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. iii. iv. v. vi. acts actuated by personal interest or improper or corrupt motives, See 271F(1)(b)(a)(ii) guilty of corruption, favouritism, nepotism or lack of integrity, See 271F(1)(b)(a)(iii) any action facilitating loss, waste or misapplication of money or other property of Local Self Govt; See 271F(1)(b)(a)(iv) 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), 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),
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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. viii.

corruption (punishable under the IPC or under the PC Act), (271F(1)(d) 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. 24-508) 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. ii. iii. iv. v. vi. Investigate into allegations on reference from Govt. (271J(1)(1) Enquire into complaints of corruption/mal administration (271J1(2) Refer complaints to any appropriate authority for investigation (271J(1)(iii)(a) Direct payment of compensation from LSGI and to reimburse the loss from person responsible (271J(1)(iii)(b Rectify mistakes ((271J(1)(iii)(d) and 271 Q(3) Pass interim orders (271J(2)

vii. viii. ix. x. xi. xii. xiii. xiv. xv. xvi. xvii. xviii. xix. xx. xxi.

Penalty in addition to compensation in cases of irregularities of corrupt practices or personal gain. (271J(3) Summmons, discovery, production of documents, evidence on affidavits, requisitioning records from any court or office, (271K(1) Commission for examination of witnesses (271K(1) Payment of costs (271K(2) Award compensation to citizen in case of loss (271Q(1) Recovery of damages (271K(3) and 271Q(2) Recovery of any such amount through R.R. proceedings (271K(4) and 271Q(4) Other suitable remedial measures (271Q(5) If prima facie case found for prosecution after investigation/enquiry (see 271M(3), refer to competent authority with recommendation to initiate prosecution. (271P) Reference to any police officer/expert/govt. officer for investigative report (R. 19) Ombudsman may visit any building, office, or place of occurrence as part of investigation.(R. 19(2) 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) Rectification of errors (R. 23) Review suo moto or on application within 60 days (R. 28) 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. xxiii. xxiv. xxv.

Utilise services of any expert in deciding questions before it. S.271-I(4 All concerned are liable to enforce orders of Omb. and action may be taken against defaulters (R. 25) Suggestions to Govt. for avoiding recurrence of events (271Q(2) 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. ii. iii. iv. v. Where public enquiry ordered by Govt. is pending 271M(4)(a) Where remedy of appeal is available from Tribunal etc. 271M(4)(b). Where matter is pending before a Court or enquiry under the Commission of Enquiry Act is pending. 271M(4)© Where more than 3 years have passed after the alleged occurrence. (subject to delay condonation -271M(4)(d) 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. 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. A Court Officer, a stentographer and Peon accompanies the Ombudsman for the

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. He can act in the case of excessive and arbitrary action and deliberate inaction. Lok Ayukta or government.

ii.

iii. He can take potent action against the culprits and not merely send in a recommendation to the 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.

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