PREVENTIVE VIGILANCE DEFINIG VIGILANCE
Literal meaning of Vigilance is the sense of alertness or watchfulness. watchfulness. It can therefore, be defined as constant awareness of various happenings and an act of surveillance in sensitive areas in any organisation. organisation. It is a self-alarming system, which primarily plays the following roles. i
Prompts signals in case of violation of prescribed procedures.
ii
Laying the pathways for a meaningful and result oriented approach
iii
To devise remedial and corrective measures
iv
identification and elimination of corrupt elements.
v it acts as a source of fear, as a preventive force, and forewarns the employees to refrain from indulging in misconduct. WHAT IS PREVENTIVE VIGILANCE
This is a kind of watchfulness to prevent the employees from availing opportunity to indulge in any misconduct. misconduct. It is needless to emphasise that Prevention is certainly preferable to cure. ROLE OF THE VIGILANCE DEPARTMENT AS THE STRONGEST PREVENTIVE FORCE.
Due to the alarming increase in the quantity of grave misconduct the Central Vigilance Commission has laid greater stress on strengthening the preventive vigilance to NIP THE CULMINATION OF MISCONDUCT. As per a study conducted conducted by Transparency Transparency International. India ranks as the eighth eighth most corrupt country in the world. Index on corruption perception shows at 2.63 2.63 by taking 0 = Most corrupt to 10 = least corrupt. The financial loss to to society from white collar crimes is probably greater than the financial loss from burglary, robberies and larcenies committed by lower socioeconomic class. The average loss per burglary is less than one hundred hundred dollars, a burglary which yields yields as much as fifty thousand dollars is very rare and a million dollar burglary is virtually unknown. On the other hand we hear about several several million dollar embezzlement. embezzlement. White collar crimes are defined as crimes committed by persons of respectability and of high social status. White collar crimes which include financial as also economic crimes have increased mainly after the second world war.
India has alos come in the grip of white collar crimes which are committed on a large scale by educated people, irrespective of whether they are holding any public office or private office. Areas of white collar crimes :
1)
Bribery, kickbacks, secret commissions and corrupt practices.
2)
Co-ordinated trafficking in drugs and narcotics, gun running through cross country border trade, engineered by highly organised and well equipped groups.
3)
Money laundering. laundering. Hawala transactions, hoarding hoarding and black marketing. marketing.
4)
Adulteration of foods and drugs.
5)
Violation of FERA and import – Export violations
6)
Tax and duty evasion.
7)
Black money(underground economy)
8)
Smuggling activities.
9)
Information Piracy.
10)
Cheques forging and false invoices.
11)
Product substitution.
12)
Fake certificates used for employment, contracts and tendering.
13)
Postal Frauds
14)
Extortion.
15)
Misuse and piracy of brand names.
16)
Patent infringement.
17)
Deceptive Ads
18)
Price fixing through cartel or ring formation.
India has alos come in the grip of white collar crimes which are committed on a large scale by educated people, irrespective of whether they are holding any public office or private office. Areas of white collar crimes :
1)
Bribery, kickbacks, secret commissions and corrupt practices.
2)
Co-ordinated trafficking in drugs and narcotics, gun running through cross country border trade, engineered by highly organised and well equipped groups.
3)
Money laundering. laundering. Hawala transactions, hoarding hoarding and black marketing. marketing.
4)
Adulteration of foods and drugs.
5)
Violation of FERA and import – Export violations
6)
Tax and duty evasion.
7)
Black money(underground economy)
8)
Smuggling activities.
9)
Information Piracy.
10)
Cheques forging and false invoices.
11)
Product substitution.
12)
Fake certificates used for employment, contracts and tendering.
13)
Postal Frauds
14)
Extortion.
15)
Misuse and piracy of brand names.
16)
Patent infringement.
17)
Deceptive Ads
18)
Price fixing through cartel or ring formation.
VIGILANCE AS MANAGEMENT FUNCTION
Vigilance has to be very effective if it has to integrate itself with the stream of management functions functions so that suspicion and fears are allayed. allayed. And an atmosphere atmosphere of congenial work is created. Above statement adequately adequately paves the way for a positive positive role for vigilance. Vigilance should not become an irritant in smooth functioning of of the organization. Vigilance basically performs pro-active and reactive roles. Preventive Vigilance is an off-shoot of pro-active vigilance. Reactive role role of the the Vigilance consists of punitive punitive vigilance. vigilance. It is well accepted principle that as and when a vigilance case is detected the appropriate authority should take suitable actions for imposing punishment on the concerned delinquent employee but the authority should take suitable measures measures which should prevent occurrence occurrence of a misconduct. misconduct. It is not enough to take action when a misconduct misconduct is committed. committed. We have to create an environment which does does not leave any scope for an employee to indulge in misconduct. misconduct. This is the crux of preventive vigilance and it should be pursued to make an organization free from the Vigilance cases. It appears to be an utopian idea to make a department absolutely clean by curtailing the Vigilance cases to the maximum extent Policy and guidance of the Central Vigilance stepped up a special campaign in the recent past to emphasis the need for preventive Vigilance which will ultimately replace the proactive and reactive roles of the Vigilance. HOW TO ACHIEVE THE OBJECTIVES OF PRVENTIVE VIGILANCE
A large number of preventive measures have been drafted for the guidance of the Government Organisations with an intention to strengthen the Vigilance Machery in such a way that it is able to play a crucial role in preventing the occurrence of misconduct. The following measures are suggested to strengthen the preventive role of Vigilance Machinery in such a way that it is able to play a crucial role in preventing the occurrence of misconduct. The following measures are suggested to strengthen the preventive role of Vigilance :1)
CHECKING OF ARBITRARY USE OF POWER
Vigilance must ensure ensure the rule of law. It should also see that no authority exceeds its jurisdiction and edifice of administration is constructed on the pillars of honesty, sincerity, commitment, high sense of responsibility and accountability Major problems are created when the authorities over-step their jurisdiction to indulge in gross violation of rules and and regulations. Vigilance should take serious note of of such happenings and the matter should be reported to the competent authorities to check such unruly use of power. 2)
SURPRISE CHECKS AND INSPECTION
This is an another important weapon with the Vigilance to prevent occurrence
of any misconduct and to ensure that the concerned employees are prevented well in advance from indulgence in the misconduct. Regular inspection of various financial transactions and administrative actions will help in extending suitable guidance to the authorities to refrain from misuse of their powers. It will also help in creating an environment of honesty in the department. 3)
CONSTANT STREMLINNING AND UPDATION OF PROCEDURE & MANUALS.
This measure is very effective in preventing financial irregularities Procedures and manuals have to be updated to keep pace with the various technological, economical, political and social changes. 4)
TRANSPARENCY IN MANAGEMENT FUNCTIONS :
Government of India has emphasized the need through CVC to ensure total transparency in the functioning of an organization. Nothing should be done in camera that can create suspicion in the minds of employees. However, this does not apply to the functions which are classified as secret and confidential.
GNERAL ACCEPTANCE OF VIGILANCE AS A MANAGEMENT FUNCTION.
We generally think that vigilance functions are the monopoly of Vigilance Department only. This is absolutely a wrong nothing. Every employee has to be vigilant to prevent any impending threat to the organization from the corruption prone areas. SENSITISING THE VIGILANCE AND IDENTIFICATION OF SENSITIVE DEPARTMENTS FROM THE VIGILANCE ANGLE
This exercise is an ongoing process in Ordnance Factories Undermentioned sections can be identified as sensitive from the vigilance point of view. 1)
Purchase/Procurement Section dealing with purchase of general stores.
2)
Engineering Office(Procurement of Machines and Plant)
3)
Civil Maintenance dealing with civil contract.
4)
Inspection
5)
Bills (Section responsible for processing Suppliers Bills)
6)
Stores collection and receipts
7)
Section dealing with recruitment.
SURVEILANCE ON THE CONDUCT OF OFFICIALS HOLDING SENSITIVE ASSIGNMENTS :
This is another important measure for Preventive Vigilance. A close watch/surveillance should be maintained on the style of functioning and their nexus with private parties should be prevented. CO-ORDINATION WITH ANTI-CORRUPTION AGENCIES
As per existing instructions, Central Bureau of Investigation (CBI) is supposed to conduct a quarterly meeting with the Vigilance Officers. Joint Inspection can be conducted as a preventive measure to bring awareness and also to detect irregularities at the initial stage. PREPARATION OF AGREED LIST
Officers having doubtful integrity are kept under surveillance. Their names are listed in the Agreed List in consultation with local units of CBI. SETTING UP OF ROGUES GALLERIES.
This is another method to caution the people against persons involved in frauds committed on the banks as the photographs of dreaded criminals are displayed in the police stations. DELAYS SHOULD BE CURTAILED.
Undue delay in completing the task due to uncovnicing reasons can cast aspersions on the system. Hence delays should be curtailed to build up strong confidence in the functioning of the organization. INCREASING THE LEVEL OF VIGILANCE CONSCIOUSNESS
In addition to the measures outlined above, it is a very important step to strengthen the Preventive Vigilance by building up a higher level of consciousness amongst the employees about Vigilance. Senior officers should set personal example of uprightness to prevent the misuse of powers. It has to be borne in mind that Vigilance is principally a management Function DETERRENT PUNISHMENT
Objectives of Preventive Vigilance cannot be achieved without imposing deterrent punishment commensurate with the gravity of offence of the misconduct. Wide publicity should be given to all such punishments to dissuade other employees from indulging in similar misconducts STRENGTHENING MORAL VALUES
It is an another measure for strengthening Preventive Vigilance in the present scenario of disintegration of morality in public life it is to emphasize the need for improving integrity, ethics, character and moral values amongst the employees through various lectures, training programmes and seminars.
IMMEDIATE NEED FOR STRENGTHENING THE PREVENTIVE VIGILANCE
To sum up, only Preventive Vigilance can prove effective in curtailing malpractices in an organization. Hence immediate steps are needed to strengthen the preventive Vigilance.
CONCEPT AND HISTORY OF VIGILANCE IN INDIA CONCEPT OF VIGILANCE
1.
Vigilance is generally defined as a planned effort to uncover and punish corruption and bribery. It can also mean watchfulness, wakefulness, keeping on guard, or being alert. However, Vigilance is not any one of the above but a combination of all these characteristics. The concept of vigilance can be viewed in various perspectives:
(I)
Vigilance as a Management Functions
Management is that process by which managers create, direct, maintain, operate, and control organizations through systematic, coordinated and cooperative human efforts, that is, the management process involves planning, organizing, directing and controlling the efforts of human resources in the use of material resources including money. The management has therefore to handle men, money, materials, machines and methods. To be successful, the management has to achieve economy, efficiency, effectiveness, excellence and equity in running an organization. Vigilance is an integral part of this management. It involves a specialized methodology. It aids advises and acts on behalf of the top management of the organization. The jurisdiction of vigilance functions extends not only to the matters relating to corrupt practices as it is commonly understood, but also to all areas of management effectiveness. It has to scrutinize the prevailing practices, procedures, functions, routines, instructions, formalities, manuals, working methods and render advise on making them more ‘effective’ and free from mis-use of power.
It is generally perceived that the function of curbing corruption is the responsibility of the agency entrusted with this task. It cannot be effective if it is treated as a outsider’s function. The general perception that vigilance function is in the domain of the Chief Executive and the Chief Vigilance Officer only is required to be changed if an organization has to be run
effectively and efficiently. Since running an organization making optimum use of all the resources is the job of the managers at all levels in the hierarchy, it is their responsibility to jointly share the responsibility of curbing corruption and mis-use of power. The reasons generally given by managers for not being able to perform the vigilance role are. (a)
The line managers are busy with the other routine jobs.
(b)
Detection of malpractice’s would be difficult for them.
(c)
Objective assessment of detected malpractice may not be possible.
(d)
Appreciation of evidence up to its logical end can not be done by line managers. These apparent reasons are not backed by sound logic. It an organization has to functions effectively and efficiently it is necessary to integrate the vigilance function alongwith the other functions of the manager and treat vigilance as a part of management functions.
(II)
Vigilance is a detective and punitive function – or a corrupition combating function.
Vigilance has already been defined as ‘a planned effort to uncover malpractices, malafide and punish the corrupt’. Thus it encompasses the Detective and Punitive roles. In its detective role the information received and data collected by the organization through a planned effort of source information development, intelligence feedback, surprise checks and investigation is analysed to detect the malpractice and mis-conducts is due to malafieds, negligence or otherwise. The punitive role of vigilance is a deterrent role. While performing this role, it is to be ensured that the established procedures are followed and the alleged guilty is treated fairly. All arbitrary actions are to be completely avoided. It is to be ensured that the charged employees are given adequate opportunity to defend themselves and the principles of natural justice are compulsorily followed before punishing the individual. In organizations covered under the concept of ‘state’ following the twin maxmis of natural justice ‘Audi Alterm Partem’ and ‘Nemo Judex in causa sua’ are mandatory. The basic objective of following these procedures is to ensure fair play. It is necessary to ensure that justice is not only done but should seem to have been done. It fair play is to be assured then the punishment should be appropriate keeping in view the gravity of the misconduct or malpractice. It is generally felt by many managers that leniency will be welcomed by the employees and will improve industrial relations. But in the long run it is only fair play and just punishments for misconducts that will help achieve organizations goals and employee acceptance.
Corruption is the ‘quality of being corrupt’ and it is ‘corrupt action’ ‘bribery’, ‘dishonesty’, or ‘lack of integrity’. Vigilance organizations in India as well as abroad have come into being primarily to comat corruption by brining to book the unscrupulous public servants involved in misappropriation of public funds for personal gains or those harassing the members of the public by demanding bribe for discharging the public duties which they are required to perform as a part of their normal duties. Various organizations like, vigilance units in Departments, Administrative Ministries, Central Bureau of investigation, Central Vigilance Commission etc, are primarily responsible for implementation of anti-corruption measures in the Central Government and for maintenance of integrity in the services. Thus vigilance is generally viewed as an anti-corruption function. However, of late a wider role for vigilance is perceived where it encompasses larger areas resulting in greater effectiveness and efficiency in the organisation. (II)
Vigilance as a profit enchaning function.
Generally the concept of profit was not given much importance in the Government sector. Consequent on liberalization and globalization the objective of profit has been introduced even in the Government sector. The government organizations now have to perform effectively and efficiently in the arena of severe competition. In such a challenging scenario the need for vigilance as a control function has now far more importance than earlier. In any big business a substantial percentage of the total expenditure gets funneled by way of corruption. It this percentage is saved it certainly adds to the profit. It the organization becomes clean and the decisions come faster and quicker, process of decision making. Thus, effective functioning by management helps taking faster decision, improve man management, reduce employee enhance the profit of the organization. A management to be successful has to achieve economy, efficiency, effectiveness and excellence. It is necessary that it should be vigilant to ensure the above. Vigilance should be seen as a link between productivity and performance by plugging loopholes and prevent leakages.
(IV)
Vigilance is a management alertness function.
Vigilance has already been defined as ‘watchfulness, wakefulness, being on guard’ etc. In other words vigilance is synonymous with alertness. A management has to be alert if it has to avoid undesirable things happeining. Undesirable things could be an accident, a case of corruption or a failure to achieve goals. In all these cases alertness can lead to lesser possibilities of reduce then the efficiency and effectiveness of the organization improves and the organizational goals will be met more easily. Hence vigilance can be used as an effective tool in improving managerial effectiveness. Management alertness function helps safeguarding the interest of the organization threatened by ill-intent. By being alert the management can ensure that actions perceived by employees ill-intent are nipped in the bud thereby leading to organisation’s success.
Vigilance need not be negative work associated with the spectra of investigation and punishment. It can be a strong and unfailing ally of management, it can be a positive, constructive and catalytic influence through the following. Raising storm signals regarding complexities and neglect of procedures. Placing signpost: for the path to purposed : iffective achievement of objectives. Acting as a deterrent by exposing actions of ill-intent by exposing them in time. (V)
Vigilance as a pro-active function:
Hitherto vigilance has been perceived as negative role. It is generally felt that vigilance agencies only perform postmortem, i.e. they rake up cases which are many years old and take a long time in uncovering the malpractices and identifying the corrupt. There is tremendous delay in the process of identification. Thereafter there is further delay in the punitive action and if the punitive action is not successful then the credibility of the vigilance department is at stake. Besides, delays lead to deterioration in the morale of the executives of the organizations. Consequent on the increased competition in all the spheres there is a need to take faster decisions and cut down delays. Time is the cutting edge of all management functions. Any number of cases can be cited where escalation of cost has taken place because of delayed decision and procrastination in decision making. Vigilance to be effective in the modern day important, emphasis has to be on preventive and predictive vigilance. Vigilance should not be perceived as stumbling block in the organization, but as an aid which alerts the organization well in time to plug the loop holes and deter employees from going ahead with actions of il l-intent. (VI)
Vigilance as a profit centre
The concept of vigilance as a profit centre has not yet been fully recognized, though its potential is very great. In the modern day unless the vigilance activity can sustain itself it is not likely to get the recognition and thrust from the management. If the vigilance function is effectively performed it can definitely contribute to the bottom line and be useful as a profit centre in the organization. The benefit and savings that will accrue to the organization will be both direct and indirect. Though it is easy to quantify the direct savings and benefits, it would be difficult to quantify the indirect benefits to the organization.
1.
Detection of corrupt and malafide actions and award of suitable punishments thereon. There can be recovery of the undue losses caused to the organizations or the undue benefits obtained by the individuals by their
malafide actions. punishment. 2.
It can also be the fines imposed on employees as a
Recovery of wrongful claims in the area of welfare schemes like ltc., medical claims leave encashment etc. can also result in substantial savings to the organization. In addition to direct savings through 1 & 2, the deterrent effect of punishments would thwart contemplated actions of ill-intent thereby effecting indirect benefit.
3.
Detection of malpractices in the area of improper execution of contracts, supply of inferior material, wrongful claims by contractors for work not actually carried out but certified, the subsequent recovery of these excess claims would result in direct saving to the organization.
4.
Identification of grey areas in various sensitive functions and the loop holes in the system and tightening the control mechanisms would result in savings to the organisation.
5.
Simplification of rules and procedures and the methods adopted in various processes would result in substantial savings.
6.
Identification of corruption prone areas and carrying out surprise checks would improve the working of the organization resulting in substantial savings to the organizations.
7.
Identification of employees of suspect integrity and keeping a watch over their functions and exercising suitable control over their actions would result in substantial savings.
8.
By having an effective system of intelligence, pre-emptive action can be taken to nip in the bud the threatened corrupt actions. Keeping in view the above factors the vigilance function in an organizations can definitely work as a profit centre and help the productivity of the organization.
2.0
HISTORY OF VIGILANCE IN INDIA
2.1
Vigilance organizations the world over have come into being primarily to combat corruption by bringing to book the unscrupulous public servants mis-appropriating public funds for personal gain as well as for harassing the members of the public by demanding bribe for discharging public duties which are part of their normal duties.
2.2
Bribery and corruption are age old global phenomena. There is no recorded history as to when and where the first case of bribery of mis-appropriation or pileferage of public funds and corruption took place. Corruption has been prevailing for over centuries encompassing various levels of the power structure. A number of references
to various corruption and bribery cases and the different forms in which they took place have been made in ‘Kautilya’s Artha Shashtra’. Instances have been cited where kings and ministers were intentionally taking bribes but also were giving bribes claiming them to be in the interest of the state instances of stringent actions against officials indulging in corruption and malpractices have also been given. These were mainly as deterrent measures. 2.3
Even during the British rule many cases of corruption against officials of revenue, police, excise, forest and public works were known. There was also the historic case where exemplary actions were initiated against top functionaries like Robert Clive & Warren Hastings who had to face impeachment proceedings on charges of corruption. In Japan a Prime Minister had to leave his post and was disgraced for taking a huge amount of bribe. In U.K. cabinet ministers were disgraced and had to resign. As far as India of the recent past is concerned Mahatma Gandhi spoke about the ‘cancer of corruption’ as early as 1930. This concern grew many fold during the popular insisted upon in those days gets exemplified here. It would however be wrong to as it is today. Dr. S. Radhakrishnan, more than 50 years ago had warned the nation against corruption in high places. At the time of Independence, He had said “From tomorrow – from mid-night today we cannot lay blame on the Britishers ….. our possibilities are great, but let me warn you, when power oustrips ability we will fall on evil days”. This indicates that even at the time of independence there was sufficient cause for concern regarding corruption in high places.
2.4
Before independence during the second world war, what worried people was the growing nexus between contractors and public servants at relatively lower levels in the administration. The Central Bureau of Investigation has its origin in the ‘special police establishment’ set up by the Government in 1941. Its function was to investigate cases of bribery and corruption in transaction with which the War and Supply departments of Government were dealing with. The superintendence of this anti-corruption agency was vested with the ‘war department’. Subsequently when the war was over, the need for a central agency to investigate cases of bribery and corruption amongst the central government employees was felt and the Delhi Police Establishment was created in 1946. The Home Department was entrusted with the Superintendence of the functions of this agency. Gradually its functions were enlarged to cover all departments of Government of India. In 1949 Dr. Bakshi Tek Chand Committee was appointed by the Government of India to review the working of 1946 Delhi Special Police Establishment Act and to assess the efficacy of the establishment in combating corruption. In 1953 Chairmanship of Dr. J.D. Kriplani which made very useful recommendations in combating corruption in railway services. In the post-independent era with continuing adverse impact of world war-II on Indian Economy, the level and magnitude of corruption increased to unmanageable proportions because of the market scarcity conditions, rising inflation and unemployment, teething problems due to the democratization process, huge inflow of foreign aid to the newly formed development activities started through the Five Year Plans, introduction of Permit Raj as the main economic tool to control prices, procurement and supplies. Complaints of public harassment due to corrupt practices of various public functionaries began increasing. Government of India had to intervene and Prevention of Corruption Act 1947 was enacted. The Criminal Amendment Law 1952 and 1964 were also brought into force. In the postindependent era corruption at higher levels increased many fold. When a number of
reports of growing corruption amongst politicians, ministers and civil servants started flowing in, the then Home Minister Lal Bahadur Shastri took the initiative to set up a committee comprising of six members of the Parliament under the Chairmanship of Dr. K. Santhanam, an M.P. This committee included the I.G. of the Special Police Establishment Shri D.P. Kholi. The Committee was not only to find out the causes for the increase in corruption, but was also to make recommendations regarding the methods to be adopted for curbing corruption in public life. The committee initially submitted an interim report and the concluding report was given in March 1964. Even before the final report of the committee was received action was initiated to constitute to the Central Bureau of Investigation and Central Vigilance Commission. The CBI apart from taking over the existing work of Delhi Police Establishment was also to look into the breach of central fiscal laws, major frauds relating to the government departments, public sector companies, passport frauds, crime on high seas, crime on airlines and professional crimes. The Central Vigilance Commission was set up in 1964 by Government of India resolution in pursuance of the recommendations of Santhanam Committee on prevention of corruption. It was a one-man commission and did not have the statutory status like UPSC, CAG and Election Commission. It has an advisory capacity in the same sense of UPSC and the resolution gave CVC the same measure of independence and autonomy as UPSC in exercise of its powers. In many cases of allegations of Court and Supreme Court was also constituted. With the increase in corruption in higher places the need for an ‘Ombudsman’, i.e. a watch dog organization’ was felt. The administrative reforms commission had recommended the setting up of ‘Lok Pal’ and ‘Lok Ayuktas’, who were to be outside the influence of the Government. ‘Lok-Pal’ and ‘Lok-Ayukta’ bills has been introduced in the Parliament and state assemblies for dealing with the allegation of corruption in high places. However only in a few states ‘Lok Ayukta’ Act has been passed. As far as the Parliament is concerned Lokpal Bill has been introduced a number of times with different amendments, but the bill has still not been passed as the political parties have not been able to come to a consensus regarding the role, functions, constitution, ambit of coverage etc. one of the reason presumably is the fear complex amongst Public Servants and politicians in high places. PREVENTION OF CORRUPTION ACT OF 1947, 1988 & IPC.
The idea scope and significance of the word ‘corruption’ in independent India is introduced in the prevention of Corruption act 1947. In the Act four kinds of activities have been specified which constitute misconduct. i)
Habitual acceptance of gratification
ii)
Obtaining a valuable thing without consideration
iii)
Misappropriation.
iv)
The abuse of position to obtain pecuniary advantage to oneself, or to have assets which are disproportionate to the known sources of income.
This act was the expression of an effort to eradicate corruption in public service. But the Act was no innovation in 1947, in the sense that certain parts of it are founded upon certain sections of the Indian Penal Code. But the PCA can be regarded as more effective provision for the prevention of bribery and corruption. In 1952, i.e. four years later, it was felt that the provisions of the prevention of Corruption act needed to be further strengthened by speedier trials. Thus the criminal law ‘Amendment’ Act 1952 came into operation. Hence the three enactments, namely Indian Penal Code, the Prevention of Corruption Act and the Criminal Law (Amendment) Act govern the concept and significance of corruption in administration. They are supportive and supplementary to each other.
CORRUPTION IN INDIA VARIOUS LAWS DEFINITION There cannot be any strict legal definition of the word ‘corruption’ and the Santhanam Committee observed’ it includes all improper and selfish exercise of powers and influence attached to a public officer or to the special position, one occupies in public life. Any gratification is wide enough and is not strictly confined to pecuniary gratifications. Corruption can be said to be quite wide-spread in all ranks of public servant, both G.Os. and NGOs. It exists in almost every sphere of official working, every department of the Administration. The malady of corruption appears to have strengthened its race wine the passage of time inspite of numerous and steps taken by Government. This has adversely affected functioning of the officials, running of various Government SemiGovernment and other agencies/institution and to some extent has crippled the various Government, Administration and resulted in the slow progress of the nation to achieve its goal. It is commonly said that almost nothing moves without “speed money”. It may be so, still there are Government Servants and there can be categories of Government servants, who are honest and efficient and devoted to their respective jobs. The malady of the developing and in the developed countries- both in the countries which are economically solvent and which are economically backward. Causes of Corruption in India. The main causes which have contributed to the spread corruption in India ran be the following. (a) (b) (c) (d) (e) (f) (g)
Greater opportunities in post-independence India in the wake of nation – wide expansion of developmental activities. War efforts, and corruption Serenity inflating and decline in real income of salaried classes Emphasis on materialism in an acquisitive society, Lack of moral values Liaison Officers arid their entertainments People willing to pay, especially in business order.
(h)
hesitancy to take action due to a sense of misplaced sympathy, etc.`
A broken band works, but not a broken heart Persian
LAW RELATING TO CORRUPTION IN INDIA.
Mainly the legal provision pertaining to bribery and corruption in India, both substantive and procedural, can be found in the following enactments. (a) (b) (c) (d) (e) (f) (g) (h)
The Indian Penal code, 1860 The Prevention of Corruption Act, 1951. The Representation of the People Act, 1951. The Criminal Law (Amendment) Ordnance, 1944 The Criminal Law Amendment Act, 1952 The Criminal Law Amendment Act, 1958 The Delhi Special Police Establishment Act, 1958 The Anti – Corruption Laws (Amendment) Act, 1964.
Prevention of Corruption Act of 1947 is the main Act wherein an entirely new offence of criminal misconduct was created. The operation of the Act is very wide Various categories of the offence of criminal misconduct has been defined under Sec., 5 Sub-Clauses (a) to (e) of Clause (1). Under the clause (2) of this Section a severe punishment has been provided extending upto 7 years. For proving an offence under Sec. 5(1) (a), it is necessary to establish. 1)
that the accused was a public servant
2)
that be habitually accepted or obtained from any person gratification for himself or for any other persons;
3)
that he did so as a motive or reward for doing or fore bearing to do an. Official act. This is an aggravated form of the offence under Sec. 161 IPC.
Offence under Sect.5 (1) is an aggravated form of Sec. 165 IPC in as much as it covers a number of instances to establish that the public servant accused had been habitually indulging in acceptance of consideration of gifts from persons concerned with the official business to be conducted by such public servant or having any connection the official functions of his superiors. Offence under Sec.5 (1) (c), however, for all practical purposes is similar to the offence under Sec,409, IPC even though both re-distinct offences and the accused can be charged for both the offences in respect of the same property in same nine. The discretion lies with the prosecution whether to charge the accused in a court of law for one or both the ‘offences. While exercising this discretion the gravity of the offence and other connected matters has to be kept in view.
The main ingredients to be established for an offence under Section 6(1) (d) are That the accused was a public servant ; That the accused used corrupt or illegal means or otherwise abused his osition as public servant that the accused thereby obtained valuable thing or pecuniary advantage; that such pecuniary advantage etc., was for himself for any other person. Section 5(1) (d) contemplates cases where accused takes some pecuniary advantage and a not merely confined to instances of taking cash. The word “pecuniary advantage” is wide enough Rs to include cases of cash payment. For an offence under Sec. 5(1) (d) it is not necessary to prove the element of motive or reward as is envisaged under sections 161, 162 and 163 IPC. Sec 5 (1) (e) was added by the Anti-corruption Laws (Amendment) Act, 1984. This pertains to possession of assets by public servants which are disproportionate to their known sources of income which they are unable to satisfactorily account for. Section 6(1) (c) had a retrospective operation. Hence the question does arise whether a charge could be framed under this clause for being found in possession of disproportionate assets prior to the date on which this clause came into force. The words in this clause, “at any time during the period of his office, being in possession” are significant to indicate that the clause covers past possession of assets also. In Sujan Singh vs, State of Punjab reported din AIR 1964 Supreme Court 464, it was held by the Supreme Court that no doubt the Act has retrospective operation, but to take into consideration pecuniary resources or property in possession of the accused or nay other person on behalf which were acquired before the date of the Act, is not in any way giving the act a retrospective operation. Thus, a charge can be framed against the accused in respect of this offence for being found in possession of assets disproportionate to the known sources of income of the accused person which were acquired prior to the date this clause came into force. The known sources of income referred to in this clause must have references to the sources known to the prosecution on a through investigation. It cannot be contended that it includes sources known to the accused as these will be the matters specially within the knowledge of the accused within the meaning of Sec. 106 of the Evidence Act. In cases of Govt. servants, the prosecution could only infer that his known sources of income would be the salary earned by him during his service. In the Sub-section the expression “Satisfactory account: has been used. The emphasis naturally is on the word “satisfactorily” and a deliberate burden has been caused on the accused not only to offer a plausible explanation as to how he came of alleged disproportionate assets but also satisfy the court with the explanation worthy of credence. This was so held in case G.S.T. Swami Vs. State reported in AIR 1960 Supreme Court. Clause (2) of Section 5 provided for severe punishment extending upto 7 years under this Act and at the same time the legislature has advisedly provided for a minimum one year R.I. so that it could have a deterrent effect.
Sub-section (3) makes penal habitual commission of an offence under Sec, 162 or 163 or 165-A of the Indian Penal code and it was inserted under the Anti-Corruption Law(Amendment) Act 1964. Sub-Section (3) A was also added by the aforesaid Anticorruption (Amendment) Act 1964. and under this sub-clause an attempt to commit an offence under clause (c) or clause (d) of Sections 5 (1) has been made punishable providing for imprisonment for a term extending upto three years or with fine or both. Sub-Section (3) B makes a provision that the court in fixing the quantum of fi ne while awarding sentence under Sec. 5(2) or 5(3), shall take into consideration the amount or value of the property, if any, which the accused obtained by committing the offence and similarly in a case under Sec. 5(1) (c) the pecuniary or disproportionate assets acquired by him. Criminal Law (Amendment) Ordinance, 1944.
This Ordinance was promulgated by virtue of the powers conferred by Sec, 72 of the then Govt. of India Act, as set out in the ninth Schedule to the govt. of India Act, 1935, with a view to preventing concealment or disposal of money or other property procured by means of certain offences. The main object was to protect Govt. money and property believed to have been obtained by the persons against whom cases are brought either of embezzling the Govt. money or property. The following are the offences with regard to which an order under this ordinance can be issued. : 1)
Offences punishable under Sections 161 and 165 IPC arid conspiracy or attempt commit or abatement of such offences.
2)
Offences punishable under Sections 406, 408 (c) r 409 IIIC in respect of Government property or property belonging to a local authority.
3)
Offences punishable under section 411 or 414 IPC in respect of Government property arid in respect of which offence punishable under section 406, 408 or 409 IPC have been committed.
4)
Offences punishable under Sections 417 and 420 IPC where the Central or State Governments or Ft local authority is cheated.
5)
Offence punishable under Section 5 of the prevention of Corruption Act, 1947.
The salient features of this act are : It is clear from the preamble of this Act that it was to provide for a more speedy trial of certain offences. Section 2 of the Act provides for higher punishment for an offence under S 165 than was originally prescribed in the Penal Code. Section 4 and 5 introduce certain amendments in S 164 and S 337, Cr. P.C. Section invests the State Government with the power to appoint Special judges such as may be necessary and for such area or areas as may be specified by a notification to try certain offences mentioned in the Section itself. Then S 7 provides that notwithstanding anything
confined in the code of Criminal Procedure or in any other law, the offences specified in SubS (1) of s 6 shall be tried by special judges only. Section 8 provides for the procedure and powers of Special Judges. This Section enacted that a special judge may take cognizance of offence without the accused being committed to him for trial and shall follow the procedure prescribed for the trial of warrant cases in the code of Criminal Procedures. Sub-Section (20 provides that a special judge may tender a pardon to any person supposed to have been directly or indirectly concerned in, or privy to, an offence on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and that such pardon will deem to have been tendered under S.333 of the Code. Sub-Section(4) authorizes the Special Judge to impose a sentence authorized by law or a person convicted of the offence triable under the Act. The net result of these provisions is that offence under S 161 165 or 165 A: Penal Code or offence of criminal misconduct under Sub S(2) of S5 Prevention of Corruption Act or a conspiracy or an attempt to commit such offence or any abetment thereof, have been made exclusively triable by Special Judges, and that such judges are to be men of superior ability and experience. Section 6 the act provides for the appointment of special judges and empowers the State Govt. by notification for such area or areas as may be specified in the notification to try the following offences, namely : a)
an offence punishable under S 161, S165 or 165 A or the Indian Penal Code or Sub-S (2) of S5 of the Prevention of Corruption Act 1947; and
b)
any conspiracy to commit or any attempt to commit or any abetment of the offences specified in cl. (a) above.
MEASURES TO EFFECTIVELY DEAL WITH THE PROBLEMS OF CORRUPTION ADMINSTRATION AND STRATEGY FOR PREVENTION OF CORRUPTION IN PUBLIC SERVICES. PREENTIVE VIGILANCE MEASURES
1) 2) 3) 4) 5) 6) 7) 8) 9)
Simplification of rules and procedures. Reducing the areas of discretion and patronage De-regulation where possible to reduce the points of corruption and harassment to the public; Introduction of public information and assistance counters in departments and Places having public dealings; Setting up of redressal of public grievances machinery in each Ministry Systematic and surprise inspection by senior offence; Monitoring prompt disposal of vigilance cases with a view of checking delays; Curbing outside interference in administration and personnel management and Improving wages and service conditions of public servants.
SERVEILLANCE AND DETECTION 1)
Greater surveillance and intelligence in corruption – prone areas, particularly at public contact poitit5 by strengthening the vigilance machinery, where necessary
2)
Closer watch on officials of doubtful integrity by vigilance machinery.
3)
On a selective basis, movable/immovable assets of persons of doubtful integrity to be checked and verified periodically; and
4)
As a follow-up action to above, traps and raids to be organized, where necessary.
DETERRENT PUNITIVE ACTION
(1) (2) (3) (4) (5) (6) (7)
Investigation of vigilance cases up according to time bound schedule. Procedure for disciplinary action to be improved for speedier finalization of vigilance case and deterrent punishment awarded. provisions for summary that by courts in cases for corruption and provisions for deterrent punishment. Legislative measure for confiscation of ill – gotten wealth Provision for premature retirement of pension doubtful integrity to be enforced more rigorously to weed out corrupt elements. Monitoring of, all anti corruption measure; and Wide publicity of punishment awarded to guilty persons. Delhi Special Police Establishment Act, 1946.
This Act was passed to provide for the constitution of special Police force in Delhi for the investigation of certain offences in the Union Territories and for the superintendence and administration of the said Force as also for the extension of its operation, powers and jurisdiction to other areas of States for the investigation of said offences. The Central Bureau of Investigation has been constituted by the Govt. of India by a resolution bearing No 4/31/61-T dtd. 01.04.1963 wherein its objects and functions have been specified. One of the Division of the Central Bureau of Investigation is the Investigation and Anti-corruption Division which legally functions under this Act. i.e. the Delhi Special Police Act. 1946. The Original Act of 1946 has been subjected to various Acts say, acts 90 of 1950, Act 26 of 1952, Act 62 of 1956. However these amendments have not materially affected the Act in substance. STEPS TAKEN TO COUNTER CORRUPTIONS IN INDIA.
Various steps both legal and social have been taken by the Central and the State Govt. from time to tome to combat the evil of corruption. 1.
The Anti corruption measures adopted both by Central and State have been strengthened not only by increase of staff but also by selection of efficient staff as
also by suitable amendments of the legal provisions which have been discussed earlier. 2.
Administrative steps have been taken both by Centre and State, making it incumbent on the Govt. servants to declare from time to time their movable and immovable assets, report acquisition of such assets or obtaining of previous permission for acquisition of immovable assets.
3.
Central Vigilance Commission has been set up to watch assets and guide the activities of Vigilance at all levels.
4.
Institutions like the Delhi Police Estt., i.e. the investigation and anti-corruption wing of the Central bureau of Investigation and the State Anti-Corruption Deptt. and Bureau are there.
5.
Institutions of special judges have been created under the criminal; Law Amendment Act, 1952 for the expeditions disposal of the corruption cases and special Tribunals and special Courts have been created to try such cases, viz, west Bengal Criminal Law Amendments (special courts) Act., 1949.
STRATEGY FOR PREVENTION OF CORRUPTION IN PUBLIC SERVICES (A)
REDUCE ITS SCOPE BY
(1)
Review of Government activities to eliminate unnecessary work; rules, procedures and practices and general system of improvement;
(3)
Better supervision, inspections and monitoring’
(B)
REDUCE TEMPTATIN BY
Simplification
Upgradation of pay scales and other service conditions suitably. BETTER POLICING AND VIGILANCE TO : (1) (2) (3)
Exercise greater check on corruption prone areas and individuals Identify hard-core corrupt elements: and Take exemplary punitive fiction against habitual corrupt element by removal dismissal from service.
A good beginning makes a good ending English
HISTORICAL ACCOUNT OF CORRUTPION IN OUR COUNTRY These days every one talks of corruption in public life, without realizing that corruption in public life is but a reflection of corruption in private life. Corruption is an affliction of the individuals, but it is a highly contagious disease that – spreads from one to the other till a whole group, community or nation. – as a whole becomes contaminated. It is an evil cancer that has our nation ill its grip; and the misfortune is that many of the afflicted ones are not aware of the dreadful disease they are suffering from, and passing it on to others. Corruption is as old as power – monarchical, dictatorial or democratic. As Lord Acton remarked, “Power tends to corrupt and absolute power corrupts absolutely.” Corruption has innumerable forms and dimensions and omnipresent as it knows no denominational barriers. Corruption in India stems from the basic roots of life; it has with the passage of time, become a convention, a tradition, as paychlogical need and necessary so to any. There is no time in the Indian history when corruption does not show its dominant influence.
As this subject has assumed a new meaning and significant keeping. In view the high ideals of equality before law, equal opportunity and common welfare, forming the base of the welfare society within the framework of democracy, this paper endeavours to show that Our ancients were not much different from their modern counterparts in this repect, the malady intested the society then as it does now. CORRUPTION IN PUBLIC LIFE DOWN THE AGES
For the first hand information on bribery and corruption in public life in early times, we have to turn to Smriti texts, Kautalya’s Arthashastra and later Sanskrit texts and historical works which frequently refer to this practice. The present day maxim that both the giver and the taker of bribe are equally corrupt and punishable probably did not hold good during the ancient period. But, if a person accepting the bribe has been appointed or promoted to an office by the King. The Kathasaritasangara tells us an interesting tale of treacherous Buddhist medicant named Prapaneabuddi who offered splendid gifts as bribes to Kind Vikramaditya who, however, refused to be outwitted by that willy mendicant and before long, succeeded in getting rid of him. We have, in the Jatakas, many instances of misappropriation of public money under flase pretences by the officials who were condemned to fell in a fiercy pit for such grave offences. According to Kautilya, the jail superintendents and guards who connived with criminals in their criminal actions causing loss to the exchequer of payment of money or with a view to deriving pecuniary advantage were tortured to death, which indirectly shows that all was not well with the early ancient Indian State. At several point, Mahabharatha and Ramayana says that the kind would do well not to appoint greedy and unwise persons to posts concerning economic affairs because such persons would always harase the subjects exploit them by extracting money from them and thereby causing ruination to the State. Ashoka also seemed to have been aware of the dangerous maneuvers of these officials as is evident from his inscription in which the advised his Ministers not to barass the subjects. All this, without doubt, shows that in the field of administration, things were not very different from what they are today. Kautilya enumerates forty kind of embezzlements by Government servants vize.
What is realized later is entered earlier; What ought to be realized is not realized What is collected is shown as not collected; What is collected in part is entered-as- collected in full; What is collected in full is entered-as-collected in part; What is collected is one sort while what is entered is of another sort. What is payable is not paid; what is not payable is paid. Prices of commodities enhanced; price of commodities lowered The year not in harmony with months. The months not in harmony with its days; “and so on. Kautilya declares that “whoever does not take into the treasure the fixed amount of revenue collected, or does not spend what is ordered to be spent, or misrepresents the net revenue collected, is guity of defalcation of government money” for which he should be fined twelve times the amount. King Warsha (1089-1101 A.I.) is stated, by Kalhana, to have tormented his people through his officials who “ in truth are eager to kill, desirous of evil robbers of others property rogues, and demons and are indeed plagues for the people and not only cholera, A.D.) uprooted these officials and “ suppressed them everywhere through degradation, dismissals from office and imprisonment. “This is supported by various inscriptions in copper plates during that time. Yasasstilaka Camput of Somadev, “once a spy informed the king about a Minister who broke and melted down valuable idols replacing them by other idols of lesser value” it is surprising to note that even kings of Kashmir iridulged freely in these criminal acts, as testified to in Rajtarangini. About kind Harsha, we are told that he not only removed the treasure of the temples but also appointed a special officer, by name “Devotpatanna-Nayaka’ for uprooting the idols. From an inscription of Kulottunga Chola 111, a South Indian King, we learn that earlier to his regime, temple-land was mortgaged and the money accruing from it used for personal gains of corrupt officials arid temple-records were burnt or destroyed. The caused inscribing hundreds of endowment records on temple-walls, so that even if the records are burnt by the later king, the fraud could be detected. Manufacture of, counterfeit coins was yet another corrupt practice indulged in mostly by Goldsmiths who usually possessed the know-how. Kautilya prescribes severe monetary punishments for this. From Manusmriti and the Matsya Purana we learn that the goldsmith were the worst type of deceitful person who, when detected committing fraud, were given punishment by cutting of their limbs hit by bit. A spy was to be always vigilant in detecting a counterfeiter and the latter was to be punished when detected, as per Arthashastra. Like man’s vanity, corruption also expresses itself through extraordinary shapes such as favouritism neglect of duties, gratification through sexual indulgence and other such practices. In modern society, sex is one of the most dominant causes of widespread corruption. Woman and wine are the, two attractive ingredients which constitute the major source of corruption in our society. That our ancestors were also not immune from this great evil is proved by numerous instances in our early texts. Although acceptance of gold and silver was against inona5tic discipline, nevertheless we learn from the Cullavagga and popular stories current during their period that some greedy bhikshus used to accumulate money for personal ends. Some bhikshus even started going out in search of good meals and invistation ‘ Contact with bhikshus and maidens in their prime of youth very often led the
bhikshus astray. Besides this, the personal life of some of the bhiskhus was marked by greed and just for sexual pleasures. All this definitely points out to the awful moral and physical lapse on the part of the Buddhist monks which became cancerous in the following centuries. CORRUPTION IN JUDICAL ADMINISTRATION.
In the field of judicial administration, Mahabharat state that spies were sent after the judges to see to it that they does no accept illegal gratification; the judges were severly punished, some times even with death penalty, it found guilty of receiving bride, having illicit relation with others wives, inflicting improper punishment upon the offenders, imparting false justice, being greedy, and committing immoral acts as per Mahabharat. We learn from Arthashashtra that periodical test of the honesty of judges were made through agent agent-provocatecurs. The Sukraniti prescribes severe punishment such as expulsion from the country for a juror or a judge who sided with a particular party by taking bribe and delivered wrong judgement, as well as for those who indulged in forgery or perjury. We have several instances about corrupt practice. Jatakas are replete with stories of bribery and corruption in the judicial system. Things had come to such a pass that one litigant is said to have openly complained to the prince that “although he bribed the judges, he was treated unfairly and lost his case” Jataka. When the case was heard over by the Prince again, he won.
Even the lion has to defend himself against files -German
CORRUPTION IN TRADE:
Like the modern tradesman, the ancient Indian traders also were not above board and they resorted to all kinds of corrupt practices to a mass more and more wealth. Profiteering was resorted to freely. Rig Veda says that during the ancient period ‘the greatest satisfaction of a trader was more and more profit.’ As per Jataka tales, Buddha denounced this evil practice, saying ‘too much profiteering is the root cause of destruction.’ According to Arthashastra, a great deal of “fraud” was going on, prescribing various scales of penalties for various kinds of offences. A study of the Vedic literature shows that the debtors had no security of protection against the creditors, which indicates a very corrupt and backward state of society. A smuggling was also not unknown in those days. The Divyadanna informs us that the smugglers often arranged their articles in such a way that inspite of strict scrutiny and supervision, the customs officers often failed to catch the offenders. This reminds us of the present day practice of smuggling. Adulteration of articles of various kinds was yet another evil practice indulged in by traders in ancient India. Most of the Smriti texts indicate about this malpractice. According to Vijneshwara, there existed a practice of selling cat’s skin as tiger-skin by adding proper colour to it., and a crystal bead was often passed as precious ruby. The conception of contraband good, was also not unknown in those days. We have a long list of forbidden goods in Arthashastra, and Kautilya recommends severe punishments to those traders who indulged in the sale of such contraband goods. Besides, falsification of weights and measures was yet another corrupt practice that infested the entire trading community in early days. The fraudulent nature of the merchants was so well known in those days that according to Bana a trader without knavery was hard to find. Thus, it can be safely concluded that this fall in the
standard of morality of the trading community, judicial administration and also in the public life reflects an all-around deterioration in the character of the people of the age. LATER PERIOD :
We find little to be proud of in our moral character was evidenced by our more recent history, corruption, extortion, moral debasement through sex, were widely practiced during the Mughal era. Not a day passed of without corrupt practices in one form or the other. “The clerks and officers of the State have taken to the practice of traders and are buying posts with gold and selling them for shameful consideration” complained Prince Akbar in 1681. Long before that a Dutch visitor observed that the palaces of “the rich were adorned internally with lascivious sensuality, weanton and reckless festivity, superfluous pomp, inflated pride and ornamental daintiness.”
Don’t look for applause until you have a cause
During the regime of East India company, the British officers and clerks who were virtually the rulers., distinguished themselves by their dishonest practice. There was almost systematic corruption, from the Viceroy down to the lowest revenue officer, making hay while the sun of British Raj shone, there is an interesting story about Lord Wavell, who became Viceroy of India in 1945. He had chosen the tenure of this Viceroyalty to celebrate his daughter’s wedding and invitations had been sent, several months in advance to the rulers of 700 odd Indian Princely states. Each invitation was accompanied by a list of articles which the bride and bridegroom would like to receive as gifts and also the name of European establishments in Calcutta where these articles could be obtained. The princes dutifully bought the gifts, paying fabulous prices in which viceregal personal staff had apparently a ‘cut’. But unfortunately, the new Labour Govt. in Britain suddenly replace Lord Wavell by Lord Mountbatten and the venue of the wedding had to be shifted to London. The princes immediately noted the difference between the Viceroy’s daughter and Miss Felicity Annee. Many of the costly gifts were exchanged for less expensive and more-ordinary articles. This illustrates the devious ways in which the then rulers of India practiced corruption at a very high level. In independent India., along with freedom came also freedom to lie, to cheat, to give and take bribes, to circumvent and to defy the law, to buy positions of power and abuse the power so acquired – all in spite of Gandhian influence. We are all quite familiar with jeep scandal (1950-55). Mundra deals (1955), Keral Rice Scandal (1958) Kairon Corruption case (1963) Bofors(1989), to name a few. We have had innumerable commission of inquiry on corruption but we have not succeeded in the slightest degree in reducing the general prevalence of corruption, nepotism, black marketing, adulteration of food and so on. “Thing are bound to get from bad to worse at the rate at which they are moving. There does not seem to be any solution. You can find a solution for a habit, for a custom, for a set routine for a desire, for a compulsion, but you cannot find a solution when it is a psychological phenomenon.” Writes Suresh Kohli on “The psychology of Corrutpion.” REFERENCES :
1. 2. 3. 4.
Corruption in Ancient India by Upendra Thakur, Abhinav Publication, New Delhi (1979). “Political Corruption in India” by Supendranath Dwivedy & G.S. Bhargava, Popular Book Services, New Delhi(1967). “Corruption in India” by Suresh Kohli, Chetna Publications, New Delhi(1975). “Political Corruption” by Arnold J. Heidenheimer, Washington University, New York. (1970).
Do not cast dirt into into the well that gives you water Arabian
V
igilance
Central
1. Who are the Chief Vigilance Officers ? 2. What are the selection and appointment procedures for the Chief vigilance Officers? 3. What is the role and functions of Chief Vigilance Officers?
1.
Who are the Chief Vigilance Officers ?.
The Chief Vigilance Officers are extended hands of the CVC. CVC. The Chief Vigilance Officers are considerably higher level officers who are appointed in each and every Deparment/Organisation to assist the Head of the Department/Orgainsation Department/Orgainsation in all Vigilance matters. Back to Top. 2.
What are the selection and appointment procedures for the Chief Vigilance Officers?
Selection and Appoitment
The Chief Vigilance Officers constitute an important link between the organizations concerned and the Central Vigilance Vigilance Commission Commission (as also also the CBI). The following procedures have been laid down/evolved down/evolved in the matter of of appointment of CVOs.: a.
Prior approval of the Commission for appointment of an officer as CVO;
b. As far as possible, the Chief Vigilance Officers should be from outside the Organisation in which he is to be be appointed. The initial tenure of full-time CVO in PSUs PSUs is for three years extendable by two years in the same organization with the approval of the Commission or upto a further period of three years on transfer to another PSU on completion of initial tenure of three years in the previous PSU. c. In cases where the scale of operation of a particular organization does not justify creation of a full-time post, an officer within the organization sufficiently senior in rank to be able to report directly to the Chief Executive or vigilance matters may be considered for such appointments. d. The officer to be given additional charge of the post CVO should not be one whose normal duties involve dealing with matters sensitive from vigilance point of view (like recruitment, purchase, etc.); e. Once an officer has worked as CVO in an organization, he should not go back as CVO to the same organization again;
f. An officer who is appointed from outside as CVO in Central Public Undertaking shall not be permanently absorbed in the t he same organization, and g. The “Vigilance” and “Security” function in an organization should be separated as both the activities are equally demanding demanding and the discharge of “security” functions functions by a Chief Vigilance Officer only only leads to dilution dilution of supervision on vigilance matters. However, an exception has been made in respect of the hotel industry. Back to Top 4. What is the role and functions of Chief Vigil ance Officers? Role and functions of Chief Vigilance officers
Even though detection and punishment of corruption and other malpractices are certainly important, what is more important is taking preventive measures instead of hunting for the guilty in the post corruption corruption stage. Therefore, the role and functions of CVOs has been broadly divided in to two parts, which are (i) Preventive Preventive and (ii) Punitive. On the preventive side
The CVOs undertake various measures, which include: (a) To examine in detail the existing Rules and procedures of the Organisation with a view to eliminate or minimize the scope for corruption or malpractices; (b) To identify the sensitive/corruption prone spots in the Organisation and keep an eye on personal posted in such areas; (c) To plan and enforce surprise inspections and regular inspections to detect the system failures and existence of corruption or malpractices; (d)
To maintain proper surveillance on officers of doubtful integrity; and
(e) like.
To ensure prompt observance of Conduct Rules relating to integrity of the Officers,
(i)The annual Property Returns (ii) Gifts accepted by the officials (iii) Benami transactions (iv) Regarding relatives employed in private firms or doing private business etc. On the punitive side: (i)
To ensure speedy speedy processing of vigilance cases cases at all stages. In regard to cases requiring consultation with the Central Vigilance Commission, a decision as to whether the case had a vigilance angle shall in every case be taken by the CVO who, when in doubt, may refer the matter to his administrative head, i.e. Secretary in the case of Ministries/Departments and Chief Executive in the case of public sector organizations;
(ii) To ensure that charge-sheet, statement of imputations, lists of witness and documents etc. are carefully prepared and copies of all the documents relied upon and the statements of witnesses cited on behalf of the disciplinary authority are supplied wherever possible to the accused officer alongwith the charge-sheet; (iii) To ensure that all documents required to be forwarded to the Inquiring Officer are carefully sorted out and sent promptly; (iv) To ensure that there is no delay in the appointment of the inquiring officer, and that no dilatory tactics are adopted by the accused officer or the Presenting Officer; (v) To ensure that the processing of the Inquiry Officer’s Reports for final orders of the Disciplinary Authority is done properly and quickly; (vi) To scrutinize final orders passed by the Disciplinary Authorities subordinates to the Ministry/Department, with a view to see whether a case for review is made out or not; (vii) To see that proper assistance is given to the C.B.I. in the investigation of cases entrusted to them or started by them on their own source of information; (viii) To take proper and adequate action with regard to writ petitions filed by accused officers; (xi) To ensure that the Central Vigilance Commission is consulted at all stages where it is to be consulted and that as far as possible, the time limits prescribed in the Vigilance Manual for various stages are adhered to; (x)
To ensure prompt submission of returns to the Commission;
(xi) To review from time to time the existing arrangements for vigilance work in the Ministry/Department for vigilance work subordinate officers to se if they are adequate to ensure expeditions and effective disposal of vigilance work; (xii) To ensure that the competent disciplinary authorities do not adopt a dialatory or law attitude in processing vigilance cases, thus knowingly otherwise helping the subject public servants; particularly in cases of offi cers due to retire; (xiii) To ensure that the cases against the public servants on the verge of retirement do not lapse due to time-limit for reasons such as misplacement of files etc. and that the orders passed in the cases of retiring officers are implemented in time; and (xiv) To ensure that the period from the date of serving a charge-sheet in a disciplinary case to the submission of the report of the inquiry Officer, should, ordinarily, not exceed six months. Back to Top
HOW CAN A CITIZEN FIGHT CORRUTPION
1. The question that arises is that if corruption is anti-national, anti economic development and anti-poor and at the same time it is deep rooted in our society, is it possible to make India less corrupt? What can a citizen do to fight corrutption? This guide will help such citizens and groups of such citizens, who form themselves into nongovernment organizations, to fight corruption. It is not as if every country has to be corrupt. If we look at history, we find that countries that were once considered as very corrupt have become honest over a period of time. 2. There are two approaches to the whole issue of corruption. One approach, which may be considered as pragmatic, realistic and worldly wise, is to accept that corruption is a universal phenomenon and it is only the degree of corruption that can perhaps be controlled. The other approach is that corruption can be controlled as countries that were once notorious for corruption have been able to bring in greater probity in public life, thanks to committed and visionary leadership and changes in rules, systems and procedures. 3. Britain itself was not known as a corruption free country in the 19 th century. This is what Dr. C. P. Srivastava writes in his book “CORRUPTION-INDIA’S ENEMY WITHIN”(page 86). The suggestion of Dr. Srivastava should be seen in the context of how one Prime Minister of Britain W. E. Gladstone was able to bring about probity in public life. Time for action to arrest and reverse this trend is here and now. What is needed is a new, well thought out programme for national regeneration on the basis of shared ethical values and for the reconnection of all the people to the ideal of transparent integrity in governmental administration as well as in all aspects of political and public life. To fulfill its rightful destiny in the new millennium, the country will have to find ways to move towards an honest and ethics-based polity, an efficient, compassionate and corruption free administration and bureaucracy and a responsible and value based society. Other democratic countries have come out of a virtually intractable state of corruption by adopting and implementing, with courage and determination, a carefully conceived programme involving fundamental changes in the electoral system as well as in governmental administration, especially in the public services. For example the United th Kingdom whose public servants were notoriously corrupt in the 18 century made a transition across barely 50 years to a regime of extraordinary public probity. This was achieved primarily because of the visionary leadership of the liberal party under W.E. Gladstone who first in his capacity of Chancellor of the Exchequer in 1850s and later as Prime Minister, four times during the period 1868 to 1894 initiated a string of reform measures. The purpose of these measures was to abolish practice with payment of commissions in the army, to define and outlaw corrupt practices by state officials, to introduce competitive examination for admission to a non partisan civil service, to replace fees by salaries in public offices, and to set up system of financial scrutiny by parliament.`
4. In the twentieth century we have seen how the Independent Commission Against corruption(ICAC) set up in Hong Kong in 1974 was able to bring greater cleanliness in public least till 1997 before the handover to China. Botswana is quoted by the World Band Country that has improved its probity in public life. We have seen the enormous day leadership of Lee Kuan Yew who was Prime Minister for a long time, Literally Singapore a very clean country over three decades. 5. While it is true that India is a very corrupt country, it is nevertheless possible that their corruption in India can be brought down. India can also become like Post-Gladstone B post-Lee Kuan Yew Singapore. Success, it is said, is a self-fulfilling prophecy. So also is failure. 6. At the same time, let us also not forget that there are a number of people benefiting from corrupt system. These are people who occupy positions in government, politics, business, bureaucracy and even educational institutions. But the number of such persons who benefiting from corruption in all may not be more than 5 crores in our country of 100 crore. It is therefore obvious that if the 95 crores of non-corrupt citizens can come together the war situation will change. Anybody familiar with how a nuclear bomb operates knows that there critical mass that has to be reached and one this mass is reached, the nuclear chain reaction system. Today in India there are a number of Organisations, which are fighting corruption. A such organizations may be seen in Annexure 1. A meeting of all these organizations was under the auspices of the Central Vigilance Commission on July 2, 2001 in New Delhi. Once main issues that came upt was that while individual organizations were trying to fight corruption. Such efforts were very few and far between. There is a need to ramp up and scale up the corruption activities so that corruption is fought effectively at all levels and India become corruption – free country and as a result realizes its full potential. This would mean that can become an economic and military super power. This guide is designed to provide a corruption basis for citizens or groups of citizens to come together and mobilize the fight corruption in a focused and systematic manner so that like other countries, which fought corruption successfully, India can also reduce the scale of corrutption.
7. Today it is possible that we see corruption as inevitable. But it is possible to bring change for the better, especially when we consider the following observations made eminent men:. 8. Bertrand Russell, the eminent British philosopher, observed that “every opinion respectable if you hold it for a sufficiently long time.” Today it may not be conceived. India can become corruption –free. But similar was the situation, at the height imperialism, when it was unthinkable that the sun would ever set on the British Neverthless, the leaders of our freedom struggle led by Mahatma Gandhi made the idea can become free of colonialism, a reality. Their vision about a free India, which at one time have been considered as a dream or impossibil ity, became a reality. 9. This goes to prove the truth of the statement made by a French writer Victor Hugo who “There is nothing more powerful than an idea whose time has come.” Perhaps looking extensive corruption in every walk of life that we see in India today, the idea that India improve and become a less corrupt country is an idea whose time has come.
10. The third observation was made by another French thinker Alexis de Toqueville. He said that “The inevitable becomes intolerable the moment it is perceived to be no more inevitable.” Today the citizens of India may view corruption as inevitable. The purpose of this Guide is to make every Indian Citizen realize that corruption is not inevitable. The moment the citizens of the country realize that corruption is not inevitable, corruption will become intolerable and we can see a dramatic change coming up in the country for the better. 11. The fourth observations is attributed to the British writer George Bernard Shaw. He said that “An ordinary person accepts the limitations of life in the society in which he lives and leads a peaceful life. The unreasonable man wants the society to change to his way of thinking and in the process achieves success.” Today, reasonable citizens in India may come to terms with the prevailing corruption and try to lead a peaceful life. 12. The morally aware and activist citizens of the country would be following the footsteps of Mahatma Gandhi and in trying to bring about a change in the system. It may be recalled that when Gandhiji was in South Africa, he was thrown out in the middle of the night from the first class compartment of the train in which he was traveling, even though he had a valid first class ticket, because he was black. Many other Indians in his position would have accepted the injustice of the system and led a peaceful life. But Gandhiji who was a great moral leader thought this to be an unfair system and rebelled against it. Satyagraha was born in the mind of Gandhiji on that railway platform that night in South Africa. The citizens who take an activist approach to fighting corruption in our country by reading this guide will be following the footsteps of Mahatma Gandhi. Unless there is a plan of action, mere sentiment or unguided action will not bring results. There is a story about a rat, a cat and an owl. The rat was being harassed by the cat. It went to the owl for advice. The owl said that the rat could face the cat if it also became a cat. When on the next day the rat went and inquired from the owl how it, a rat, could become a cat, the owl said that he was there to give policy directions but implementation was the rat’s problem! The very purpose of this Guide is to empower every Indian citizen who wants to fight corruption, so that from being weak like the rat he can become strong like the cat. For this, the strategy to be followed is the advice given by Michelangelo Buonarroti, the immensely talented Italian sculptor of the fifteenth century. Michelangelo was asked how he made beautiful statues out of marble that had no shape. He replied that the statue was in his mind and he we4nt on removing from the marble whatever was not part of the statue and the statue emerged. Today every patriotic citizen desires that India must become a corruption – free country. How to go about it and ensure that the prevailing corruption is tackled is the main theme of this guide. Specific actions have been indicated. So that the vision of a corruption – free India can be realised
STEP 1: INDIVIDUAL INTEGRITY
1. The basic requirement for any citizen who wants to fight corruption is that he should himself be honest. It is therefore necessary that a citizen who wants to fight corruption must first decision that he will uphold his own moral character and he will not give a bribe or take a bribe. Rajaji, one of the eminent leaders of India., has highlighted that ultimately it is national character decides the nation’s progress. “National character is the keystone on which rests the fate and future of our public affairs not this or that ‘ism.’” “National character, again depends on and in fact is indiv8idual rectitude. Movements for the encouragement of personal rectitude, for purifying individual character, are therefore not irrelevant in the context of politics but are vitally connected with out hopes in respect of national affairs.” “national character is the keystone of national affairs. It locks the bricks together like keystone in the arch. If the keystone is not there, the arch goes to pieces and tumbles down is the improvement of individual character that goes to make the uplift of national character which in turn becomes the keystone in the arch of national prosperity.” “Gandhiji, it has been often stated, wished to spiritualise politics. He firmly held the view that we cannot keep politics and morality apart. Indeed he wanted politics to be re-built based on a true and realiable foundation, viz., individual honesty.” “If the parched field of Indian policies and administration has to get fresh green life and grow, we need the monsoon of purity in national character. And the monsoon consists of little drops falling and uniting to make the rain. Individual purity of character alone can revive the parched filed.” “When will the people of India wake up, wake up to the need to work hard., to the need to be honest in all matters and in all walks of life including manufacture and trade? Character which includes efficient work and truthfulness and purity of mind, is the keystone of the arch both in individual life and in national life. Politics, economics, administration, education health and hygiene and a score of other things, all call for good character in the individual. Individuals make or mar the nation.” 2.
Basically most of us are selfish. When we face a problem, we are interested in finding immediately solutions. It may sometimes involve breaking the queue or breaking the rules or sometimes it may involve a financial advantage. How many of us insist on a regular receipt with the sales tax duly added when we buy things? In other to save on sales tax, cash transaction in such departments is also correspondingly higher.
3.
Corruption can be fought by the citizen as an individual or in groups in the form of an NGO. Just as an individual first has to maintain his own integrity before he takes on the challenge fighting corruption, NGOs which are formed to fight corruption should first ensure that themselves are clean and do not indulge in corrupt practices. It has
been noticed that the many NGOs who are indulging in corrupt practices. If such NGOs also take up the issue of fighting corruption, they are not likely to be successful.
* FALSE ALLEGATION AGAINST PUBLIC SERVANT ACTIONABLE
4.
It may also be recalled that making a false allegation against a public servant is a crime up Section 182 of the Indian Penal Code and prosecution can be launched. The punishment follows.
(a)
to do or omit to do anything which such public servant ought not to do or omit if the state of facts respecting which such information is given were known by him, or
(b)
to use the lawful power of such public servant to the injury or annoyance of any person shall be punished with such imprisonment of either description for a term which is extend to six months, or with fine which may extend to one thousand rupees, or with both. *
6.
CVS’s STAND ON ANONYMOUS/PSEUDONYMOUS PETITIONS
This is the reason why the Central Vigilance Commission has adopted the healthy practice that the anonymous/pseudonymous petitions will be entertained. The rationale for this is given in the order of the CVC dated 29.6.99 which is reproduced below.
One of the facts of life in today’s administration is the widespread use of anonymous and pseudonymous petitions by disgruntled elements to blackmail honest officials. Under the existing action should be taken on anonymous and pseudonymous complaints and should be ignored and only filed. However, there is a provision available in this order that in case such complaints contain verifiable details, they may be enquired into in accordance with existing instructions. It is blackmailing. The public servants who receive the anonymous/pseudonymous complaints, generally, follow the path of least resistance and order has become a convenient loophole for feature of these complaints is that these are resorted to especially when a public servant’s promotion is due or when an executive is likely to be called by the public Enterprises Selection Board for interview for a post of Director/CMD etc. if nothing else, the anonymous and pseudonymous petition achieves the objective of delaying the promotion if not denying the promotion. These complaints demoralise many honest public servants. A person will resort to anonymous or pseudonymous complaints because of the following reasons :
i.
ii.
He is an honest person who is a whistle – blower but he is afraid to reveal his identity because of fear of consequences of the powerful elements in the organization. He is a blackmailer who wants to psychological pressurize the public servant complained against.
There could be a view that if the anonymous/pseudonymous complaints contain an element of truth and if no action is to be taken on them then an important source of information will be lost. To that extent, corrupt practices may get a boost. At the same the Central Vigilance Commission has initiated a number of steps to provide a channel of communication against the corrupt public servants. These measures include the following. i) ii)
iii)
Under CVC’s order No. 8(1)(h)(1) dated 18.11.98, even junior officers can complain to the CVC in cases of corruption against the seniors; The CVC has issued instructions that the name of the complaint will not be revealed when the complaint is sent to the appropriate authorities for getting their comments of launching inquiries; Under CVC Order No. 8(1)(g)/99(4) dated 12 th March 1999, in every office there should be public notice displayed directing that no bribe should be paid. If any bribe is demanded, the complaint on the website of CVC and also through e-mail.
In view of the above measures taken, there is very little possibility that genuine cases of corruption will not be brought to the notice of the appropriate authorities by those who were earlier resorting to anonymous/pseudonymous complaint route. 7. Citizens can utilize the services of organisatioins like CVC or use the concept of Vigilance Councils as in Maharashtra (Chapter 6). The CVC adopts the policy of not revealing the names of the CVC, the Law Commission of India is drafting an Act called the Public interests Disclosures Act which will encourage whistle – blowers who will be given legal protection. The issue is still under consideration and action is still to be taken. 8. Another type of corruption, which a citizen may come across, is where there are rackets and scams perpetrated by the unscrupulous in collusion with public servants. This may include cases like bogus educational institutions, employment programmes, collection of funds under the guise of non-banking financial corporations, chit funds etc. Cases of such conspiring public servants, if identified, can be taken up with agencies for fighting corruption like CVC and others mentioned. 9. There can be a feeling that many a time people who want to fight corruption may be afraid of the danger they will be exposed to because those who are corrupt have power and influence and may even resort to violence. One way of overcoming this fear is to spread vigilance awareness about how such influenced elements can marginalized.
STEP 2: SPREADING AWARENESS
1.
The second step is spreading awareness about the harmful effects of corruption. There is extensive corruption in our system because there is a vicious cycle starting with political corruption leading to bureaucratic corruption, business corruption and criminalization of politics. Even though citizens may be suffering from corruption, the results of elections where corrupt candidates are elected again and again raises the question whether the removal of corruption or improving probity in public life is considered relevant by the people at large.
2.
Probity can be looked at from two levels. One is the corruption or lack of probity which the common man meets at every stage in his day – to – day life. This is petty corruption and is more widespread. The impact in financial terms of this type of petty corruption may not be as high compared to the corruption at higher levels where massive deals and kickbacks take place or even policies are modified to suit certain vested interests. Nevertheless, the common man is not bothered about grand corruption at the higher levels of society.
3.
One feature of developed countries is that at least the type of petty corruption, which the common man experiences in India, is absent in those countries. Corruption may exist at higher levels but the standards are apparently strict. For example, Vir Sanghvi, in an article in Hindustan Times dated 13 th May 2001, dramatically brought out the difference in perception when the lack of propriety takes place in Britain and in India taking the case of the passport of the Hindujas. This is what Vir Sanghvi said: As the British example demonstrates, the only way to stamp out corruption is to begin with impropriety. Don’t waif for the CBI to try and prove that a bribe has been paidthey will never get the proof and the case will take 20 years to come to trial. Start with impropriety that is much easier to establish. The moment you see a minister hanging out with dodgy businessmen, assume that he is a crook. This may be unfair – perhaps he is only a native fool- but it is the only way to stop corruption at the root. Follow a policy of zero tolerance, insist preventing impropriety from becoming corruption. One instance should prove my point. If we had followed the British example with regard to the Hindujas, would we be in this mess today with Bofors charge sheet ? The answer is self-evident.
Is probity life a middle-class virtue ?. It is true that it is the middle-class that is the base of democracy. In Banana Republics there are only tow classes, the super rich and abject poor. Democracy in a real sense does not exist. In totalitarian system, of course, there will be democracy and there could be total explotation. If democracy has to survive, the middle-class value of probity in public life will also have to be sustained. We have to find practical method of introducing and maintaining probity in public life. It has been said that India is a feudal democracy. It is quite possible, therefore, that we take a tolerant view of the misbehaviour leaders because the king can do no wrong. 6.
If probity in public life does not bother the public, what are the issues that disgust and concern them? In some of the opinion polls conducted, issues like price of
foodgrains, drinking water employment and shetter etc., rank higher than corruption as voters priority. 7.
8.
From this development one can perhaps draw two conclusions. The first is that so far as Indian Politics is concerned, the voter knows that our political system is based on corruption. Every political party needs funds for running its activities and this is collected in cash. This cash is basically black money. Black money is the oxygen for corruption and corruption is the oxygen for black money. In this situation, therefore, the voter considers that all parties are equally corrupt. The only difference may be that some are more so than others or some have been out and exposed while others have not yet been exposed. There seems to be a total lack of awareness about the damage caused by corruption or lack of probity in public life to the well-being of the people. The voter who considers drinking water or shelter or schools or employement opportunities as higher priorities is, perhaps, not aware that if there was no corruption these issues could be tackled more effectively and the benefits would much more than what they have got. Rajiv Gandhi indicated at one stage that only 15 paise out of every rupee reach the beneficiary of anti-poverty programmes. If corruption was checked, perhaps another 40 paise worth of benefits will flow even assuming that 45 paise may be the overhead expenses connected with administration and delivery mechanism.
9.
The second conclusion from the election results where corrupt candidates are elected could be that the voters are not bothered much about the high level corruption but they are more directly and visibly affected by the corruption at the cutting –edge level of administration which they experience every day. Probably, this discontent, frustration and anger gets transmitted to the ruling party and gets translated as the anti-incumbency factor. Apparently, the corruption at the higher levels involving large funds is either not known to them or, even if known, they discount it.
10.
Another reason for tolerance of corruption by our public can be traced to the Hindu concept of prayashchita. If a person at a higher level is caught accepting bribes and even if a punishment is imposed, the public seems to think that he has atoned for his sins and he should be given another chance. This is also reflected in Vir Sanghvi’s observation above about our being too tolerant of impropriety.
11.
We have evolved in our country red-tape ridden and elaborate systems leading to enormous delays in many public offices. This probably makes the common man consider that paying bribe as speed money is a part of the system. So long as he gets his rightful dues, he considers bribe given as speed money as an additional tax which is inevitable. Particularly, in the business community, there is a perception that one has to take a long term view of the business. If one starts fighting the bureaucracy at the lower levels, the cost of fighting for probity in public offices or fighting against corruption leads to more loss in business. In fact, we find a very peculiar equation in India. With 6% as the conviction rate in our criminal courts, corruption is a low-risk, high profit business and hence, people can afford to be corrupt. At the same time, with the enormous dout of the bureaucracy, people outside the system, be they NGOs or businessmen, find that if they want to take on the system, the risk in terms of loss of profit is much more than the gain, which may be mostly in terms of psychological satisfaction.
*
NEED FOR TRANSPARENCY
12.
One method by which one can tackle the problem of corruption is by sensitizing the people at large about the evil effect of corruption and low corruption comes in the way of fulfilling the genuine demands of the public like drinking water, better roads, better power supply etc. it is said that if the corruption from power sector is removed, the price of the power will go down by 40%. This means that the Indian Citizen today is paying 40% extra for the power he is using because of corruption. One method by which sensitivity to corruption could be spread is to undertake specific studies linking people’s problems and how corruption comes in the way of the problems being resolved. Sensitivity to the evil effects of corruption will grow if the true facts are presented to the public. This calls for making all relevant information available to the public as freely as possible. The Mazdoor Kisan Sangharsh Samiti(MKSS) in Rajasthan has dramatically brought out a few years back how the funds meant for the IRDP programmes were being misused. The MKSS was set up in 1990 by Aruna Roy and a few other activities. Its leaders built a grassroots movement that has triggered a broad debate and a nationwide demand for the public’s right to scrutinize official records – a cruicial check against arbitrary governance. Basing themselves in the village of Dev Dungari they have achieved extraordinary results by generating a mass movement that has virtually forced governments to accept transparency as a policy. They established their credibility by taking on a classical villain, the landlord who had grabbed land and was trying to intimdate villagers into abandoning the area. Their activism forced him to hand back the land. When examined local records on behalf of an old woman who was denied even the minimum wage set for local projects, they concluded that rural workers are easily exploited because of a lack of transparency in India’s colonial style administration. This culture of secrecy fosters corruption which has led to village officials paying contractors for non existent work. After their research , Roy and her co-workers decided to present their data to the villagers rather than butt heads against an indifferent government. They conducted a scrics of public hearings and despite official stonewalling the activists produced compelling evidence. Payments had been issued for clinics, schools and public toilets that were never built, for workers who were long dead, and worse, for disaster relief services that never arrived. Villagers around the region began calling for their own social audits to expose corrupt officials. They asked to examine bills, vouchers, progress reports and employment rolls. Where officials refused to open their books, the MKSS staged dharamas or sitins to demand more information. These climaxed in a 52 day protest to pressurize the Rajasthan government to make public its development fund record. The campaign succeeded because it helped people expos the links between public officials and unscrupulous contractors. Since then, the national government has pledged to introduce a
13.
STEP 3: USING CVC AND OTHER ANTI-CORRUPTION AGENCIES
1.
The first problem which any citizen who wants to fight corruption will face is what action to take when a bribe is demanded of him or when he comes across an act of bribery. So far as the Government of India organizations are concerned, the Central Vigilance Commission has given directive that there must be a board dis played in every office indicating that bribe should not be paid and if any complaint of bribe is to be made, they can contact the Chief Vigilance officers A list of the Chief Vigilance
Officers may be seen in Annexure 7. So far as the State Governments are concerned, there are Anti-corruption Bureaux, Lok Ayuktas and Vigilance commissioners. The addresses and details regarding these are given in Annexure 4. These agencies may also be contacted. Another agency of the Government of India is the Central Bureau of Investigations. Details of the CBI offices also may be seen in annexure 7. They may also be contacted. 2.
Any demand or acceptance of illicit gratification could be promptly reported to the concerned authority –CBI in case of Central Govt. officials and State Anti – Corruption Bureaux in case of State Govt. officials either verbally or in writing, in the form of a complaint, with a request to take legal action against the said public servants by laying a trap to apprehend him red handed while demanding and accepting the bribe amount. The amount of bribe demanded has also to be arranged/provided by the government, as the enforcement agencies providing the same has been adversely commented upon by the courts. This amount is returned to the complainant after the trial is over. Subsequently, after the trap is over, the complainant is required to give evidence in court during the trial to prove the genuineness of the complaint and the part played by him in the case. This much effort by a member of the public can enable CBI/State Anti Corruption Bureaux to lay a trap and apprechend a public servant demanding and accepting illegal gratification.
3.
Members of the public can also report about the activities of public servants who are found to be living beyond their means, as such public servants would have acquired assets which are disproportionate to their known sources of income. However, while providing information in this regard, specific details of properties held by the public servant, either in his own name or in the name of his dependent family members, etc. would have to be furnished. These would be addresses of the house/flats, numbers of the vehicles, bank accounts details of shares/LIC policies/NSCs/FDRs/Securities and other house hold assets viz. costly furniture TV sets , computers, fridge and other electronic items etc. In addition, specific details of number of children, schools where they are studying, house rent paid, family background ancestral properties etc.should also be provided, as far as possible, to enable quick verification of the information. The identity of the complainant can be kept secret, if desired, as the agency can treat the information as source information and proceed further with it . •
ROLE OF CVC
4.
The CVC is the organization set up for checking corruption in the GOI organizations. The functions of the CVC are as follows:
(i)
To inquire of cause an inquiry or investigation to be made on a reference made by the central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation, established by or under any Central Act. Government company, society and any local authority owned or controlled by that Government, has committed and offence under the Prevention of Corruption Act 1988.
(ii)
To cause an inquiry or investigation to be made into any complaint against any official belonging to the following category of officials, namely:-.
(iii) (iv)
(a)
Group ‘A’ Officers of the Central Government.
(b)
Such level of officers of the Corporations established by or under any Central Act. Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette specify in this behalf, wherein it is alleged that such official has committed an offence under the Prevention of Corruption Act. 1988.
Review the progress of applications pendig with the competent authorities for sanction of prosecution under the Prevention of Corruption Act 1988: Tender advice to the Central Government, corporations established by or under any central Act Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government otherwise;
(v)
Exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
5.
While the jurisdiction of the Central Vigilance Commission is restricted to that of the organizations within the Government of India, in every State there are anti-corruption agencies. A list of these agencies may be seen in Annexure 4.
6.
Generally, an entrepreneur or a citizen may come across cases of corruption even when he is trying to follow his profession or running an enterprise. In such cases, going to courts of law may be expensive. Legal aid societies are available which can be useful in ensuring that a person gets what he is entitled to legally and also tackle corruption.
7.
Thanks to the spread of information technology, many of the organizations which are designed to flight corruption or ensure that the citizen gets his rights are also accessible through the websites.
8.
The citizen can use these organizations as synergetic partners in the fight against corruption. The Benami Black Money Scheme(See annexure 6) is an example of such synergetic partnership Networking with all other organizations fighting corruption can be another effective method. The Council for Clean India (CFCI) is an example of this type of networking initiated by the CVC. Apart from individual cases, the measures that could be taken by non-government organizations are indicated in chapter 6.
STRATEGY TO FIGHT CORRUPTION Our country is corrupt and corruption flourishes because there are people in power who benefit from the present system. Unfortunately, those who benefit from the power are also those who have to initiate the change to check corruption. Under these circumstances citizens and their organizations (NGO) can get change initiated only by adopting the following elements of strategy. JUDICIARY:
Judicial activism has been responsible for bringing about some of the well needed changes. The role played by the judiciary, for example, in ensuring that the environmental pollution in Delhi is reduced is a case in point. The empowering of the CVC as a more effective agency to fight corruption and particularly, ensure the autonomy of the CBI and enforcement Directorate is another example of the role of the judiciary. The Public Interest Litigation is a route that can be used to approach the courts and thereby make the administration change policies or initiate action to check corruption. AGENCIES LIKE CVC, VIGILANCE COMMISSION ETC.:
Agencies specially designed for fighting corruption like the CVC, Vigilance Commission, Lok Ayuktas etc. may also be approached by citizens so that they in turn, can take action not only individual cases of corruption but also to bring system changes so far as their jurisdiction is concerned. A list of such agencies may be seen in Annexures 4 and 7.
SHAPING PUBLIC OPINION:
In a democracy, the political leaders have to respect public opinion. Shaping of public opinion is therefore, very essential. In shaping public opinion the electronic and print media can be effectively used. For the media to be used what is needed is access to information. Therefore freedom of information or access to information becomes important. The imaginative way packaging the message adopted, for example, by the CVO, EIL can be very useful in this context.’ ACTIVISM BY NGOS:
NGOs many a time can play an active and direct role in taking up individual cases for fighting corruption or bringing about system changes. Information regarding the individual NGOs and strategies adopted by them and details about anti corruption activities by various groups in the countries can be accessed at the CVC web-site http://cvc.nic.in where in the section Council for Clean India all relevant information will be found. NETWORKING:
Networking among the anti-corruption forces is necessary if the anti corruption activities have scaled up. In this CFCI, which is a virtual organization, can be used as a forum for interaction and networking.
CONCLUSION
1.
Fighting corruption is the national duty of every patriotic Indian. If five crore corrupt elements are ruining the country the remaining 95 crores who are the victims of corruption or are silent witnesses to the pervasive corruption scene are failing in their duty. This Guide has been drafted with a view to place ready information in the hands of every patriotic Indian who would like to take some action to check corruption in our country and make India realize its full potential as a nation. If we want India to become an economic and military super power and create an corruption is the most important need. It is the responsibility of every Indian Citizen to respond to this need and see what can be done at the individual and group levels for fighting corruption.
2.
After all, as the Taitreya Upanishad says, let us com together, let us enjoy together, let our strengths come together, let there be the brightness of knowledge, let there be no poison of misunderstanding or hatred. That is the way we can fight corruption and ensure that India has a bright future. Sahanavavatu sahanaubhunaktu sahaviryam kara va vahai Tejasvinam aditamastu ma vid visha vahai om shanti shanti shanti
ADMINSTRATIVE INSTRUCTIONS ON ANTI CORRUPTION MEASURES
The Central Vigilance Commission, Governement of India and Ordanance Factory Board have been issuing instructions from time to time prescribing measures to eradicate and prevent corruption in public services. This section contains a compilation of such instructions. OFB D.O. NO. 01/CVO/CVC INST./2001 DATED 12.02.2002 Sub : Improving vigilance administration transparency
This has reference to CVC Instruction No. 8 (1)(h)/98(1) dt. 18.11.98 circulated to factories vide OFB letter No. 106/6/MM (vol.-XLIII) dated 23.12.98 regarding “Improving Vigilance Adminstration.” It was communicated vide aforesaid letter under para 2.2.1 as follows.
“One major source of corruption arises because of lack of transparency. There is a scope for patronage and corruption especially in matters relating to tenders cases where exercise of discretion relating to out of turn conferment of facilities/privileges and so on. Each Organisation may identify such items, which provide scope for corruption and where greater transparency would be useful. There is a necessary to maintain secrecy even in matters where greater discretion has to be exercise. But once the discretion has been exercised or as in matters of tenders, once the tender has been finalized, there is no need for the secrecy. A practice, therefore, must be adopted with immediate effect by all Organisations within the purview of the details of all such cases regarding tenders or out of
turn allotments Or discretion exercised in favour of an employee/party. The very process of publication of this information will provide an automatic check for corruption induced decisions or undue favours which go against the principles of healthy vigilance administration.” It has been highlighted by GVOs, during their visit to various factories, that above mentioned CVC instructions are not being complied with by the factories. The reports submitted by GVOs in this regard have been perused and it has been observed that the factories, for some vague reasons, are not abiding by the aforesaid CVC instructions on the subject. This has been reviewed by the undersigned and it has been decided that in case the factories are experiencing genuine difficulties in implementing these instructions, the same may be brought to the notice of the undersigned so that a holistic view can be taken and the matter may, if need be brought to the notice of Central Vigilance commission. You are requested to review the status in your factory and intimate the position for perusal at this end. You are requested to review the status in your factory and intimate the position for perusal at this end. Your response may be communicated by 28.02.2002 3.4.3 CENTRAL VIGILANCE COMMISSION No. 8(1)(h)/98(1) Dated 18 th November 1998 Sub : Improving Vigilance administration – system improvements 1. The Central Vigilance Commission Ordinance 1998 under section 8(1)(h) directs that the power and function of the CVC will be the following. “Exercise superintendence over the vigilance administration of the various Ministries of the Central Government Or corporations established by or under any Central Act. Government companies, societies and local authorities Owned or controlled by that Government.” 2.
Improving vigilance administration is possible only if system improvements are made to prevent the possibilities of corruption and also encourage a culture of honesty. In exercise of the powers conferred on the CVC by Section 8(1) (h) the following instructions are issued for compliance.
3.
Creating a culture honesty.
Many Organisations have a reputation for corruption. The junior employees and Officers who join the Organisations hopefully may not be so corruption minded as those who have already been part of the corrupt system. In order to ensure that a culture of honesty is encouraged and the junior Officers do not have the excuse that because their seniors are corrupt that they have to also adopt the corrupt practices. It is decided with immediate effect that junior employees who initiate any proposal relating to vigilance matters which is likely to result in a reference to the CVC can send a copy directly to the CVC by name. This copy will be kept in the office of the CVC and data fed into the computer. If within a reasonable time of say three to six months, the reference does not come to the CVC. The CVC then can verify with the concerned authorities in the department as to what happened to the vigilance case initiated by the junior employee. If there is an attempt to protect the corrupt or dilute the charges, this will also become visible. Above all the junior Officers will not have the excuse that they have to fall in line with the corrupt seniors. Incidentally, the seniors also cannot treat the references made directly to the CVC as an act of indiscipline because the junior officers will be complying with the instructions issued
under Section 8(1)(h) of the CVC Ordinance 1998. However, if a junior Officer makes a false or frivolous complaint it will be viewed adversely. 2.2.
Greater transparency in administration
2.2.1 One major source of corruption arises because of lack of transparency. There is a scope for patronage and corruption especially in matters relating to tenders, cases where exercise of discretion relating to out of turn conferment of facilities/privileges and so on. Each Organisation may identify such items which provide scope for corruption and where greater transparency would be useful. There is a necessity to maintain secrecy even in matters where discretion has to be exercised. But once the discretion has been exercised Or as in matters of tenders. Once the tender has been finalized. There is no need for the secrecy. A practice, therefore, must be adopted with immediate effect by all organisation’s within the purview of the CVC that they will publish on the notice board and in the Organisation’s regular publication the details of all such cases regarding tenders or out of turn allotments Or discretion exercised in favour of an employee/party. The very process of publication of this information will provide an automatic check for corruption induced decisions or undue favours which go against the principles of healthy vigilance administration. 2.2.2
2.3
The CVC will in course of time take up each Organisation and review to whether any additions and alterations have to be made to the list of items which the Organisations identified in the first instance for the monthly communicatios for publicity in the interests of greater transparency. This may be implemented with immediate effect. Speedy departmental inquiries
2.3.1 One major source of corruption is that the guilty are not punished adequately and more important they are not punished promptly. This is because of the prolonged delays in the departmental inquiry procedures. One of the reasons for the departmental inquiry being delayed is that the inquiry officers already got their regular burden of work and this inquiry is to be done in addition to other normal work. The same is true for the Presenting Officers also.
2.3.2.
Each Organisation, therefore, may immediately review all the pending cases and the disciplinary Authority may appoint inquiry Officers from among retired honest employees for conducting the inquires. The names of these officers may be got cleared by the CVC. The CVC will also separately issue an advertisement and start building a panel of names all over India who can supplement the inquiry officers work in the department. In fact it will be a healthy practice to have all the inquiries to be done only through such retired employees because it can then be ensured that the departmental inquiries can be completed in time. If any service/departmental rules are in conflict with the above instructions they must be modified with immediate effect.
2.3.3 In order to ensure that the departmental inquiries are completed in time, the following time limits are prescribed. (i) In all cases, which are presently pending for appointment of inquiry Officer and Presenting Officer, such appointment should be made within one month. In all other cases, the Inquiry Officer and the Presenting Officer should be appointed, wherever
necessary, immediately after the receipt of the public servant’s written statement of defence denying the charges. (ii)
The Oral inquiry, including the submission of the Inquiry Officer’s report, should be completed within a period of 6 months from the date of appointment of the Inquiry officer. In the preliminary inquiry in the beginning requiring the first appearance of the charged officers and the Presenting Officer, the inquiry officer shold lay down a definite time bound programme for inspection of the listed documents, submission of the lists of defence documents and d3efence witnesses and inspection of defence documents before the regular hearing is taken up. The regular hearing, once started, should be conducted on day-to-day basis until completed and adjournment should not be granted on frivolous grounds.
2.3.4 One of the causes for delay is repeated adjourmments. Not more than two adjourmments should be given in any case so that the time limit of six months for departmental inquiry can be observed. 2.3.5 The IO/PO, DA and the CVO will be accountable for the strict compliance of the above instructions in every case. 2.4.
Tenders
Tenders are generally a major source of corruption. In Order to avoid corruption, a more transparent and effective system must be introduced. As post tender negotiations are the main source of corruption, post tender negotiations are banned with immediate effect except in the case of negotiations with L1 ( i.e. Lowest tenderer). 3.4.4
Central Vigilance Commission No. 000/VGL/166 Date4d the 9 th November, 2000 Sub: Advance copy of CVO investigation reports to CVC.
The commission finds that there is a disturbing trend noticed in certain Organisations under its purview to shield corrupt public servants especially at the senior levels. The modus Operandi is not to respond to the CVC’s communications and delay the report as far as possible. Secondly when the CVOs report is submitting, attempts are made to dilute the gravity of the Offence before reference is made to CVC, if at all made. 2. In order to reduce such in – built safety nets for the corrupt public servants, it has been decided that with immediate effect all CVOs, when they complete their investigation in vigilance cases, will endorse an advance copy of their report to the CVC while submitting their report/comments to the superiors in the organizations. The CVC in turn would analyse the reports/comments and keep the course ofn action ready. As soon as the reference is received from the appropriate disciplinary authority, action could be taken for giving the advice after taking into account the specific advice of the disciplinary authorities. If attempts have been made to dilute the CVOs report and shield the corrupt, this would also become clear.
3. After the CVO gives the investigation report generally the appropriate authorities must be able to send the report to the CVC within one month of the submission of the report. It is quite possible that a series of queries can be raised by way of scrutiny of the CVOs report which can sometimes be a deliberate attempt to shield the corrupt. In such cases, the CVC will be constrained to draw appropriate conclusion about the action being taken by the CVO. 3.4.5
Central Vigilance Commission NO. 98/ORD/1 dated the 3 rd August, 2001 Sub:- Improving Vigilance Administration –
Sir,
Please refer to the instructions issued by the Commission vide its communication No. 8(1)(h)/98(1) dated 18.11.1998, banning post-tender negotiations except with L-1. It is clarified that the CVC’s instruction dated 18.11.1998, banning post-tender negotiations except with L-1 (i.e. the lowest tender), pertain to the award of work supply Orders etc., where the Government Or the Government Company has to make payment. If the tender is for sale of material by the Government or the Government company, the posttender negotiations are not to be held except with H-1 (i.e. the highest tenderer), if required. 3.4.6. Central Vigilance Commission No. 3 (v)/99/14 Dated the 16 th May, 2001. Sub: System improvement to fight corruption through better synergy between CAG and CVC.
CVC OM No. 3 (V)/99/14 dated 16.5.2001 on the above subject received under OFB, Kolkata No. 01/CVO/CVC INST/A/VIG/2001 dt. 20 th August, 2oo1 is reproduced below. Under the powers vested in the DOPT resolution No. 371/20/99-AVD. III dated 4 th April, 1999, para 3(v), the following instructions are issued. The audit reports of the Comptroller & auditor General many a time reveal not only administrative and financial irregularities but also actual cases of corruption. The CAG reports are generally well documented an would be useful in bringing the corrupt public servants to book. 2. There is a need for introuducing a system for prompt follow up action in the cases of corruption brought out by the CAG in its audit repots. The public Accounts Committee and the Committee on Public Undertakings which scrutinise the CAG reports may not have the time to scrutinize all the reports and all the paragraphs. At the same time, the valuable information available through the CAG audit reports in the form of documented cases of corruption call for prompt action on the part of the disciplinary authorities. 3. It is therefore, decided that with immediate effect the CVOs in all the organisaions must scrutinize the CAG audit reports issued after the date of this circular to check whether any cases of corruption are revealed in them. In all such cases immediate action must be initiated against the public servants concerned through the standard practice of referring vigilance cases to CVC.
4. The commission had also been in correspondence with the CAG on this subject. It has been agreed that all serious cases of malpractice reported by CAG which are perceived to have a vigilance angle would also be sent to the Commission for examination and follow up action. On receiving such references from CAG the CVC would take follow up action with the disciplinary authorities. In this way, it will be ensured that the cases of corruption and issues having a vigilance angle are not lost sight of and there is effective synergy between CAG and CVC to Strengthen the system to fight corruption. 5.
This instruction is also available on the CVC web site at http:/CVC/nic.in.
3.4.7
CENTRAL VIGILANCE COMMISION NO. 3(v)/99/10 Dated the 1 st December, 1999. Sub: Effective punishment of the corrupt through traps.
One of the main weaknesses in the present system of vigilance is that the corrupt public servants many a time escape punishment. Effective and prompt punishment of the corrupt is a sin qua non to change the present atmoshphere of cynical apathy in the organizations under the purview of the CVC. There is a need of the issue of tackling corruption to create a healthy atmoshphere that corrupt will not be tolerated. 2. There are two courses of action possible against the corrupt public servant. The first is prosecution and the second is departmental action. So far as prosecution is concerned, once the papers go to the court, there is no way in which the action can be expedited. So far as departmental action is concerned, it is within the powers of the disciplinary authorities to ensure that the punishment is effectively meted out. The CVC has already issued instructions no. 8(1)(h)/98 dated 18.11.98 that the departmental proceedings should be completed within a period of six months. In Order to achieve this goal, the engagement of retired honest persons as inquiry Officers has also suggested. 3. While systematic application of these instructions will help in bringing down the overall pendency of corruption cases and also ensure that the corrupt public servants are punished, still the problem of the current atmosphere of cynicism and apathy against corruption remains. 4. In order to ensure that effective punishment is quickly meted out to the corrupt , the following instructions are issued under the powers vested in the CVC in para 3(v) of DOPT Resolution No. 371/20/99-AVD III dated April 4, 1999. (i)
In every Organisation those who are corrupt are well known. The disciplinary Authorities and the CVOs as well as those who are hurt by such corrupt persons can arrange for traps against such public servants. The local Police Or CBI can be contacted for arranging the traps.
(ii)
The CBI and the Police will complete the documentation after the traps within a period of two months. They will make available legible, authorized photocopies of all the documents to the disciplinary authority within two months from the date of trap for action at their end. Once the photocopies of the documents are received, the disciplinary authority should initiate action to launch departmental inquiry. There will be no danger
(iii)
(iv)
(v)
(vi)
of double jeopardy because the prosecution which will be launched by the CBI Or the Police based on the trap documents would relate to the criminal aspect of the case and the disciplinary proceedings will relate to the misconduct under the conduct, Discipline and Appeal Rules. Retired, honest people may be appointed as special inquiry Officers so that within a period of two months, the inquiry against the corrupt public servants involved in traps can be completed. On completion of the departmental process, appropriate punishment must be awarded to the trapped charged officer Or public servant, if the charge is held as proved. If and when the court judgement comes in the prosecution case, action to implement the court decision may be taken appropriately
5. The intention of the above instructions is to ensure that there is a sharp focus on meting out effective punishment to the corrupt in every Organisations is bound to improve because the corrupt will get the signal that they could not survive as in the past banking on the delays taking place both in the departmental inquiry process as well as in the prosecution process. 6. This order may be implemented by all departments effectively. This order is also available on web site of the CVC at http://cvc.nie.in. 3.4.8
OFB No. 01/CVO/CVC/Instruction/2K dated the 14 th July, 2000. CVC Instruction 000/VGL/18 dated 23.05.2000 Sub: Schedule of the time limits in conducting investigations and Departmental inquiries.
Sir, Delays in disposal of disciplinary cases are a matter of serious concern to the Commission. Such delays also affect the morale of the suspected/charged employees and others in the organisation. The commission has issued instructions, vide its communication No. 8(1)(g)/99(3) dated 03.03.1999, that departmental inquiries should be completed within a period of six months from the date of appointment of inquiry officers. Regarding other stages of investigation/inquiry, the time schedule, as under has been laid down in the Special Chapters on Vigilance Management in Public Sector Banks/Enterprises, which are applicable to the employees of public sector banks/enterprise. The Commission desires that these autonomous organizations and other cooperative Societies, in respect of their employees, so as to ensure that the disciplinary cases are disposed of quickly. S.No. State of Investigation or Inquiry 1. Decision as to whether the complaint involves a vigilance angle. Decision on complaint whether to be 2. filed or to be entrusted to CBI or to be taken up for investigations by departmental agency or to be sent to the concerned administrative authority for necessary action.
Time Limit One month from receipt of the complaint -do-
3. 4.
5. 6. 7.
8. 9. 10.
Conducting investigation and submission of report. Department’s comments on the CBI reports incases requiring commission’s advice. Referring departmental investigation reports to the Commission for advice Reconsideration of the Commission’s advice if required. Issue of Charge sheet if required
Time for submission of defence statement Consideration of defence statement
Three months. One month from the date of receipt of CBI’s report by the CVO/Disciplinary Authority One month from the date of receipt of investigation One month from the date of receipt of Commission advice (i) One month from the date of receipt commission’s advice (ii) Two months from the date of receipt of investigation Ordinary ten days or as specified in CDA Rules 15(fifteen) days
Issue of final orders in minor penalty cases Appointment of IO/PO in major penalty cases Conducting departmental inquiry and submission of report
Two months from the receipt of defence statement. Immediately after receipt and consideration of defence statement
13.
Sending a copy of the IO’s report to the charged officer for his representation.
(i) Within 15 days of receipt of IO’s report if any of the Articles of charge has been held as proved. ii) 15 days if all charges held as not proved. Reasons for disagreement with IO’s findings to be communicated.
14.
Consideration of CO’s representation and forwarding IO’s report to the Commission for second stage advice Issuance of orders on the inquiry report
One month from the date of receipt of representation.
11.
12.
15.
3.4.9
Six months from the date of appointment of IO/PO.
i) One month from the date of commission’s advice. ii) Two months from the date of receipt of IO’s report if Commission’s advice was not required.
CENTRAL VIGILANCE COMMISSION No. 3(v)/99/2 Dated 29 th June, 1999.
Subject : Improving vigilance Administration – no action to be taken on anonymous/pseudonymous petitions/complaints.
By virtue of the powers invested in the CVC under para 3(v) of the Ministry of Personal Public Grievances & Pensions, Department of Personal & Training Resolution No. 371/20/99. AVD III dated 4 th April, 1999, the CVC is empowered to exercise superintendence over the vigilance administration of the various Ministers of the Central Government or Corporations established under any Central Act, Government Companies, Societies and local authorities owned or controlled by that Government.
2.
One of the facts of life in today’s administration is the widespread use of anonymous and pseudonymous petitions by disgruntled elements to blackmail honest officials. Under the existing orders, issue by Departmental of Personal & Training letter no. 321/4/91 AVD III dated 29/09/1992, no action should be taken on anonymous and pseudonymous complaints and should be ignored and only filed. However, there is a provision available in this order that in case such complaints contain verifiable details, they may be inquired into in accordance with existing instructions. It is, however, seen that the exception provided in this order has become a convenient loophole for blackmailing. The public servants who receive the anonymous / pseudonymous complaints, generally, follow the path of least resistance and order inquiries on these complaints. A peculiar feature of these complaints is that these are resorted to especially when a public servant’s promotion is due or when an executive is likely to be called by the Public Enterprises Selection Board for interview for a post of Director/CMD etc. If nothing else, the anonymous / pseudonymous petition achieves the objective of delaying the promotion if not denying the promotion. These complaints demoralize many honest public servants.
A persons will resort to anonymous or pseudonymous complaints because of the 3. following reasons. i)
He is an honest person who is a whistle blower but he is afraid to reveal his identity because of fear of consequences of the powerful elements in the organisation.
ii)
The CVC has issued instructions that the name of the complaint will not be revealed when the complaint is sent to the appropriate authorities for getting their comments or launching inquiries.
iii)
Under CVC Order No. 8(1)(g)/99(4) dated 125 th March, 1999, in every office there should be public notice displayed directing that no bribe should be paid. If any bribe is demanded the complaint should be made to the appropriate authority like CVO. CVC. Etc. and.
iv)
The CVC is now available on we – http:/cvc.nic.in. If anybody wants to complain they can easily lodge complaints on the web site of CVC and also through e-mail
5.
In view of the above measures taken, there is very little possibility that genuine cases or corruption will not be brought to the notice of the appropriate authorities by thos who were earlier reporting to anonymous/pseudonymous complaints route.
6.
It is therefore ordered under powers vested in the CVC under para 3(v) of the DOPT Resolution No. 371/20/99-AVD-III dated 4 th April, 1999. that with immediate effect no action should at all be taken on any anonymous/pseudonymous complaints. They must just be filed.
7.
This order is also available on web site of the CVC AT http:/cvc.nic.in. All CVOs must ensure that these instructions are strictly compiled with.
3.4.10 O F B No. 01/CVO/CVC/INSTRUCTIONS/99 dated 4 th November, 1999. CVC instruction No. 3(v)/99/7 dt. 6/09/1999 CVC Instruction No. 8(1)(g)/99(3) dt. 3/03/1999 Sub : Improving vigilance administration – Reducing delays in Departmental inquiries. Prolonged departmental inquiries not only delay justice to the honest persons but also help the guilty to breath freely. The Central Vigilance Commission issued an instruction in this regard vide No. 8(1)(g)/99/3 dated 3 rd March, 1999 thereby stipulating a model time schedule for conducting departmental inquiries. In order to eliminate the delays in the departmental inquiries by virtue of the powers vested in the CVC under para 3(v) of the Ministry of Personnel, Public Grievances &b Pension, Departmental of Personal and Training Resolution No. 371/20/99-AVD III dated 4 th April, 1999 the commission issues the following guidelines after having identified some of the reasons for delay in the departmental inquiries. 1.1
Certified photocopies of documents
As per the extant instructions, while the CBI can pursue the prosecution cases in the Courts, simultaneously departmental inquires can also be held. In order to ensure that the critical documents needed in the departmental inquires are made available, the responsibility has been put on the CBI to make photocopies of seized documents within four days so that the departmental proceedings can be proceeded with. A large number of cases are pending for more that two years because of non availability of documents for inspection, which are already before the court. It has therefore, been decided with immediate effect that the CBI should make legible certified photocopies of all the documents, which they seize, for launching the prosecution against the charged officer to concerned departments. It is also the responsibility of the CVOs to ensure that these certified legible photocopies of documents are made available when the CBI seizes the documents in any Government organisation. This is applicable to al Government organisatios Public Sector Undertaking and Banks. 1.2
Availability of documents to CDIs/os.
In many cases the concerned departments do not make the documents available during the departmental inquires conducted by the Commissioner for Departmental inquires (CDIs). This may be either due to inefficiency or collusion. There have been a lot of cases where important/critical files have disappeared. As failure to safeguard documents is an offence is has been decided that henceforth the following practice will be adopted by all concerned :The inquiry officer / CDI will ask the concerned departments to produce the document within a time limit fixed by the IO/CDI. While doing so it will be indicated that if within the stipulated time frame the concerned department is not able to produce the documents the disciplinary authority will fix responsibility for the loss of the documents and compliance reported to the Commission with in a period of 3 months.
These documents would cover not only those listed in the charge-sheet but also additional documents as sought out by the charged officer and permitted by the inquiring Authority. 2.
All CVOs must ensure that strict compliance of the above guidelines of the Commission.
3.
This order is also available on web site of the CVC at http://cvc .nic.in.
3.4.11 Ordnance Factory Board no. 001/soa/e/b Dated: 05/05/1999. Sub: preventive vigilance measures. It has been pointed out by DDG/CVO, O.F. Board vide his IS Note No. 909/VIG(BKS)/98 dated 26/03/1999 that a number of complaints are being received at M OF D and at OFB that additions/alterations are being carried out in residential quarters of the factory estates occupied by senior officers including the official residences of the General Managers. It has since been decided by Chairman/DGOF that any additions and alterations in residential quarters in the factory estates including the residential quarter of the General Manager should be carried out strictly as per Civil works procedures / norms.
This may kindly be noted for compliance and also brought to the notice of the officers concerned with the maintenance of the Residential quarters and the officers controlling the functioning of the Engineering office of the Factory. 3.4.12 CENTRAL VIGILANCE COMMISSION NO. 3(v)/99/1 Dated 21 st June, 1999 Subject :
Improving vigilance Adminisration – Bringing in accountability – Regarding.
Accountability is one of the major factors in the effective administration of the Orgainsations Adminstration without accountability is disastrous and provides ample scope for corruption. Dealing with the complaints is one of the areas, which calls for more accountability. Therefore, in order to bring in a sense of accountability both in the complaint and in the office receiving the complaint the Commission, in exercise of its powers conferred on it vide Section 3(v) of the Resolution NO. 371/20/99-A-AVD.III dated 4/04/1999, hereby directs all Departments/Orgainsations under its purview to compulsorily give proper receipt of the complaints being received in person to the complaint, with immediate effect. 2)
This is subject to surprise check by the Commission.
3.4.13 Ordnance Factory Board No. 967/A/Vig/Genl. Sub:
Preventive Vigilance & Anti – corruption Measures in Ordnance Factories.
Instructions have been received from highest level of Govt. that vigilance setup in Govt. Organisation be strengthened and effective measures be taken in the area of preventive vigilance & Anticorruption activities. In order to achieve this Objective certain
measures have been taken at OFB. While a full time Chief Vigilance Officer(CVO) is functioning at OFB HQ. two Group Vigilance Officers(GVOs) have been positioned at OEF HQ. Kanpur and AV HQ Avadi. During a meeting of CVO & GVOs at OFB recently, DGOF/Chairman OFB has given certain guidelines to GVOs to carry out their functions effectively. They have been directed to regularly carry out inspections in factories and closely scrutinize the working systems/procedures & to have checks in corruption prone areas like material management inspection, recruitment, disposal, Civil Works., handling of cash etc. The GVOs have been instructed to make surprise visit to the fys. And carry out necessary checks in sensitive visits to the fys and carry out necessary checks in sensitive and corruption prone areas mentioned above and submit report to Chief Vigilance Officer of OFB who in turn will scrutinize such reports & submit to DGOF/Chairman _ wherever required with his remarks. It is therefore enjoined upon the General Manager to give the necessary cooperation to them and to give them free access to the records and physical access to the concerned sections which they may like to visit. GMs should give adequate attention to their visit & look into the observations made by them. They have been advised to bring to the notice of GM any irregularity they may Observe during their inspection. Needless to say, personal commitment on the part of the chief executive is required to make the drive against corruption a success in the Organisation. The distribution of factories among the CVO and GVOs to carry out the subject function is given below. (i)
OFB HQrs including OF Cell, MSF, RFI,GSF,OFDC,OF Badmal, RMC & RTIs in the area-CVO/OFB.
(ii)
OEF HQrs. OCFS,OFM,OFD,OLF, OCFS, DEFH, OFC,FGK,SAF,OPF,OEF, VFJ,GCF,GIF,OFK,OFI,OF Kat, RMC & RTIs in the area GVO/OEFHQrs.
(iii)
AV HQrs. HVF,EFA,OCFA,CFA,OFT,HAPP, OFPM, OFAJ, OFSC, OFBa, OFBh, OFCh, OFV, OFA, MPF, OFDR, AFK, HEF & RMC & RTIs in the area – GVO/AVHQrs.
3.4.14. D.O. No. 01/VIP/A/VIG dated the 27 th January, 1998 Subject: Measures to combat corruption. A copy of letter No. 600 (AC)/31/C/28/87 ES.II dt. 15 th December, 1997 from Principal Secretary to the PM addressed to Secretary (DP&S) on measures to combat corruption is enclosed. It is observed that adequate attention has not been given to complaints forwarded by the PMO. Due importance is not being given for maintaining reply time schedules and conducting effective investigations. The Ministry has given OFB only one week’s time to reply to complaints received from the PMO. It may therefore be strictly noted that all cases received from the PMO or marked as such must be investigated promptly and thoroughly and a reply given by the factory within three days of receipt of same by speed post/courier. Instructions in this regards may be issued to the concerned Officers and staff and steps taken
to monitor such cases. Please also intimate the name of nodal/vigilance Officer who is responsible for giving timely reply. This intimation is to sent to the CVO OF OFB Hqrs immediately. Kindly acknowledge. 3.4.15 MOD DO letter No. 000(AC)/31/C/20/97-ES-D December 15, 1997. Subject : Corruption – Measure to combat. My dear Secretary,
This is further to my earlier communications of 27 th August and 13 th October regarding complaints received in the Prime Minister’s Office and the fortnightly reports to be submitted by your Department. 2. In my earlier notes under reference, the procedure regarding disposal of complaints forwarded to you by the PMO was adequately spelt out. Ministries / Departments were also separately advised to appoint Nodal Officers (not below the rank of Joint 3. From the fortnightly reports so far received, the under mentioned major shortcoming have been noticed. (a) Tendency to immediately contact the complainant rather than to investigate the mater. Effort have reportedly been made in some cases to put indirect pressure on the complainants to withdraw the complaints or affidavits being obtained from the complainants to deny the allegations earlier made. (b) Complaints are asked to submit affidavits in support of their complaints, failing which the cases are closed. (c) Complaints have been filed, stating that the same have been inquired into without indicating whether such decision has been approved by the Secretary. (d) Investigations reports from field units are pending for months but no reminders are issued for securing timely feed back. (e) There is Ostensible hesitation to vigorously pursue complaints relating to PSUS, complaints are closed by merely stating that PSUs are handling the matter. (f) Specific complaints have not been given adequate attention and simply closed, stating that the allegations are of a “general nature”. 4. The Prime Minister has expressed displeasure over the casual manner in which certain Ministries/Departments have furnished reports on the complaints referred to them. In my earlier letter, I had requested you to reflect the requisite sensitivity to the high importance that Prime Minister attaches to the eradication of corruption at all levels. It was with this in view that Ministries were requested to actively pursue even anonymous complaints and for all reports to be seen at your level for deciding the nature of action to be taken thereon. Unfortunately, the feedback forwarded by you gives an impression that adequate attention is still not being given to the complaints forwarded by the PMO. It is also obvious that the Vigilance staff of your Ministry/Department and PSUs under your control are not carrying out the investigations/inquiries effectively. 5. All corruption cases forwarded to you should be handled with requisite thoroughness. On receipt of a complaint, a detailed and proper inquiry should be conducted in a time-bound manner and feedback sent to us within a period of one month. Further, directions may also
be issued to the inquiring staff not to insist on affidavits etc. and complainants may be contacted only when absolutely unavoidable. Moreover in sensitive cases, it should be ensured that the complainant’s identify is kept totally confidential. The stress should always be on investigating the wrong-doing rather than to identify the complainant. 6. As requested earlier, it is responsibility to ensure that fortnightly feedback reports are sent timely to the PMO. Such reports should be signed personally by the Nodal Officers and should contain a proper description of the Obtaining position, under the appropriate column. Further, wherever it is decided to close a complaint, it should be clearly mentioned that the same has been done with your approval. The reasons for closing a particular case should be clearly stated. 7. The Nodal Officer in your Ministry and the heads of Vigilance Wings in subordinate/attached Offices and PSUs under the Ministry should be made fully accountable for the proper and timely completion of inquires and all vigilance activities. Functioning of Vigilance Wings in the PSUs under the Ministry should be stepped up and special attention paid to their functioning to make the heads of Vigilance more effective and fully accountable . 8. The aforesaid procedure must be strictly enforced. I do not propose to send you any further reminder in the matter. Any fresh default/deviation shall attract serious adverse notice. 3.4.16 Ordnance Factory Board No. 7189/A/Vig/(c) Dated: 15.5.1989 Sub:- Action plan on Anti-corruption –Implementations of
You are aware that M of D has formulated programmes to combat corruption in this department. Rotation of Officers & staff functioning in sensitive corruption prone areas has been attached primary importance. The sensitive corruption prone areas could be identified as MCO, EO, Project, Provisioning Section, Stores, Work Inspection. Administration, LB, Security, Electroplating of valuable material etc. In this background chairman/OF Board desires that rotation of officers and staff working in those aforementioned areas/divisions should strictly be ensured within 2/3 years without giving any scope of leniency. Therefore, in Order to ascertain the position in regard to the period of tenure of the Officers/staff in the sensitive areas the factory is requested to forward a chart showing in details the name, designation, total period of tenure, with dates of assumption of charge in the sensitive areas indicating any rotation, if so, in respect of all staff and Officers. 02. in pursuance of this Office circular D.O. of even No. dated 23.1.87., the factories are rendering quarterly reports of Action Plan on Anti-Corruption. The information on para 2(i) of O.F.B. circular D.O. of even dated 23.11.87 show the statistical figures only. It has been decided that hence forth-the factories while given this quarterly report on para 2(i) mentioned above should specify the details of the rotations indicating the dates, sections, concerned along with the names and designations of the Officers & staff such rotated. This modification has been contemplated for the purpose of ascertaining the frequency of the movements of staff and Officers from sensitive to non-sensitive areas and vis-à-vis, and the period of their tenure in the respective sections. Other items except para 2(i) will remain unchanged. 03.
This issues with instruction of Chairman and CVO, OF.Board for strict compliance.
3.4.17. OFB No. 7189/A/VIG(C) dtd.: 17 th February’87. Sub: Responsibilities and duties of a Vigilance Officer posted at O.F. Factory or office under O.F. Board.
All the factories /officers were directed to appoint a vigilance officer under this office confidential letter of even No. dated 3/9/86 and accordingly almost all the fys have complied with the instruction. Now a guideline has been formulated, indicating the responsibilities and duties of the vigilance officers appointed in each factory/office for looking after the vigilance activities and disciplinary actions systematically, as under:Vigilance officer would act as a special assistant to the General Manager of the factory and also work as a liaison officer between the factory and the CVO, OF Board. We will see that the vigilance functions of the factory are performed adequately and in time. He will take steps to uncover misconduct/misbehaviour which has taken place in the past and to prevent such occurrence in future. Generally, it is said that some areas are more sensitive and therefore throw up more vigilance cases. This is only partly so. Actually, there is hardly any area, which can be said to be immune from misconduct. Vigilance officer therefore cannot afford to ignore any of them. Vigilance officer should bring to the notice of the General Manager if departmental inspection are not performed in time and should ensure that GM is informed of all issues which may come during inspections and which have vigilance angle. The VO of the FY/Office should assist the CVO, OF Board in this light. One of the most important duties of Vigilance Officer is to see that the time limits prescribed for various functions are observed. If an innocent person is harassed due to a departmental case which does not conclude even after a long delay it must be considered extremely unjust. On the other hand, it is equally unfair to the administration that an undesirable employee is kept on for years, only because the case is not expeditiously dealt with. No vigilance case should take more than 3 months from receipt of an allegation to the conclusion of the case of rendering report of the case to CVO, OF Board after investigation. It should not be difficult for a vigilance officer to lay down a plan or a schedule for investigations of a case, the moment an allegation is decided to be investigated or received from O.F. Board. Looking to the number of people to be contacted and number of documents to be collected and examined he should prepare the schedule of process of investigation so that the report may be prepared within prescribed time limit. The vigilance officer should ensure that instructions, policy and guidelines emanating from CVO, OF Board and any other authority concerned are implemented expeditiously in the proper perspective. In particular, vigilance officer should ensure that he assists the GM in implementing the vigilance and anticorruption programme prescribed for the factory in a meaningful and speedy manner.
The vigilance officer would ensure that all the departmental officers (Whether investigating officers presenting officers or inquiry officers) endeavour to complete their task correctly and within time. Similarly when inquiry officers ask for additional documents, he should see that the requisition in promptly attended to. Every time a vigilance case started on a complaint is over, vigilance officer should find out why the case could not have been detected by the factory/office. If a case has failed, the officer would ascertain the reasons, viz. whether adequate proof was not collected or whether adequate poof did not stand the scrutiny of the Inquiry Officer or whether the case need not have been put up at all. Such a review should imply to punish the guilty and not the incorrect. The vigilance officer should also take care to see that registers are scrupulously maintained to preparing quarterly reports to CVO OF Board at the end of every quarter. Quarterly statistical statement to be sent to CVO, OF Board are intended to show the work done during the quarter. A proforma for quarterly statistical statements is also forwarded for rendering the statements for each quarter ending. The idea of this statements is not to interfere in the normal departmental inspections. It is to keep in touch with their results and watch if any vigilances case is revealed. To avoid any misunderstanding, it is clarified that the vigilance officer should explain the reason to his GM about every case having a vigilance angle or certify that no case with vigilance angle has come to his notice during inspections. The vigilance officers would supervise the total vigilance activities in their respective factories/offices. They should be, therefore, in a position to judge what impact they are making on the misconduct. They should consider themselves responsible if the misconduct tends to increase. After all the very purpose of vigilance activities of our department would be defeated if misconduct is not checked. This issues with the approval of DDG(Estt)/CVO.
“DISCIPLINARY PROCEEDING” – A SYNOPSIS INTRODUCTION
How does a disciplinary case arise and how it takes the shape of a disciplinary proceeding – Gross misconduct and misbehaviour – wordy quarrels amongst employees, disobedience of superiors orders, assaults, theft cases, attempted sabotage within factory and outside factory, activities of union representatives, incitements to strike etc. – Preliminary inquiry of incidents. Written explanation before the formal disciplinary action – Decision on written explanation before initiating formal disciplinary action. II
PENALTIES CCS(CCA) Rules 1964 – Minor and Major penalties – Graded standard penalties.
II
MAJOR PENALTY PROCEDURE:
Detailed steps –Charge sheet, its form and requirement – I mportance of correct wording of charges and material to be furnished along with chargesheet – Mode of serving charge sheet while on duty, on suspension, at his leave address, at unknown forwarding address. Opportunities to the accused to plead his case viz. written statement of defenceCourts of inquiry – In case of admitted guilt no inquiry needed vide DGOF letter No. 2442/A/Vig. Dt. 31.08.70 – Role of Inquiry Officers and Presenting Officers – Common proceedings in Courts of Inquiry – Rules relating to provide “defence assistants” – Amendement of 1982 and its importance – First hearing, question “Whether charges accepted or not”, crucial – Examination of witnesses and recording of evidence and rules relating thereto- Hearings and their adjournments – Inspection of documents by the accusedExamination in chief cross examination and recross examination. Introduction of new evidence –statement of defence at the close of disciplinary case-Filling of returned postal articles vide DGOF letter No. 637/A/A, dt., 2.3.73 – Inquiry Officers and 14 forms as prescribed by DGOF-Estimation of evidence and findings-Steps by Vigilance Section – Decision on inquiry report Endorsement of acceptance of findings by D/A on Inquiry r eport – Procedure in case were action initiated under Rule 14 and after receipt of writ ten statement of defence or after inquiry report, purpose to impose minor penalty, vide DGOF letter No. 1898/A/Vig. Dated. 17.5.68 – Orders regarding doing away with the show cause notice for imposing major penalties, vide DGOF No. 296/A/A(IV) dt. 10.10.78- Stage for forwarding accepted inquiry report to the accused – Revised order proforma circulated under DGOFs letter No. 1480/A/Vig/CCS(A) dt. 12.3.1980. IV
MINOR PENATLY PROCEDURES:
Charges under Rule 16- On receipt of reply, Disciplinary Authority proceeds on imposing any of the minor penalties except penalties with cumulative effect and more than 3 stages – Detailed steps – Minor penalties carrying cumulative effect can be imposed only after inquiry – Reasons for the same in Rule 16 – Procedure for conversion of Rule 16 proceedings to Rule 14 proceedings vide DGOF No. 1480/A/Vig. Dt. 14.2.74 – Minor penalties sometimes results in major career blockade – Currency of punishments. V. Systematic maintenance of notings and decisions of the Disciplinary Authority _Red ink endorsements in Service Record by Vig. Section References during annual stages and later on in court cases-Files should not destroyed. SUSPENSION SUSPENSION WHAT IT MEANS
The word suspension like many other English words has many shades of meaning. The meaning which is relevant is debarring temporarily from function or privilege; temporary deprivation of one’s office of position. Suspension is therefore a temporary action and does not have the stamp of finality unlike a penalty imposed by a disciplinary authority which is a final act in so far as the disciplinary authority is concerned. When as order of suspension is passed against a Govt. servant pending an inquiry into his conduct, the relationship of master and servant does not come to an end. What the Govt. as a master, does in such in a such a case is merely to suspend the Govt. servant from performing the duties of his office, from doing the work which he was required to do under the terms of contract or the statute or rules governing his conditions of service and at the same time keeping in force the relationship of master and servant. When suspension requires an express order from the competent authority . The rules relating to the suspension of a Govt. servant are contained ion the central Civil Services(Classification, Control and Appeal Rules) 1965 which form a part of the Civil Services Regulations part II. This rule envisages tow kinds of suspension. In the first kind the suspension of Govt. Servant takes place only when the competent authority issues an order placing the Govt. servant under suspensions: This may happen in 3 circumstances. These areWhere a disciplinary proceedings against the Govt. servant is contemplated or is pending; Where in the opinion of the competent authority the Govt. servant has engaged himself In activities prejudicial to the interest or the security of the state or where a case against the Govt. servant in respect of any criminal offence is under investigation, inquiry on trial. Let us now try to understand these provisions with the help of a few examples – An industrial worker was found to be in prossession of a chunk of Brass oncealed in his tiffin-box during search at the gate. On receipt of a report from the Security office the General Manager can straight way suspend him even though disciplinary action against him is only at the stage of contemplatioin. The General Manager can straightaway suspend him even though disciplinary action against him is only at the stage of contemplation. The General Manager in this case may also first chargesheet him and then place him under suspension. In that case it will be a case of suspension where a disciplinary proceedings against him is pending. Now let us take another example to illustrate the kind of suspension envisaged in para (a) above. A Defence Ministry Official was suspected to have passed on classified information to a person who was known to be an agent of a foreign country. The Govt. may place him immediately under suspension even though disciplinary proceedings against him at that stage is neither contemplated nor pending. Now let us come to the type of cases mentioned at (c) above.
A report is received that a Supervisor of factory is being prosecuted by the police in a Court of Law on the charge of rioting. If on verification from the Civil authorities this report is found to be correct, the General Manager can place that Supervisor under suspension irrespective of whether the alleged offence for which he was being prosecuted has anything to do with his function as a Supervisor in the factory or not. When suspension does not require an express order. The rules recognize another kind of suspension where an express order by the competent authority is not necessary and a Govt. servant is deemed to be under suspension in certain contingencies. Rule 10(2) of the CCS(CCA) Rules provides that a Govt. servant shall be deemed to have been placed under suspension by an order of the competent authority (a)
with effect from the date of detention if he is detained in the custody on a criminal charge or otherwise for a period exceeding 48 hours,
(b) with effect from the date of his conviction if in the event of a conviction for the offence he is sentenced to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed or compulsorily retired consequent on such conviction Illustration for (a): A worker of a factory was involved in a clash between two groups which took place after the working hours. The worker was found using a knife during the cash. He was arrested by the Police and was produced before a Magistrate who remanded him in police custody for 3 days pending investigation. He will be deemed under suspension. Illustration for (b): A worker of a factory was prosecuted by the police in a Court of Law on the charge of armed robbery. The charge was proved and he was sentenced to a term of imprisonment of one year w.e.f. 26 th March., the Management if it so desires, can straightaway dismiss, remove or compulsorily retire the worker from service as a result of his conviction in the Court of Law. If however, the Management does not choose to do so, he would be deemed automatically to be under suspension w.e.f. 2th March since the term of imprisonment exeeds 48 hours. You may sometimes come across cases where a worker was found guilty by a court of law for some minor criminal offence and was sentenced to TRC i.e. till rising of the Court which I really detention for one day. In such cases the Management will legally competent to dismiss, remove or compulsorily retire the worker because of his conviction in the Court of Law. But, if the management chooses not to do so., the worker would not be deemed to be under suspension unless an express order is issued by the competent authority placing him under suspensions. While working in a factory we come across some cases where the penalty of removal or dismissal imposed on a worker by the General Manager for committing an offence like theft of Govt. property was later set aside in appeal and the case was returned for further inquiry. The problem would arise as to how would you now treat the intervening period between the date of his original removal or dismissal and the final decision in the cases. The sub-section provides that where a penalty or dismissal, removal or compulsory retirement from service imposed upon a Govt. servant under suspension is set aside in appeal or on
review and the case is remitted for further inquiry or action or with any direction, the order of his suspension shall be deemed to have continued in force on and fr om the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. Sub-route 4 or Rule 10 of CCS(CCA) Rules, 1965 deals with cases where the order of dismissal, removal or compulsory retirement imposed by the disciplinary authority is set aside by a Court of Law. If in such case the Govt. decides not to do anything further in the matter on the penalty being set aside by a Court of Law then the Govt. servant is simply taken back in service. If however the Govt. decides to hold further inquiry against him on the allegation on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the worker shall be deemed to have been placed under suspension from the date of the original order of dismissal, removal of compulsory retirement and shall continue remain under suspension until further orders. Circumstances under which a Govt. servant may be placed under Suspension : Ministry of Home Affairs had issued certain guidelines indicating the circumstances under which a Govt. servant may be placed under suspension. According to these instructions ‘public interest’ should be the guiding factor in deciding whether to place a Govt. servant under suspension or not and the disciplinary authority would have the discretion to decide talking all facts into account. However, the following circumstances are indicated in which disciplinary authority may consider it appropriate to place a Govt. servant under suspension . These instructions are intended to be in the nature of guidelines and should not be consider as mandatory. i)
Cases where continuance in office of the Govt. servant will prejudice investigation trial or any inquiry.
ii)
Where the continuance in office of the Govt. servant is likely to seriously affect discipline in office in which he is working;
iii)
Where the continuance in office of the Govt. servant will be against the wider public interest other than those covered by (i) and (ii) above such as there is a public scandal and it is necessary to place the Govt. to deal strictly with officers involved in such scandal, particularly corruption.
iv)
where allegations have been made against a Govt. servant and the preliminary inquiry has revealed that prima –facie case is made out which would justi fy his prosecution of his being proceeded against in departmental proceedings and where the proceedings are likely to end in his conviction and or dismissal, removal or compulsory retirement from service.
i)
any offence or conduct involving moral turpitude;
ii)
Corruption embezzlement or misappropriation of Govt., money, possession of disproportionate assets, misuse of official powers for personal gain;
iii)
Serious negligence and dereliction of duty resulting in considerable loss to Govt.;
iv)
desertion from duty;
v)
refusal or deliberate failure to carry out written orders from the superior officers.
Authority competent Rule 10(1) CCS(CCA) Rules, 1965 specifies that the appointing authority or any other authority to which it is subordinate or the disciplinary or any other authority empowered in this behalf by the President generally or under special order may place a Govt. Servant under suspension. Usually, appointing authority and the disciplinary authority are one and the same. Thus, in the Ord. Fys., the General Managers are the appointing as well as the disciplinary authority in respect of Chargeman, all the Non-Industrial and Industrial personnel and are competent to place any of such personnel under suspension. They are however not competent as well as disciplinary authority is the DGOF. However, if in the facts and circumstances of a case, a General Manager feels it necessary in public i nterest to place a Non-Gazetted Officer above chargeman under suspension, he may do so but he should notify the same to the disciplinary authority i.e., the DGOF and obtain post-facto approval within 30 days. The appointing as well as disciplinary authority in respect of the IOFS Officers is the President of India. As such, neither the GM of a factory nor the DGOF is competent to place such an officer under suspension. As indicated in the Rule, not only the appointing or disciplinary authority is competent to place a Govt. servant under suspension but s o are authorities superior to such disciplinary or appointing authority. Thus, it would be perfectly in order if the DGOF places an IE or an NIE of an Ordnance Factory under suspension even though the appointing or disciplinary authority of such employees is the General Manager of the factory concerned. Similarly, the Govt. can place a Non-Gazetted Officer under suspension even though the appointing and disciplinary authority in respect of such officers is the DGOF. Subsistence Allowance Suspension has the effect of depriving a Govt. servant of his salary or wages but it does or extinguish the relationship between the Master and the Servant and as such, the Govt. has to pay certain allowance to the Govt. servant for his survival. This is known as subsistence allowance. Art 193 of CSR Volume I deals with the quantum of subsistence allowance and the manner in which it has to be paid. The basic rule regarding subsistence allowance is that a Govt. servant who is placed under suspension or is deemed to be under suspension shall be entitled to: i)
subsistence allowance at an amount equal to the leave salary which he would have drawn had he been on leave on half pay.
ii)
dearness allowance as admissible on the basis of such leave salary.
iii)
any other compensatory allowance admissible to the Govt. servant from time to time on the basis of the pay which he was receiving on the date he is suspended or is deemed to have been placed under suspension.
Payment of subsistence allowance is however subject to the condition as contained in para 193 (2) of CSR Vol. I that the Govt. servant has not engaged himself in any other employment business, profession or avocation during the period of suspension and furnishes a declaration to that effect. If the period of suspension exceeds six months, the authority which made or is deem to have made the order of suspension shall be competent to increase the amount subsistence allowance by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first six months, if in the opinion of the said authority the period suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Govt. servant, similarly, the converse is also provided but any such reduction can be made only after the Govt. servant has been given a show cause notice for an opportunity to make his representation against the proposed reduction and the representation made by him has been considered. Revocation of suspension As ready explained, a suspension whether it is under a specific order or whether it is an automatic suspension continues to be in force till it is revoked or modified by the competent authority. The question of revocation will arise in the following stages: a)
Even though a Govt. servant might have been suspended because disciplinary proceeding is contemplated against him, on a review of the facts and circumstances which will normally be after a Fact Finding Inquiry, it may be found that there is no need to initiate any disciplinary action. In such a circumstances revocation of the suspension is the next logical step. Even if disciplinary proceeding is actually initiated the review might have revealed that the misconduct involved is not serious enough warranting the continuation of suspension, here the suspension will be treated as void ab initio and few back wages will be paid to the employee.
b)
A Govt. servant who is suspended might die before the contemplated proceeding has been initiated or before any action is taken to bring the pending proceeding to a conclusion. Unless the inquiry is completed, the individual cannot be held guilty. With the death of the concerned employee, the proceedings will abate. As such it will be deemed that he died innocent leading to the result that the entire period will be treated as spent on duty entitling the family of the deceased to the financial benefits involved. This is as per the rule contained in revised Art. 193(5) (B) of CSR Vol. I.
c)
A Govt. servant while under suspension may reach the age of superannuation. The instructions which were in currency till 1972 was to the effect that such Govt. servants cannot be retired. But this rule led to anomalics. It would be possible for a Govt. servant who is guilty of a serious misconduct to get an unintended and undeserved extension of service beyond the age of superannuation by the mischief of this rule. With the coming into force of the CCS(Pension) rules 1972 it is clear that in such circumstances a Govt. servant under suspension would be retired and transferred to the pension establishment. Under rules 65 and 74 ibid, he will be eligible for provisions pension on the basis of the pay and allowances drawn by him on the date of suspension. According to the latest instructions on the subject full quantum of pension will be paid. The individual will not be eligible for any other terminal
benefits till the finalization of the pending inquiry. The question of regularization of the suspension period will also be decided only when the proceedings are finalized. d)
The next type of cases are those where the disciplinary proceedings are finalized before superannuation or death of the Govt. servant Obviously where the decision is to impose a penalty which involves termination of the service viz. removal, retirement or dismissal, there is no question of paying full pay and allowances treating the period as duty. In other cases where the penalty is short of such a penalty but a major penalty the competent authority has to re-instate the individual and consider the question regarding action to be taken on the period individual and consider the question regarding action to be taken on the period of suspension. The first question that arises is whether there was justification for suspension. The criterion is not whether the suspension was justified but whether it was wholly unjustified. That is to say, even if there was a trace of justification for suspension, irrespective of whether the proceedings ended in imposition of a serious penalty revealing a serious misdermeanour or not the suspension would be liable to be treated as one which does not entitle the Govt. servant to full pay and allowances treating the period as duty.
e)
As per D.O.P.T. instructions OM No. 11012/15/85-Estt(A) dt. 3.12.1985 circulated under DGOF No. 1480/A/VIG (GENL) dt. 3.9.86, when any suspension does not end with one of the major penalties, such suspension will be deemed as void from the beginning and all back wages will be paid to the employees.
f)
The question regarding the regularisation of suspension arises also in cases where a Govt. servant was involved in a criminal proceeding which has ended in his acquittal. The point for consideration in such cases is whether the acquittal was on the merits of the case and the disciplinary action on the basis of the conduct leading to the criminal proceeding against the individual concerned. If the answer to both the question is in the negative then the individual gets full pay and allowances, the period being treated as duty. Otherwise, this question is left to the discretion of the competent authority for decision. It should also be noted that revised Article 193 has brought into effect the principle of natural Justice regarding this matter. If the decision of the competent authority is that the suspension was not wholly unjustified and the individual will get only a part of the full pay and allowances and or the period will not be treated as duty, then Show Cause Notice has to be issued to him giving him an opportunity to explain his case before a final decision is taken in this regard. A wise man bears one word and understands two Zambian
Workman and Effect of suspension on Industrial Relations : Suspension is not a penalty but it certainly does have a penal effect in as much as it reduces the Govt. servants basic pay and the dearness allowances. In respect of those who
are in factories which are working systematic overtime, there is also considerable loss of overtime allowance which is lost for good. In addition to the financial loss, the suspension also has a psychologically chastening effect. When a Govt. servant finds that he cannot go to the work spot where he used to work alongwith colleagues and associates, he feels isolated. Suspension therefore is an effective stick to beat an errant Govt. servant with but it is a stick which must be wielded very judiciously and sparingly since frequent use of the weapon not only blunts its effectiveness but also adversely affects the industrial relations. While there is no difficulty to take a decision regarding suspension in cases were a Govt. servant is found prima facie guilty of offences like theft of Govt. property etc., the problem arises as to how to deal with cases which have remote nexus with trade union activities. In the first kind of cases no eyebrows are raised if the guilty person is placed under suspension so long as the same standard is applied in all cases. Thus, if an industrial worker is placed under suspension for trying to take out some material and a member of a NonGazetted staff is not suspended for a similar misdemeanour, there would be justifiable cause for resentment. Where the misdemeanour has any bearing upon industrial relations, the likely effect to the suspension has to be judged very carefully, and cautiously before ordering suspension. Of course, there would be cases where the misdemeanour is so grave that even if it is appreahended that the suspension of the concerned Govt. servant would very adversely affect the industrial relations, it cannot be helped and suspensions has to be ordered. Let us assume that an important office bearer of a recognized union enters the office of a Foreman and not only abuses him but also assaults him. Even if it is known to the management that the union office-bearer has got a considerable following and there was provocation behind his actions, and if suspension is ordered there is every reason to apprehend a commotion in the factory including strike. In view of the gravity of the misdemeanour the management will have no other alternative but to place the concerned individual under suspension since otherwise it would set a very bad example and would ultimately corrode discipline in the factory. But thee would be many other instances where such a course of action would not be obligatory and in such cases the management must consider all the pros and cons before taking such a course of action. Care should be taken to ensure that no such action is palpably a case of vietimalisation for legitimate trade union activities. There is another circumstances in which suspension comes as a very handy and effective weapon. In almost all factories there are certain elements who indulge in money lending, gambling and such other illegal activities. In most cases that even though we are aware of the identity of the ring leaders, it would be very difficult to prove any case against them either in a departmental court of inquiry or in a Court of Law because nobody would come forward to give evidence against them either out of fear or due to other reasons. In such cases, if the management suspends the ring leader and thus effectively removes the miscreants from the scene, the vicious circle created by s uch people has a tendency to break down and when they come back on revocation of suspension they would usually find that their empire has crumbled. The management would be perfectly legal in suspending them even though such people were not given any charge-sheet because the rules envisage placing a Govt. servant under suspension even if disciplinary action is under contemplation and not actually initiated. This should be adopted sparingly as in all such cases, ultimately full waged are paid on revocation of suspension.
As a normal rule, the Govt. servant should not be kept under suspension for too long a time. There should be minimum practicable time lag between the order placing the Govt. servant under suspension and the issue of chargesheet. Thereafter the inquiry should be completed as speedily as possible and if ultimately it is decided to impose a penalty short of removal or dismissal or compulsory retirement, decision should be taken without any delay.
Advising a fool is like giving medicine to a dead man.
DEFINITION OF BRIBERY
While the World Bank defines corruption as the use of public office for private gain, so far as India is concerned, the offence of corruption will have to come under the definition of Prevention of Corruption Act 1988. Many a time, citizens may wonder about person who have openly confessed that they have taken money but have been let off by courts because the ingredients that constitute an offence of bribery, as required under the l aw, were not proved in the court of law. While what constitutes a bribe is readily understood from a common sense point of view., it should be realized that for proving an offence of bribery or corruption in a court of law, the provisions of the Prevention of Corruption Act 1988 will have to be followed. The definition of bribery as given in the Act is as follows.
Public servant taking gratification other than legal remuneration in respect of an official act.
Public servant obtaining valuable thing, without consideration from person concerned in proceedings or business transacted by such public servant.
Criminal misconduct.
WHAT CONSTITUTES BRIBERY
This means that for constituting an offence of bribery, the following are required: (i)
One of the presons concerned in the corrupt act must be a public servant and should be discharging his official duties; all others involved in bribing a public servant, either directly or as agents, are also culpable.
(ii)
The public servant should have demanded or accepted an amount illegally to either perform or not to perform a job.
(iii)
Obtaining of something valuable by a public servant from a citizen, while discharging official duties, without any consideration is also bribery.
(iv) (v)
Public servant acquires assets disproportionate to their known source of income. Misuse by a public servant of his official position by showing undue favour to obtain pecuniary advantage.
Every patriotic Indian realizes that if there is one factor that is keeping India a perpetually proof country and which makes the life of the common citizen miserable, it is corruption. A citizen faces corruption practically at every level and every sector of life. It could be the local rationing department, police, municipal authorities, or educational institutions like schools and colleges. In the industry inspector raj has become a code word for regular bribes collected by the public servants at the cutting edge of administration of the various departments of Central and State governments. WHY IS CORRUPTION HARMFUL
Corruption is anti-national
Corruption is anti-poor
Corruption is also anti-economic development.
Corruption many a time, can be matter of life and death. FACTORS RESPONSIBLE FOR CORRUPTION
Caste and nepotism become the basis for distribution of patronage.
The common financial interest is another cementing factor.
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The social roots of corruption in India can be traced to our Indian culture of tolerance.
Extreme attachments of people to their families.
The spreading cult of consumerism. Consumerism and desire for an ostentatious life style temps many to make more money by hook or crook.
Evil Social practices also promote corrupton.
Educaiton pressure and corruption in the education sector is another social factor contributing to corruption in our system.
HOW CAN A CITIZEN FIGHT CORRUPTION INDIVIDUAL INTEGRITY
Any citizen who wants to fight corruption (is that he) should himself be honest. Corruption can be fought by the citizen as an individual or in groups in the form of an NGO.
SPREADING AWARENESS
Spreading awareness about the harmful effects of corruption.
Need for transparency.
