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.