K.Venkata Reddy v. The State of Andhra Pradesh

Counsel for the Petitioner: Sri D.Kodanda Rami Reddy (W.P.No.22984 of 2010) Counsel for respondents: GP for Panchayat Raj (W.P.No.22984 of 2010) The Court made the following: COMMON JUDGMENT: All these writ petitions raise common issues of law and facts and therefore, they are heard and being disposed of together at the admission stage after hearing the learned counsel for the petitioners and the learned Government Pleader for Panchayat Raj. The petitioners, except in W.P.No.21451 of 2010, are either Technical Assistants or Field Assistants employed under Management of the Project Director, District Water Management Agency (DWMA), Chittoor/Anantaur, as the case may be. The petitioner in W.P.No.21451 of 2010 is an Agriculturist, who was entrusted with the work under National Rural Employment Guarantee Scheme (NREGS). Certain works under NREGS were undertaken by respective Gram Panchayaths. In view of large-scale allegations levelled in connection with the execution of these works, social audit was held. On the basis of the audit reports, the impugned proceedings, styled as notices, have been issued, whereby each of the petitioners is called upon by the Tahsildars of respective Mandals to pay certain amounts, which represent the alleged misappropriated amounts. The main ground of challenge to these orders is that neither the petitioners were given an opportunity in the social audit nor were they put on notices raising specific allegations and framing charges against them. It is the case of the petitioners that barring one or two cases, even explanations were not called for from the petitioners and that even in those cases where such notices were issued, no final orders were passed with reference to the explanations submitted by the petitioners. That on the basis of the purported reports submitted by the team of social audit behind the petitioners’ back, the impugned orders have been passed. In the counter affidavits filed by the respondents, it is inter alia stated that under Clause-11(e) of NREGS-A.P. Social Audit Rules 2008, notified in G.O.Ms.No.98, dated 09.03.2010, wherever in the course of Social Audit, if evidence through written and oral testimonies against those who have misappropriated money is established, action shall be initiated for recovery and that the said action for recovery shall be without prejudice to the action to be taken against the person under the relevant laws. The respondents further stated that social audit was conducted, that as part of the process, a team of social audit members visited the Gram Panchayaths for ascertaining facts from wage seekers, local people etc., and noted down their findings and that the team also has collected written statements from the villagers, wherein the wage seekers/villagers stated in categorical terms that drinking water was not supplied to them by engaging bullock carts. It is further stated that all the peoples’ representatives were invited and the petitioners were also present during the social audit and that as found reports filed by them, different amounts were misappropriated by each of the Gram Panchayaths and that as the petitioners, who are solely responsible for execution of works on ground and measure the work done under the NREGS, they were made equally liable to pay these amounts. While this Court appreciates the move of the respondents to find out whether any misappropriation of NREGS funds has taken place and if so, to identify the persons responsible for such misappropriation and recovery of the same, it is however of the opinion that the respondents have not followed the procedure prescribed accomplishing the task undertaken by them. While social audit can serve the purpose of fact finding, that cannot be treated as be-all and end-all. The reports submitted after conclusion of social audit can only be taken as the basis by the competent authority to proceed further in fastening the liability on the persons who misappropriated the amounts. The provisions of Rule 11(e), which envisage action for recovery following social audit, require to be interpreted in conformity with the principles of natural justice. Though the said Rule does not in express terms provide for a prior opportunity, as held by the Supreme Court in Swadeshi Cotton Mills v. Union of India[1], where the provision does not expressly provide for a prior notice, the requirement thereof shall be read into such provision wherever any order is proposed to be passed by invoking such a provision resulting in likelihood of causing adverse civil consequences to such persons. In such view of the matter, I am of the opinion that the impugned orders, which were passed without prior notice and an opportunity of being heard to the petitioners solely on the basis of the social audit reports, cannot be sustained. Indeed, this Court in identical writ petitions, namely, W.P.No.14738 of 2010 and batch, has taken a similar view vide its order, dated 23.12.2010. In the premises as above, the impugned orders are quashed and the writ petitions are allowed. The Project Director, DWMA, Chittoor/Anantapur, as the case may be, is directed to issue show- cause notices containing specific allegations against the petitioners and supply all the material forming basis for such allegations. If the Project Director concerned receives explanations from the petitioners within the stipulated time, he shall consider the same in detail and pass appropriate orders containing reasons in support of his conclusions with reference to the explanation offered and the material, if any, submitted by the petitioners. It is made clear that the scope of these writ petitions is confined to fixing up the monetary liability only on the petitioners. This order will not prevent the disciplinary authorities from initiating appropriate disciplinary action against the petitioners in accordance with the extant Service Regulations. Date:19.01.2011 VGB (C.V.NAGARJUNA REDDY, J) [1] AIR 1981 SC 818