Two writ petitions challenged recovery orders issued after a Cluster Level Exit Conference found misappropriation using forged muster rolls and invoices. The court held that natural justice is inherent in the Social Audit Rules, 2015, so no separate show cause notice was required. Petitions dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 1739 of 2018
---- Petitioner
Versus
1. State Of Chhattisgarh, Through Secretary, Department Of Panchayat And Rural Development Mahanadi Bhawan Mantralaya New Raipur District Raipur Chhattisgarh
2. Chief Executive Officer, Zila Panchayat Uttar Bastar Kanker Chhattisgarh
---- Respondent
WPS No. 1777 of 2018
---- Petitioner
Versus
1. State Of Chhattisgarh, Through Secretary, Department of Panchayat and Rural Development, Mahanadi Bhawan Mantralaya,new Raipur, District- Raipur, Chhattisgarh
2. Chief Executive Officer, Zila Panchayat Uttar Bastar Kanker, Chhattisgarh
---- Respondent
CAUSE TITLE TAKEN FROM CIS PERIPHERY
----------------------------------------------------------------------------------------------For Petitioner : Ms. Surya Kawalkar Dangi, Advocate For Respondent No.2 : Mr. Akhilesh Kumar, Advocate
Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board
15.01.2024
1. These two Writ Petitions are being disposed of by this
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common order, as they arise out of the order dated 13.12.2017 (Annexure P-1), whereby respondent No.2 has issued a recovery order for misappropriating the funds by producing a forged muster roll and fake invoices of the goods in the Village Panchayat- Badegauri and Bagdongri, where petitioner Parvati Sewta was posted as an Employment Assistant in VillageBadegauri and Raghuveer Patel was posted as Employment Assistant in Village- Bagdongri, pursuant to the decision taken on Cluster Level Exit Conference, which was held under Rule 10 of the Mahatma Gandhi National Rural Employment Guarantee Scheme- Chhattisgarh, Social Audit Rules, 2015 (henceforth ‘the Rules, 2015’).
2. Learned counsel for the petitioners would submit that before issuing the recovery order (Annexure P-1), no show cause notice was issued by respondent No.2 to the petitioners. She would submit that in the said Rule, there is no specific exclusion of the ‘ Audi Alteram Partem ’ Rule and the Rules, 2015 not specifically excluded the principles of the natural justice. To fulfill the object of the natural justice for fair adjudication in any civil consequences, a notice is mandatory and she would place reliance in the matter of Swadeshi Cotton Mills Vs. Union of India, (1981) 1 SCC 664 and referred para 33. Further, she would place reliance in the matter of Gorkha Security Services Vs. Government (NCT of Delhi) And Others,
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(2014) 9 SCC 105 and referred paras 21 and 22. She alternatively would submit that even the procedure of the Rules, 2015 has not been adhered strictly. She would further submit that even after the Cluster Level Exit Conference, as stipulated under Rule 10, as a follow up action as envisaged under Rule 11, whenever a disciplinary action is ordered in the Exit Conference, such process is completed as per the Government Disciplinary/ Administrative Rules And Instructions. Therefore, the impugned recovery order is bad in law and prays to quash the same.
3. On the other hand, learned counsel for respondent No.2 would submit that as per Rule 7 of the Rules, 2015, an information on the Social Audit to Panchayat has been provided which reads thus:
“Information on the Social Audit to Panchayats-
(1) The CEO, Janpad Panchayat shall notify in writing to the following, well in advance, to ensure that they must also be present at Social Audit Gram Sabha as well as at the cluster level Exit Conference :-
(2) He shall also inform the concerned Sarpanchs to convene Social Audit Gram Sabha as per the expected date of completion of social audit.”
4. He would further submit that in the entire Petition, no such pleading was made that information on the Social Audit to
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Panchayat was not given to the petitioner concerned. He would further submit that as the present petitioners are the functionaries of MGNREGA Scheme, so without their presence, any such meeting was not possible. He would further submit that the Social Audit which has been cohered in the Rules 2015 is itself inherent and complied the provision of the natural justice. So, no separate notice was required to be issued. He would submit that under Rule 10, the procedure of Cluster Level Exit Conference was stipulated and in the said conference, the petitioners, who are the official functionaries are bound to address each of the issues identified in the Social Audit. In the Social Audit, the same has been identified and a decision was taken that for the forged vouchers an opportunity may be given. Thereafter, in the Cluster Level Exit Conference, as per the statutory rules, a decision was taken that a recovery has to be made from the concerned Sarpanch/Secretary, Technical Assistant and Employment Assistant. In pursuance of the same, recovery order (Ex-P/ 1) was issued. So there is no breach of any fair enquiry and the decision was taken after complying with the statutory rules. Petitioner cannot take the ground that no enquiry has been made and no show cause notice has been issued because such provision is embedded in the Rules 2015 itself. Accordingly, this Petition bereft of any substance or merit is liable to be dismissed.
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5. I have heard the learned counsel for the parties at length and perused the record with utmost circumspection.
6. The Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (henceforth ‘the Act, 2005’) was enacted to provide for enhancement of livelihood, security of the household in rural areas of the country by providing at least 100 days of guaranteed wage, employment in every financial year to every household whose adult members voluntarily do unskilled manual work and for work connected therewith or incidental thereto. For implementing the said scheme, invoking the power under Rule 32 (h) and Section 23 of the Act, 2005, which deal with transparency and accountability, the Rules 2015, were made by the State.
7. Section 23 of the Act, 2005 reads thus:
“Transparency and accountability- (1)The District Programme Coordinator and all implementing agencies in the District shall be responsible for the proper utilisation and management of the funds placed at their disposal for the purpose of implementing a Scheme.
(2)The State Government may prescribe the manner of maintaining proper books and accounts of employment of labourers and the expenditure incurred in connection with the implementation of the provisions of this Act and the Schemes made thereunder.
(3)The State Government may, by rules, determine the arrangements to be made for the proper execution of Schemes and programmes under the Schemes and to ensure transparency and accountability at all levels in the implementation of the Schemes.
(4)All payments of wages in cash and
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unemployment allowances shall be made directly to the person concerned and in the presence of independent persons of the community on preannounced dates.
(5)If any dispute or complaint arises concerning the implementation of a Scheme by the Gram Panchayat, the matter shall be referred to the Programme Officer.
(6)The Programme Officer shall enter every complaint in a complaint register maintained by him and shall dispose of the disputes and complaints within seven days of its receipt and in case it relates to a matter to be resolved by any other authority it shall be forwarded to such authority under intimation to the complainant.”
8. The Exit Conference, as defined in Rule 2 (9), was held in the instant matter on 30.08.2016 and thereafter, the proposed action was taken by the respondent authorities and the same reads thus:
“Exit Conference” means meeting conducted by the District Program Coordinator (hereinafter referred to as the DPC) with the social audit team and implementing staff, to hear the Gram Panchayat wise social audit findings and concerned officials shall respond on which decision shall be taken by the DPC”
9. The procedure to be taken at the Cluster Level Exit Conference is mentioned in Rule 10 which reads thus :
Provided that the presence of the
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workers, who have already testified in the Gram Sabha before the Independent Observer, are not compulsory at such Exit Conference.
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10. In view of the aforesaid, the Social Audit is a new concept for the examination and assessment of a program/scheme conducted with the active involvement of the people and comparing official record with actual ground reality. Social Audit is a powerful tool for social transformation, community participation and government accountability. The process of Social Audit combines people’s participation and monitoring with the requirements of the audit discipline. Section 17 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 has mandated Social Audit works by the Gram Sabha and the said provision reads thus:
“Social audit of work by Gram Sabha- (1) The Gram Sabha shall monitor the execution of works within the Gram Panchayat.
(2) The Gram Sabha shall conduct regular social audits of all the projects under the Scheme taken up within the Gram Panchayat.
(3) The Gram Panchayat shall make available all relevant documents including the muster rolls, bills, vouchers, measurement books, copies of sanction orders and other connected books of account and papers to the Gram Sabha for the purpose of conducting the social audit.”
11. The aforesaid provision provides that the Gram Sabha provides the execution of work within the Gram Panchayat and conducts regular Social Audit of all projects under the scheme.
12. In the instant matter, after the Social Audit, the Gram Sabha has passed the resolution about the forged and
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fake bills, which have been used to defy the scheme which is mentioned in the minute book of the Cluster Level Exit Conference dated 30.08.2016 (Annexure A-2) and a decision was taken that for the loss of Rs.4,03,223, an opportunity may be granted. Thereafter, in the Cluster Level Exit Conference a further decision has been taken for recovery of the said amount from the concerned Sarpanch/Secretary, Technical Assistant and Employment Assistant and in pursuance of the same the said recovery order (Ex-P/1) was issued. There is no dispute about the proposition held in the matter of Gorkha (supra) and Swadeshi (supra) that for any civil consequences Audi Alteram Partem is the basic rule to fulfill the object of the natural justice.
13. Taking into consideration the Rules 2015, and Act 2005 the concept of Social Audit is a new concept and it is befitting the democratic aspiration of the common people. By this mechanism, common person residing in the Gram Panchayat can evaluate the quantity and quality of the work assigned to the Gram Panchayat because in the present era when local self governments are bestowed with such powers, people cannot lie at the mercy of lustful behaviour of the office bearers of Gram Panchayat.
14. In view of the aforesaid discussion, the Rules of the natural justice and the Audi Alteram Partem Rule are inherent in the Rules 2015 and before taking any decision for recovery
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of the amount of the misappropriation of the funds, the concerned official functionary shall be bound to respond and give explanation and clarification in the said conference about such issue. As per the Rule 10 (3) (f) of 2015, where the functionaries are found to have misappropriated funds, they may repay the same in Exit conference and the same shall be deposited in the designated account of the District Program Coordinator/Commissioner, MGNREGA Scheme and a receipt will be issued to the person there itself.
15. So, considering this, when the Rule of the natural justice is embedded in the Rules, 2015 itself, this Court is of the considered view that no further preliminary enquiry or separate show cause notice is necessitated.
16. Resultantly, both the Writ Petitions being bereft of any merit or substance deserve to be and are hereby dismissed.
Sd/-
(Deepak Kumar Tiwari) Judge
Priyanka
2 issues framed by the court
Whether a recovery order based on social audit findings could be passed against functionaries without a separate show cause notice under the MGNREGA Social Audit Rules, 2015.
Whether principles of natural justice (audi alteram partem) are embedded in the Rules, 2015 procedure.
Colour shows how this judgement treated each authority
Swadeshi Cotton Mills Vs. Union of IndiaRelied on¶12
(1981) 1 SCC 664 · Who else cites this
Gorkha Security Services Vs. Government (NCT of Delhi) And OthersRelied on¶12
(2014) 9 SCC 105 · Who else cites this
6 provisions across 3 enactments
Parvati Sewta
Raghuveer Patel
State of Chhattisgarh
Chief Executive Officer, Zila Panchayat Uttar Bastar Kanker
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
