Agreed Lists of Suspect Officer:
These lists should include officers of Gazetted status against whose integrity and honesty there are complaints, doubt or suspicion. Lists to be finalized by mutual discussion between the department and the ACB. The following action will be taken in respect of officers on these agreed lists by the departments or the public undertakings and by the ACB.
(i) Closer and more frequent scrutiny and inspection of their work and performance by the departments concerned, particularly in spheres where there is scope for discretion or for showing favours.
(ii) Quiet check about their reputation both by the Department tent and the ACB.
(iii) Unobtrusive watch of their contacts, style of living etc. by the ACB
(iv) Secret enquiry by the ACB about their assets and financial resources.
The departments will make available their property returns and other relevant records to the ACB.
(v) Collection of information by the ACB of specific instances of bribery and corrupt practices.
5. If these secret checks and enquiries reveal positive material, open enquires will be initiated by the ACB and further action taken in the light of the results of that enquiry and no adverse or punitive action is contemplated against any officer on these lists unless these checks, verifications or enquiries bring forth adequate material to reasonably conclude that he is lacking in integrity. These agreed lists will remain in force for one year from the date of preparation. At the end of this period, the list will be reviewed and the names of those officers against whom there is not sufficient evidence to proceed against will be deleted from the list.
List of points or places of corruption:
(a) “Points” are those of items of work and those stages at which decisions are taken or orders are passed which provide scope for corruption namely, processing of tenders, appraising, grant of quota certificate, etc.
i(b) “Places” would be sections, sectors, units of an office/department/Public undertakings.
It may be emphasized that these are not lists of all those points and places where there is scope or likely hood of corruption but only of those where corruption is believed to exist in substantial measure. The preparation of these agreed lists of points and places of corruption must necessarily be done by those in the field. The D.S.Ps of local branches of ACB with the assistance of Bureau headquarters will settle and prepare these lists after discussion with the Heads of Departments or Public Undertakings concerned.
The Departments and Public Undertakings can contribute substantially in the preparation of these lists.
After these lists are prepared, the following action should be taken by the departments or public undertakings and by the ACB.
(i) Closer and more frequent scrutiny and inspection by the department or public undertaking of the work done at these points and places.
(ii) Surprise checks by the department or public undertaking.
(iii) Quiet and unobtrusive watch by the ACB followed by raids as and when appropriate.
(iv) Collection of information about specific instances of bribery and corrupt practices so as to initiate open enquiries.
List of unscrupulous contractors, suppliers and firms :
These lists are to be prepared by the departments and undertakings concerned as they are in best position to do so. They need not be “agreed” lists. Copies of these lists should be sent to the ACB for its information. The ACB on its part will pass on to the departments undertakings concerned any information regarding corrupt practices of contractors, suppliers, firms, etc., for their information and for considering as to whether the name of such contractor should be brought on their lists. Particular care should be exercised in the preparation of these lists. Departments concerned should lay down the criteria on the basis of which names are to be included in these lists. In respect of Building Contractors, the Departments concerned should appoint a committee to lay down such criteria and the Committee’s recommendations will be circulated to all departments concerned.
The Director General, Anti Corruption Bureau and the Departments should take the following action in respect of the Contractors etc., on these lists.
(i) The lists should be circulated by the departments/undertakings to their officer/ officers enjoining them to be careful and cautious in all dealings with such parties.
(ii) Closer check and scrutiny by the departments/undertakings if the requests on applications, made by such parties and of the contracts for works or supplies awarded to, or executed by them and of any business or transaction, undertaken by them.
(iii) Quiet and unobtrusive watch should be kept by ACB over the contracts or such parties in official circles.
(iv) Collection of information by the ACB of specific instances of malpractices on the part of such parties with a view to initiating open enquiries.
List of Unscrupulous Contact men:
The ACB should prepare lists of unscrupulous contactmen who are suspected of resorting to corrupt or irregular practices in their dealings with official agencies. The names of persons on these lists will be communicated by the ACB to the departments and public undertakings concerned. These lists may be complied with the following objectives.
(a) The information contained in these lists will be untilized when considering cases for accrediting or representatives of firms, etc. Normally such unscrupulous persons should not be accepted as accredited representatives.
(b) The departments and undertakings concerned will issue directions to their officers to be careful and cautious in dealing with unscrupulous contactmen whose names are on these lists. They should avoid associating with them socially and accepting entertainment and gifts from them.
(c) The ACB will exercise an unobtrusive check on the activities of such contactmen and try to collect information about specific instances of malpractices in which they are involved.
6. All the Departments of Secretariat and Heads of Departments and the DG ACB are requested to follow above instructions scrupulously. These instructions will come into force with immediate effect.
19. Punishments imposed by the Disciplinary authorities should not be modified by the High Court or Tribunal – Supreme Court Judgement – Issue of Instructions – Regarding.
(Memo. No. 107309/Ser.C/2003, G.A. (Ser-C) Department , Dated: 03-09-2003)
Order: – It has been brought to the notice of the Government that in a large number of cases in which the Andhra Pradesh Administrative Tribunal has been setting aside or substantially reducing the penalties imposed in disciplinary cases even though it is the settled law that the Tribunal or the High Court should not interfere with the disciplinary authorities decisions unless in a specific case the punishment awarded shocks judicial conscience. Such cases will obviously be few and far between. The Supreme Court again in Director General, RPF vs. Ch.Sai Babu case in Supreme Today Journal 2003 (4) Supreme 313 pronounced judgement on 29-1-2002 setting aside the Division Bench decision of the Andhra Pradesh High Court in the case and held that “Normally, the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/ establishment in which the concerned delinquent person works. Normally in cases where it is found that the punishment imposed is shockingly disproportionate, high courts or Tribunals may remit the cases to the disciplinary authority for reconsideration on the quantum of punishment”.
2. A copy of the judgement is forwarded to all the Departments of Secretariat, Heads of Departments and the Government Pleaders dealing with service matters in the A.P.A.T. and the High Court with a request to see that the Tribunal and the High Court decisions are strictly in conformity with the above ruling and take immediate steps to appeal against any such decisions and to strictly follow the above instructions. They shall also bring these instructions to the notice of their subordinates for their guidance and compliance.
2003 (4) Supreme 313
SUPREME COURT OF INDIA
(From A.P. High Court)
Shivaraj V.Patil & Arijit Pasayat, JJ.
| Director General R.P.F. & Ors. | Appeallants |
| Versus | |
| Ch. Sai Babu | Respondent |
Civil Appeal No.4622/2000
Decided on 29-01-2003
Railway Protection Force Rules, 1987 – Rule 153 – Charge sheet under framing five charges of misconduct. After enquiry charges found proved – Punishment of removal from service awarded – High Court finding punishment disproportionate to charges proved – Modified it to stoppage of four increments with cumulative effect – Appeal against to Supreme Court – Whether High Court was right in modifying the punishment in the facts of the case? (No, case remanded to D.B. for reconsideration on the quantum of punishment imposed) – Appeal allowed accordingly.
Held : Normally, the punishment imposed by disciplinary authority should not be disturbed by high court or tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the concerned delinquent person works. In the present case we do not find that there has been a consideration of all the relevant facts and the learned Single Judge has not recorded reasons in order to modify the punishment imposed. The division Bench of the High Court also did not examine the matter in proper perspective but simply concurred with the order passed by the learned Single Judge. Normally in cases where it is found that the punishment imposed is shockingly disproportionate, high courts or tribunals may remit the cases to the disciplinary authority for reconsideration on the quantum of punishment. In this case the disciplinary proceedings were initiated in the year 1989 and to shorten the litigation we think appropriate to set aside the impugned order and remit the writ appeal No. 952 of 1998 to the Division Bench of the High Court to reconsider the case only on the quantum of punishment imposed on the respondent having regard to all relevant factors including the facts that the respondent was a member of Railway Protection Force and in the light of the observations made above. Since the proceedings are pending for quite some time, we request the High Court to dispose of the writ appeal expeditiously. The impugned order is set aside and the appeal is ordered in the above terms.
(Paras 6 and 7)
No costs.
Counsel for the Parties:
For the Appellants : Mukul Rohatgi, Addl. Solicitor General, S. Wasim, A. Quadri, Mrs. Anil Katyar, Ms. Sushma Suri, Advocates.
For the Respondent : R.S. Hedge, Allam Nagabushanam, Ms.N. Annapooorni, Advocates.
IMPORTANT POINT
Normally, in cases where it is found that the punishment imposed by disciplinary authority is shockingly disproportionate, High Court and Tribunals may remit the cases to the disciplinary authority for reconsideration the quantum of punishment.
ORDER :
1. Heard learned counsel for the parties
2. This appeal is directed against the Order dated 15th June, 1999 passed by the Division Bench of the High Court of Andhra Pradesh. The respondent was given charge sheet under Rule 153 of the Railway Protection Force Rules, 1987 framing five charges relating to misconduct on his part. After enquiry report was submitted holding that all the charges levelled against him were proved. The disciplinary authority agreeing with the findings as recorded by the enquiry officer passed an order of removal of the respondent from service. He unsuccessfully challenged the said order of his removal from service before the appellant and revisional authority. Thereafter he filed writ petition before the High Court challenging the order of removal from service on various grounds. The learned Single Judge after hearing the learned counsel for the parties did not found any good ground to disturb the finding of fact as to the charges which stood proved against the respondent. However, in relation to the quantum of Punishment, the learned Single Judge held thus:
“It appears that the petitioner is a habitual offender, and due to dereliction of duties, punishment of stoppage of increment for three years was already ordered in the year 1984. But there is no improvement in the conduct of the petitioner. However, the present charges, though repetitive are not so serious in nature as to warrant extreme punishment of removal from service. I want to give one more chance to him to improve his conduct. Therefore, I direct stoppage of four increments which cumulative effect by modifying the impugned order to this effect and he is directed to be reinstated into service with continuity of service, but he will not be eligible for any back wages except for subsistence allowance”.
3. The appellants called in question the validity and correctness of this order of the learned Single Judge before the Division Bench of the High Court. The Division Bench of the High Court agreeing with the order passed by the learned Single Judge dismissed the appeal. Hence, the present appeal.
4. Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the appeallants urged that the learned Single Judge was not right and justified in modifying the order of punishment, having observed that the respondent was a habitual offender and due to dereliction of duties, the punishment of stoppage of increments for three years was already ordered in 1984 and that there was no improvement in the conduct of the respondent. He alternatively submitted even if the learned Single Judge was of the view that the punishment imposed was grossly or shockingly disproportionate, punishment could not have been modified but the matter could be remitted to the disciplinary authority to re-examine the issue in regard to the imposition of penalty on the respondent. He further submitted that the Division Bench of the High Court did not go into the merits of the contentions and simply endorsed the view taken by the learned Single Judge.
5. Per contra, Shri.R.S.Hedge, learned counsel for the respondent made submissions supporting the impugned order. He contended that even the finding of fact also was not recorded after a proper enquiry. He also contended that the respondent was promoted even after the punishment was imposed on 13th November, 1988 before the framing of the present charges.
6. As is evident from the order of the learned Single Judge there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely saying that it is shockingly disproportionate. Normally, the punishment imposed by disciplinary authority should not be disturbed by High Court or tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate after examining all the relevant factors including nature of charges proved against the past conduct, penalty imposed earlier; the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained and the department/establishment in which the concerned delinquent person works.
7. In the present case we do not find that there has been a consideration of all the relevant facts and the learned Single Judge has not recorded reasons in order to modify the punishment imposed. The Division Bench of the High Court also did not examine the matter in proper perspective but simply concurred with the order passed by the learned Single Judge. Normally, in cases where it is found that the courts or tribunals may remit the cases to the disciplinary authority for reconsideration on the quantum of punishment. In this case the disciplinary proceedings were initiated in the year 1989 and to shorten the litigation we think it appropriate to set aside the impugned order and remit the writ appeal No. 952 of 1998 to the Division Bench of the High Court to reconsider the case only on the quantum of punishment imposed on the respondent having regard to all relevant facts that the respondent was a member of Railway Protection Force and in the light of the observations made above. Since the proceedings are pending for quite some time. We request the High Court to dispose of writ appeal expeditiously. The impugned order is set aside and the appeal is ordered in the above terms. No costs.
Appeal is allowed accordingly.
20. Misappropriation cases – Consolidated Guidelines Issued.
(G.O. Ms. No. 25, General Administration (Ser.C) Department, dated 3-2-2004)
Ref. : – 1. Memo No.3000/Ser.C/76-4, GA (Ser.C) Department , dated 28-6-1977
2. Memo No.2106/Ser.C/77-1, G.A. (Ser.C) Department dated 27-10-1977.
3. Memo No.2261/Ser.C/79-2, G.A. (Ser.C) Department dated 23-10-1979
4. U.0 Note No.646/Ser.0 80/, G.A. (Ser.C) Department dated 21-7-1980.
5. U.O.Note No.32/Ser/C/81-2, G.A (Ser.C) Department dated 9-2-1981.
6. G.O.Ms.No. General Administrator (Ser.C) Department dated 24-4-1984.
7. U.O.Note, No.463/Ser.C/85-4, G.A. (Ser.C) Department dated 20-12-1985.
8. Circular Memo.No.100/Ser./93-22, G.A.(Ser.C) Department dated 23-12-1995.
9. G.O.Ms.No.2, G.A.(Ser.C) Department Dated 21-9-1999.
10. Memo No.44391/Ser.C.99/G.A.(Ser.C) Department Dated 21-9-1999.
11. U.O.Note No.1067/L&O-1/A12000-4, G.A. (L&O) Department Dated 30-12-2000.
12. Memo No.51375/Ser.C/2002-2, G.A. (Ser.C) Department Dated 28-1I-2002.
Order: – Apart from the instructions issued ‘on the subject matter, a critical study of cases of misappropriation of Government funds undertaken by the Andhra Pradesh Vigilance commission revealed that may of these cases are handled ineptly and with prolonged delay without (1) being reported to the head of the Department and to the Accountant General, (2) finalization of the total amount misappropriated through a thorough verification or audit of the accounts, (3) earnest efforts to realize the misappropriated amount (4) immediate suspension and effective prosecution initiation of timely disciplinary action against the accused officers, and the officers whose supervisory negligence lead to the misappropriation. Where action has been taken attempt is often made to show the embezzlement as temporary diversion of funds particularly where the amount has been remitted back upon detection or where the amount involved is small thereby reducing the gravity of the offence and facilitating the culprits being let off with minor penalty. Some departments / Head of offices have been found to address the Superintendent of Police wrongly without a formal criminal complaint being filed before the Station House Officer having jurisdiction, as soon as the case of misappropriation come to notice without internal audit to finalize the amount misappropriated and without identifying the persons responsible. Such complaints lie there for want of basic information and record necessary to finalize the quantum of misappropriation and to identify the accused officers. There are cases where those responsible for misappropriation were not even suspended and allowed to continue in the same post giving them an opportunity to destroy the records and evidence and to obstruct smooth conduct of investigation.
2. The Report of the Comptroller and Auditor General of India for the year ended 31-3-2002 refers to 605 misappropriation cases reported to it as pending at the end of the year involving a sum of Rs. 1062.69 lakhs as pending in different departments. According to the Vigilance commission this does not reflect the correct position of pendency of such cases due to serious omissions in reporting of misappropriation cases to the Accountant General as provided in the A.P. Financial Code. According to the Commission the number appear to be several times more. As a case in point, the Commission has brought to the notice of the Government that the number of misappropriation cases shown as pending in the Treasuries and Accounts Department in the above list of misappropriation cases was 12, whereas Commission came across 10 more cases of misappropriation in that Department which had not been reported. Information elicited form the Commissioner and Registrar of Cooperative Societies shows that there were 2314 misappropriation cases in the various cooperative institutions in the State involving a sum of Rs. 49.86 crores of which criminal action was initiated in 945 cases. The Commissioner, Panchayat Raj has reported that there were 940 cases of misappropriation involving a sum of Rs.15 crores in which criminal action was initiated in 517 cases where recovery effected was Rs. 1.59 crores. The above figures indicate the magnitude of the problem of misappropriation in Government institutions.
3. The Commission therefore, emphasized the need to lay down streamlined procedure to facilitate effective handling of misappropriation cases with particular attention to (1) prompt reporting (2) quick finalization of amounts misappropriated (3) immediate identification of the persons responsible for the crime (4) fool proof handling of records (5) speedy recovery of funds misappropriated (6) prompt criminal prosecution of the accused (7) pinpointing responsibility for failure of supervision (8) timely disciplinary action against the accused officers and those whose supervisory negligence lead to the misappropriation (9) streamlining procedures to prevent recurrence of similar cases in future and (10) finally laying down strict guidelines for statutory penalties to the officers found guilty of misappropriation in Government Department, Local bodies, Cooperatives, Autonomous Grant Receiving Institutions and Public Undertakings etc.
4. Articles 5,273,294,300 301 and 302 of the Andhra Pradesh, Financial Code lays down the responsibilities of Government Servants in dealing with Government money, the procedure to fix responsibility for any loss sustained by the Government, the procedure to be followed and the action to be initiated for recovery. In addition to the instructions laid down in the Andhra Pradesh Financial Code, the Government have from time to time, issued executive instructions regarding misappropriation cases. It is now felt necessary to plug the loopholes in the management of Government money and to give clear and comprehensive instructions on all aspects of misappropriation cases. Accordingly the following consolidated instructions are issued.
5. Standards of Financial responsibility: – Article 5 of the A.P. Financial Code casts an obligation on every Government servant to see that proper accounts are maintained for all Government, Financial transaction with which his concerned and to render accurately and promptly all such accounts and returns relating to them as may have been prescribed by Government, the Accountant General or the competent departmental authorities. He is required to check the accounts, as frequently as possible, to see that his subordinates do not commit fraud, misappropriation or any other irregularity. The Government holds him personally responsible for any loss that may be found to be due to any neglect of the duties laid upon by him by the relevant provisions made by the Government. The fact that a Government servant has been misled or deceived by a subordinate will in no way mitigate his personal responsibility.
6. Assessment of responsibility for loss of public funds: – Article 273 of A.P. Financial Code makes every Government servant personally responsible for any loss sustained by the Government through fraud or negligence on his part and also for any loss through fraud or negligence on the part of any other Government Servant to the extent to which it may be shown that he contributed to the loss by his own action or negligence. The cardinal principle governing assessment of responsibility for such losses is that every Government Servant should exercise the same diligence and care in respect of the expenditure of his own money.
7. Reporting of loss of public money & sending factual report to Government: – When any facts indicating that defalcation or loss of public money, stamps, stores or other movable or immovable property has occurred or that a serious account irregularly has been committed come to the notice of any Government servant, he should in terms of Article 294 of the Financial Code inform the head of the office immediately. If it appears to the head of the office, prima facie that there has been any such occurrence which concerns his office or in which a Government Servant subordinate to him is involved, he should send a preliminary report immediately to the Accountant General and though the proper channel, to the head of the department. On receipt of the information, the head of the Department should report the matter to the Government without delay. These reports should be sent even when the loss has been made good irrespective of the amount involved.
8. Finalization of Quantum of loss and audit of accounts: – Article 300 of the Financial Code lays down the following general principles in enforcing personal responsibility of the Government servant for a loss sustained by the Government through fraud or negligence on his part and also for loss through fraud or negligence on the part of any other Government servant to the extent to which it may be shown that the he contributed to the loss by his own action or negligence. The head of the office or other appropriate authority should investigate the matter fully without delay. When necessary, the administrative authority may ask the Accountant General to furnish all vouchers and other document in his possession that may be relevant to the investigation. If the investigation is so complex as to require the assistance of an expert audit officer, the administrative authority should report the facts to the Government and the audit officer, will each be personally responsible within their respective spheres, for completing the investigation expeditiously.
9. Recovery: – Whenever an administrative authority holds that a Government servant is responsible for a loss sustained by the Government , it should consider both whether the whole or any part of the loss should be recovered from him in money and whether any other form of disciplinary action should be taken. Whenever a loss is held to be due to fraud on the part of a Government Servant or servants, every endeavor should be made to recover the whole amount lost from the guilty persons. If the failure of a superior officer to exercise proper supervision and control has facilitated the fraud, he should be called strictly to account and suitably dealt with after carefully assessing his personal liability in the matter. The pension of a retiring Government Servant who is involved in any loss or irregularity which is under investigation should on no account be sanctioned until his responsibility in the matter has been finally determined. Whenever a competent authority orders that any amount should be recovered from the Government Servant, otherwise than by forfeiture of his security deposit, if any, on account of a loss sustained by the Government through fraud or negligence on his part and he is about to retire from service the amount should be recovered, as far as possible, by deduction from the last pay or leave salary due to him. If any amount still remains to be recovered, the Government Servant should be asked to give his written consent to the recovery of the remaining amount from his pension. When a retired Government servant whose pension has already been sanctioned is held to have caused a loss to the Government by his fraud or negligence while in service and it appears that the amount could be recovered by bringing a suit against him, the matter should be reported to the Government for orders. Any fraud or negligence found to have been committed by him while in service, should not be made an excuse for absolving any other Government servants who are also responsible for the loss and are still in service.
10. A clear distinction should be drawn between cases of “delayed remittance” and misappropriation. The cardinal test to prove a case as a case of misappropriation rather than temporary misappropriation would be whether the amount has been put to use for the benefit of the person who has misappropriated it. It is the intention and purpose that should be the criteria and not whether the amount has been put to use for the benefit of the person who has misappropriated it. It is the intention and purpose that should be the criterion and not whether the amount has been ultimately made good voluntarily.
11. If there is a reasonable suspicion that a loss sustained by the Government is due to the commission of a criminal offence, the procedure prescribed in Article 301 and 302 should be followed.
12. An officer accused of misappropriation shall be suspended forthwith under Rule 8(1)(c) of the Andhra Pradesh Civil Services (CC&A) Rules, 1991 pending investigation or trial of the offence till he is dismissed or removed from service upon conviction or conclusion of disciplinary proceedings as the case may be.
13. Initiation of Departmental inquiries and Criminal proceedings: – Article 301 lays down that department proceedings should be instituted at the earliest possible moment against all the Government servants involved in any loss sustained by the Government on account of fraud, embezzlement or any similar offence and conduct with strict adherence to the rules, up to the point at which prosecution or any one of them begINS. The Departments should ensure that charges are framed by the disciplinary authority in accordance with the procedure prescribed under the rule 20 of Andhra Pradesh Civil Services (CC&A) Rules, 1991 and action is competed expeditiously observing the prescribed procedure to ensure that there are no procedural infirmities. The criminal proceedings and departmental action should be processed without loss of time with a view to avoiding manipulations and loss of evidence. Departmental officers should obtain Photostat copies of documents and handover the original to Police so that simultaneous action in regard to criminal proceedings and disciplinary action can be taken. Departmental action should be completed within 3 to 4 months. At this stage it may be specifically considered whether it is practicable to carry the departmental proceedings without waiting for the result of the prosecution, if it is so, they should be carried out as far as possible but not as a rule, to the stage of finding and sentence. If the accused is convicted, the departmental proceedings against him should be resumed and formally completed. If the accused is not convicted, the authority competent to take disciplinary action should examine whether the facts of the case disclose adequate ground for continuing departmental action against him. Simultaneous disciplinary and criminal proceedings can be initiated by the Department against the persons responsible for misappropriation and supervisory officers whose failure lead to the offences. Following the decision of the Himachal Pradesh High Court in Khushiram Vs. Union of India (1973) (2) SLR.PP564-565) it is not obligatory that the departmental proceedings should be stayed when the case is pending in a court of law, except when it is expedient to do so in the interest of fair play.
14. Procedure for filing of complaints with local police or the Crime Investigation Department.
Prosecution for embezzlement of public money or property is laid down in Article 302. Whenever the head of an office finds that there is a reasonable suspicion that a criminal offence has been committed in respect of public money or property, he should as a general rule report the matter at once to the Police and the head of his Department that he has laid an information before the police. When the case is heard by the Court, the head of the office concerned should see that all the witnesses serving in his department and all documentary evidence in the control of his department are punctually produced. He should also appoint a Government servant of the Department to attend the proceedings in the court and assist the prosecuting staff. If prosecution for an offence of this kind results in the discharge or acquittal of any person, or in the imposition of any sentence which appears to be inadequate, the head of the office concerned should at once send a full statement of the facts of the case. If it is considered that further proceedings should be taken in revision or appeal, he should proceed accordingly.
15. In order to reduce the number of cases of misappropriation sent for investigation by the Police and prosecution thereafter, a monetary limit of Rs.1000/ – is fixed below which the cases will be handled departmentally only. The Department should ensure that all material needed for investigation is made available to the Station House Officer of the Police Station having jurisdiction. In the event Crime Investigation Department investigation is considered essential in view of the quantum of money involved or the complexity of the misappropriation case action should be taken by the Secretariat Department concerned to refer the case to the criminal investigation department at Hyderabad in consultation with Home Department in accordance with the procedure laid down by the Director General, Crime Investigation Department. If in the course of any investigation into corruption, misappropriation is noticed by the Anti Corruption Bureau in such a case the Anti Corruption Bureau itself will initiate action for prosecution of that case.
16. The Departments of Secretariat should consult the Home Department before entrusting any case to the Crime Investigation Department for investigation. To establish the offence of misappropriation, cheating / forgery and use of forged documents utilization of take certificate etc., it is essential that:
(i) The complaint lodged by competent authority should contain specific information regarding details of crime and persons responsible, amount involved and the matter or mode of commission of offence.
(ii) The details of crime should contain essential ingredients of cognizable crime.
(iii) Whenever complaint involving misappropriation of public funds is preferred, it should be mandatory to initiate departmental audit to establish the instances and amounts of misappropriation. Steps will be taken by the concerned officers to ensure preservation of original documents i.e., bills, vouchers etc., Requirements should be sent to the Pay and Accounts Officer, Treasury authorities / Accountant General Office with a specific request to preserve the documents which would prove the culpability of persons responsible for such frauds / misappropriation. Specimen signatures and admitted handwritings of persons responsible for misappropriation, fraud etc. should be made available to the investigating agency.
(iv) For expeditious and proper investigation it is also imperative that relevant records of the case, like forged documents duplicate copies of vouchers, audit report, preliminary enquiry report conducted by the respective department, note files, registers etc., a re-handed over (in original) to the Crime Investigation Department with Xerox copies being retained by the Department concerned for the purpose of disciplinary action and for record.
17. It should be ensured therefore that a comprehensive complaint should be lodged with Crime Investigation Department containing details of the crime / persons responsible for the Commission of such offences that complaints should be lodged with original signature of the officers who are fully acquainted with the facts of the case and have been associated with the preliminary enquiry or departmental enquiry. Copies of relevant documents should also be enclosed along with the complaint. The departments preferring complaints should also ensure collection and safe custody of original document relating to the offence.
18. Handing over of records / sending necessary assistance to Investigating Agencies:
All Heads of Offices should hand over the records requisitioned by the local Police officers of the Bureau or the crime Investigation Department as the case may be and render all necessary assistance to Investigating Officers in either case. Senior Civil Servants who are defector complainants in Criminal cases or who are intimately acquainted with the facts and circumstances of the cases and whose evidence is relevant and material to prove the case in a court of law should tender their evidence when examined by the Investigating Officers of the Crime Investigation Department in a Court of Law. The investigation should not normally take more than one year after it is entrusted to the Crime Investigation Department / Anti Corruption Bureau however complicated the case may be.
19. The Government have decided that special cells will be created in the investigating agencies for departments where the number of misappropriation cases are large and persons form these cells, and Investigating Agency would maintain close liaison with the departments so that they can tender necessary guidance to expedite cases.
20. In all cases of misappropriation, after investigation is completed by the Police and charge sheets filed, such cases should be pursued effectively to ensure that there is no letup in prosecuting the cases effectively and that there is no failure on the part of the Assistant Public Prosecutor, etc., in conducting the prosecution properly. In case, where the trail ultimately ends in acquittal, immediate action may be taken to file appeals, after obtaining legal opinion. In cases, where it is felt that the prosecution was conducted improperly and the prosecuting officers have not taken adequate interest, responsibility must be fixed for their failure to conduct the prosecution successfully. To ensure a proper watch, the Departments should review all such cases periodically for the half years ending 30/6 and 31/12 of every year furnish their review to the General Administration (Services) Department. Even when there are no such cases, a NIL’ report has to be furnished.
21. Attachment and confiscation of the properties of the accused: – Whenever it is believed that a scheduled offence is committed, the concerned Departmental Officers should collect the necessary data regarding movable / immovable property standing in the name of the person family members, relatives and friends and orders shall be issued for attachment of the properties under Sections 3 and 4 of the Criminal Law Amendment Ordinance, 1994 contemplates that if any person commits any offence punishable under Section 406, 408, 409, 411, 417 and 420 of the IPC 1860 or under clause (c) of sub-section (1) of Section 13 of the P.0 Act, 1988, the Government may whether or not any court has taken cognizance of offence, authorize the making of an application to the District Judge concerned for attachment of the money or other property which the State Government believes the said person to have procured by means of the said offence or if such money or property cannot for any reason be attached of other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property.
(i) The attachment can be of the money or other property which the State Government believes the said person to have procured by means of the offence or it such money or the property cannot for any reason be attached, of other property of the said person of value as nearly as may be equivalent to that aforesaid money or other property.
(ii) The District Judge has jurisdiction to issue an interim order of attachment of moneys procured by commission of a scheduled offence and deposited in Bank. Such money in the hands of the Bank does not cease to be attachable although its identity is lost by getting mixed up with the other money of the Bank, long as it is not converted into anything else and remains liable to be paid back in cash to the depositor or to his order (K Satwant Singh Vs. Provincial Government of Punjab, AIR 1946 Lah 406)
(iii) Where the assets available for attachment are not sufficient and where he is satisfied that the transfer of the property to the transferee was not in good faith and for consideration, the District Judge has power to order the attachment of so much of the transferee’s property equivalent to the value of the property, transferred, as per section 6 of the Ordinance.
(iv) The court having jurisdiction to entertain the application for attachment of property under the said Ordinance is the court of the District Judge within the local limits of whose jurisdiction the suspect ordinarily resides or carries on his business. A Special Judge while trying an offence punishable under the said Act an exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, as per sub-section (6) of section 5 of the Prevention of Corruption Act 1988.
(v) The District Judge is empowered under Section 4 (1) of the Ordinance, as also the Special Judge trying an offence punishable under the Prevention of Corruption Act, 1988 to pass an interim order of attachment of the money or other property and to make the an interim order of attachment absolute, under Section 5 of Ordinance.
(vi) The order of attachment remains in force for 3 months as per clause (a) of Section 10, but the period has been raised to one year by the Prevention of Corruption. Act, 1988 as per Clause (b) of Section 2 thereof. Where a court has taken cognizance of the Scheduled offence, the order of attachment continues in force until order are passes by the judge, as per Clause (b) of Section 10 of the Ordinance.
(vii) The District Judge or a Special Judge trying an offence punishable under the P.0 Act. 1988 has power to order forfeiture of the attached property on the termination of the criminal proceedings where the final judgement or order of the criminal court is one of conviction as per sub-sec(3) of Section 13 of Section 13 of the Ordinance.
(viii) The above provision should be used for attaching the properties of the Government Servant(s) who are found to have misappropriated Government money pending the criminal proceedings and eventual confiscation of the property.
22. Invoking provision of Andhra Pradesh Revenue Recovery Act: – The provisions of Revenue Recovery Act can be invoked for recovery of the misappropriated amounts or loss caused to the Government Recovery of misappropriated amount or loss caused to Government can be recovered as if it were an arrear of land Revenue in accordance with the procedure laid down in the A.P. Revenue Recovery Act. Where the officer responsible fails to remit the amount to the Government account. It is open to Government to file a civil suit for a recovery of such sum as a last resort.
23. Punishments to be awarded in proved cases of misappropriation: -There is a wide disparity in the scales of punishment meted out in misappropriation cases. The question of prescribing uniform scale of punishment in such cases has been considered by Government It has been decided that ordinarily cases of proved misappropriation would justify nothing less than dismissal from service and action should accordingly be taken. The minimum penalty to be imposed in all proven cases of misappropriation (in addition to the recovery of amount misappropriated) is dismissal form service. In case of a retired employees the penalty should be withholding of entire pension and gratuity permanently or withdrawal of pension as the case may be besides recovery of the misappropriation / loss amount. There may, however, be rare cases where in the circumstances, such as trivial amount, short duration, immediate payment on detection, all of which may raise a presumption that it was an error in accounting, which may justify a different punishment. A clear distinction should be drawn between the cases of “delayed remittance” and “misappropriation” having regard to the fact that in proved cases of misappropriation no punishment short of dismissal is normally justified and accordingly the case of ‘delayed remittance’ need not always be classified for the purpose of audit as a case of misappropriation.
24. An officer who is convicted by a Criminal Court for the offence of misappropriation or fraud should be dismissed from service without waiting for failing of an appeal or its outcome. Such action would be taken not withstanding suspension of sentence by an Appellate Court. It shall not be necessary to consult the Andhra Pradesh Public Service commission for taking action to dismiss the officer on the grounds of conviction in a Court of Law. In the case of an officer who in the meantime has retired, his pension and gratuity shall be withheld or where it has already been sanctioned, his pension should be withdrawn. The officer, who fails to enforce these instructions promptly, will be held responsible for any loss to the Government on account of avoidable payment of subsistence allowance or provisional pension as the case may be.
25. Consultation with Vigilance Commission: – In all cases of misappropriation, the Vigilance Commissioner has to be consulted in accordance with the procedural instructions of the Commission.
26. Review of Cases: – There should be periodical office inspections by the Heads of Department and such inspections should invariably cover financial aspects, accounts and cases of misappropriation of funds, if any. In the office of heads of Department, one officer may be nominated as Vigilance Officer to keep track of cases involving misappropriation of Government funds. The Chief Vigilance Officers of the Secretariat Departments under the Vigilance Officers of heads of Department, Public Enterprises, Autonomous Bodies and Cooperative Institutions etc., to keep track of the cases of misappropriation of funds by Government employees.
27. The Finance Department will nominate an officer specially to monitor the pendency and watch progress with reference to statistics that will be furnished to him by the other Departments. This officer would place the statistical data regarding outstanding misappropriation cases for a review by Chief Secretary to Government with Secretaries Departments periodically.
28. The secretary of each Department should review each month all cases of misappropriation in his Department and send a copy of the review containing full details to the officer nominated for the purpose in the Finance Department. The Chief Secretary will review these cases with all Secretaries to Government once in 6 month to find out whether there are any bottle necks in expediting cases of misappropriation.
29. All the Departments of Secretariat, all the head of Department and District collectors are directed to bring these instructions to the notice of their subordinates for their guidance and compliance and enforce strict compliance of these instructions and any deviation in the matter will be viewed seriously.
21. Disciplinary cases referred to Commission for concurrence – Decision taken by Government without waiting for Commission’s advice/in-deviation of Commission’s advice – Certain instructions – Reg.
(Cir. Memo No. 93035/Ser-C/A1/20084, G.A. (Ser.C) Department , dated 25-6-2009)
Ref :– From the Secretary, A.P.P.S.C. Letter No. 672/RT-I/3/2006, dated 6-11-2008.
Order: – The Secretary, Andhra Pradesh Public Service Commission has stated that in some disciplinary cases punishment orders are being issued without regard to the Commission’s opinion/advice. He has appended details in certain cases in which orders are issued without waiting for Commission’s advice and are in-deviation of Commission’s advice.
2. It is mandatory to consult the Andhra Pradesh Public Service Commission as per Regulation 17 of the Andhra Pradesh Public Service Commission Regulations, 1963. Where the Government proposed to impose a major penalty against a Government employee in any disciplinary case, the suggestion of the Commission shall be kept in view in taking decision to conclude the disciplinary proceedings against the employee. If it is proposed to deviate the suggestion of the Commission, procedure prescribed in the Business Rules shall be followed. The very objective of consulting the Commission is, before arriving a decision in any disciplinary case either to punish the employee or otherwise, to ensure a careful examination of the issue that the innocent should not be punished. In this context, the Commission are of the view to keep in view the. suggestions of the Commission in the disciplinary cases and not to deviate from the suggestions.
3. All the Departments of Secretariat are therefore requested to take into consideration the suggestion of the Commission while taking a final decision to conclude the disciplinary proceedings.
10. Other penalties: – In addition to the penalties specified in Rule 9 and notwithstanding anything therein, the following penalties may for good and sufficient reasons and as hereinafter provided, be imposed, namely : –
(i) fine, on a member of the Andhra Pradesh Last Grade Service and on a person holding any of the posts specified in Appendix-I to these rules;
(ii) suspension for a period not exceeding fifteen days-
(a) on Forest Guards;
(b) on directly recruited members of the Andhra Pradesh Police Subordinate Service and the Andhra Pradesh Special Armed Police Service;
(c) on Station Officers, Engineers, Sub-Officers, Leading Firemen, Driver-Mechanics, Driver-Operators, Firemen-Mechanics, Firemen and equivalent ranks of the Andhra Pradesh Fire Subordinate Service :
Provided that the penalty may be imposed on Government Servants mentioned in sub-clauses (b) and (c) only if the penalty of reduction to a lower grade, post or time-scale or to a lower stage in the same time-scale cannot be imposed.
11. Disciplinary Authorities in respect of State Services: – (1) The High Court of Andhra Pradesh may impose on members of the Andhra Pradesh State Judicial Service, any of the penalties specified in [clauses (i) to (vii)] of Rule 9 :
Provided that the High Court of Andhra Pradesh may impose on Judicial First Class Magistrates any of the penalties specified in Rule 9.
(2) (i) The Commissioners concerned may impose on Tahsildars, Assistant Superintendents of Excise (including Chemical Examiner in the cadre of Assistant Superintendent of Excise), Deputy Commercial Tax Officers and Assistant Directors of Survey and Land Records, any of the penalties specified in clauses (i) to (v) of Rule 9;
(ii) The District Collector may impose on Tahsildars the penalties of (a) censure, (b) withholding of increment for a period of three months without cumulative effect;
(iii) (a) The Commissioner, Commercial Taxes may impose on Commercial Tax Officers the penalties of (a) censure, (b) withholding of increment for a period of three months without cumulative effect;
(b) The Deputy Commissioner, Commercial Taxes may impose on Deputy Commercial Tax Officers the penalties of (a) censure, (b) withholding of increment for a period of three months without cumulative effect.
(3) The Principal Secretary to Government, the Second Secretary to Government, the Special Secretary to Government, the Secretary to Government and the Secretary to Governor may impose on Section officers working in their respective departments, any of the penalties specified in clauses (i) to (v) of Rule 9.
(ii) The Joint Directors/Regional Joint Directors, Treasuries and Accounts Department may impose on Assistant Treasury Officer/Assistant Accounts Officer and District Treasury Officer /Accounts Officer/ Pension Payment Officer /Assistant Director and other Officers of equivalent cadre in Treasuries and Accounts Department the penalties specified in clause (i) of Rule 9.
(5) The Director of Local Fund Audit may impose on the Audit Officers of the Andhra Pradesh Local Fund Audit Service, the penalties specified in clauses (i) and (iv) Rule 9.
(6) The Commissioner, Endowments Department may impose on the Deputy Commissioners and Assistant Commissioners, Endowments Department, the penalties specified in clauses (i) and (iv) of Rule 9.
(8) The Director of Municipal Administration may impose on Municipal Commissioners of the Andhra Pradesh Municipal Commissioners Subordinate Service any of the penalties specified in clauses (i) to (iv) of Rule 9.
(9) The Director of Agriculture may impose on the Deputy Directors of Agriculture, the penalty specified in clause (i) of Rule 9.
(10) (i) The Director, Bureau of Economics and Statistics or the District Collector may impose on District Statistical Officer, the penalty specified in clause (i) of Rule 9.
(ii) The Director, Bureau of Economics and Statistics may impose on Assistant Directors, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9;
(11) The Director, Commerce and Export Promotion may impose on Assistant Directors and Section Officers in categories H and III of the Andhra Pradesh Central Stores Purchase Service, any of the penalties specified in clauses (i) to (iv) of Rule 9.
(12) The Commissioner of Labour may impose on Assistant Commission of Labour, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9.
(13) The Inspector-General of Registration and Stamps may impose on District Registrars (including Assistant Inspector-General), any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9.
(14) The Commissioner/Director of Fisheries may impose on Deputy Directors of Fisheries, any of the penalties specified in clauses (i) to (iv) of Rule 9.
(15) The State Port Officer, Andhra Pradesh may impose on Assistant Engineer for Marine Works at minor ports, the penalty specified in clause (i) of Rule 9.
(16) (i) The Director of School Education may impose on Officer in Class II of the Andhra Pradesh Educational Service, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9,
(ii) The Director of Higher Education may impose on Deputy Directors of Higher Education, Chief Academic Guidance Officer in the State Council for Educational Research and Training, Hyderabad and Principals of Government Degree Colleges, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9;
(iii) The Director of Adult Education may impose on Deputy Directors of Adult Education and District Adult Education Officers, the penalty specified in clause (i) of Rule 9.
(17) (i) The Director of Medical Education may impose on Civil Assistant Surgeons, any of the penalties specified in clauses (i) to (iv) of Rule 9;
(ii) The Principals of Medical Colleges may impose on Civil Assistant Surgeons of Clinical and Non-Clinical Specialities, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9;
(iii) The Superintendents of General Hospitals attached to Medical Colleges may impose on Civil Assistant Surgeons of Clinical Specialities and Civil Assistant Surgeons belonging to the Specialities of Bio-Chemistry, Pathology and Micro-Biology, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9;
(iv) The Superintendent of the District Headquarters Hospitals may impose on Civil Assistant Surgeons working in the District Headquarters Hospitals, any of the penalties specified in clauses (i), (ii) & (iv) of Rule 9;
(v) The District Medical and Health Officers may impose on Civil Assistant Surgeons working in the Hospitals in the Districts other than those working in the District Headquarters Hospitals, any of the penalties specified in clauses (i), (ii) and (iv) of Rule 9.
(18) (i) The Director of Public Health may impose on Statistician and Medical Officer (Maternity and Child Health) Grade–II, any of the penalties specified in [clauses (i) to (vii)] of Rule 9];
(ii) The Director of Health and Family Welfare may impose on Civil Assistant Surgeons in the Public Health Department, any of the penalties specified in clauses (i) to (iv) of Rule 9.
(19) (i) The Director of Animal Husbandry may impose on members in Classes III and IV of the Andhra Pradesh Animal Husbandry Service, any of the penalties specified in clauses (i) to (iv) of Rule 9;
(ii) The Regional Director or Deputy Director may impose on Veterinary Officers, any of the penalties specified in clauses (i) to (iv) of Rule 9.
(21) The Chief Engineer (Electricity) may impose on-
(a) Assistant Engineers, Store Superintendents, Chief Accountants and Deputy Chief Accountants under his control, the penalties specified in clause (i) of Rule 9; and
(b) the Non-Technical Personal Assistant in his office, any of the penalties specified in [clauses (i) to (vii)] of Rule 9;
(22) The Engineer-in-Chief (R&B) may impose on Deputy Executive Engineers (R&B), the penalties specified in clause (i) of Rule 9.
(24) (i) The Chief Engineer (General and Panchayati Raj) may impose on Deputy Executive Engineers of the Panchayati Raj Engineering Service, any of the penalties specified in clauses (i) to (iv) of Rule 9;
(ii) The Superintending Engineer (Panchayati Raj) may impose on Assistant Executive Engineers of the Panchayati Raj Engineering Service, any of the penalties specified in clauses (i) and (iv) of Rule 9;
(25) (i) The Deputy Inspector-General of Police or an officer of corresponding rank may impose on-
(a) Deputy Superintendents of Police, Assistant Commissioner of Police, Assistant Commandant, Andhra Pradesh Special Police, Deputy Superintendents, Police Communications and Technical Assistant to Police Transport Officer, any of the penalties specified in clauses (i) to (iv) of Rule 9; and
(b) Inspector of Police, Reserve Inspector, Armed Reserve, Reserve Inspector, Andhra Pradesh Special Police, Inspector of Police, Shorthand Bureau, Inspector of Police, Communications, Inspector of Police, Transport Organisation, Inspector of Women Police, any of the penalties specified in Rule 9;
(ii) The Superintendent of Police, or an officer of corresponding rank may also impose on Inspector of Police, Reserve Inspector of Armed Reserve, Reserve Inspector of Police, Andhra Pradesh Special Police, Inspector of Police, Shorthand Bureau, Inspector of Police, Communications, Inspector of Police Transport Organisation, Inspector of Women Police, any of the penalties specified in clauses (i) to (iv) of Rule 9.
(26) The General Manager, District Industries Centre or an officer not lower in rank than a Joint Director of Industries, who is the Head of the District Industries Centre may impose on a member of service holding a post included in category III of the Andhra Pradesh Industries Service, the penalties specified in clauses (i) and (iv) of Rule 9.
(27) Without prejudice to the foregoing provisions –
(i) every Head of Department may impose on a member of the State Services under his control, the penalty specified in clause (iii) of Rule 9, except in the case of such member holding a post immediately below his rank; and
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