Panchayat:Repo18/Law Manual Page0229
imposed, to initiate further action under the rules applicable to the Secretary with the approval of the Panchayat and to report it to the Government or to the authority competent to appoint the Secretary and the Government or such authority, immediately after the receipt of such a report, shall take appropriate action and intimate the final decision thereon to the President.
(11) The Government may, by a general or special order appoint any officer of the Government transferred to the service of the Panchayat as ex-officio Secretary of the Panchayat and the persons so appointed shall have all the powers and functions of the secretary on the subjects dealt with by them.]
In the hierarchy of adjudicatory process under the PR Act or Municipality Act, an LSGI and its Secretary stand lower to the Tribunal and are duty bound to carry out the commands of the Tribunal. If they refuse to do so, that would be nothing short of mal-administration and failure to perform the duty to exercise statutory power coming under the relevant legislations. Adverting to Section 271(1)(e), 'maladministration' means different shades of acts and omissions which fall under the two limbs of that definition clause. Unreasonable, unjust, oppressive, discriminatory or nepotist administrative action, procedure or practice, which may lead the illegitimate gain or loss or denial of deserving benefits and wilful negligence or delay in taking action would fall within the term mal-administration. Administrative procedure which will result in loss, waste or misuse of funds, by malfeasance or misfeasance, would also lead to mal-administration. An affirmation that a Local Self Government Institution had defaulted or acted in excess of its powers in the discharge of its functions imposed on it by law in implementing lawful orders and directions of the Government, may also fall within the term 'allegation' for the purpose of action by Ombudsman. It also needs to be mentioned that the Tribunal would also be well within authority, in appropriate cases; not essentially the one in hand; to make appropriate recommendations to the Ombudsman for further action for mal-administration and corruption, if necessary. (Para 9) - Krishnan Nair K. and Another v. Secretary, Corporation of Tvm. and Another - 2010 (1) KHC 968 : 2010 (2) KLT 128.
In Leelamma P.D v. Managing Committee of the Perumanna Grama Panchayat and Another, the Grama Panchayat decided to transfer the Panchayat Secretary and agreed to recommend it to the Government. The court was of the view that before considering resolution, the Secretary shall be given an opportunity to make a representation before the Panchayat or the President. Notice issued without giving an opportunity to the Secretary to submit explanation, is illegal - Leelamma P.D v. Managing Committee of the Perumanna Grama Panchayat and Another – 2010 (1) KHC 438 : 2010 (1) KLT SN 104 : ILR 2010 (2) Ker. 73.
It has also been held that the power under Section 179(4) is absolute and that the Government has to act in the terms thereof. However, it is to be noted that the power that is conferred under Section 179(4) has to be exercised in compliance with the mode of exercise of such power prescribed by the said Section. When the provision mandates that the power conferred shall be exercised only in the particular manner prescribed, any other mode of exercising the said power would be illegal. When, by virtue of exercise of the said power, the principles of natural justice is also violated, the same is an added reason for interference with the said decision. (Para 9) – Leelamma P.D v. Managing Committee of the Perumanna Grama Panchayat and Another - 2010 (1) KHC 438 : 2010 (1) KLT SN ILR 2010 (2) Ker. 73. [Ellakkal Service Co-operative Bank v. State of Kerala, 1997 KHC 330. [1997 (2) KLT 85: 1997 (2) KLJ 43; (Para 10); Parameswaran v. Director of Panchayat, 2005 KHC 569 2005 (2) KLT 248; (Paras 4, 9); Poruthissery Grama Panchayat v. Director of Panchayats, 2000 KHC 444 : 2000 (2) KLT 776: 2000 (2) KLJ 205; (Paras 4, 9 )- Referred to:).
The secretary is a public servant. He cannot sleep over his duties and responsibilities. If he does, he will also be adding himself on to the band wagon of those who eat from the state exchequer; which, essentially, belongs to the People; but continuously refuse and fail to discharge their statutory and constitutional obligations to perform official and public functions. So much so, the alleged inaction of the panchayat secretary was sufficient jurisdictional material for the learned Ombudsman to initiate action. The whip of the Ombudsman has often cleared many a smug. All that is required to be ensured is that the authorities act in terms of the law. If it is the panchayat committee and not the panchayat secretary who has to decide on an issue, the panchayat secretary is duty bound to bring the issue to the notice of the panchayat and get resolution of the issue at the earliest. But that does not mean that the learned