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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Ajay Mohan Goel, J.
Bhim Singh - Appellant
Versus
State Of Himachal Pradesh - Respondent
CWP No. 93 of 2012
Decided On : 25-10-2017
Opportunity of being heard - National Rural Employment Guarantee Act - Section 27 - 13. Award by Ombudsman and Appeal - 13.1 If the facts are not admitted by the parties in a case, Ombudsman may pass an award after affording the parties reasonable 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 NREGA 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. 13.2 the 'award' passed under sub-clause (13.1) above 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 action against erring persons, etc. except imposition of penalties under the NREGA Act. 13.2.6 Costs, if any. 13.3 If a complaint is found to be false, malicious or vexatious, the Ombudsman shall, for reasons to be recorded in writing, dismiss the complaint and made an order that the complainant shall pay to the opposite party cost ad deemed appropriate by the Ombudsman. 13.4 A copy of the 'award' shall be sent to the complainant and the NREGA Authority complained against. 13.5 There shall be no appeal against the 'award' passed by the Ombudsman and the same shall be final and binding on the parties. 13.6 A representative of Programme Officer/District Programme Coordinator ma appear in cases where the Programme Officer/District Programme Coordinator is a party. Programme Officer/District Programme Coordinator shall appear only when a proceeding is taken up before the Ombudsman, in which case he shall be provided the opportunity of hearing. 13.7 All cases not involving complicated questions of fact or law shall be disposed within 15 days. Other cases may be disposed within 45 days. 13.8 Representation of parties by the advocates in any proceeding may be made with the prior permission of Ombudsman. 13.9 In any proceeding before the Ombudsman, if the facts reveal a case of illegal gratification, bribery or misappropriation and the Ombudsman is satisfied that the case is fit for further investigation by a criminal court, the same shall be referred by him to the authority competent to sanction criminal prosecution of the persons involved in the case. The competent authority on receipt of such a case shall forward the case to appropriate authority for further action in accordance with law.
Fact of the Case:
The petitioner, a former Pradhan of Gram Panchayat, challenged an award passed by the Ombudsman alleging financial irregularities. The petitioner contended that the award was passed without providing an opportunity to present his defense.
Finding of the Court:
The court found that the Ombudsman had not followed the principles of natural justice and had not provided the petitioner with an opportunity to be heard before passing the award. The court quashed and set aside the impugned award but granted liberty to the Ombudsman to proceed with the matter afresh in accordance with the law and instructions.
Issues: The main issue was whether the Ombudsman had provided the petitioner with an opportunity to be heard before passing the award.
Ratio Decidendi: The court held that no order with civil consequences can be passed against a person without affording an opportunity of being heard. The Ombudsman's failure to follow the principles of natural justice and the statutory instructions led to the quashing of the award.
Final Decision: The petition was disposed of with the impugned award being quashed and set aside, but the Ombudsman was granted liberty to proceed with the matter afresh in accordance with the law and instructions.
JUDGMENT
Ajay Mohan Goel, J. (Oral) - By way of this writ petition, the petitioner has prayed for the following reliefs:
"i) That writ in the nature of certiorari may kindly be issued by quashing and setting aside impugned award dated 01.12.2011, Annexure P-5, passed by respondent No. 2, being illegal and arbitrary.
ii) That writ in the nature of mandamus may very kindly be issued directing the respondents not to recover an amount of Rs. 1,62,214/ - from the petitioner, in pursuance of award dated 01.12.2011, Annexure P-5, passed by respondent No. 2.
iii) That the respondents may very kindly be directed to produce the entire record pertaining to the case of the petitioner for the kind perusal of this Hon''ble Court.
iv) Any other order which this Hon''ble Court deems just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner and against the respondents."
2. Brief facts necessary for adjudication of the present case are that as per petitioner, he was elected as Pradhan of Gram Panchayat, Bara Gram, Block Development Office, Baijnath, District Kangra, HP in the year 2005. According to him, he has completed his term in December, 2010 and he worked as such to the best of his abilities and sincerity for the said five years. His grievance is that Ombudsman (MGNREGA) has passed an award vide which the Ombudsman has inter alia concluded that the Panchayat, of which the petitioner was Pradhan, had committed financial irregularities of a sum of Rs. 1,62,214/ - which needs to be deposited in the Panchayat MGNREGA fund. According to the petitioner, the said award is not sustainable in the eyes of law as he is not guilty of any act of omission in discharge of his duties as a Pradhan of the Gram Panchayat and findings contained to the contrary in the award are not borne out from the records of the case. It is further the case of the petitioner that the impugned award otherwise is also not sustainable in the eyes of law as the same was passed by the Ombudsman without providing any opportunity to the petitioner to put his defence before the Ombudsman.
3. In order to ascertain this fact as to whether the award has been passed by the Ombudsman after affording an opportunity of being heard to the petitioner or not, this Court had directed the State to produce records of the case. Today, learned Deputy Advocate General has produced the records of the case as well as copy of a order so passed by the Joint Secretary (NREGA) under Section 27 of National Rural Employment Guarantee Act, vide which State Governments were directed by the Central Government to set up office of the Ombudsman, as per instructions enclosed with the said order. A perusal of the instructions which are enclosed with the said order inter alia demonstrates that they inter alia provide for the procedure which has to be adopted by an Ombudsman before passing an award. Clause 13 of the said instructions which is relevant to the facts of this case is quoted herein below.
"13. Award by Ombudsman and Appeal
13.1 If the facts are not admitted by the parties in a case, Ombudsman may pass an award after affording the parties reasonable 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 NREGA 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.
13.2 the ''award'' passed under sub-clause (13.1) above 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
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