Partly allowed

Kotipally Kumar v. The District Collector

Telangana HC7 Jul 2010WP/29095/2008

Case brief

AI extract

What is this about?

The court quashed impugned termination orders against Field Assistants and Technical Assistants under the National Rural Employment Guarantee Scheme for violating principles of natural justice. Directions were issued for strict adherence to disciplinary guidelines.

What did the court decide?

All writ petitions allowed; termination impugned orders quashed; matter remanded to conduct fresh enquiry following guidelines; stay on pending stay/suspension orders vacated.

Kotipally Kumar Vs The District Collector — Pension and Retirement Benefits | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE C.V. RAMULU

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W.P. Nos. 14121/09, 3055/08, 7172/08, 22552/09, 25728/09, 22766/09, 25407/09, 22725/09, 5212/09, 5547/09, 27032/08, 22026/09, 14102/08, 28533/08, 18210/08, 21350/09, 23412/09, 29095/08, 22503/09, 20808/09, 21334/09, 26917/08, 20162/09, 22031/08, 20098/09, 20282/09, 5571/08, 25749/09, 23393/09, 22253/09, 23289/09, 22683/09, 1059/10, 10178/10, 3416/10, 10578/10, 13324/10, 13390/10, 13391/10, 13416/20, 13596/10, 13770/10, 13926/10, 14115/10, 14166/10, 14401/10, 14595/10, 14599/10, 14624/10, 15502/10, 15401/10, 15429/10, 15507/10, 15596/10, 15598/10, 15526/10, 15354/10, 15730/10, 15154/10 and 14796/10

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COMMON ORDER:

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In all these writ petitions, common questions of law and fact arise for consideration, therefore, they are being disposed of by this common order.

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Petitioners are the Field Assistants/Technical Assistants, working with various Gram Panchayats in the State, under the National Rural Employment Guarantee Scheme (for short, ‘the Scheme’), evolved by the Government of India. Their appointment is made on contract or need basis.

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Observing that in the recent past, several contract employees have approached the Courts of Law against orders of termination of their contractual service on the allegations of misappropriation etc., and the Courts of Law issued stay orders and analysis of the experience showed that there is lack of clarity on the process of termination of services of contract employees, separate guidelines were issued vide Circular No.4553/NREGS-AP/2008 dated 2.7.2008 by the Commissioner of Rural Development, Government of A.P., Hyderabad. It appears, thereafter, disciplinary policy for all FTEs appointed by SRDS on contract basis has been evolved with clear-cut clauses as to the procedure to be followed in finalizing the disciplinary proceedings, vide Circular

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No.143/SRDS/HR Manual/2009 dated 27.1.2010. Likewise, the Government have issued G.O.Ms.No. 506 dated 12.11.2007 for filling up of vacancies of Technical Assistants in NREGS-AP and delegating powers to District Programme Coordinators. Further, the Government of Andhra Pradesh, Panchayatraj and Rural Development (RD.II) Department issued G.O.Ms.No. 98 dated 9.3.2010, framing Rules for conducting social audit under the National Rural Employment Guarantee Scheme, in exercise of its powers conferred under sub-Section (1) of Section 32 read with sub-Section (3) of Section 23 of the National Rural Employment Guarantee Act, 2005 (Central Act No.42 of 2005), to establish Social Audit as an open and inclusive Monitoring & Evaluation (M&E) tool under the National Rural employment Guarantee Act and also as a means to increase transparency and accountability in administration and It is expected that the social audit exercise will educate the primary stakeholders to verify the records themselves and to enable them to conduct similar exercise by themselves.

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Further, the Government of Andhra Pradesh, vide Circular No.4553/NREGS-AP/2008 dated 2.7.2008, has enumerated the basis for action to be taken against Field Assistants and Technical Assistants, which is as follows:

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“1. Action against the FIELD ASSISTANT can be initiated based on:

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a. Report of a GP,

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b. Social Audit

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c. MPDOs’ own inspection/verification and

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d. Inspection by any other functionary like Asst. PD, etc.

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Once an act of omission/commission is noticed, a ‘notice’ should be issued to the Field Assistant (in Telugu) informing him/her about the omission/commission and an opportunity given to him/her to present his/her version/justification. On examination of the

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explanation/justification by the Field Assistant, the MPDO concerned may make a decision as to whether to terminate the services of the FA or otherwise. In case it is decided to terminate the services of FA, a speaking order should be issued by the MPDO (in Telugu) to this effect. Copy of the order shall be sent to the GP concerned. Care should be taken to protect the interests of the Government in terms of taking over all records, registers, assets, etc from the FA before he/she is relieved of his/her responsibilities as Field Assistant.

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An appeal on the ‘termination of services’ of Field Assistant shall lie with the Addl.DPC/PD DWMA, if made within 30 days from the date of serving of termination orders in the Field Assistant. The Addl. DPC/PD DWMA shall examine and dispose the appeals within a period of 30 days from the date of receipt of the appeal in his/her office.

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The orders of the Addl. DPC shall be final and binding. However, the Field Assistant shall remain terminated during the appeal period without any right to work or allowances thereof. In case the Addl. DPC/PD DWMA delivers orders in favour of the Field Assistant, he/she shall be eligible for pay & allowances for the period of termination of services till his/her rejoining.

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2. In case of TECHNICAL ASSISTANT, COMPUTER OPERATOR CUM ACCOUNTS ASSISTANT AND ADDITIONAL PROGRAMME OFFICER the action initiated based on:

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a. Report of the MPDO,

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b. Social Audit and

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c. Report of Asst. PD.

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Once an act of omission/commission is reported, the Addl. DPC/PD, DWMA shall issue a ‘notice’ to the concerned Technical Assistant/ Computer Operator cum Accounts

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Assistant/Additional Programme Officer to be served on them through the MPDO concerned. The notice should contain details of acts of omission/commission committed by the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer. The Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer should be given an opportunity to present their version/justification to the PD DWMA, for the omission/commissions within 15 days from the date of serving of notice on them.

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On examination of the explanation/justification by the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer, the PD DWMA may make a decision as to whether to terminate the services of the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer or otherwise. In case it is decided to terminate the services, a speaking order shall be issued by the PD DWMA to this effect.

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The order shall be served on the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer through the MPDO concerned. Care should be taken to protect the interests of the government in terms of taking over all records, registers, assets, etc. from the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer before he/she is relieved of his/her responsibilities.

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An appeal of the termination of services of the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officerwill lie with the District Programme Coordinator (DPC)/District Collector, if made within 30 days from the date of service of order on the Technical Assistant/Computer Operator cum Accounts Assistant/Additional Programme Officer. The DPC/ District Collector shall

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examine the appeals and dispose them with a period of 30 days from the date of receipt of appeal in his/her office. The orders of the DPC shall be final and binding. However, the contract employee shall not have any right to work or allowances during the period of appeal”.

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It is the general complaint of the petitioners that no procedure known to law is being followed by the respondents in taking action against them on any allegation and the respondents are simply conducting some Gram Sabha for the purpose of social audit constituting of their own persons, recording some statements in the absence of the concerned Field Assistant/Technical Assistant, issuing show-cause and, thereafter, terminating their services. This statement made by the petitioners appears to be true, in general.

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Further, a close examination of the impugned orders reveals that a transparent enquiry was not conducted. The enquiry was either one sided or no proper opportunity was given to the petitioners.

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Under those circumstances, following directions are laid for the purpose of conducting disciplinary proceedings against Field Assistants/Technical Assistants:

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1) The competent disciplinary authority shall follow strictly the guidelines laid down in Circular No.143/SRDS/HR Manual/2009 dated 27.1.2010 and the Ruled laid down vide G.O.Ms.98 Panchayat Raj and Rural Development (RD.II) Department dated 9.3.2010, for the purpose of conducting enquiry, social audit etc.

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2) If a report of the Gram Panchayat is

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received by the disciplinary authority, a copy of the same shall be furnished to the delinquent Field Assistant/Technical Assistant and if any witnesses are mentioned therein, they shall be examined in the presence of such Field Assistant/Technical Assistant and they shall be permitted to cross-examine such witnesses.

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3) If action is based is on a social audit, majority members of the Gram Panchayat and the delinquent Field Assistant/Technical Assistant must be invited to the Gram Sabha and, in their presence, Gram Sabha should be conducted.

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4) Any objections raised by the delinquent may be recorded by the Social Audit team and, if action is based on MPDOs’ own inspection/verification and the inspection by any other functionaries like Assistant P.D. Etc., the Inspection Report showing allegations against the delinquent shall be furnished to the delinquent Field Assistant/Technical Assistant and the delinquent should be allowed to file his/her objections, if any, and after filing the objections, the authorities are at liberty to take appropriate decision, as per law, and pass further orders, after giving show-cause notice and personal hearing

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in the matter.

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5) The entire procedure must be completed within a period of 30 days as contemplated under the guidelines from the date of issuing initial show-cause notice, enumerating the charges. In case of suspension of an employee, he/she is entitled for subsistence allowance only for thirty days and if there is any delay occurred in conducting the enquiry, it may be extended for another one month, but, in any case, the enquiry cannot be extended beyond the period of two months.

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6) In any case if it is found that the delinquent has committed misappropriation, it is always open for the authorities, after passing the final orders, to recover the same, as per law.

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7) In all the cases where recovery is contemplated, a fresh enquiry shall be conducted and completed, as per the directions of this Court, as above, within a period of thirty days from the date of receipt of a copy of this order. If any separate recovery proceedings are issued in pursuance of the impugned proceedings herein, they shall stand stayed during pendency of the fresh enquiry.

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It is unfortunate that allegations of high corruption like

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Rs.20.00 lakhs and Rs.30.00 lakhs are made against the Field Assistants/Technical Assistants, who are working under the MPDOs and other higher officers and supposed to only assist such Officers and not to deal with any monetary matters directly. It appears, there is no proper supervision by the higher officials and such serious matters are entrusted to the persons who are appointed on meager salary and on contract basis and they are allowed to indulge in misappropriation of funds meant for the rural poor under the National Rural Employment Guarantee Scheme, in large-scale. The concerned District Collectors are directed to look into this matter personally and instruct the Officers concerned not to allow the Field Assistants/Technical Assistants etc., to deal with the money distribution etc. directly. If there is any misappropriation of money, the Officers concerned must be made responsible.

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All the writ petitions are allowed and the matters are remanded accordingly. The stay/suspension orders, if any, granted earlier, shall stand vacated in view of the disposal of the writ petitions, as above.

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JUSTICE C.V. RAMULU.

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Date: 7-7-2010.

¶45

MVB.

Kotipally Kumar v. The District Collector

Case brief

What is this about?

What did the court decide?

Kotipally Kumar v. The District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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