IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 1899 of 2009(A) ------------------------- PETITIONER(S): --------------- PARASSERI HASSAN, S/O.HAMSA, PARASSERI HOUSE, AMBAZHAKKODE, KOTTAPPADAM P.O. PALAKKAD DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- 1. THE SECRETARY, KOTTOPPADAM GRAMA PANCHAYAT, KOTTOPPADAM P.O. PALAKKAD DISTRICT. 2. P.K.SHANAVAS KHAN, POLLAKKUNNAN HOUSE, THIRUVIZHAKUNNU P.O. ALANALLUR, PALAKKAD DISTRICT 3. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 1899 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= 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/