It is crucial for government servants to be aware of the various mechanisms employed by the government to monitor their behavior and discipline, and to take action against those found to be negligent or involved in corrupt practices. This awareness helps them understand their duties, the repercussions of misconduct, and fosters a culture of honesty and accountability in public service.
The Kerala government has specific
rules and regulations to address these issues, including:
Kerala Civil Services (Classification,
Control, and Appeal) Rules: These rules govern the conduct and discipline of
government employees and provide a framework for taking action against those
who are found to be negligent or engaged in corrupt practices.
Kerala State Civil Services (Conduct)
Rules: These rules lay down the standards of conduct expected from government
employees and specify actions that constitute misconduct.
Vigilance and Anti-Corruption Bureau
(VACB): The VACB is an agency in Kerala responsible for investigating
corruption and other related offenses. It conducts inquiries into complaints of
corruption and takes action against those found guilty.
Kerala Lokayukta Act: The Kerala
Lokayukta Act provides for the establishment of the Lokayukta, an independent
body tasked with investigating allegations of corruption against public
servants, including the Chief Minister and Ministers.
Kerala Public Interest Disclosure and
Protection of Informers (Whistleblowers) Act: This act provides protection to
whistleblowers who disclose information about corruption or wrongdoing in
government departments.
Boradly, as per Kerala Civil Services
(Classification, Control, and Appeal) Rules and other relevant rules and
regulations a Government employee should follow the following aspects:
Integrity and honesty: You should
perform your duties with integrity and honesty, avoiding any form of corruption
or misconduct.
Adherence to rules: You should follow
the rules and regulations governing your service, including the Kerala Civil
Services Rules and any specific rules applicable to your department.
Professionalism: You should conduct
yourself in a professional manner, showing respect to your colleagues,
superiors, and the public.
Efficiency and diligence: You should
perform your duties efficiently and diligently, ensuring that work is completed
in a timely manner and to the best of your abilities.
Confidentiality: You should maintain
the confidentiality of official information and not disclose it without proper
authorization.
Avoidance of conflicts of interest: You should avoid situations where your personal interests conflict with your official duties, and you should disclose any potential conflicts of interest to your superiors.
Compliance with orders: You should
comply with lawful orders issued by your superiors and cooperate with any
inquiries or investigations.
Political neutrality: You should
maintain political neutrality in the performance of your duties and avoid
engaging in political activities that could compromise your impartiality.
Attendance and leave: You should
maintain regular attendance and follow the procedures for applying for and
taking leave as per the rules.
Use of official position: You should
not misuse your official position for personal gain or to influence official
decisions improperly.
The Kerala Civil Services
(Classification, Control, and Appeal) Rules primarily deal with disciplinary
matters and procedures for government employees. While these rules provide for
disciplinary action, including penalties such as dismissal, removal, or reduction
in rank, they do not directly address prosecution for criminal offenses.
Prosecution for criminal offenses,
including corruption, would typically be carried out under the relevant
criminal laws, such as the Prevention of Corruption Act (PC Act) or other
applicable laws. These laws outline the procedures and requirements for initiating
and conducting criminal proceedings against public servants or others involved
in corrupt practices.
The amendments made to the Prevention
of Corruption Act (PC Act) in 2018 aimed to strengthen the act and enhance its
effectiveness in combating corruption. Some of the major amendments and how
they benefit officials who are legitimate and uncorrupt are:
Protection from prosecution: The
amendments clarified certain provisions to ensure that honest officials are not
harassed or prosecuted for bona fide actions taken in the course of their
official duties.
Prior approval for investigation: The
amendments introduced a provision requiring prior approval from the appropriate
authority before investigating a public servant for offenses under the PC Act.
This is intended to protect officials from frivolous or malicious complaints.
Criminal misconduct: The definition of
criminal misconduct was revised to include specific acts such as taking
decisions with an improper motive or dishonest intention. This helps in clearly
identifying corrupt practices and provides a safeguard for officials acting in
good faith.
Bribery: The definition of bribery was
expanded to include giving a bribe to a public servant, addressing a gap in the
previous version of the act.
Time-bound trial: The amendments
introduced provisions for time-bound trial of corruption cases to ensure speedy
justice and reduce the burden on honest officials facing allegations.
One can be prosecuted under the
Prevention of Corruption Act (PC Act) for various offenses related to
corruption. Some examples of cases where prosecution under the PC Act may occur
include:
Bribery: Offering or accepting a bribe to influence a public servant in the discharge of their duties. For example, if a government official accepts money to expedite a permit approval process, both the official and the person offering the bribe can be prosecuted under the PC Act.
Misuse of office: Using one's official
position for personal gain or to benefit others improperly. For example, if a
public servant uses their influence to award a government contract to a company
in exchange for kickbacks, they can be prosecuted under the PC Act.
Possession of disproportionate assets:
Accumulating assets disproportionate to one's known sources of income. For
example, if a public servant is found to have acquired properties or assets
that cannot be accounted for by their legitimate income, they can be prosecuted
under the PC Act.
Abuse of position: Abusing one's
official position to obtain a benefit or favor. For example, if a government
official threatens to withhold a person's pension unless they pay a bribe, the
official can be prosecuted under the PC Act.
Criminal misconduct: Engaging in any
conduct that amounts to criminal misconduct as defined under the PC Act. This
can include various acts of corruption or abuse of power that are specified in
the act.
"Criminal misconduct by a public servant" under the Prevention of Corruption Act (PC Act) refers to any act that constitutes a criminal offense under the act and is related to the public servant's official duties. This provision is a catch-all provision that covers any other criminal offense committed by a public servant in connection with their official duties, even if it is not specifically mentioned elsewhere in the act.
Examples of criminal misconduct by a
public servant under this provision could include:
Embezzlement: Misappropriation of
funds or property entrusted to the public servant in their official capacity.
Forgery: Falsifying official documents
or signatures for personal gain or to deceive others.
Extortion: Using one's official
position to obtain money or other benefits through coercion or intimidation.
Criminal conspiracy: Participating in
a conspiracy with others to commit a criminal act related to one's official
duties.
Abetment of an offense: Assisting or
encouraging another person to commit a criminal act related to one's official
duties.
These are just a few examples of acts
that could constitute criminal misconduct by a public servant under the PC Act.
The provision is intended to ensure that public servants are held accountable
for any criminal offenses they commit in the course of their official duties,
even if those offenses are not specifically covered by other provisions of the
act.
The two judgements listed below by Hon’ble High Court of Kerala,
clearly interprets the PC Act and its amendments and the same will be helpful
to officials in knowing what all protections a public servant has when he/she acts in good faith and follows
prescribed procedures based on the information available to them.
In Ramesh
Chennithala v State of Kerala ( OP(Crl.).No. 83 of 2017) the Hon'ble High Court observed the
following, which is very pertinent for officials working in revenue-collecting
departments:
37. It appears that there is a misconception among the officers of the
VACB and the Police that loss caused to the Government or the Public Exchequer
by a public servant in the discharge of his official functions is a ground for
proceeding against him under the P.C Act. This misconception is the result of
the wrong understanding of the scope and object of the
Prevention of Corruption Act. For a prosecution against a public servant
on the allegation of corruption or criminal misconduct as meant and defined
under the P.C Act, the public servant must have either accepted illegal
gratification or undue advantage for himself or
any other person for anything done as part of his official functions as a
public servant, or he must have dishonestly or fraudulently misappropriated
money from public funds, or must have otherwise converted for his own use any
property entrusted to him, or under his
control as a public servant in the discharge of his official functions, or
he must have enriched himself illicitly, or must have acquired pecuniary
resources or property disproportionate to his known source of income.
38. There can be instances where some benefit or advantage is caused to a
person, or such benefit or advantage is derived by a person by the wrongful
acts of a public servant or due to his carelessness in the discharge of his
duty or due to malfeasance. In such cases, there may be corresponding loss to
the Government or the Public Exchequer also. What matters
in such cases, is not whether the public servant has just caused loss to
the Government or the Public Exchequer, but whether there has been any vicious link
or nexus between him and the person benefited, and whether the public servant
caused such benefit to the other person with the knowledge that his act will or
may cause such benefit and cause loss to the
Government or the Public Exchequer. In short, what is required for a prosecution is not simply that the Government or any Department of the Government or any Public body has sustained any loss. While proving such loss, the prosecution will have also to prove that a corresponding gain was made by the public servant or somebody else in whom he is interested or with whom he has vicious nexus. Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C Act. In short, mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C Act. 39. The VACB will have to make enquiry into different allegations of corruption or misconduct or malfeasance or misfeasance in public offices. In many instances, such enquiry may reveal carelessness or breach of duty or malfeasance or misfeasance or wrong discharge of duty by public servants. In such instances where the VACB could not detect any instance of corruption or criminal misconduct as defined and meant under the law, the VACB can report the facts to the Government or the concerned authority, and on getting such report, the Government or the concerned authority can initiate disciplinary action against the erring public servant. In all cases of malfeasance or misfeasance or wrong administration, or in all cases of loss caused to the Government by the discharge of duty by public servants, a prosecution under the P.C Act cannot be initiated. If it is only a case of dereliction of duty or wrong administration or malfeasance or misfeasance detected on enquiry, only disciplinary action can be initiated against the erring public servant, and if any public servant has caused any wrongful loss to the Government by the discharge of his official functions improperly or wrongfully, or as the result of wrong administration or malfeasance or misfeasance, no doubt, the Government or the appropriate authority can recover the loss from him, and also initiate disciplinary action against him.
40. As already observed, investigation under the the P.C Act cannot be
conducted as regards policy decisions or administrative actions of the
Government. Of course, in such cases where the discharge of function or
administrative action or decision involves any individual case of corruption or
criminal misconduct as defined and meant under the law, the VACB or the Police
can make investigation. The VACB in the State of Kerala is only a branch of the
Police Department. It does not have any exclusive province or independent
existence because it is not a statutory creation like the Central Bureau of
Investigation (CBI) or the National Investigating Agency (NIA. Even while the
CBI or the NIA is governed by the Act by which it
is formed, they are also governed by the provisions of the Code of
Criminal Procedure and the Indian Evidence Act in the matter of investigation
or prosecution. The VACB is also governed by the provisions of the Code of Criminal
Procedure and the Indian Evidence Act as the
entire Police Department is governed by such laws.
The CBI or the NIA or the VACB cannot have any special privilege or prerogative in the matter of investigations because every investigation is governed by the Code of Criminal Procedure, which is applicable to all prosecuting agencies. Of course, there is the Vigilance Manual for internal guidance. This Vigilance Manual does not have the force of law, and it will not get legal sanctity because it is only a Manual for the guidance of the officers of the VACB in the discharge of their functions. Any provision of the Manual against the provisions of the law of the land like the Code of Criminal Procedure, or the Indian Evidence Act, will not have any value or application in the matter of investigation or prosecution. This shall be borne-in mind by the officers of the VACB.
41. In the foregoing paragraphs, this Court has discussed the scope of the functions of the VACB in Kerala and the Province wherein they are expected to discharge their functions. Investigation of corruption cases or cases under the P.C Act must be seriously dealt with as a specialised area where high competence, caliber, integrity and honesty of the officers is required. In the investigation in corruption cases, the concept of participative supervision must be applied. This means that every investigation must be a team work, monitored and supervised by the superior officers. Crimes can be registered and investigation can be made under the P.C Act only in cases where elements of corruption or misconduct are revealed or disclosed. If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant. The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector.
In Manimekhala v State of Kerala, the Hon'ble court reiterated that in all cases of malfeasance or misfeasance or wrong administration, a prosecution under the Prevention of Corruption Act cannot be imitated.
The two judgments mentioned above are given below:
Download High Court of Kerala judgement: Ramesh Chennithala v State ofKerala dated 15.10.2018
Download High Court of Kerala judgement: S. Manimekhala v State of Kerala dated 29.1.2024
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