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CHAPTER - 5

CASES OF NON-ACCEPTANCE OF COMMISSION’S ADVICE AND OF

NON-CONSULTATION WITH COMMISSION

 

5.1 The Commission’s advice in vigilance cases are acted upon by the departments/organisations. In general, the compliance rate is very high when compared to the large number of advices tendered by the Commission. However, there are some rare instances of vigilance cases which were not acted upon by the disciplinary authorities concerned inasmuch as either the advice tendered by the Commission was not accepted or consultation with the Commission was avoided. Such instances nullify to a large extent the objective for which the Commission was set up. During the year under report, there were 11 important cases which are briefly narrated below:

(1) ANDAMAN & NICOBAR ADMINISTRATION

IRREGULAR CLOSURE OF CASE

The Commission had advised initiation of major penalty proceedings against an Assistant Secretary (Vig.), Andaman and Nicobar Administration on the allegations that he had wilfully misrepresented the findings of a departmental inquiry. Whereas the Inquiry Officer had held the charges as proved, the said official initiated a proposal stating the contrary and also recommended that the Charged officer may be given promotion to the DANICS. The wrong vigilance clearance given by him resulted in the promotion of the Charged Officer. Subsequently, the Andaman & Nicobar Administration also dropped the disciplinary proceedings initiated against the Assistant Secretary (Vig.) without consulting the Commission.

The explanation of the Andaman & Nicobar Administration for non-consultation with the Commission was that they had requested the Ministry of Home Affairs vide FAX message dated 25.3.1997, to take up the matter with the Commission for second stage advice, recommending dropping of the proceedings against the Assistant Secretary (Vig.). The Andaman & Nicobar Administration further desired that they be communicated the Commission's advice latest by 30.3.1997 as the Assistant Secretary was due for retirement on 31.3.1997. They also said that they had sent reminders to the Ministry of Home Affairs on 4.4.1997 and 16.6.1997 but the decision of the Commission was not communicated to them and the Lt.Governor decided to close the case on 23.6.1997.

The charge on which disciplinary proceedings had been initiated against the Assistant Secretary (Vig.) was very grave. The Commission's advice against the Assistant Secretary (Vig.) was tendered on 13.10.1994 but the Commission was approached for nomination of a CDI for appointment as Inquiry Officer only in June, 1996. Further, the Inquiry Officer was appointed on 6.2.1997.

The explanation of the Andaman & Nicobar Administration that they made efforts through the Ministry of Home Affairs lacks conviction. For one thing they were aware that disciplinary proceedings were pending and even the preliminary hearing had not been held by that date. The references made to the Ministry of Home Affairs were also never received in the Commission. Since the major penalty proceedings initiated against the Assistant Secretary (Vig.) could have been deemed to have continued as proceedings under the CCS (Pension) Rules, 1972 even after his retirement, there was no justification on the part of Andaman & Nicobar Administration for closing the case against the Assistant Secretary (Vig.).

(2) BHARAT HEAVY ELECTRICALS LTD. (BHEL)

DELAY IN ISSUANCE OF CHARGE SHEET

In five different cases examined by the Chief Technical Examiner, Commission had advised major penalty proceedings against a General Manager of BHEL. However, action was not being initiated against him by BHEL on the reasoning that the official had joined another Corporation i.e. the Tehri Hydro Development Corporation (THDC). At the same time, the official was retaining his lien with his parent company, BHEL. The Commission considered the matter and advised BHEL on 25.2.1997 to explore the possibility of expeditiously initiating major penalty proceedings against the official. This was necessary so that the proceedings could be completed before the retirement of the official. Further, in view of the paucity of time, BHEL was advised to issue a consolidated charge sheet to the official and complete the same before his retirement on 24.6.1997 as BHEL’s disciplinary rules did not provide continuance of departmental proceedings after the retirement of the officials.

BHEL, however, took almost three months in issuing the charge sheet to the official and inquiry proceedings could not be completed by 24.6.1997 when he superannuated. The delayed issue of charge sheet by BHEL Management is the cause of the infructuous proceedings and the reason why the Commission’s advice could not be implemented. BHEL has contended that they were not at fault as they had to take legal advice and this delayed the issue of charge sheet to the official. The fact remains that due to delay in issuing the charge sheet, the errant public servant was able to go scot-free, thus, defeating the purpose of justice.

                                                                                                                                       

 

 

(3) CENTRAL BOARD OF EXCISE & CUSTOMS

DELIBERATE DELAY/INACTION HELPS DELINQUENT ESCAPE PENALTY

In April, 1994, the Commission received an anonymous complaint alleging dropping of duty demand of Rs.5 lakhs by Assistant Collector of one Central Excise Division, which was short-levied because of non-filing of MODVAT declaration by one party. This complaint was sent to Central Board of Excise & Customs (CBEC) in June, 1994 for an investigation and report. CBEC forwarded the investigation report which revealed that the party had not filed MODVAT declaration as per Rule 15G by the prescribed date, but on detection, the party submitted the same by way of ante-dating it. This antedated declaration of the party was entertained by the divisional office by interpolating receipt register. Since the misconduct of the officials was bordering on conspiracy, the Commission advised initiation of major penalty proceedings against the Assistant Collector and three subordinate officials vide its advice dated 2.2.1995. CBEC under the reference dated 28.11.1997 intimated that whereas the charge-sheet to the three junior officials was issued on 19.5.1995, the same could not be issued to the Assistant Collector due to over-sight with the result that the case against him has became time-barred for departmental action (the alleged transaction pertained to 25.10.1993 and it was time-barred for action by 24.10.1997). The Assistant Collector was instrumental in dropping major portion of duty demand of Rs.5 lakhs, which was found to be a calculated attempt. Thus a major misconduct went unpunished.

The Commission has found that the plea of the department is untenable and from the facts and circumstances of the case, it was apparent that the delay/inaction on the part of the department was deliberate to allow the corrupt official retire without any penal action.

(4) CENTRAL BOARD OF EXCISE & CUSTOMS

DELINQUENT ALLOWED TO GO UNPUNISHED

Central Board of Excise & Customs (CBEC) detected a case of surreptitious removal and substitution of goods from bonded warehouse by a party in which the duty evaded was to the tune of Rs.59 lakhs and the interest accrued thereon was of the order of Rs.9.87 lakhs. The modus operandi adopted by the party were to substitute originally bonded materials with materials of similar properties; removal of the bonded materials from the drums and keeping the drums in their proper places and removal of the part materials from the drums by either tampering with the seals or by substituting the original seals with same type of seals etc. It was established prima facie that the party was successful in making a duplicate key of the bonded warehouse. Looking at the utter carelessness and apparent connivance of the bond officers with the party, the Commission, while advising initiation of major penalty proceedings against the bond officers, also advised initiation of minor penalty proceedings against the Assistant Collector of the division. Later, the Commission on reconsideration, advised on 30.9.1994, for imposition of the penalty of `Censure’ on the Assistant Collector.

The Department, however, passed final order on 16.10.1997, exonerating the Assistant Collector.

                                                                                                                                                                            

     

     

(5) DEPARTMENT OF AGRICULTURE AND COOPERATION

DRAWAL OF TA/DA AT HIGHER RATES

The Commission had received a source information to the effect that a very senior officer in the Department of Agriculture and Cooperation, had at various points of time held additional charge of the posts of heads of certain PSUs/autonomous bodies under the Ministry of Agriculture and in the latter capacity had undertaken tours abroad and claimed TA/DA at higher rates applicable to the employees of the organisations concerned.

The Commission requested the Department to look into the allegations and send a factual report to the Commission. On receipt of the report from the Department, the Commission observed that it was apparent that the officer had drawn cash and daily allowances in respect of foreign tours undertaken between 1993 and 1995 while holding additional charge of certain PSUs/autonomous bodies, at higher rates applicable to regular employees of PSUs. Government’s instructions on the subject, however, clearly stipulate that in such cases Government servants are eligible to draw cash and daily allowances only at the rates applicable to Govt. servants. The orders handing additional charge of these posts to this official did not give any specific relaxation of the existing instructions in favour of the officer. The officer apparently drew higher cash and daily allowances than admissible and in the process secured undue advantage, which amounted to misusing the official position. Accordingly, a prima facie case relating to violation of Govt. rules, abuse of official position for securing pecuniary gain and improper conduct existed. The Commission advised the Department that apart from making necessary recovery of the excess allowances drawn, it was a fit case for initiating minor penalty proceedings under the All India Services (Conduct) Rules.

 

In response thereto, the Department of Personnel & Training were of the view that the Competent Authority had held that there was no evidence to suggest malafides on the part of the official. A view was, therefore, taken that excess payment may be recovered from the officer, after giving a show cause notice. The question of initiating disciplinary proceedings would arise only if the officer failed to comply with the directions of repayment. 

The Commission is, however, of the view that cases of such a nature adversely reflect on the integrity of the official, who is expected to set an example and abide by the Government's instructions. This was pointed out to the Department of Personnel and Training; however, the stand taken by them was contrary to the advice given by the Commission.

     

     

     

(6) MINISTRY OF PETROLEUM & NATURAL GAS

DELAYED PROCESSING HELPS DELINQUENT TO RETIRE WITHOUT PUNISHMENT

In a case investigated by Central Bureau of Investigation (CBI), a Director (Marketing) of Indian Oil Corporation was involved in alleged irregularities which caused a net loss of Rs.53 lakhs in a year to the Indian Oil Corporation Ltd. in the transportation of LPG cylinders.

The Commission after considering CBI’s report in the matter advised initiation of major penalty proceedings against Director (Marketing). However, on the request of Ministry of Petroleum and Natural Gas, the Commission in September, 1993 advised initiation of minor penalty proceedings against the said officer. The Ministry issued the charge sheet and the concerned officer submitted his defence statement on 23.6.1994. However, before the retirement of the officer on 31.7.1994, the Ministry could not complete the proceedings against him on the plea that the disciplinary file in question was kept by the Minister’s Office and was returned only on 26.7.1996 without having taken a decision in the matter. Thus, since the case was not monitored by the Vigilance Branch of the Ministry, no action could be taken against the public servant as post-retirement action was not possible in this case.

     

     

     

(7)  MINISTRY OF PETROLEUM & NATURAL GAS

WILFUL INACTION AND INEPT HANDLING OF CASE

The CBI had investigated a case of abuse of authority by some officials of the Indian Oil Corporation who had, in October, 1983, made excess payment to transporters who were handling LPG Cylinders. The Commission in agreement with the CBI advised the Ministry of Petroleum and Natural Gas and the Indian Oil Corporation to initiate major penalty proceedings against the suspected public servants. However, the Indian Oil Corporation did not take timely action against one Chief Finance Manager and issued charge-sheet to him only on 21.3.1995, when the officer was due to retire on 31.3.1995. Further, the disciplinary authority did not take timely action and imposed the penalty of "Censure" on him against the advice of the Commission. Further, the Indian Oil Corporation diluted the proceedings in respect of two Plant Managers as they issued minor penalty charge-sheets against the tendered advice for major penalty proceedings. Further, though the Commission had nominated a Commissioner for Departmental Inquiries as Inquiry Officer in the case, the Indian Oil Corporation spent about three years without issuing his appointment orders and then sought permission for engaging a departmental Inquiry Officer. Although, the Commission had agreed to the request of the Indian Oil Corporation for departmental Inquiry Officer, the Ministry again approached the Commission for departmental Inquiry Officer in their cases. This sort of wilful inaction by Indian Oil Corporation and inept handling of cases by the Ministry of Petroleum and Natural Gas reflects adversely on the vigilance set-ups of both the organisations.

     

     

(8) MINISTRY OF RAILWAYS

DEVIATION OF COMMISSION'S ADVICE AND ISSUE OF BELATED CHARGE SHEET

In October, 1991, the Commission advised, inter alia, major penalty proceedings against an officer of the Railway Electrification Organisation, Allahabad for the serious irregularities (including manipulation of records) allegedly committed by him in the course of processing of a promotion case. The Department (Railway Board) kept pending the matter for a long time and then approached the Commission in August, 1993 requesting for a reconsideration of its advice. The Commission, however, found no merit in the Department's reference and hence its earlier advice was reiterated. Subsequently, the Commission had once again reiterated its advice in October, 1993 rejecting yet another proposal of the Department for a reconsideration of the same.

 

Deviating from the Commission’s advice, the Disciplinary Authority, however, issued only a minor penalty charge sheet to the official: and that too belatedly. In fact, it was only in November, 1996 that the case had been referred back to the Commission (by the Railway Board) pointing out this unilateral action on the part of the Disciplinary Authority and suggesting imposition of stiff minor penalty on the official. Taking into account the vintage of the case and the fact that the officer was nearing superannuating, the Commission agreed to the said proposal and the Department was so advised in March, 1997. Ultimately, the Department awarded a penalty of reduction in pay by one stage for a period of 45 days to the official. Thus, on account of non-acceptance of (or deviation from) the Commission’s initial advice, coupled with delay and/or inaction on the part of the Department in taking follow-up action, an official who was found prima facie guilty of serious misconduct meriting a major penalty was eventually let off with a token penalty of reduction in pay by one stage for 45 days.

     

(9)  NATIONAL SAVINGS ORGANISATION (NSO)

COMMISSION NOT APPROACHED FOR APPOINTMENT OF CDI AND WAS NOT CONSULTED FOR

ADVICE

In May, 1990, CBI registered a case under section 120-B read with 420 of IPC and Sect.5 of PC Act involving fraudulent claim of agents’ commission by way of connivance between NSO agents and post office staff and causing loss of nearly Rs.6.5 lakhs. In their detailed investigation report submitted in December, 1992, CBI found that the entire fraud was organised by one agent, (who was earlier working in another organisation) by way of showing fake business. The agent concerned, in connivance with some postal employees, used to submit commission bills in post offices in respect of the fake transactions duly supported by certificates from Post Offices. The Post Office staff was so careless that they did not even retain a copy of the schedules prepared for the bills and in some cases postal assistants were found to have given certificates of transactions as genuine, though no such deposits were ever made. In some cases, the genuine transactions were inflated by way of corrections/over-writings. The agent would deposit the certificates and schedules in another Post Office, get it processed from there and used to take payments. CBI investigation established that one postal employee was in conspiracy with the agents in the bogus transactions and fake payments and the agency recommended his prosecution along with the agents. Regarding other staff of Postal Department and National Savings Organisation, CBI established their utter carelessness in handling/processing the bills and making payments. CBI recommended major/minor penalty proceedings against them. The Commission, in December, 1992, advised inter-alia, initiation of prosecution proceedings against the particular postal employee who conspired with the agents and major penalty proceedings against all other Postal/NSO employees.

In March, 1997, the Commission received final orders of the Disciplinary Authority in respect of NSO employees who were proceeded for major penalty. The Disciplinary Authority has exonerated all the officials, in agreement with the findings of the Inquiry Officer (appointed by the Department).

The Department was required to have sought Commission’s advice for nomination of a CDI and also to consult the Commission on the reports of the Inquiry Officer. Strangely, the Department kept the Commission in dark about the stage of the proceedings. By not seeking Commission’s advice at appropriate stages, the Department has flouted the norms of consultation with the Commission. Evidently this was designed to allow the erring officials go unpunished.

     

(10)   NATIONAL  TEXTILES CORPORATION LTD.

 

VOLUNTARY RETIREMENT GRANTED TO AVOID PENALTY

In September 1996, the Commission had advised major penalty proceedings against an Assistant Manger of the National Textiles Corporation (NTC). The allegation against him was that he favoured a private party, causing huge loss to the NTC. A request for reconsideration of advice was considered by the Commission who reiterated its earlier advice on 18.2.1997. However, the Ministry of Textiles and the NTC allowed the said Assistant Manager to leave the organisation on 16.3.1997 under voluntary retirement scheme. No action was taken against him and thus the Commission's advice was not implemented.

 

(11) DEVELOPMENT COMMISSIONER (SMALL SCALE INDUSTRIES)

 

CASE NOT REFERRED TO DOPT

 

A Deputy Director in the Small Industries Service Institute, Hyderabad, was issued major penalty charge sheet for issuing in favour of a private firm a Consumption Certificate for which he was not competent. He also tampered with the entry regarding the quantity of consumption of leather from 39 DM to 29 DM in the office copy of the certificate.

During the course of the oral inquiry of the charges, one was held proved and the other was not proved. While tendering second stage advice, the Commission disagreed with the Inquiry Officer's findings that one of the charges was not proved and advised imposition of a suitable major penalty. The basis for this disagreement was that during the enquiry the Charged Officer did not produce any evidence in support of the manner in which he had worked out the consumption.

However, the Office of the Development Commissioner, Small Scale Industries, who was the disciplinary authority, dropped the proceedings against the officer after taking into account the UPSC’s advice although all the points mentioned by the Union Public Service Commission had been considered by the Commission in its second stage advice. Moreover, as per the Department of Personnel and Training’s instructions on the subject, the matter was required to be referred to that department by the Office of Development Commissioner, Small Scale Industries as a case of disagreement between the Union Public Service Commission and the Central Vigilance Commission. But the disciplinary authority chose to drop the proceedings, disagreeing with the advice of the Commission.

 

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