Ombudsman for Local Governments in Kerala1

Justice M R Hariharan Nair

Respected representatives from the various states of our great country, other senior officials representing
various organizations, representatives of the media, and friends,
I introduce myself as Justice M.R. Hariharan Nair, former Judge of the High Court of Kerala from
1999 to 2003 and the present Ombudsman in Kerala. In Kerala Ombudsman system for LSGIs has been
functional from 2000 onwards.

Let me introduce the system.

It resembles the Lok Ayukta. Actually a portion of the jurisdiction of the Lok Ayukta is carved out and
given to the Ombudsman as seen from S. 271 O which reads as follows:
3. No complaint against a public servant as defined in this chapter shall be entertained by a Lok
Ayukta or Upa Lok Ayuktha constituted as per the Kerala Lok Ayuktha Act on or after the date of
constitution of Ombudsman as per the provisions of this chapter.
He can act on a complaint from a person including citizens, elected members or even secretaries or other
officials of the Panchayath or even act suo moto. (S. 271J(ii)
He can investigate and enquire into
i. allegations of abuse of position, gain or favour to himself by employee or public
servant (defined in S. 271F(1)(g) or about acts to cause harm or hardship to any other
person, (See 271F(1)(b)(a)(1)
ii. acts actuated by personal interest or improper or corrupt motives, See
271F(1)(b)(a)(ii)
iii. guilty of corruption, favouritism, nepotism or lack of integrity, See 271F(1)(b)(a)(iii)
iv. any action facilitating loss, waste or misapplication of money or other property of Local
Self Govt; See 271F(1)(b)(a)(iv)
v. default in discharge of functions imposed on it by law or in the matter of implementing
lawful orders and directions of the Government See 271F(1)(b)(b),
vi. acts in excess in discharge of functions imposed on it by law or in the matter of
implementing lawful orders and directions of the Government (See 271F(1)(b)c),

1
Text of a Speech by Justice M.R. Hariharan Nair, Ombudsman for LSGI, Kerala State in the Conference
of Senior Secretaries of LSGI of different States at New Delhi on 27-7-2010.
 vii. corruption (punishable under the IPC or under the PC Act), (271F(1)(d)
viii. mal administration (unreasonable, unjust, oppressive, discriminatory or nepotic acts or
will enable illegitimate gain or result in illegitimate loss, waste or mis use of fund by mal
feasance or mis feasance.(271F(1)(b)(e)

Curses attributed for Civil Courts viz. delay and cost are avoided through simple methods:
1. Rs. 10/- is the Court Fee payable even if amount to be recovered is one crore
2. No advocate fee required as Advocates are not allowed to appear except for reasons to be
recorded in writing. (S. 271N(6) and because engagement of Counsel for the
institution/public servant is barred through Govt. orders.(No: 34166/1A1/08/LSGD dt. 24-5-
08)
3. No commission batta, as nominated investigating officers viz. Joint Director of Urban affairs
or Dy. Director of Panchayaths do that work free of cost.
4. No process fee to be paid by the complainant for sending notices and summons as all
expenses are borne by the Govt.

Independence maintained by providing

1. That only a retired Judge of HC can be appointed;
2. Fixed term of 3 years (271G(4)
3. Removable only by Governor after impeachment proceedings in Assembly (majority of total
members and not less than 2/3 members present and voting) on grounds of proved mis
behaviour or incapacity (271H)
4. Providing that he shall be ineligible for re-appointment or further appointment to any office
of profit under the Govt. (S. 271G(6).
5. Salary and allowances equivalent to serving HC Judge (R. 4)

Powers and Mode of enforcement of orders.

i. Investigate into allegations on reference from Govt. (271J(1)(1)

ii. Enquire into complaints of corruption/mal administration (271J1(2)
iii. Refer complaints to any appropriate authority for investigation (271J(1)(iii)(a)

iv. Direct payment of compensation from LSGI and to reimburse the loss from person
responsible (271J(1)(iii)(b
v. Rectify mistakes ((271J(1)(iii)(d) and 271 Q(3)
vi. Pass interim orders (271J(2)
 vii. Penalty in addition to compensation in cases of irregularities of corrupt practices or
personal gain. (271J(3)
viii. Summmons, discovery, production of documents, evidence on affidavits, requisitioning
records from any court or office, (271K(1)
ix. Commission for examination of witnesses (271K(1)
x. Payment of costs (271K(2)
xi. Award compensation to citizen in case of loss (271Q(1)
xii. Recovery of damages (271K(3) and 271Q(2)
xiii. Recovery of any such amount through R.R. proceedings (271K(4) and 271Q(4)
xiv. Other suitable remedial measures (271Q(5)
xv. If prima facie case found for prosecution after investigation/enquiry (see 271M(3), refer
to competent authority with recommendation to initiate prosecution. (271P)
xvi. Reference to any police officer/expert/govt. officer for investigative report (R. 19)
xvii. Ombudsman may visit any building, office, or place of occurrence as part of
investigation.(R. 19(2)
xviii. After finding existence of prima facie case, can direct his Secretary to file complaint to
the S.P. (R.22) and in case of failure, take action against him (R.22(3)
xix. Rectification of errors (R. 23)
xx. Review suo moto or on application within 60 days (R. 28)
xxi. Require the assistance of any officer of the Govt. to ascertain veracity of an allegation
under investigation and such officer shall be bound to provide it without detriment to his
official duties (S.271-I(3)

xxii. Utilise services of any expert in deciding questions before it. S.271-I(4
xxiii. All concerned are liable to enforce orders of Omb. and action may be taken against
defaulters (R. 25)
xxiv. Suggestions to Govt. for avoiding recurrence of events (271Q(2)
xxv. Request Govt. for clarifications for removal of doubts (R. 29)

Flexibility is provided for functioning of the Ombudsman:

See the following provisions.
1. Take appropriate remedial measures 271Q(5)
2. Require the assistance of any officer of the Govt. to ascertain veracity of an
allegation under investigation and such officer shall be bound to provide it without
detriment to his official duties (S.271(3)
3. Filing can be direct or through post/courier (R.11)
 4. Can conduct sitting in any place of his convenience (R. 20)
5. All concerned are liable to enforce orders of Omb. and action may be taken against
defaulters (R. 25)
6. In cases of want of specific provision or doubt regarding procedure, take any
appropriate procedure which he thinks fit. (R. 27)
7. Language may be vernacular or English. (R. 24)
8. Time limit of 6 months for disposal (R. 21)

Prohibited areas

Where formal public enquiry has been ordered by Govt. on a matter

i. Where public enquiry ordered by Govt. is pending 271M(4)(a)

ii. Where remedy of appeal is available from Tribunal etc. 271M(4)(b).

iii. Where matter is pending before a Court or enquiry under the Commission of
Enquiry Act is pending. 271M(4)©
iv. Where more than 3 years have passed after the alleged occurrence. (subject to
delay condonation -271M(4)(d)
v. If other remedies are available and that is more beneficial refer the complainant
to such authority (271N(1)©

Sittings and schedule in Kerala

As there is only one Ombudsman for the entire State with 14 districts, at present sittings are held for 2 to
5 districts together in one place. There will be an average of 15 sittings every month. Camp sittings are
held in the Conference Halls of District Collectors/District Panchayaths/Rest Houses according to
availability of hall. These are informed to the public in advance through the press and also through
individual notices. A Court Officer, a stentographer and Peon accompanies the Ombudsman for the
sittings.

DIFFERENCES BETWEEN LOK AYUKTA AND OMBUDSMAN (KERALA STYLE)

1. Lok Ayukta has no suo moto power; Omb. has.

2. No Process fee charged by Omb. Not so before the Lok Ayukta. So more expensive before Lok
Ayukta.
3. Advocates’ appearance usual before Lok Ayuktha; rarely before Omb. because of prohibition.
 4. No commission batta charged; Govt. Officials (Regl. Joint Directors and Dy. Directors of
Panchayaths) do that work free of cost.
5. Lok Ayukta rarely executes its orders; Omb. can proceed to execute it straightaway.
6. Omb. charges CF of Rs. 10 only; cost is more before Lok Ayuktha.

DRAW BACK OF KERALA SYSTEM WHICH HAS TO BE CORRECTED WHEN NEW OMBUDSMEN
ARE APPOINTED.

i. The work load in Kerala is so heavy, (more than 150 cases are filed every month) as
there is only one Ombudsman for the entire State. This is found to be totally inadequate.
The ideal will be one for 3 to 5 districts depending upon the size of districts. States may
consider one Chairman (Retd. H.C. Judge) with District Judges on deputation from the
Subordinate Judiciary of the State concerned to hold sittings in a cluster of districts (say
one for 3 districts)
ii. 271J mandates that Ombudsman shall investigate the complaints for which investigative
machinery is a must as available in Lok Ayuktha, Human Rights Commission and
Womens commission. S.271L provides that Govt. has to provide this machinery
consisting of Govt. officials and police personnel to assist in the conduct of investigations
and that they shall be deemed to be officers of the Ombudsman; but no one is appointed
for the purpose so far. This hampers the working efficiency of the Ombudsman
substantially. A PIL is pending before the High Court of Kerala; but inspite of it the Govt.
is yet to provide appropriate investigative machinery. This should never happen when
new Ombudsmen are appointed in other states.
iii. In cases involving different offices including banks, co-op: societies etc. investigation by
Dy. Director of Panchayaths fails. In cases where records are tampered or stolen away
or concealed, also he fails. Where search and seizure of records is necessary in premises
other than the LSGI office, he is helpless.
iv. In criminal matters sudden action is utmost essential. The absence of the Police inv.
Team results in failure of justice because it is impracticable for the heavily burdened Dy.
Director to reach the office or place of occurrence within even weeks of occurrence. By
that time precious evidence is lost.
v. Another weak area for the Kerala Ombudsman is the absence of a Govt. pleader to help
him in the matter of collection of evidence. In matters relating to imposition of personal
liability for loss caused to the institutition, falsification of records, misappropriation of
funds, mal administration, etc. strict evidence will be required.
 This will have to be collected from voluminous records in different files in different
offices, and witnesses will have to be examined in chief, cross examined and re
examined. In such matters the Ombudsman cannot function effectively without the help
of a Govt. pleader cum prosecutor. Though the arrangement is in tact before Lok
Ayukta, Ombudsman has not yet been given the facility though the statute expects the
Government to provide it as is clear from S. 271 L.

vi. Another drawback felt is in the Govt. order which prevents the Director of Vigilance and
anti corruption department to accede to the request of Ombudsman for making vigilance
investigation in spite of orders passed using powers under S. 271-I (3) and (4). These
sections specifically empower him to give such a direction; but executive directions run
to the contrary. Executive directions should not be given so as to deprive the effect of
statutory powers. As it is, the system works somewhat effectively mainly because the Dy.
Directors of Panchayaths/ Regl. Joint Directors of Urban affairs appointed to help the
Ombudsman by making field enquiries are by and large honest and independent. If they
too fail, the system will collapse.

Areas where Ombudsman is a success.

My own experience is that in certain areas the Ombudsman is a success and real and rapid relief is given
to the complainants. To cite some examples,

Complaints regarding non receipt of grants and aids, refusal to give permits, licences, registrations,
Housing benefits, Pensions, allowing un authorized constructions, non maintenance of roads, street
lights, not removing nuisance like overhanging tress, dangerous structures, wasteful expenses, etc.

At the same time, it is unable to act effectively in areas like making and running of waste disposal plants,
construction of new roads, making and completing projects, taking up projects requiring land acquisition,
removal of water logging, removal of unauthorized encroachments, closing of factories, bunks, etc. if
that is disliked by the elected representatives in power, etc.

Need for a Tribunal to consider appeals.

Ombudsman system can work effectively only if the complement of an independent Tribunal also comes
up. I would like to say that the Finance Commission must have considered this aspect. If it is a case of
failure to take action, Ombudsman has to step in; but once the direction is complied with and an illegal
order is passed by the Secretary of the Local Body, the appellate authority has to step in and correct the
malady. Working efficiency of the LSGIs cannot be ensured by the Ombudsman alone; there has to be an
effective mechanism to undo the wrongful orders too. Ombudsman is not devised as an appellate
authority and he cannot be expected to take up that function. 271 M (4) (b) is very important in this
regard. The absence of a provision as for the Tribunal or Election Commission that Ombudsman shall be
deemed to be a court makes his position very very vulnerable.

Going by the report of the 13th Finance Commission I feel that what Kerala State put into effect 10 years
ago was generations ahead of what is recommended by the SARC and much ahead of what the
Finance Commission now recommends. The reasons are:

1. SARC recommendation was for an Ombudsman with power only to recommend action to the Lok
Ayukta who, as a Post Office or filtering authority, would send it to Government. (Para 10.66 of
SARC report relied on by the FC says the Ombudsman should investigate cases and submit
reports relating to corruption and maladministration in local bodies, including its elected
representatives, to the Lok Ayukta, who would forward the report with his recommendations to
the Governor)
2. What the Finance commission has recommended now under 10.161 is only an ombudsmen who
will look into complaints of corruption and maladministration against the functionaries of
local bodies, both elected members and officials, and recommend suitable action. Para
10.162 says at least, the district level elected functionaries and officials of these
agencies must be brought under the ombudsman mentioned in Para 10.161 (iii) and that this
system should be made applicable to all elected functionaries and officials in all other local bodies
later. So it is evident that what is under conception would reach its arm upto the District
Panchayath level only and that the two lower tiers of panchayaths would not be within its reach
for the present. Why should it be so when our experience in Kerala is that all local bodies can
be equally covered?.
3. The power proposed for the Ombudsman by the Commission is only to make recommendations
and this will be a great constraint. Ombudsman, if he should achieve tangible and effective
results, must be able to extend his arm to get hold of the culprits and make them repay the
illegal gains with compensation and penalty and also subject them to prosecution through the
State machinery in appropriate cases.
4. Thirdly, the Ombudsman suggested is to cover only corruption and mal administration. What
about excessive and arbitrary action, nepotism and deliberate inaction?

To conclude, I say Kerala Ombudsman conceived 10 years ago is far more potent on various
counts like:
 i. He can reach all LSGI Institutions upto Grama Panchayath level and not merely upto District
Panchayath level.
ii. He can act in the case of excessive and arbitrary action and deliberate inaction.
iii. He can take potent action against the culprits and not merely send in a recommendation to the
Lok Ayukta or government.
iv. He can act suo moto which has great deterrent effect and it is not clear whether the Ombudsman
under conception has such power.
v. He is independent of Lok Ayukta. 10.161(3) says that in the event that if all or a class of the
functionaries mentioned above fall under the jurisdiction of the Lok Ayukta of the state, it is left
to the State to decide whether to continue with these arrangements or to shift the functionaries
to the jurisdiction of the ombudsman.
So respected Senior officials from States, please try to give sufficient flesh and blood to the skeleton put
forward by the Finance Commission and I strongly recommend the Kerala Model with the changes
suggested by me supra. If the system should have credibility it is of utmost importance that the
personnel selected to hold the post with absolute impartiality and uprightness. This is where Kerala has
set a model. According to me this aspect has to be given utmost weight. The aspect of cost to find a
retired Judge need not stand in the way because the expense incurred by the Kerala State to maintain
this office with all incidental expenses including travel expenses for camp sittings during the last year was
only Rs. 69.54 lakhs.

Questions are welcome and I shall try to answer them to the extent my experience enables me
therefor.

Regards, Jai Hind.