Hrishikesh Roy JUDGMENT
Hrishikesh Roy, J.
1. Heard Mr. B.D. Das, the learned senior counsel appearing for the Petitioners. Also heard Mr. S. Borthakur, learned counsel who represents few of the private respondents, all of whom are on the same footing, in both the cases. The Karimganj District Legal Services Authorities (respondent No. 1) is represented by the learned Advocate Ms. R.B. Bora.
2. The unemployment allowance under Section 7 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (in short ' the NREGA'), was ordered to be paid to the registered job card holders by the Karimganj District Legal Services Authority and this is challenged by the Project Director, D.R.D.A., Karimganj in both the cases. According to the petitioners, the disbursal of unemployment allowance is subject to the economic capacity of the State Government under Sub-Section (2) of Section 7 of NREGA. The petitioners also question the jurisdiction of the Lok-Adalat to issue direction, for disbursal of unemployment allowance for the private respondents.
3. The issues raised in both the cases are similar and common arguments are advanced, but the facts in this order are noted from the WP(C) No. 6472/2010, for the sake of convenience.
4. The private respondents are job card holders and are eligible for the guaranteed employment under the NREGA. On 28.11.2008 they applied for 100 mandays work before the Secretary of the Baraigram Gaon Panchayat and accordingly they were engaged for road construction work for 29 days w.e.f. 29.11.2008--1.1.2009 and were paid wages for those days. Although another road construction work was sanctioned in the area, the petitioners were not engaged and therefore they claimed unemployment allowance for the idle time (71 days), when they were not provided the guaranteed work under NREGA.
5. The respondents raised their grievance before the District Legal Services Authorities, Karimganj and accordingly the Pre-litigation Case No. 2/2010 and the Pre-litigation Case No. 1/2010 respectively were registered for disposal by the Lok-Adalat. On 28.7.2010, both cases were considered and direction was issued to secure funds for payment of unemployment allowance for the idle period out of the 100 guaranteed days work, for the year 2008-09. This was followed by the order dated 25.9.2010, whereby direction was issued to disburse the dues to the job card holders for the year 2008-09, within two months from the date of the order.
6. Before addressing the other issues, it may be necessary to consider whether the Lok-Adalats functioning under the Legal Services Authority Act, 1987 (hereinafter referred to as 'the 1987 Act') could have ordered for payment of unemployment allowance to the job card holders. In this context, the respondent No. 1 in their counter affidavit filed on 10.6.2011 has enclosed the Scheme on Supporting the Implementation of the NREGA, through the State Legal Services Authority (in short 'the NALSA Scheme').
7. Under Section 19 of the Legal Services Authorities Act, 2005 (hereinafter referred to as 'the 2005 Act'), organization of Lok-Adalats at various level are envisaged and the award passed by the Lok-Adalats are deemed to be decrees of Civil Courts. Under Clause 7 of the NALSA Scheme, the Lok-Adalats are empowered to deal with disputes arising out of NREGA between the rural workers and the implementing agencies. Under Sub-Clause (3) of Clause 7, it is specifically provided that the Lok-Adalat shall have jurisdiction to address complaints arising out of implementation of the NREGA, as Pre-litigation Cases. Grievances relating to unemployment allowance are permitted to be raised before the Lok-Adalats under Clause 7(3)(6) of the NALSA Scheme. In such circumstances, I am of the considered opinion that the grievance relating to non-payment of unemployment allowance under the NREGA can certainly be decided as Pre-litigation disputes by the Lok-Adalats under the 1987 Act and therefore the issue of exercise of jurisdiction in the present case, is answered in favour of the respondent job card holders.
8. The next issue to be decided is whether the implementing agencies under the NREGA are entitled to seek the shelter of economic constraints, to deny unemployment allowance to those job card holders, who had applied for work but kept idle, under the guaranteed employment scheme.
9. The backdrop under which the NREGA was enacted by the Parliament was discussed by the Supreme Court in the Center for Environment and Food Security v. Union of India, reported in (2011) SCC 676 and we can benefit by extracting the Court's observation in that case. The rampant unemployment amongst the rural population in the country was noticed by the Court and the concerned enactment to provide employment opportunity to persons specified in the enactment. In the preamble of the NREGA, it was clearly stated that the enactment was intended to provide for enhancement of livelihood security to the poor households in rural areas of the country by providing atleast 100 days of guaranteed employment in every financial year to every household, whose adult members volunteers to do unskilled manual works. Even the statement of objects and reasons of the NREGA demonstrate that the intended objective is to enhance the livelihood security to the poor households in the rural areas and the statutorily created obligation of the Government to prepare a scheme, to give effect to the objective of the legislation. Another paramount feature of the NREGA is that if an eligible applicant is not provided with the minimum mandays of work within the prescribed time limit, it will be obligatory on the part of the State Government to pay unemployment allowance at the prescribed rate.
10. At this stage, some of the salient provisions of the NREGA may be noted. Section 3(1) makes it obligatory upon the State Government to provide employment for 100 days of work in a financial year, provided the adult member of a household volunteers to do unskilled manual work. But subject to economic capacity and development, the Governments are also expected to make provision for securing extra work beyond the guaranteed period of 100 days, under Section 3(4) of the NREGA. Section 4requires every State Government to make a scheme for providing not less than 100 days guaranteed employment, for implementation of section 3 obligation. Payment of unemployment allowance is prescribed under Section 7 for those interested applicants, who were not engaged for the mandatory 100 mandays.
11. The minimum rate of unemployment allowance, is to be specified by the State Government, under Sub-Section (2) of Section 7 and the State may prescribe such rate as may be feasible, taking into account the economic capacity of the State Government. When the Programme Officer is unable to disburse the unemployment allowance for any reason, he is required to report to the District Programme Coordinator and notify the reason for the failure to disburse the allowance. Under Sub-Section (3) of Section 8, the State Government is expected to take all measures to make payment of the unemployment allowance to the concerned household, as expeditiously as possible. The circumstances under which an applicant may be disentitled to receive unemployment allowance are identified under Section 9 and only when the offered employment is not accepted by the applicant or he/she, does not report for work or remain absent from work, the applicant becomes ineligible to claim the unemployment allowance.
12. The Assam Rural Employment Guarantee Scheme, 2006 (hereinafter referred to as 'the State Scheme') was notified by the State Government under Section 4(1) of the NREGA through the Gazette Notification dated 10.11.2006. Some of the clauses of the Scheme which have a bearing in the case are extracted below for ready reference:--
13. The programme under the NREGA is to be implemented as a centrally sponsored scheme on co-sharing basis between the Center and the State in the ratio 90:10. The funding pattern provides that the Central Government will bear the entire burden of the wage component but the responsibility for the unemployment allowance is exclusively vested upon the State Government, under Clause 9.3 of the State Scheme. A grievance redressal mechanism is provided through Chapter-XI of the Guarantee Scheme and at the first stage, the Programme Officer will be the grievance redressal officer. The Appellate forum against the decision of the Programme Officer are also provided in the said chapter in the Guarantee Scheme.
14. When the various Sections of the NREGA and the State Scheme are taken into account, it has to be held that an obligation is definitely created by the enactment to pay the unemployment allowance, when the State fails to provide the guaranteed employment to a willing applicant. This naturally is subject to the exceptions identified in Section 9 of the NREGA.
15. Thus when the State Government is responsible to pay the unemployment allowance, it is next necessary to decide whether the economic capacity of the State Government can be a factor to deny unemployment allowance. To answer this, one has to take into account the objective of the NREGA and read each of the Section to understand the legislative intent in the context of the enactment.
16. It is well settled through Hardeep Singh v. State of Punjab reported in MANU/SC/0025/2014 : 2014 (3) SCC 92, that words in statute can't be construed as surplusage and no word can be rendered ineffective or purposeless. With this principle of interpretation in mind, when we construe the enactment, the intention of the legislature points to only one interpretation and that is to provide guaranteed employment for 100 days to the eligible and interested adult applicant in a rural household. When the State fails to provide such employment, the consequences are laid down in the Act itself and disbursal of unemployment allowance for the idle days is a statutory obligation, caste on the State, by the NREGA.
17. The economic capacity of the State is not specified as a factor in Sub-Section (1) of Section 3, 4 & 7 respectively and therefore the financial constraints can't in my view be taken into account, for interpreting the State's obligation to provide for the 100 days of guaranteed employment, envisaged under Section 3(1) and Section 4(1) of the Act and the payment of unemployment allowance for any idle days of the willing applicant under Section 7(1) of NREGA.
18. However the State's economic capacity can be factor for deciding the rate of unemployment allowance. Section 7(2), while conferring limited authority to specify the rate of unemployment allowance, the minimum payable rate is also statutorily prescribed under the proviso (2) of Sub-Section (2) of Section 7 of the NREGA and the State's rate can't go below the specified figures.
19. Under the State Scheme, unemployment allowance is to be provided when the authority fails to engage the worker within 15 days of the request for engagement. The liability to pay unemployment allowance ceases only under certain circumstances specified by the Sub-Clause under Clause 8.13 (quoted earlier) but this does not hinge on the financial incapacity the State.
20. In the above circumstances, I am of the considered opinion that the beneficial enactment should be interpreted to provide the unemployment allowance for eligible applicants as this will further the legislative intent. Consequently it is held that the State can't escape its obligation from paying the unemployment allowance by citing economic difficulties.
21. The Lok-Adalats as earlier declared, are competent to adjudicate disputes relating to payment of unemployment allowance under the NREGA and therefore I find no infirmity with the impugned decision rendered in the two Pre-litigation Cases by the Karimganj District Legal Services Authority.
22. Another aspect is next highlighted by the learned counsel for the petitioners. He projects that the private respondents applied for 100 days work only on 28.11.2008 and when they were kept idle for 71 days during 2008-09, the respondents should have approached the Grievance Redressal mechanism, as specified under Section 9 of the NREGA and Clause-19 of the NALSA Scheme. In this case, the job card holders approached the Lok-Adalat for redressal of their grievances and as earlier held, the Lok-Adalats are competent to adjudicate on issues pertaining to implementation of the NREGA, under the NALSA scheme. Therefore while the Grievance Redressal mechanism specified under the State scheme could also be an option for an aggrieved person but availability of this forum will not oust the jurisdiction of the Lok-Adalats to decide on the grievances of the job seekers. Therefore the decisions given by the Lok-Adalat in the two Pre-litigation proceedings are found to be in order.
23. The learned senior counsel for the writ petitioners draws attention of the Court to a factual aspect prevalent at Karimganj. On the basis of instruction, Mr. Das submits that enough funds and sufficient works are available but the State is confronted with shortage of wiling workers at most stations. In fact suggestion is made of unscrupulous applicants trying to secure the unemployment allowance through a manipulative process in connivance with the implementing officers. The counsel submits that enough works and funds are available to accommodate all willing workers but attempts of unprincipled individuals to secure payment without working should be discouraged. Therefore the petitioners submit that the objective of the Statute can be achieved and the respondents can be compensated adequately by providing them work in the next financial year, if they are genuinely ready to work and receive wages.
24. The above submission of the petitioners' counsel is found to be reasonable and the same is also accepted by Mr. S. Borthakur, who represents the job seekers. Therefore to balance the interest of both sides, the State is directed to compensate the respondents for the 71 days of the missed work of the year 2008-09, by allowing additional workdays to the respondents, in the next financial year. In other words, the respondents should be provided extra 71 days work under the NREGA in addition to the guaranteed 100 days (subject to application), in the next financial year. It is ordered accordingly.
25. With the above direction, both cases are disposed with the common judgment, without any order on cost.
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