IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1899 of 2009(A)
1. PARASSERI HASSAN, S/O.HAMSA, PARASSERI
... Petitioner
Vs
1. THE SECRETARY, KOTTOPPADAM GRAMA
... Respondent
2. P.K.SHANAVAS KHAN, POLLAKKUNNAN HOUSE,
3. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT
For Petitioner :SRI.SUNNY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/01/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 1899 of 2009
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Dated this, the 29th January, 2009.
J U D G M E N T
The petitioner challenges Ext. P5 order of the 1st respondent,
whereby the 1st respondent has directed the Enquiry Commissioner
and Special Judge, Kozhikode to conduct an investigation into the
allegations against the petitioner who was, at the relevant time, the
President of the Kottappadam Grama Panchayat as also a ministerial
staff of the Panchayat. Ext. P5 is challenged on three grounds. The
first is that under Section 271P of the Kerala Panchayat Raj Act, as
held by this Court in Achuthan v. State of Kerala, 2004 (7) KLT
912, before ordering prosecution under that Section, the Ombudsman
should have entered a prima facie finding, which is absent in this
case. The second is that the delay in filing the complaint before the
Ombudsman has been condoned under Section 271M(4)(d) of the
Kerala Panchayat Raj Act without a petition for condonation of delay
having been filed and order having been passed on the same with an
opportunity to file objection to the petitioner herein in that petition.
The third is that as per Ext. P5 order, the Ombudsman has directed
the Enquiry Commissioner and Special Judge invoking Section 271 I
(3). According to the petitioner, the Enquiry Commissioner and
Special Judge is not the authority contemplated under Section 271-I
(3).
2. I am not inclined to countenance any of the contentions of
the petitioner for the following reasons:
3. Ext. P5 order reads thus:
“The allegation is that the petitioner, a member of
ministerial staff working in a private school, worked also as
President of Kottappadam Grama Panchayat and after marking
attendance in the school, appropriated amounts creating records
that he made travels hiring private vehicles.
W.P.C. No. 1899/09 -: 2 :-
In view of the decision in Mercy John V. Thankam (2003 (2)
KLT 798) working simultaneously as School staff and as President
of Panchayath, as such, is not objectionable. But it is another
matter if after marking attendance in the office he engages vehicles
at the cost of Panchayath and makes a profit out of it.
The respondent has pointed out that the case is filed more
than 3 years from the date of the last of the trips and hence the
complaint is barred.
Since the delay in this case was in consequence of delay in
getting copies of relevant documents invoking RTI Act, the short
delay involved deserves to be condoned under the proviso of Sec.
271 M(4)(d) of the Panchayat Raj Act.
I have gone through the admissions in the counter of the 2nd
respondent and the report of the D.D.P. filed on 04.8.08 as part of
the enquiry in this case.
Whether the journeys for which T.A was drawn in School
working days were performed with permission is a matter for
detailed enquiry. If it was done without permission the chances of
the voucher being bogus are more.
The contention that money was paid directly to the driver
from the Panchayat makes little difference. If other ingredients
are available handing over of money to any person (Driver
included) is sufficient to attract Sec. 415, 420 and 418 of the IPC.
I am convinced that a detailed enquiry is necessary in the
matter. Copies of records like the complaint, reply of the
respondents and report of the D.D.P will hence be sent over to the
Enquiry Commissioner and Special Judge, Kozhikode invoking
Sections 271-I(3) and 271-P(1) of the Panchayat Raj Act with a
request to make an enquiry against the 2nd respondent and to
proceed further in accordance with law. Another copy of this order
will be sent over to the Director of Public Instructions along with
copies of the same records so that he can consider departmental
action, if any, necessary against the 2nd respondent by virtue of his
capacity as Clerk of DHSS, Nellippuzha in the light of G.O (MS)
203/02/LSG dated 25.11.02.”
After narrating the facts, the Ombudsman has specifically stated that
“I am convinced that a detailed enquiry is necessary in the matter”.
That sentence certainly indicates prima facie satisfaction of the
necessity to take prosecution proceedings, which is what is
W.P.C. No. 1899/09 -: 3 :-
contemplated by the decision cited by the petitioner. Regarding the
second contention, I do not think that the proceedings before the
Ombudsman are circumscribed by procedural laws and it would be
open to the Ombudsman to condone delay, if appropriate reasons are
available on record for condonation of such delay. The Ombudsman
has specifically found that the delay occurred on account of the delay
in getting copies of relevant documents invoking RTI Act, which is
sufficient reason for condonation of delay. Therefore, I am unable to
find any merit in the second contention also.
4. I am unable to countenance the third contention also in so far
as under Section 271 J, the Ombudsman has the power to order an
investigation by an appropriate authority if criminal offence
committed by a public servant is found. The same only has been
done by the Ombudsman. Therefore, I do not find any merit in the
writ petition and the same is dismissed.
S. Siri Jagan, Judge.
Tds/