration in Ext.P2.

7. Further, the 5th respondent also proceeded on the report of

the Deputy Director of Panchayath who based his conclusion on comparison

of signatures conducted by himself. There is no evidence to show that the

Deputy Director of Panchayath had the expertise to compare signatures or WP(C) NO. 18571 OF 2012

that the he based his report on any opinion of an expert. As rightly argued

by the learned counsel for the petitioner Adv.Megha, comparison of

signatures through naked eye should seldom be resorted to. Thus, the 5 th

respondent erred in relying upon the report of the Deputy Director of

Panchayath who was not an expert to compare signatures but based his

report on alleged dissimilarities in signatures. Apart from the above, there

was no independent evidence on record, to come to a conclusion that the

petitioners had received the wages of Rs.1,080/- illegally.

In the above circumstances, the direction to recover Rs.1,080/-

from petitioners jointly and severally is liable to be set aside. Accordingly,

Ext.P2 is set aside. Consequently Ext.P4 is also set aside and this original

petition is allowed.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM WP(C) NO. 18571 OF 2012

APPENDIX

PETITIONERS' EXHIBITS :

P1 : TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS

P2 : COPY OF THE ORDER DATED 02.04.2012 IN O.P.NO.938/2011

P3 : COPY OF THE REVIEW PETITION DATED 21.06.2012 FILED BY THE 1ST PETITIONER WITH ITS SUPPORTING DOCUMENTS

P4 : COPY OF THE ORDER DATED 30.06.2012 IN C.M.P.NO.216/2012