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Subject: General Studies (Paper 4 - Ethics, Integrity, and Aptitude)

Topic: Protecting The Honest Civil Servant

PROTECTING THE HONEST CIVIL SERVANT

The raison d’être of vigilance activity is not to reduce but to enhance the level of managerial efficiency and effectiveness in the organization. Risk-taking should form part of government functioning. Every loss caused to the organization, either in pecuniary or non-pecuniary terms, need not necessarily become the subject matter of a vigilance inquiry. One possible test for determining the bona-fides could be whether a person of common prudence working within the ambit of the prescribed rules, regulations and instructions, would have taken the decision in the prevailing circumstances in the commercial/operational interests of the organization.

Even more than in government, managerial decision-making in public sector undertakings and day-to-day commercial decisions in public sector banks offers considerable scope for genuine mistakes being committed which could possibly raise questions about the bona-fides of the decision-maker. The Central Vigilance Commission has recognized this possibility of genuine commercial decisions going wrong without any motive whatsoever being attached to such decisions. In view of the commercial shift in the role and functions of commercial banks, appropriate attention is being paid to this aspect while deciding on the involvement of a vigilance angle in the complaints/disciplinary cases relating to the banking sector. For that purpose, each bank has set up an internal advisory committee of three senior officers, to scrutinize the complaints received in the bank and also the cases arising out of inspections and audit etc, to determine involvement of vigilance angle, or otherwise, in those transactions. The committee records reasons for arriving at such a conclusion and sends it to the CVO. The CVO, while taking a decision in each case, considers the advice of the committee. Such records are maintained by the CVO and made available to an officer, or a team of officers of the Central Vigilance Commission for scrutiny when it visits the bank for the purpose of vigilance audit. All decisions of the committee on the involvement of the vigilance angle, are expected to be taken unanimously. In case of difference of opinion among the members, the majority view may be stated. The CVO refers its recommendations to the disciplinary authority. In case of difference of opinion between the disciplinary authority and the CVO, the matter is referred to the Central Vigilance Commission for advice. The investigation/inquiry reports of audit and inspection, involving a vigilance angle are required to be referred to the Vigilance Commission for advice even if the competent authority in the bank decides to close the case, if the officer involved is of the level for which the Vigilance Commission’s advice is required.

There are genuine apprehensions about the system’s ability to protect an honest public servant. Fortunately, there are sufficient safeguards in the law and procedure to ensure protection of an honest civil servant against baseless, mala-fide, malicious and motivated complaints. The ‘single point directive’ which is now a statutory provision as a result of amendments made to the Delhi Special Police Establishment Act, requires prior permission of the Union Government for initiating investigation against an officer of the rank of a Joint Secretary and above in the Government of India and its equivalent in the Central Public Undertakings. Sanction for prosecution of a public servant is required from the Government or the appropriate authority under Section 19 of the Prevention of Corruption Act, 1988 and Section 197 of the Indian Penal Code as applicable in so far as such offences relate to and form part of official conduct. Investigation within the organization itself is subject to prior approval of the Superintendent of Police concerned in the case of CBI. A case under the Prevention of Corruption Act can only be registered by the Special Police Establishment of the CBI or the anti-corruption agency of a state and not by the civil police. Only a special judge is competent to take cognizance of an offence of corruption. By virtue of the procedural instructions, CVC has to recommend sanction of prosecution to Government in respect of civil servants coming within its jurisdiction. In States, where Vigilance Commissions are in existence, it is the Vigilance Commission who examines and recommends sanction for prosecution.

Both the ‘single point directive’ and the requirement of prior sanction for prosecution have been called to serious question as obstructive of the statutory right of the investigating agency and an unnecessary interference in the judicial process. The Supreme Court, in the Jain Hawala case, had annulled the then executive direction of the Union Government requiring its prior permission for commencing investigations in cases involving Joint Secretaries and above. It was to nullify this that the Union Government brought in a statutory requirement in the Delhi Special Police Establishment Act. The ground for this inclusion was to safeguard honest civil servants and senior public sector executives including from nationalized banks engaged in policy advice and commercial decisions respectively. While there is no doubt that honest public servants do require to be protected, it is equally essential to assure citizens that such provisions for prior permission for investigation and sanction for prosecution are not used as tools in the hands of Government to favour and protect corrupt public servants. The Central Vigilance Commission has instituted a mechanism for screening cases of public sector executives within its jurisdiction. The question is one of exercising due discrimination to protect an honest civil servant from being dragged through investigative processes involving harassment and loss of prestige and enormous anguish.

There is a general perception among officers and managers that anti-corruption agencies do not fully appreciate administrative and business risks and that they tend to misinterpret the motives where the decision has gone awry or where a loss is caused in a commercial transaction. Such a perception is not without foundation. It is essential therefore for the investigating agencies to establish that their actions are designed in such a way as to protect honest officers. This depends on the ethical standards and professional competence of the personnel manning anti-corruption agencies. Allegations can be made by dishonest subordinates against whom the officer has initiated disciplinary proceedings or he may have stood in the way of dishonest intentions of the corrupt subordinate. More sinister could be the role of “aggrieved” outsiders who failed to have their wrongful way.It is generally assumed by the investigating agencies that (1) a decision should be wrong for there to be corruption, and (2) it is easier to involve everyone in the chain of decision-making and allege ‘conspiracy’ than to take pains to find out the individuals who are actually involved. It is often overlooked that a corruption can take place even when the decisions are correct and that it also takes place at specific points inside and outside the system. This entrenched approach to investigation has led to conviction rates being dismally low, honest functionaries getting demoralized and dishonest ones often going scot free.

The crucial question is one of ensuring a balance between equality before law and protection of an honest civil servant who has his reputation to safeguard, unlike a corrupt one. Such a balance could be achieved by an impartial agency which would screen cases of prior permission for investigation and sanction prosecution of public servants involved in corruption. The Commission has already recommended that the Central Vigilance Commission should be empowered to give such permission. There is need for a special investigation unit reporting to the proposed Lok Pal (Rashtriya Lokayukta) to investigate allegations of corruption against investigating agencies. This unit should be multi-disciplinary and should also investigate cases of allegations of harassment against the investigating agency. Similar units should also exist in States under the State Lokayuktas.

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