Kerala High Court
Padmakshi vs The Secretary on 22 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
WP(C).No.32302 OF 2013(K)
PETITIONER:
PADMAKSHI,
AGED 54 YEARS,
D/O KRISHNAN,
PLAVILA PUTHUVAL,
PATTOLI MARKET P.O.,
ALAPPUZHA.
BY ADVS.
SRI.C.V.MANUVILSAN
SRI.G.SUDHEER (THURAVOOR)
RESPONDENTS:
1 THE SECRETARY,
ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA, PIN-680001.
2 ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA, PIN-680001
REPRESENTED BY ITS SECRETARY.
3 M.R.MURALEEDHARAN,
KALLUMOOTTIL PUTHVALIL,
PUTHIYAVILA,
PATTOLI MARKET P.O.,
ALAPPUZHA DISTRICT-680001.
4 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT OF KERALA,
SECRETARIAT,
THIRUVANANTHAPURAM-01.
W.P.(C) No.32302/2013 & 8713/2015
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R1-2 BY ADV. SRI.S.SHANAVAS KHAN
R3 BY ADV. SRI.B.RENJITH KUMAR
GOVERNMENT PLEADER SMT.K.M RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22-03-2021, ALONG WITH WP(C).8713/2015(L), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.32302/2013 & 8713/2015
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
WP(C).No.8713 OF 2015
PETITIONER:
PADMAKSHI,
AGED 54 YEARS,
D/O. KRISHNAN,
PLAVILA PUTHUVAL,
PATTOLI MARKET P.O.,
ALAPPUZHA.
BY ADVS.
SRI.P.G.SURESH
SRI.V.HARISH
SRI.RAJAN VISHNURAJ
SRI.G.SUDHEER (THURAVOOR)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY,
GOVERNMENT OF KERALA,
SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 ELECTION OFFICER,
KUDUMBASREE DISTRICT MISSION,
ALAPPUZHA (DEPUTY COLLECTOR, DM),
COLLECTORATE,
ALAPPUZHA-688001.
3 THE SECRETARY,
ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA-690535.
W.P.(C) No.32302/2013 & 8713/2015
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4 ARATTUPUZHA GRAMA PANCHAYATH,
ARATTUPUZHA P.O.,
ALAPPUZHA-690535,
REPRESENTED BY ITS SECRETARY.
5 PRESIDING OFFICER,
KUDUMBASREE CDS,
ARATTUPUZHZA GRAMA PANCHAYATH
(AGRICULTURAL OFFICER, DEVIKULANGARA)-690535.
6 KAMALAKSHI,
PUTHIYAVILA EDACHIRAYIL HOUSE,
PATTOLI MARKET P.O.,
ARATTUPUZHA, ALAPPUZHA-690531.
R6 BY ADV. SRI.B.RENJITH KUMAR
R4 BY SRI S.SHANAVAS KHAN
R1-3 & R5 BY GOVERNMENT PLEADER
SMT.K.M.RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22-03-2021, ALONG WITH WP(C).32302/2013(K), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.32302/2013 & 8713/2015
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[CR]
N. NAGARESH, J.
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W.P.(C) Nos.32302 of 2013 and 8713 of 2015
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Dated this the 22nd day of March, 2021
JUDGMENT
~~~~~~~~~
The petitioner, who was Chairperson of Area
Development Society (ADS) of Ward No.4 of Arattupuzha
Panchayat, is challenging Ext.P1 findings of the
Ombudsman, Mahatma Gandhi National Rural Employment
Guarantee Authority (MGNREGA), Alappuzha, in W.P.(C)
No.32302/2013. In W.P.(C) No.8713/2015, the same
petitioner is challenging Ext.P1 proceedings of the District
Election Officer, Kudumbashree Mission.
2. Facts in brief relevant for deciding these writ
petitions, are as follows:-
W.P.(C) No.32302/2013 & 8713/2015
The petitioner was the Chairperson of Area
Development Society (ADS) of Ward No.4 of Arattupuzha
Panchayat. She was also a Mate of Ward No.4 among the
beneficiaries of Mahatma Gandhi National Rural Employment
Guarantee Scheme. The 3rd respondent preferred a
complaint before the Ombudsman, MGNREGA, Alappuzha
against the petitioner. The complainant alleged that the
petitioner attempted to snatch an amount of `1,500/- by
forging the signature of Thankamma, that she attempted to
snatch an amount of `1,050/- in the name of one Sindhu and
that she marked attendance of Lekshmi Bhai and Udayamma
while they were actually attending a procession of CPI(M)
party.
3. The Ombudsman entertained the complaint. Six
witnesses were examined. Three documents were marked.
The petitioner's defence before the Ombudsman was that
Thankamma was suffering from illness on the relevant days.
Even though Thankamma reached the site for work, she
could not do work. Thankamma's husband was a cancer
W.P.(C) No.32302/2013 & 8713/2015
patient who passed away recently. Other employees
unanimously requested the petitioner to collect money for
Thankamma so as to enable Thankamma to purchase
medicine. Therefore, the petitioner permitted Thankamma to
put her signature in the muster roll.
4. The petitioner also admitted that Sindhu also did
not work on all days. Sindhu was in hospital in connection
with the surgery of her husband. Taking a humanitarian view
in the matter, the petitioner permitted Sindhu to put her
signature. The petitioner admitted before the Ombudsman
that her conduct was not legal. It was motivated purely on
humanitarian considerations. And as regards payments
made to Lekshmi Bhai and Udayamma, the petitioner stated
that they actually did work on the disputed days.
5. The Ombudsman in Ext.P1 findings held that to
his knowledge, there is no provision in the MGNREG Act with
regard to disciplinary action that may be taken against the
Mates who are doing illegal acts against the provisions of the
Act. The learned Ombudsman further noted that in the
W.P.(C) No.32302/2013 & 8713/2015
Operational Guidelines also, there is no mention regarding
disciplinary action. Relying on a Government Circular dated
07.08.2012, the Ombudsman held that the Community
Development Scheme (CDS), Executive Committee can take
disciplinary action in such cases.
6. The learned Ombudsman, however, proceeded to
consider the complaints. The Ombudsman found that the
petitioner has committed illegality in permitting Thankamma
and Sindhu to sign the muster roll. And as regards the
complaints relating to Lekshmi Bhai and Udayamma
participating in CPI(M) procession, the learned Ombudsman
found that though there is no reliable evidence, the complaint
raised cannot be said to be falsehood.
7. On these premises, the learned Ombudsman
passed Ext.P1 making the following findings:-
"1. I find that this is a fit case in which R2
shall be permanently removed from the membership
of ADS as well as from the Chairpersonship of ADS
committee and that she shall also be permanently
removed from the post of mate and that she shall
never be selected or appointed as member of ADS or
chairperson of ADS or mate hereafter.
W.P.(C) No.32302/2013 & 8713/2015
2. I also find that it is a fit case in which the
Panchayat Secretary is at liberty to take appropriate
disciplinary action against Sindhu and Thankamma
also.
3. I also find that this is a fit case in which a
direction is to be given to the accredited engineer and
overseer of the Arattupuzha Grama Panchayath
through the Secretary to supervise and to have a
special watch on Lekshmi Bhai and Udayamma in the
works that may be done by them in future under the
MGNREGS."
The petitioner challenges Ext.P1 on various grounds.
8. Pursuant to Ext.P1 findings dated 23.09.2013 (in
W.P.(C) No.32302/2013) of the Ombudsman, the Election
Officer, Kudumbashree District Mission declared the
petitioner to be ineligible to be a candidate for election to any
post of the three tire system of CDS, as per an order dated
25.02.2015. The petitioner thereupon filed W.P.(C)
No.8713/2015, challenging the said Ext.P1 order dated
25.02.2015 of the Election Officer.
9. The issue arising in this writ petition is as to the
sustainability of Ext.P1 order of the Ombudsman, MGNREGA
and the sustainability of the consequential order passed by
the District Election Officer, Kudumbashree Mission.
W.P.(C) No.32302/2013 & 8713/2015
10. Respondents 1 and 2 in W.P.(C) No.32302/2013
filed a counter affidavit. Respondents 1 and 2 submitted that
the petitioner has admitted that the petitioner herself had
forced the beneficiaries to put signature in the muster roll of
employees, without attending work. This is highly illegal and
against the provisions of law. The petitioner being a Mate,
she alone is responsible for maintaining the muster roll, as
per paragraph 4.1.2 of Operational Guidelines, 2013.
Respondents 1 and 2 stated that the findings of the
Ombudsman is perfectly legal.
11. I have heard the learned counsel for the petitioner,
the learned Standing Counsel for respondents 1 and 2, the
learned counsel for the 3rd respondent and the learned
Government Pleader appearing for the State of Kerala.
12. From Ext.P1 findings of the Ombudsman, it is
seen that the petitioner has admitted the irregular marking of
muster roll in respect of Thankamma and Sindhu. But, the
petitioner denied the allegation of marking muster roll in
respect of Lekshmi Bhai and Udayamma, for their attending
W.P.(C) No.32302/2013 & 8713/2015
a procession of a political party. The Ombudsman found that
there is no satisfactory reliable evidence to prove the case of
the complainant as regards Lekshmi Bhai and Udayamma,
but in the same breath, said the case of the complainant
cannot be said to be a falsehood.
13. Be that as it may, the question arising for
consideration is whether the Ombudsman appointed under
the MGNREGA can proceed against the petitioner and arrive
at the findings as made in Ext.P1 in W.P.(C) No.32302/2013.
14. The Mahatma Gandhi National Rural Employment
Guarantee Act, 2005 was enacted to provide enhancement
of livelihood security of the households in rural areas of the
country by providing at least one hundred days of
guaranteed wage employment in every financial year to
every household whose adult member volunteer to do
unskilled manual work. Section 3 of the Act guarantees rural
employment to households in accordance with the Scheme
made under the Act. As per Section 13 of the Act, the
Panchayat at district, intermediate and village levels shall be
W.P.(C) No.32302/2013 & 8713/2015
the principal authority for planning and implementation of the
Schemes made under the Act, 2005.
15. Section 19 of the Act, 2005 provides that the State
Government shall, by rules, determine appropriate grievance
redressal mechanism at the Block level and District level for
dealing with any complaint by any person in respect of the
implementation of the Scheme. Section 32 empowers the
State Government to make rules to carry out the provisions
of the Act, including provisions for grievance redressal
mechanism at the Block level and District level.
16. Section 4(3) mandates that the Scheme made
under Section 4(1) shall provide for minimum features
specified in Schedule I. Clause 29 of Schedule I requires
that there should be an effective grievance redressal
mechanism and Clause 30 requires that there shall be an
Ombudsperson for each District for receiving grievances,
enquiring into and pass orders as per the guidelines issued.
Paragraph 13.14.5 of the Operational Guidelines, 2013 for
the Mahatma Gandhi NREGA reads as follows:-
W.P.(C) No.32302/2013 & 8713/2015
"13.14.5 Disposal of Complaints
On receipt of complaint, Ombudsman will issue notice
to Mahatma Gandhi NREGA Authority for appearance
and making submissions. Where facts are admitted,
case will be disposed by passing appropriate direction
and if not admitted, Ombudsman will pass an award.
The 'award' passed shall be a speaking order
consisting of the following components:
i) Details of the parties of the case.
ii) Brief facts of the case.
iii) Issues for consideration.
iv) Findings against issues along with reasons.
v) Direction to the concerned MGNREGA Authority
such as performance of its obligations
n like expediting delayed matters, giving
reasons for decisions and issuing apology to
complainants, taking of disciplinary and punitive
action against erring persons, etc.
n except imposition of penalties under the
MGNREG Act.
a. Costs, if any.
b. Costs may be imposed in case of false,
malicious and vexatious complaints.
c. In cases of corruption, Ombudsman will
forward the matter to competent authority to
sanction criminal prosecution of the persons
involved in the case."
Thus, the Ombudsman is competent to consider a complaint
and pass award and give direction to the concerned
MGNREGA Authority for performance of its obligations, but
W.P.(C) No.32302/2013 & 8713/2015
"except imposition of penalties under the MGNREA Act".
17. Furthermore, even according to the Ombudsman,
as per Circular No.52729/DD2/2008 dated 07.08.2012
governing disciplinary action, it is the CDS who is competent
to take disciplinary action against Mates.
18. Therefore, it is evident that an Ombudsman
appointed under the provisions of the Act, 2005 and
paragraph 13.14.5 of the Mahatma Gandhi NREGA
Operational Guidelines, 2013 has no disciplinary powers
over Mates. Under Section 4(3) of the Act, 2005 read with
paragraph 29 of Schedule I and Clause 13.14.5 of the
Operational Guidelines, 2013, Ombudsman cannot give
directions for imposition of penalties on Mates.
19. Ext.P1 findings (in W.P.(C) No.32302/2013) of the
Ombudsman prescribing punishments to be imposed on the
petitioner are therefore ultra vires and unsustainable and
hence Ext.P1 is set aside. The order of the District Election
Officer against the petitioner as contained in Ext.P1
proceedings dated 25.02.2015 (in WP(C) No.8713/2015),
W.P.(C) No.32302/2013 & 8713/2015
which are based on the order of the Ombudsman, is
therefore unsustainable and set aside.
The writ petitions are allowed to the above extent.
It is made clear that the authorities competent to take
disciplinary action against the petitioner will be at liberty to do
so, if they are so advised.
Sd/-
N. NAGARESH, JUDGE
aks/18.03.2021
W.P.(C) No.32302/2013 & 8713/2015
APPENDIX OF WP(C) 32302/2013
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE FINDINGS DATED
23.9.2013 BY THE OMBUDSMAN MGNREGA, IN
COMPLAINT NO.16/13.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE MUSTER ROLL
NO.KL-11-012-001/19734 OF MUTHUKULAM
BLOCK.
W.P.(C) No.32302/2013 & 8713/2015
APPENDIX OF WP(C) 8713/2015
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE ORDER NO.
KSREL/4310/2015 APPEAL(2) DATED 25-02-
2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE INTERIM ORDERS
DATED 27-12-2013 IN WPC NO.
32302/2013.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE INTERIM ORDERS
DATED 04-07-2014 IN WPC NO.
32302/2013.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE RELEVANT PAGES
OF THE ELECTION RULES OF KUDUMBASREE
CDS ISSUED BY THE 1ST RESPONDENT AS
G.O.(P)NO. 214/2014/LSGD DATED 27-11-
2014.
SR
