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TMI Blog2010 (12) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... is integral part of the 'right to life'. Taking cognizance of the stark reality that majority of the Indian population (about 76%) is residing in rural areas and unemployment was the greatest challenge before any State or the Central Government, the Parliament decided to enact a law to provide rural employment to restricted persons as stated in such law. This resulted in enactment of the National Rural Employment Guarantee Act, 2005 (for short, 'the Act'). As per the preamble of the Act, it was an enactment to provide for enhancement of livelihood security of households in the rural areas of the country by providing at least hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith and incidental thereto. Even the object and reasons of this enactment demonstrate that objective of the legislation is to enhance the livelihood security of the poor households in rural areas and the Government including the State Government was required to prepare a scheme to give effect to the guarantee proposed under the legislation. Another paramount feature of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution. 3 . Thus, in the present petition, this Court has to examine the relief claimed within the provisions of the Act and the principles of law stated by the Court in the referred judgments. 4. The present writ petition had been instituted by Centre for Environment and Food Security for issuance of appropriate directions to the Respondents (Union of India and all the States were impleaded as Respondents) for formation of appropriate schemes and proper utilization of funds allocated for the said purpose and to achieve the object of the Act. The Petitioners claimed to have carried out a survey, copy of which is annexed as 'Annexure-A' to the Writ Petition showing that neither the schemes framed under the provisions of the Act nor the provisions of the Act are being properly implemented. The funds allocated are also not being pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Section requires that until any scheme is notified by the State Government, the Annual Action Plan or Perspective Plan for the Sampoorna Grameen Rozgar Yojna (SGRY) or the National Food for Work Programme (NFFWP) shall be deemed to be the action plan for the scheme. It is obligatory on the part of the State to provide in the scheme the minimum features specified in Schedule I. Section 6 carves out an exception to the provisions of the Minimum Wages Act, 1948 and the Central Government has been empowered to specify, by notification, the wages different than that Act which shall not be at a rate less than ₹ 60/- per day. Section 7 is another important provision of the Act which requires that where an applicant is not given employment within 15 days of the receipt of his application seeking employment, he shall be entitled to receive daily unemployment allowance. This allowance shall cease on attainment of the conditions stated in Section 7(3). Under Section 8(1), obligation is placed on the Programme Officer that if he is not in a position to disburse the unemployment allowance, in time or at all, for any reason beyond his control, he is required to report the matter to Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 19, the State Government is required to make rules and determine appropriate grievance redressal mechanisms at the Block and the District levels for dealing with any complaint by any person in respect of implementation of the scheme. Chapter-V requires establishment of National and State employment Guarantee Funds and Audit. In other words, these funds are to be created for ensuring the effective implementation of the schemes. Under Section 20(2), the Central Government can credit, by way of grants or loans, such sums of money as the Central Government may consider necessary to the National Fund which will be utilized in such manner and subject to conditions, as may be provided by that Government. The intention of the Legislature is that it wants the provisions of the Act to be enforced and fix responsibility on the persons causing impediments in its execution. Those who act contrary to the provisions of the Act are liable to conviction and fine under Section 25 which may extend to ₹ 1000/-. The Central Government is further empowered to issued directions under Section 27 of the Act for effective implementation of the provisions of the Act and has powers to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a defaulting State while leaving the others. The allegations relate to siphoning of funds, non-framing of guidelines and improper declaration and implementation of the schemes in that State. Instead of referring to the allegations in greater detail it will be appropriate for us to refer to the relevant portions of 'Annexure-A' to the Writ Petition which reads as under: You may have heard about the loopholes and irregularities in implementation of the National Rural Employment Guarantee Act (NREGA), the biggest antipoverty scheme in the history of India. The State of Orissa, however, does not have any loopholes or irregularities in the implementation of this high-profile rural job scheme. In a random survey conducted in 100 villages of Orissa's 6 districts, we found only blackholes and serious irregularities as the only regular thing in all these villages. Our calculations suggest that about 75 per cent of the NREGA funds spent in Orissa have being siphoned and pocketed by the government officials and this loot has been very participatory and organized. This survey was conducted during May-June 2007 by Delhi-based Centre for Environment and Food Security (CEFS) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (STs) and 1.89 crore person days of employment provided to Dalits (SCs). Orissa also claims that 1,54,118/families in the state completed 100 days of wage employment during 2006-07. But, our experience in 100 villages of Orissa suggests that all these claims are bogus and manufactured only in official records in order to siphon NREGS funds. Our back of the envelope calculations suggests that less than 2 crore person days of employment has been provided on the ground and more than 6 crore person days of employment has been provided only in the pages of false job cards and fabricated muster rolls. We could not find a single family in the 100 sample villages who had actually got 100 days of wage employment. We found very few families who had got 40-60 days of wage employment. The rest of the families, if at all they have got any employment, it is mostly between 5 to 21 days. However, online job cards of most of these households have false and fabricated job and wage entries for 108 days, 104 days, 102 days, 100 days, 96 days, 90 days, 84 days, 72 days, 65 days, 60 days, 52 days and so on. This is the way Orissa Government has successfully spent ₹ 733/- crore and provided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avits in relation to social audit, transparency and grievance redressal and unemployment allowances are to be dealt with. Regarding issuance of guidelines for proper implementation of the schemes it was stated that once the operational guidelines framed by the Central Government are made mandatory, which are to be implemented by the State Government, it would tell upon the federal character of the country and the State Government should have no scope to improve upon the implementation apparatus by infusing some innovations during execution. 10. Affidavits have been filed by the Union of India on three different occasions. Union of India claims to have notified the wage rate in relation to different States and that rate has now been revised to ₹ 100/- for the States who have approached the Ministry of Rural Development for revision of the same. According to Central Government it has been meeting the cost of implementing the Act since its enactment. For strengthening the professional support for transparency and accountability, the limit of administrative expenses has been enhanced from 4% to 6% in March, 2009. Funds released to the State Governments approximately constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations of the Petitioner are not without any basis. Extent of their correctness may be a question to be examined separately but the manner in which the affidavits have been filed on behalf of the concerned State as well as the Union of India do not, statistically, deny the allegations as no figures to the contrary have been provided. The inquiry committee which had been appointed for quite some time has failed to submit any final report to the competent authority. The interim report which has been submitted with respect to the 'action taken' by the Union of India is again a matter which has been left to imagination of all concerned. It is nowhere stated in these affidavits that whether, even a single officer/official, till today, has been found to be guilty of contravening the provisions of the Act or causing impediments in effective implementation of the schemes. This petition itself has been pending since the year 2007 and the records are available to the respective Respondents, still no efforts have been made by the concerned authorities to place on record any reports to show that the averments made by the Petitioner NGO in the Writ Petition, and particularly &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective implementation of the statutory scheme are the established canons which would govern their action. To implement the legislative intent is the primary duty of all concerned. 14. In view of the above, we are constrained to observe that the Union of India as well as the State of Orissa, prima facie, have filed to effectively and purposefully implement the provisions of the Act. This has resulted in the deprivation of the entitled class from getting employment and receiving the allowances due to them in terms of the statutory guarantees available to them under the Act. 15. Thus, we are compelled to issue the following directions for strict compliance by the concerned authorities: 1. The compliance report shall be filed in the form of affidavit which shall be sworn by the Additional Secretary, in-charge for compliance of the provisions of the Act in the Ministry of Rural Development, Government of India, New Delhi and the Chief Secretary, State of Orissa within three weeks from today. 2. The instances and figures referred to in the survey report submitted by the Petitioner shall be specifically dealt with in that affidavit. 3. The affidavit should be filed positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaints about working of the schemes, utilization of funds, providing of employment and payment of allowances under the provisions of the Act? If so, what action has been taken in terms of Section 27(2) of the Act? It should be stated with complete statistics and data. (k) Whether the Union of India or the State of Orissa have, till date, found even a single official/functionary guilty of contravention in terms of Section 25 of the Act and whether any complaint has been filed in any Court of competent jurisdiction? If so, the result thereof. (l) The contents and the background of the complaints received and referred in 'Annexure-R1' to the affidavit filed by the Union of India should be stated precisely. Why the enquiry reports as referred to in 'Annexure-R1' to the Affidavit of the Union of India of July 2008, no final reports have been prepared and submitted before this Court till date. Further, it shall also be stated as to why the findings of the interim reports referred in the said affidavit have not been placed before this Court. A complete summary thereof shall be annexed to the Affidavit. 17. Stand over for four weeks. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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