Purna Chandra Sahoo vs State Of Odisha And Others

Dr. B.R. Sarangi, J.

The petitioner, by means of this writ petition, seeks direction to the opposite parties to release payment to the job card holders under the National

Rural Employment Guarantee Scheme (NREGS) on completion of the excavation work of a pond as per the “Mo Pokhari†scheme of the

Government of Odisha, within a stipulated period.

The factual matrix of the case, in hand, is that the project “Mo Pokhari†is governed under the Mahatma Gandhi National Rural Employment

Guarantee Act, 2005 (in short “MGNREGAâ€). The Act provides a detailed procedure to be followed for execution of a project. Under the

Scheme “Mo Pokhari†initiations are taken at the Block Level and in consultation with the local Sarapanchs different lands are selected for

excavation of pond with an intention to develop irrigation facilities in the concerned village. Such work has to be executed by the people of the village,

who are job card holders under the NREGS. Under the said scheme and after necessary verification, a piece of vacant land of the petitioner

pertaining to Khata No. 104, Plot No. 1457 measuring Ac.0.24 dec. was selected for excavation of a pond. Accordingly, the work order was issued in

favour of the petitioner on 04.04.2010 by opposite party no.5, the Sarapanch, Mahakalapada Gram Panchayat. As per the said work order, the

estimated cost of the project was Rs.50,000/- and the project work was to be started within three days from the date of issuance of work order, which

was stipulated to be completed before 14.06.2010.

2.1 For execution of the work in question, eleven job card holders were engaged, after obtaining technical and financial sanction, which was made

online on 15.05.2010. Relevant muster roll was signed by the labourers through the VLW. Although the funds were available, but the labourers, who

were engaged on a condition of weekly wage payments, did not get their dues from the Gram Panchayat. The work was completed within the

stipulated period, i.e. by 14.06.2010 in accordance with the approved technical and financial sanction, as well as the estimation made by the opposite

parties. After completion the work was required to be measured by the Junior Engineer and again check measured by the Asst. Engineer of Bari

Block and the labourers were to get wages during the period of work, but in the instant case the wages were not disbursed even after completion of

two years. Subsequently, it was brought to the notice of the petitioner that a part bill amounting to Rs.27,000/- was released vide check no. 370391

dated 25.03.2010 and the same was deposited in Kalinga Gramya Bank, Kampagarh branch for disbursal in favour of the job card holders. Though the

said amount was withdrawn from the bank, but payment was not made to the job card holders. Although such fact was brought to the notice of

opposite parties no. 2, 3 and 4, but no steps were taken to investigate into the allegations and to release the payment against the said work order.

2.2 In order to make sure, the petitioner submitted an application under the provisions of the Right to Information Act, 2005. In response thereto, the

Public Information Officer, Bari Block on 16.04.2012 furnished information to the effect that no muster roll relating to excavation of pond is available,

and that only work order is available, but there is no order showing disbursement of payments. The vigilance has seized the relevant NREGS cash

book. Only a xerox copy of cash book is kept in the office of Grama Panchayat which indicates that a sum of Rs.27,000/- has been spent vide cheque

no. 370391 dated 25.07.2010 against the said work order. To ascertain the result of his complaint, the petitioner sought for information under the Right

to Information Act, 2005. Accordingly, the opposite party no.3, vide office order no. 5407 dated 17.12.2012, provided the information enclosing enquiry

report on the allegation of the petitioner, which revealed that no muster roll was issue by the Programme Officer and the work was not measured and

the said Rs.27,000/- was misappropriated by the Ex-VLW, Ex- Sarapanch and GRS. The report further revealed that EX-B.D.O, Bari and vigilance

officer of Jajpur district also made enquiry and found misappropriation to the tune of Rs.4,06,536/-. Accordingly, the concerned BDO was instructed

to recover an amount of Rs.4,33,536/- from the erring officials and recommendations were made to initiate departmental proceeding against them.

Eleven muster roll was kept with the VLW for the said work, but due to misappropriation of amount in respect of execution of the work in question

under the NREGS in Bari Block, the petitioner has been deprived of getting the legitimate dues. Hence this application.

Mr. S.R. Mohapatra, learned counsel for the petitioner contended that due to negligence on the part of the opposite parties, the petitioner has been

deprived of his legitimate claim of Rs.50,000/- as per the work order issued in Annexure-1 under the scheme of “Mo Pokhari†for engagement of

job contract card holders to excavate the pond. It is further contended that due to inactiveness of the opposite parties, circumstances were created to

frustrate the objectives behind enactment of the National Rural Employment Guarantee Act, 2005, which provides guaranteed employment to rural

poor to earn their livelihood, thereby, he seeks interference of this Court for giving direction to pay the dues to the job card holders as per the work

order issued in Annexure-1.

Mr. J. Katikia, learned Addl. Government Advocate, referring the counter affidavit filed by opposite parties no. 2 and 4, contended that the project

in question has not been executed at the Block level but at the Gram Panchayat Level and that the said project was not completed within the time

stipulated in the work order and no paraphernalia like preparation of estimate by the concerned Junior Engineer and its administrative approval by the

competent authority, demand for work by the job seekers in form No. C1, allotment of work to the job seekers in form No. C2 and issuance of muster

roll to the job seekers, project initiation meeting, photography before, during and after the completion of the project, the work measurement by the Jr.

Engineer, check measurement by the Asst. Engineer, and online entry of muster roll in MGNREGS soft have been maintained. Thereby, in absence of

maintenance of muster roll, showing engagement of job seekers, the claim made by the petitioner cannot sustain and thus he seeks for dismissal of the

writ petition.

This Court heard Mr. S.R. Mohapatra, learned counsel for the petitioner and Mr. J. Katikia, learned Addl. Government Advocate appearing for the

State through virtual mode, and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel

for the parties, this writ petition is being disposed of finally at the stage of admission.

Before delving deep into the matter, it is worthwhile to mention that for rural development major focus of planning had been productive absorption

of under-employed and surplus labour force of the rural sector. In order to provide direct supplementary wage-employment to the rural poor through

public works, many programmes were initiated by the Government of India, namely, National Rural Employment Programme, Rural Landless

Employment Guarantee Programme and Jawahar Rozgar Yojna. Currently, Sampoorna Gramin Rozgar Yojna is being implemented all over the

country. Though this Yojna is providing some relief to the rural poor, its reach has been inadequate in view of the dimension of the unemployment in

rural areas. Therefore, an urgent need was felt to ensure at least some minimum days of employment in the shape of manual labour to every

household in the rural areas. Accordingly, the Government resolved to enact a suitable Act which will provide legal guarantee for at least 100 days of

employment every year at minimum wages for at least one able-bodied person in every rural poor household. Accordingly, the Mahatma Gandhi

National Rural Employment Guarantee Act, 2005 (MGNREGA) was enacted by the parliament. To achieve the avowed objectives, different schemes

have been prepared by the Government to provide rural employment to the poor. “Mo Pokhari†is one of such schemes evolved by the

Government with an intention to provide jobs to the rural poor.

Under the above scheme the petitioner was issued with an work order vide Annexure-1 on 04.04.2010 by the opposite party no.5, the Sarapanch,

Kahakalapada Gram Panchayat to start the work within a period of three days of its issuance, i.e., from 04.04.2010 and to be completed by

14.06.2010. When the claim of payment was made, the opposite party no.3, Project Director, DRDA, Jajpur conducted an enquiry by the Additional

Project Director (Tech.), Additional Project Director (MIS) and the NRGS Coordinator. During the course of enquiry, it was found that the work

order for excavation of the pond of the petitioner under the scheme “Mo Pokhari†was issued by opposite party no.5 on 04.04.2010. The technical

and financial sanction were approved in online mode on 15.05.2010 and the VLW had requested the BDO to issue 5 nos. of muster roll on 15.05.2010

without any request for work by the job seekers in the prescribed form C1. It was also revealed that an amount of Rs.27,000/- was deducted from the

cash book vide cheque no. 370391 dated 25.07.2010, though the work was not measured by the concerned Junior Engineer and check measured by

the Asst. Engineer of the Block. Therefore, the total amount was misappropriated by the concerned VLW, Sarapanch and the GRS of Mahakalpada

Gram Panchayat. In pursuance of such enquiry report, the erring officials were issued notice to deposit the amount vide Block Office letter no.1180

dated 04.04.2013 followed by the reminder dated 08.05.2013. If due procedure prescribed under MGNREGA was not followed and no muster roll

was maintained by the authorities for the purpose of approval vis-Ã -vis sanction, the denial of release of amount is absolutely misconceived one. As it

appears, there was mismanagement on the part of the authority and, therefore, the petitioner has been deprived of getting his legitimate dues, as has

been claimed, for execution of the work under the scheme “Mo Pokhariâ€. Admittedly, an amount of Rs.27,000/- was released, but the same has

not reached to the real job seekers, rather, it has been misappropriate by VLW, GRS and Sarapanch. As such, an amount of Rs.13,500/- has been

received from the VLW and steps have been taken for recovery of the balance amount from the concerned Sarapanch.

There is no dispute that the work order was issued in favour of the petitioner pursuant to Annexure-1 and in response thereto the petitioner engaged

labourers to get the work executed within the time stipulated and as a matter of fact technical and financial sanctions had been approved, so far as the

project is concerned, on online basis on 15.05.2010. In regard to maintenance of procedure, it is the VLW or the Sarapanch, who has to do the same,

but inaction or negligence on the part of the said authority cannot disentitle the petitioner to get the benefit as claimed for the work executed pursuant

to work order issued in Annexure-1. This is a serious matter where the very purpose of the MGNREGA has been frustrated due to laxity of the

authority concerned, as a result of which the poor job seekers have been deprived of their legitimate claim for the work done by them. The payments

are made to the job seekers to earn their livelihood in rural areas. If the same is not paid within the time stipulated, the objective of the MGNREGA

will be frustrated. Therefore, by taking some plea or other, the benefit accrued has not been extended to the petitioner for the laches on the part of the

authorities, who are in channel of disbursement of wages, as a result thereof the poor rural job seekers have been put to difficulties and untold

miseries.

As the avowed objective of the rural job seekers to get an employment for their livelihood has been frustrated, it violates Article 21 of the

Constitution of India, which provides right to live life with dignity. If the rural job seekers have rendered their job, they should be paid in time otherwise

they will be deprived of their right to livelihood.

The preamble “assures dignity of the individualâ€. The „right to life‟ including the right to „life with human dignity‟ would mean the

existence of such a right up to the end of a natural life.

In Samatha v. State of A.P., AIR 1997 SC 3297, the apex Court held that all those rights and aspect of life which would go to make a man‟s life

complete and worth living would form part of right to life.

In Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248, the apex Court observed that the fundamental rights represents the

basic values cherished by the people of their country since Vedic times and they are calculated to protect the dignity of the individual and create

conditions in which every human being can develop his personality to the fullest extent.

In Olga Tellis v. Bombay Municipal Corpn.,AIR 1986 SC 180: (1985) 3 SCC 545, the apex Court observed, “Right to Livelihood†has been

held to be an integral part of Right to Life under Article. 21.

In Narendra Kumar v. State of Haryana, AIR 1995 SC 519 : (1994) 4 SCC 460, the apex Court held that right to livelihood is an integral facet of

the right to life.

The apex Court in Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104 even went to the extent observing that the right of agriculturists to

cultivation has been held to be a part of their fundamental right to livelihood.

In O. Konavalov v. Commander, Coast Guard Region, (2006) 4 SCC 620, the apex Court already held that the right of seamen to wages is an

integral part of the right to livelihood and is entitled to protection under Art.21.

In Centre of Environment and Food Security V. UOI, (2011) 5 SCC 676, the apex Court held that the legislative scheme of the Mahatma Gandhi

National Rural Employment Guarantee Act places the “Right to Livelihood†at a higher pedestal than a mere legal right by ensuring that a

minimum of 100 days of employment to one person in the family is given so that the members of the family are able to take care of their bare

minimum requirement for existence.

In view of the settled position of law as discussed above, non-release of payment to job card holders/rural job seekers affects their livelihood and

right to live with dignity, therefore, violates Article 21 of the Constitution of India. In the present case, admittedly an enquiry was conducted by the

vigilance authority and on the basis of such enquiry report some of the officials have been put into task because of mismanagement of the funds and

that itself cannot deprive the petitioner of getting his legitimate claim.

For the foregoing legal and factual discussions, this Court is of the considered view that the payment for the work, which was executed pursuant

to the work order dated 04.04.2010 in Annexure-1, should be paid to the petitioner by following due procedure in accordance with law as expeditiously

as possible, preferably within a period of two months from the date of communication of this order. Ordered accordingly.

In the result, the writ petition is allowed. No order to costs.