HARMONY AN E-MAGAZINE ON CSIR/GOI SERVICE & RELATED ISSUES
Founder-Editor, Compiling & Publishing Ch. Srinivasa Rao Formerly COA, CSIR-NGRI, Hyderabad
Vol. IX
February 2012
No. 205
F&A &A,, CDFD, Hyderabad Counselling & Review: Review: B.J. Acharyulu, Head, F &A E-Mail assistance: D.S D.S. Sundar, Assistant (F&A), (F&A), NGRI, Hyderabad
___________________________________________________________________________ Orders of Central Govt. which are reproduced in "HARMONY" whether duly endorsed by the CSIR or not, are applicable to its employees to a large extent unless and otherwise such Orders involve financial implications. Articles on Service issues, Management, Motivation, Material Science, Supply Chain Management, Attitudinal Behaviour and related issues are welcome through E-mail or other means. Material published in “HARMONY” can be used purely in academic interest with due acknowledgement. The opinions expressed or inferences drawn in the material published in “HARMONY” do not necessarily reflect the views of Editor nor CSIR/Swamy Publishers (P) Ltd., Chennai shall take any responsibility whatsoever for any inaccuracies or claims. “HARMONY” is transmitted through E-mail free of cost. For a free copy, send your E-mail ID “harmonysrinivas@gmail.com; Mobile: 91-94904 62583;Res: 040-27150736
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2
CSIR/GOI ORDERS EXTENSION OF SERVICES OF DIRECTOR-GENERAL, CSIR The services of Prof. Samir K. Brahmachari as Secretary, Department of Scientific & Industrial Research and Director-General, CSIR have been extended for a period of two years beyond 31-12-2011. [CSIR Lr. No.6-8(1922).2997-E.III dt. 30-12-2011] RESERVATIONS UNDER SUB-QUOTA FOR MINORITY COMMUNITIES The GOI set up the National Commission for Religious & Linguistic Minorities. The Commission vide its Report to the GOI submitted on 10-5-2007, inter alia, recommended creation of a sub-quota for Minorities from within the reservation of 27% available to Other Backward Castes in Govt. employment. The Govt. considered the above recommendation and it has been decided to carve out a sub-quota of 4.5% for Minorities, as defined under Section 2 (c) of the National Commission for Minorities Act, 1992 from within the 27% reservation for OBCs w.e.f. 1-1-2012. Similar instructions in respect of PSUs and Financial Institutions including PSBs will be issued by the Department of Public Enterprises and by the Ministry of Finance, respectively. [GOI MOPPG&P DOPT O.M. No.41018/2/2011-Estt.(Res.) dt. 22-12-2011; CSIR Lr. No.5-1(39)/ 2008-PD dt. 1-1-2012] ELECTRONIC PAYMENTS VIA GOVT. ELECTRONIC PAYMENT GATEWAY The Ministry of Finance has decided to do away with the manual payments (cash, cheque and demand drafts) in favour of Electronic payments via Govt. Electronic Payment Gateway (GePG) completely within the current financial year. Accordingly, it has been decided to observe the following timelines for phased facilitation of e-payment in the Departments: 1.
All the payments pertaining to Plan Budget should take place through RTGS/NEFT from 1-12-2011.
2.
All the payments pertaining to Non-Plan payments shall be made through RTGS/NEFT mode from 1-1-2012.
[GOI MOS&T DOS&IR Circular No.A-60011/16/2006-Estt. dt. 28-11-2011; GOI PAO MOS&T O.M. No.Pr.AO/MST/Control/E-Remit/2011-12/1794 dt. 25-11-2011; CSIR Lr. No.5-1(17)/08-PD dt. 5-1-2012] BROCHURE ON RESERVATION IN SERVICES An up-dated “Brochure on Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in Services of the GoI has been posted on DOPT Website www.persmin.nic.in This up-dated version consists of prescribed formats of registers for maintaining reservation on the basis of revised instructions which have now been prescribed by the Brochure (not printed here). Part I of the Brochure contains all the provisions on the subject, including Reservation Registers/Reservation Roster Registers, in a simple and easy to understand style. For clarifying any doubts, relevant Office Memorandum in Part II of the Brochure may be referred. [GOI MOPPG&P DOPT O.M.No. 36011/1/2011-Estt. (Res.) dt. 17-11-2011; CSIR Lr. No.5-1(17)/ 08-PD dt. 10-1-2012]
3 REALLOCATION OF WORK AMONGST OFFICER IN CSIR HQS. The Financial Adviser, CSIR has been pleased to approve the following reallocation of work amongst Sr. Dy. FA and the two Dy. FAs in CSIR HQs. with immediate effect: Shri M.K. Jain, Dy. FA IFD, Internal Audit and Report Sections Shri Padam Singh, Dy. FA Central Office (Cash & Audit), Central Fund & Pension Sections Shri C.S. Malik, Sr. Dy. FA Budget, Account, Training and retraining of staff in Finance, Implementation of New Accounting Software (ERP), and streamlining of IMPACT Software with the help of Dy. FAs and other Officers in Finance. In addition to the above allocated work, Shri M.K. Jain and Shri Padam Singh will assist Sr. Dy. FA in implementation of New Accounting Software and IMPACT to avoid persistent audit observations in SAR. [CSIR O.M. No.Sr.Dy.FA/PA(Misc.)/2011-12(4) dt. 16-1-2012] UP-DATING SWAMY’S HANDBOOK Page 305
309
Subject matter with reference Section 24: Retirement on Superannuation 16. Family Pension Add at the end of last para – “Family Pension admissible to a beneficiary in respect of one deceased employee/pensioner is not to be counted as income for the purpose of determination of eligibility for another family pension which is admissible in connection with another deceased employee/pensioner. Any other income/earning of the beneficiary will be counted for deciding eligibility for family pension.” O.M. dated 30-11-2011 9. When both husband and wife are Govt. servants – Substitute – (1) “Rs.45,000” for “Rs.22,500” (2) “Rs.27,000” for “Rs.13,500” (3) In the citation “Notification dated 8-6-2011” for “O.M. dated 1-2-2006”
[Swamysnews, Jan. 2012, 2-3] AMENDMENTS TO CCS (CCA) RULES, 1965 In the Central Civil Services (Classification, Control & Appeal) Rules, 1965, in Rule 14, (a)
in sub-rule (2) for the Explanation, the following Explanation shall be substituted, namely,: “Explanation: (i) Where the Disciplinary Authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the Disciplinary Authority. (ii) Where the Disciplinary Authority appoints a retired Govt. servant as inquiring authority, any reference in sub-rule (7) to sub-rule (2) and in sub-rule (22) shall include such authority;”
(b)
in sub-rule (5), after Clause (c), the following Explanation shall be inserted, namely: “Explanation – For the purposes of this rule, the expression ‘Govt. servant’ includes a person who has ceased to be in Govt. service.”
4 [GOI DOPT Ntfn.No.11012/2/2005-Estt.(A) dt. 5-12-2011; Swamysnews, Jan. 2012, 30-31] EXTENSION OF CGHS FACILITIES The matter relating to extension of CGHS facilities to employees of Indian Pharmacopoeia Commission has been examined and it has now been decided to extend the CGHS facilities to the employees of India Pharmacopoeia Commission and their family members. These facilities will be available to those employees who are desirous of availing the facilities and residing in a CGHS covered area w.e.f. 14/15-9-2011. The rate of contribution for availing the facilities will be with reference to O.M. No.S.11011/2/2008CGHS(P) dated 20-5-2009. [GOI MOH O.M.No.S.11016/3/2011-CGHS(P) dt.14/15-9-2011; Swamysnews, Jan. 2012, 31-32] GUIDELINES FOR REIMBURSEMENT OF EXPENSES OF IN VITRO FERTILIZATION Based on the recommendations by a Technical Committee, the following guidelines are laid down for considering cases for reimbursement of expenses incurred on In Vitro Fertilization (IVF) treatment by CGHS beneficiaries and beneficiaries under CS (MA) Rules, 1944: i)
Requests for IVF treatment will be considered only on the basis of advice tendered by the HoD of Gynaecology & Obstetrics (HOD of G&O) of a Govt. Medical Institution (GMI);
ii)
Permission for IVF treatment to be undertaken may be given by the HOD in the Ministries/Departments on the recommendations of the HOD of G&O of a GMI;
iii)
IVF procedure will be allowed in a GMI on the recommendations of the HOD G&O of a GMI;
iv)
IVF procedure may be allowed, on case to case basis, in a private medical institution if the Institution is registered with the State/Central Govt. and has the necessary facilities including equipment and trained manpower for carrying out the procedure. It is mandatory to obtain the recommendations of the HOD G&O of a GMI for permitting the procedure to be undertaken in a private institution;
v)
There should be clear evidence of failure of conventional treatment before permitting IVF treatment procedure;
vi)
The age of women undergoing IVF treatment procedure should be between 21 and 39 years;
vii)
The woman has to be married and living with her husband
viii)
The IVF treatment procedure will be allowed only in cases of infertility where the couple has no living issue;
ix)
Reimbursement of expenditure incurred on IVF procedure will be allowed up to a maximum of 3 fresh cycles;
x)
An amount not exceeding Rs.65,000/- only per cycle or the actual cost whichever is lower will be allowed for reimbursement. This amount will be inclusive of the cost of drugs, disposables and monitoring cost during IVF procedures;
xi)
As IVF treatment is planned procedure, reimbursement cases can be considered by only if prior approval was obtained by the beneficiary for undergoing the IVF treatment;
5 xii)
There will be a one-time permission for availing IVF treatment consisting of three cycles. The concerned Department shall obtain an Undertaking from the applicant that he/she has not claimed the reimbursement from the GoI in the past and will not claim in the future.
These guidelines come into force w.e.f. 22-11-2011 and reimbursement cases of IVF treatment undertaken after the issue of the O.M. only can be considered. [GOI MOH O.M. No. Z.15025/5/2011-CGHS-III/CGHS(P) dt. 22-11-2011; Swamysnews, Jan. 2012, 32-33] DEPENDENCY CRITERION FOR GRANT OF TWO FAMILY PENSIONS With regard to admissibility of second family pension to a person who is already in receipt of one family pension which is equal to or more than the dependency criterion, it is clarified that the family pension admissible to a beneficiary in respect of one deceased employee/pensioner is not to be counted as income for the purpose of determination of eligibility for another family pension which is admissible in connection with another deceased employee/pensioner. However, any other income/earning of the beneficiary under consideration will be counted towards income for deciding eligibility for family pension. Further, the sum of amounts of family pension admissible to a family pensioner as indicated above shall be regulated as per Rule 54 (11) (a) of the CCS (Pension) Rules, 1972 as amended from time to time. [GOI DOP&PW O.M. No.1/11/2011-P&PW(E) dt. 30-11-2011; Swamysnews, Jan. 2012, 34] DOCUMENTS TO BE SUBMITTED BY A CLAIMANT MEMBER OTHER THAN SPOUSE FOR FAMILY PENSION The claims submitted for family pension by a claimant member of family other than spouse after the death of a pensioner/family pensioner in Form 14 and supported by the Death Certificate and PPO of the pensioner/family pensioner may be processed in consultation with the PAO who is the custodian of the pension file which contains all relevant forms and information of the pensioner. In a very rare case, where the name of the claimant member is not available in the records of the Head of Office as well as the PAO concerned and the claimant member also fails to submit a copy of PPO or Form 3 containing ‘Details of Family’ submitted earlier by the deceased employee/pensioner, the Certificate prescribed at serial number 9 (v) of Form 14 may be accepted. In addition to these certificates, PAN Card, Matriculation Certificate, Passport, CGHS Card, Driving Licence, Voter’s ID card and Aadhar Number may also be accepted. Acceptance of Voter’s ID card and Aadhar Number is subject to the condition that the pensioner/family pensioner certifies that he/she is not a matriculate and he/she does not have any of the documents mentioned in Form 14 or above. Apart from these documents, the Departments may accept any other document submitted by the claimant, which may be relied upon and which establishes the relationship of the claimant with the pensioner and/or contains his/her date of birth. The applicant has also to prove that no other surviving member in the family who may have a prior entitlement for family pension is eligible. For this purpose, the above and/or any other documents such as marriage/death/income certificates of the other members which may be essential in a given situation may be used. [GOI DOP&PW O.M.No.1/16/2011-PPW(E) dt. 8-12-2011; Swamysnews, Jan. 2012, 34-35] USE OF LANGUAGES OTHER THAN HINDI AND ENGLISH Taking into consideration the public convenience and welfare of the large sections of our Society living in the Hindi speaking States located in Region A (these States have Hindi
6 as their Official Language) on Boards, Sign-boards, Name-plates and Directional signs, it has been decided that all CG Offices and PSBs and Undertakings shall write, print, paint, inscribe or emboss the information on Boards, sign-boards, Name-plates and Directional signs in language/s, other than Hindi, recognized for use for Official purposes in the given State/s, in addition to Hindi and English wherein Hindi would be first one. The order of the language/s will be determined by the Department/State concerned. The font sizes of the texts of all the languages will be of the same size. In the non-Hindi speaking States, i.e. States located in Regions B and C, the instructions contained in the O.M. No.1/14013/5/76-OL(A1) dated 18-6-1977 which require the use of Regional Language, Hindi and English in that order on the stated media will continue to hold good. [GOI MOHA O.M. No.1/14013/07/2010-OL(Policy-1) dt. 7-4-2011; Swamysnews, Jan. 2012, 36] PROCEDURE FOR PROCESSING OF FILES REFERRED TO DOPT FOR ADVICE It has been observed that the files received from various Departments in DOPT for advice/clarification are not properly docketed or referred. In some cases even the page numbers or the rules/documents cited in the noting portions are missing. This results in avoidable delays in decision making and disposal of the cases. The following procedure is to be followed scrupulously for referring to the DOPT:
All the proposals referred to DOPT should have approval of Joint Secretary concerned in the Administrative Ministry/Department
All the pages should be properly numbered, docketed referenced/cross-referenced
A legible copy of orders/rules/instructions/circulars, etc. issued by the Administrative Department or DOPT, etc. and cited in the noting portion should be placed on file under reference. Besides flagging the cited documents, page numbers should also be invariably indicated in the noting portion.
Telephone number of the concerned Director/Dy. Secretary/Under Secretary level Officer who has processed the case should be indicated in the noting portion
The proposal relating to amendments of Recruitment Rules, etc. for which a proforma has been prescribed, should be referred to DOPT in the prescribed proforma only
Any proposal having financial implications referred to DOPT for advice/clarification, should have approval or comments of concerned Financial Adviser in the Department
The proposal for advice/clarifications should be referred to DOPT only on file. References through letter, O.M., etc. should be avoided.
To facilitate simplification of the rules/instructions, etc. all the proposals referred to DOPT should invariably indicate, in the concluding paras, the relevant rule position and the difficulty faced in its interpretation which necessitated the referral to DOPT
It has also been observed that while filing the counter-replies to various O.A., Court cases in CAT/High Courts, the relevant rule position is not clearly explained in the context of the case and in some cases no counter or cursorily prepared counter-replies are filed. This results in avoidable delays and unwanted litigations. To avoid such situation, the grievance redressal mechanism should be strengthened and all the grievances redressed expeditiously. While replying to the grievances, the relevant rule position and its implication in the context of the case should be clearly explained to obviate the need of any litigation.
7 Processing legal cases The DOPT has issued/placed on its website (www.persmin.nic.in) revised instructions on personnel matters like timely completion of ACR, holding of the DPC meetings, amendment to Recruitment Rules, etc. Implementation of time schedule prescribed in each of these instructions is likely to reduce procedural delays, thereby reducing grievances and litigations and also streamline manpower management. It has been observed that these instructions are not being implemented in true spirit thereby contributing to procedural delays/grievances and litigations. It has also been observed that the files relating to Court cases are referred to the DOPT at the last moment leaving very little time for processing of the case. Most of the time, issues on which advice of the DOPT is sought is not indicated clearly. All the Departments are advised to follow the procedure prescribed in O.M. No. 20034/2/2010-Estt.(D) dated 30-1-2011 and 13-8-2010 while referring the files for advice/clarification. To facilitate processing of Court cases, the referring note should invariably indicate: i) ii) iii) iv) v) vi) vii) viii)
brief history and fact of the case; relief sought by the petitioner/applicant; earlier advice/opinion of DOPT/DOLA in the matter; stand taken by the Department before Court (CAT); opinion of the Govt. Counsel on the Court/CAT order operative part of the judgement/direction; action proposed to be taken by the Department present rule position and specific point on which advice/opinion of DOPT is sought.
[GOI DOPT O.M.No.F.No.20034/2/2010-Estt.(D) dt. 13-8-2010 & 30-11-2010; Swamysnews, Jan. 2012, 37-40]
.o.
ORDERS OF YESTER-YEARS AMENDMENT TO CCS (CONDUCT) RULES, 1964 In the CCS (Conduct) Rules, 1964, in Rule 18 (a) for sub-rule (3), the following shall be substituted: "(3) Where a Government servant enters Into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds two months1 basic pay of the Government servant: Provided that the previous sanction of the prescribed authority shall be obtained by the Government servant, if any such transaction is with a person having official dealings with him". (b) in Explanation I, in clause (I), in sub-clause (a), for the letters, figures and words "Rs 10,000/- or one-sixth of the total annual emoluments received from Government, whichever is less", the words two months' basic pay of the Government servant, shall be substituted. [Gazette of India Notfn. Part II, Section 3, Sub-Section (i) dt. May 2011]
8 GAZETTE NOTIFICATION ON AMENDMENT TO CCS (LEAVE) RULES, 1972 2.
In the Central Civil Services (Leave) Rules, 1972, (hereinafter referred to as the said rules), in rule 27, in sub rule (2) for clause (b), the following clauses may be substituted, namely,"(b) When a Government servant is removed or dismissed from service, credit of Earned Leave shall be allowed at the rate of 2 ½ days per completed calendar month up to the end of the calendar month preceding the calendar month in which he is removed or dismissed from service; (c) When a Government Servant dies while in service, credit of earned leave shall be allowed at the rate of 2 ½ days per completed month of service up to the date of death of the Government Servant."
3.
In the said rules, in rule 29, in sub-rule (2), for clause (c), the following clauses shall be substituted, namely,"(c) When a Government servant is removed or dismissed from service, credit of half pay leave shall be allowed at the rate of 5/3 days per completed calendar month up to the end of the calendar month preceding the calendar month in which he is removed or dismissed from service; (ca) When a Government Servant dies while in service, credit of half pay leave shall be allowed at the rate of 5/3 days per completed month of service up to the date of death of the Government Servant."
[Gazette of India Notfn. Part II, Section 3, Sub-Section (i) dt. May 2011] AMENDMENT TO CCS (CONDUCT) RULES, 1972 2. (a)
In the Central Civil Services (Conduct) Rules, 1964, in rule 18, for sub-rule (3), the following shall be substituted, namely:
"(3) Where a Govt. servant enters Into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds two months’ basic pay of the Govt. servant: Provided that the previous sanction of the prescribed authority shall be obtained by the Govt. servant, if any such transaction is with a person having official dealings with/him". (b) in explanation in clause (1), sub-clause (a) for the letters, figures and words "Rs 10,000/- or one-sixth of the total annual emoluments received from Govt. whichever is less", the words 'two months' basic pay of the Govt. servant shall be substituted. The above Order will be effective from .. May 2011. [Gazette of India Extraordinary, Part II, Section 3, Sub-section (i) dt. May 2011] CONSULTATION WITH THE UPSC IN R/O DEPARTMENTAL PROCEEDINGS AGAINST GOVT. SERVANTS The DOPT vide its O.M. No.39011/12/2009-Estt.(B) dated 14-9-2010 reiterated that the requisite details in the proforma to be sent to the UPSC are properly filled up and sent with the relevant documents so that there does not arise occasion for the UPSC to make a back reference to the Ministries/Departments in respect of the deficiencies found by the Commission in the papers sent to them.
9 The Commission has now decided to extend the “single-window system” to all other Ministries/Departments whose Offices are situated in Delhi for submission of disciplinary cases involving court cases. Under this system, a Ministry/Department while referring the disciplinary cases to the Commission for advice, is required to authorize a representative, not below the level of Under Secretary, to hand over the case to the designated Officer in the UPSC, with prior appointment. The case records should explicitly indicate the status of the CAT/Court cases, the fact regarding the time limit for disposal of the case, if any, and extension sought for providing at least 3-4 months of time to the Commission for disposal of the case. The UPSC brought to the notice of the DOPT that during the year 2010-11, it had to return the more than 40% of the cases to the concerned Departments on account of procedural/documentary deficiencies. As such, the UPSC had provided the following common deficiencies as observed by the Commission so as to enable the Ministries/ Departments not to get the deficiencies mentioned therein repeated. All Ministries/ Departments are requested to adhere to the above procedure for submission of disciplinary cases involving Court cases to the Commission through single window system: 1. 2. 3. 4. 5. 6. 7.
8. 9. 10. 11. 12. 13. 14. 15. 16.
The documents indicated in proforma/check-list not duly referenced with page number, folder name, etc. Vague comments/information, e.g.. “….” or “do” in the pro forma were mentioned. The documents were not original or duly authenticated. Photocopies were signed in black ink. The exhibits and other documents were not legible. Documents in regional language: (a) Translation not provided; (b) Translation unauthenticated. In case of retired Charged Officer (CO), the information like last pay drawn, monthly pension and gratuity were not provided. No specific information provided whether pension and/or gratuity is withheld or released. Para-wise comments of the DA on the representation of the CO on Inquiry Officer’s Report (IOR) were not part of the record. Daily Order Sheets were not available for all the dates of hearing. In minor penalty cases, the “Relied Upon Documents” referred in the statement of imputation were not forwarded and not properly referenced. The column related to general examination of the CO did not clearly indicate the reference of related papers. In case of disagreement of DA with IO Report, a tentative note of disagreement was not forwarded to the CO. The para-wise comments of the DA did not address the points raised by the CO in his reply. In case of pension cut proposals, the approval of President was not taken. The approval of the President in all pension cut cases is mandatory. The DA in a large number of cases, expresses opinion regarding the quantum or penalty or amount of pension cut to be imposed on the CO. Procedure of prescribed Complaints Committee on Sexual Harassment were not followed.
[GOI MOPPG&P DOPT Lr. No.39035/01/2011-Estt.(B) dt. 10-5-2011] MAINTENANCE AND PREPARATION OF APAR -- COMMUNICATION OF ALL ENTRIES The undersigned is directed to draw attention of the Ministries/Departments to this Department's O.M. No.21011/1/2005-Estt.(AM Pt.II) dated 14-5-2009 by which the system of communicating the entries in the APAR reporting period 2008-09 onwards for representation, if any, was introduced. The Competent Authority (CA) to consider the representation, if any, received by it and shall decide the matter objectively based on the material placed before him within a
10 period of 30 days from the date of the receipt of the representation. The CA after due consideration may reject the representation or may accept or modify the APAR accordingly. It was further decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. This O.M. dated 13-4-2010 specifically provided that in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the Competent Authority. Since the provisions of the above O.M. are applicable only for future DPCs where the recommendations will be implemented prospectively from the date of assuming charge of the higher post, the provisions will not be applicable to retired Officers. The UPSC has brought to the notice of this Department that in the DPCs being held under the aegis of the Commission, orders of the CA do not contain specific reasons for such upgradation in a number of cases. Such orders cannot be termed as disposed off in a quasijudicial manner as laid down in the aforesaid O.M. Grading an Officer below the bench mark by the DPC in such cases on the ground of upgradation being without giving sufficient reasons is prone to avoidable representations. In order that the DPC proceedings are held on schedule and without any necessity to over look the decisions given by the CA while upgrading the grading in the APAR without specific reasons and justifications, all Ministries/Departments are requested to bring to the notice of the CA while forwarding the representation against remarks in the APAR that the authority may decide on the representation in an objective manner within 30 days of receipt of the representation and give specific reasons in case of upgradation of the final grading given in the APAR as per the above provisions. [GOI MOPPG&P DOPT O.M.No. 21011/1/2005-Estt. dt. 19-5-2011] SELECTION AND EMPLOYMENT OF CONSULTANTS The Central Vigilance Commission has decided that the following Guidelines be kept in view while finalizing the Contracts for engaging Consultants. Conflict of Interest: The Consultant shall not receive any remuneration in connection with the assignment except as provided in the Contract. The Consultant and his affiliates shall not engage in consulting or other activities that conflict with the interest of the Employer under the Contract. The Contract shall include provisions limiting future engagement of the Consultant for other services resulting from or directly related to the firm’s consulting services in accordance with following requirements: The Consultants shall provide professional objective and impartial advice and at all times hold the Employer’s interests paramount without any consideration for future work, and that in providing advice, they avoid conflicts with other assignments and their own interest. Consultants shall not be hired for any assignment that would be in conflict with their prior or current obligations of other Employers or that may place them in a position of being unable to carry out the assignment in the best interest of the Employer. Without limitation on the generality of the foregoing, Consultants shall not be hired under the circumstances set forth below: i)
Conflict between consulting activities and procurement of goods, works or nonconsulting services (i.e. services other than consulting services) covered by these Guidelines -- A firm that has been engaged by the Employer to provide goods, works, or non-consulting services for a project, or any affiliate that directly or indirectly
11 controls, is controlled by, or is under common control with that firm, shall be disqualified from providing consulting services resulting from or directly related to those goods, works, or non-consulting services. Conversely, a firm hired to provide consulting services for the preparation or is under common control with that firm, shall be disqualified from subsequently providing goods, works, or services (other than consulting services) covered by these Guidelines, resulting from or directly related to the consulting services for such preparation or implementation. This provision does not apply to the various firms such as Consultants, Contractors, or suppliers, which together are performing the Contractor’s obligations under a Turn-key or Design and Build Contract. ii)
Conflict among consulting assignments: Neither Consultants (including their personnel and sub-Consultants), nor any affiliate that directly or indirectly controls, is controlled by, or is under common control with that firm, shall be hired for any assignment which may be, by its nature, in conflict with another assignment of the Consultants. As an example, Consultants assisting an Employer in the privatization of public assets shall neither purchase, nor advise purchasers of such assets. Similarly, Consultants hired to prepare Terms of Reference (TOR) for an assignment shall not be hired for the assignment in question.
iii)
Relationship with Employer’s staff: Consultants (including their experts and other personnel, and sub-Consultants that have a close business or family relationship with a professional staff of the Employer (or of the project implementing agency) who are directly or indirectly involved in any part of (a) the preparation of the TOR for the assignment; (b) the selection process for the Contract; or (c) the supervision of such Contract may not be awarded a Contract unless the conflict stemming from the relationship has been resolved in a manner acceptable to the Employer throughout the selection process and the execution of the Contract.
iv)
A Consultant shall submit only one proposal, either individually or as a joint venture partner in another proposal. If a Consultant, including a joint venture partner, submits or participates in more than one proposal, all such proposals shall be disqualified. This does not, however, preclude a consulting firm to participate as a sub-Consultant, or an individual to participate as a team member in more than one proposal when circumstances justify and if permitted by the RFP.
v)
Unfair competitive advantage: Fairness and transparency in the selection process require that Consultants or their affiliates competing for a specific assignment do not derive a competitive advantage from having provided consulting services related to the assignment in question. To that end, the Employer shall make available to all the short listed Consultants, together with the request for proposals, all information that would in that respect give a Consultant a competitive advantage.
vi)
Professional liability: The Consultant is expected to carry out its assignment with the diligence and in accordance with prevailing standards of the profession. As the Consultant’s liability to the Employer will be governed by the applicable law, the Contract need not deal with this matter. The client (purchaser) may, however, prescribe other liabilities depending on the requirement in each case without any restriction on the Consultant’s liability as per the applicable law.
[CVC Circular No.08/06/11 (No.011/VGL/063 dt. 24-6-2011] RE-LAUNCH OF SPECIAL RECRUITMENT DRIVE FOR FILLING UP BACKLOG RESERVED VACANCIES FOR SC, ST AND OBC A Special Recruitment Drive was launched in November 2008 to fill up the backlog reserved vacancies of SCs, STs and OBCs existing on 1-11-2008. While launching the Drive, it was stipulated that all the backlog vacancies will be filled by 30-6-2009. It was, however,
12 noted that progress of the Drive till that date was not satisfactory. Therefore, the period of the Drive was last extended up to 30-6-2011. It has, therefore, been decided to re-launch the Drive to fill up the backlog reserved vacancies which have not been filled up till now. All the Ministries/Departments are requested to make concerted efforts to ensure that the remaining backlog reserved vacancies of SCs, STs and OBCs are filled up by 31-3-2012. Meanwhile progress report of the Drive as on 30-6-2011 may be sent to the DOPT immediately so that the Cabinet may be informed of the present status. [GOI MOPPG&P DOPT O.M. No.36038/1/2008-Estt. (Res.) dt. 28-7-2011] .o.
NEWS & VIEWS We are really benefited with your unstinted effort to continue to publish the rules and regulations of CSIR in HARMONY. We are grateful to you for taking all the trouble in order to keeping us updated with all the information. - Dr. S.K. Bhadra Chief Scientist (Scientist-G), CGCRI, Kolkata
I liked very much the ppt you sent on 'pencil'. I agree with every word of it, as it is a fact of life. Conveying you my heartiest greetings for the wonderful year ahead for you and your family. - Dr P. Cheena Chawla Scientist & Editor, CSIR News, NISCAIR, New Delhi
HARMONY really provides us latest information to enable us to update ourselves. - Mohinder Kumar SPO, CSIO, Chandigarh
13
THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO PERSONS MAKING THE DISCLOSURES Ch. Srinivasa Rao Founder-Editor, “HARMONY” and Formerly COA, CSIR-NGRI Hyderabad Genesis Corruption is a social evil which prevents proper and balanced social growth and economic development. One of the impediments in eliminating corruption in the Govt. and the PSUs is lack of adequate protection to the Complainants reporting the corrupt practices or willful misuse of power or discretion which causes demonstrable loss to the Govt. or commission of a criminal offence by a public servant. The Law Commission of India in its 179th Report, inter alia, recommended formulation of a specific legislation entitled "The Public lnterest Disclosure (Protection of Informers) Bill, 2002” to encourage disclosure of information regarding corruption or maladministration by public servants and to provide protection to such Complainants. The Second Administrative Reforms Commission in its 4th Report on "Ethics in Governance" has also recommended formulation of a legislation for providing protection to Whistle-blowers. It was felt that the persons who report the corruption or willful misuse of power or discretion which causes demonstrable loss to the Govt. or commission of a criminal offence by a public servant need statutory protection as protection given to them by the said Resolution of the Govt. of India would not suffice. The Govt. of India had issued a Resolution No. 89 dated the 21-4-2004 authorizing the Commission as the designated agency to receive written complaints from Whistle-blowers. The Resolution also, inter alia, provides for the protection to the Whistle-blowers from harassment, and keeping their identity concealed. In view of the position stated above, it has been decided to enact a stand-alone legislation, inter alia, to provide: i)
for bringing within the scope of the Bill, public servants being the employees of the Central/State Govt. or any Corporation established by or under any Central/State Act, Govt., Companies, Societies or Local Authorities owned or controlled by the Central/State Govt. and such other categories of employees as may be notified by the Central/State Govt. from time to time, in the Official Gazette;
ii)
adequate protection to the persons reporting corruption or willful misuse of power or discretion which causes demonstrable loss to the Govt. or commission of a criminal offence by a public servant;
iii)
a regular mechanism to encourage such person to disclose the information on corruption or willful misuse of power or discretion by public servants or commission of a criminal offence;
iv)
the procedure to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimization of the Whistle-blower who is making such disclosure;
14 v)
safeguards against victimization of the person reporting matters regarding the corruption by a public servant;
vi)
punishment for revealing the identity of a Complainant, negligently or with a mala fide intention;
vii)
punishment for filing false or frivolous complaints.
The Bill entitled “The Public lnterest Disclosure and Protection to Persons Making the Disclosure Bill No.97 of 2010” was introduced in the Lok Sabha on 26-8-2010 with an intention to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safe-guards against victimization of the person making such complaint and for matters connected therewith and incidental thereto. It shall come into force on such date as the Central Govt. may decide by notification in the Official Gazette. It extends to the whole of India except the State of Jammu and Kashmir. The Lok Sabha on 27th Dec. 2011 passed the long-awaited whistle-blowers’ protection Bill. The law provides protection against harassment to whistle-blowers reporting on corruption by public servants. A mechanism encouraging people to disclose cases of corruption will be instituted under the law. Given that as many as 10 RTI activists were killed in the last one year, the much-needed legal safeguard will boost whistle-blowers’ morale. The Govt. of India authorised the Central Vigilance Commission, New Delhi as the ‘Designated Agency’ to receive written complaints for disclosure on any allegation of corruption or misuse of Office and recommend appropriate action. The jurisdiction of the Commission in this regard would be restricted to any employee of the Central Govt. or of any Corporation established by or under any Central Act, Govt. Companies, Societies or Local Authorities owned or controlled by the Central Govt. Personnel employed by the State Govts. and activities of the State Govts. or its Corporations, etc. will not come under the purview of the Commission. The Commission will accept such complaints, and has the responsibility of keeping the identity of the Complainant secret. Any disclosure made under this Act shall be treated as public interest disclosure for the purposes of this Act and shall be placed before the Competent Authority (CA). Every disclosure shall be made in good faith and the person making disclosure shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true. Every disclosure shall be made in writing or by electronic mail or electronic mail message in accordance with the procedure may be prescribed and contain full particulars, accompanied by supporting documents, or other material, if any. No action shall be taken on public interest disclosure by the CA, if the disclosure does not indicate the identity of the Complainant or public servant making public interest disclosure or the identity of the Complainant or public servant is found incorrect or false. The Commission can also take action against Complainants making motivated/ vexatious complaints under this Resolution. Definitions i)
"Central Vigilance Commission" means the Commission constituted under subSection (I) of Section 3 of the Central Vigilance Commission Act, 2003;
ii)
"Competent Authority" means:
15 a)
any public servant referred to in sub-Clause (A) of Clause(s), the Central Vigilance Commission or any other Authority as the Central Govt. may by notification in the Official Gazette, specify in this behalf under this Act;
b)
any public servant referred to in sub-Clause (6) of Clause (1), the State Vigilance Commissioner, if any, or any Officer of a State Govt. or any other Authority as the State Govt. may, by notification in the Official Gazette, specified under this Act;
iii)
"Complainant" means any person who makes a complaint relating to disclosure under this Act;
iv)
"Disclosure" means a complaint relating to: a)
an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988;
b)
willful misuse of power or discretion by virtue of which demonstrable loss is caused to the Govt. or demonstrable gain accrues to the public servant;
c)
an attempt to commit or commission of a criminal offence by a public servant, made in writing or by electronic mail against the public servant and includes public interest disclosure referred to in sub-Section (2) of Section 3;
v)
“electronic mail” or “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message;
vi)
"Govt. Company" means a Company referred to in Section 617 of the Companies Act, 1956;
vii)
"Notification" means a notification published in the Gazette of India or the Official Gazette of a State;
viii)
"Public Authority" means any authority, body or institution falling within the jurisdiction of the CA;
ix)
"Public servant" means any employee of: a)
the Central Govt. or any Corporation established by or under any Central Act, any Govt. Companies, Societies or Local Authorities owned or controlled by the Central Govt. and such other categories of employees as may be notified by the Central Govt., from time to time, in the Official Gazette;
b)
the State Govt. or any Corporation established by or under any State Act, Govt. Companies, Societies or Local Authorities owned or controlled by the State Govt. and such other categories of employees as may be notified by the State Govt., from time to time, in the Official Gazette.
x)
“Prescribed” means prescribed by rules made by the Central Govt. and the State Govt., as the case may be, under this Act;
xi)
"Regulations" means the regulations made by the CA under this Act.
Complying with the procedure Any complaint is to be made under this Resolution should comply with the following aspects:
16 i)
The complaint should be in a closed/secured envelope.
ii)
The envelope should be addressed to the Secretary, Central Vigilance Commission, New Delhi, superscribing “Complaint under the Public Interest Disclosure”. If the envelope is not superscribed and closed, it will not be possible for the Commission to protect the Complainant under the above Resolution and the complaint will be dealt with as per the normal complaint policy of the Commission. The Complainant should give his/her name and address in the beginning or end of complaint or in an attached letter.
iii)
Commission will not entertain anonymous/pseudonymous complaints under this Act.
iv)
The details of the complaint should be specific and verifiable. The text of the complaint should be carefully drafted by the Complainant so as not to give any details or clue as to his/her identity.
v)
In order to protect the identity of the person, the Commission will not issue any acknowledgement and the Whistle-blowers are advised not to enter into any further correspondence with the Commission in their own interest. The Commission will take the necessary action as provided under the above Resolution, subject to the facts of the case being verifiable. If any further clarification is required, the Commission will itself get in touch with the Complainant.
Action by the CVOs of the Organizations The Chief Vigilance Officers of the respective Organizations are required to take the following action in respect of such complaints on being advised by the CVC: i)
All the relevant papers/documents with respect to the matter raised in the complaint should be obtained by the CVO and investigation into the complaint should be commenced immediately. The Investigation Report should be submitted to the Commission within two weeks.
ii)
The CVO is to ensure that no punitive action is taken by the concerned Administrative Authority against any person on perceived reasons/suspicion of being a “Whistle Blower.”
iii)
Subsequent to the receipt of Commission’s directions to undertake any disciplinary action based on such complaints, the CVO has to follow-up and confirm compliance of further action by the Disciplinary Authority and keep the Commission informed of delay, if any.
Important features
The Commission, as the Designated Agency, shall receive written complaints or disclosure on any allegation of corruption or of misuse of Office by any employee of the Central Govt.
The Commission will ascertain the identity of the Complainant. If it is an anonymous complaint, it shall not take any action in the matter.
The identity of the Complainant will not be revealed unless the Complainant himself has made either the details of the complaint public or disclosed his identity to any other Office or Authority.
While calling for further report/investigation, the Commission shall not disclose the identity of the informant and also shall request the concerned Head of the Organisation to keep the identity of the informant a secret, if for any reason the Head comes to know the identity.
17
The Commission shall be authorised to call upon the CBI or the Police Authorities, as considered necessary to render all assistance to complete the investigation pursuant to the complaint received.
If any person is aggrieved and is being victimized due to the fact that he had filed a complaint or disclosure, may file an application before the Commission seeking redress in the matter wherein the Commission may give suitable directions to the concerned person or the Authority.
If the Commission is of the opinion that either the Complainant or the witnesses needs protection, it shall issue appropriate directions to the concerned Govt. authorities.
In the event of the identity of the informant being disclosed in spite of the Commission’s directions to the contrary, the Commission is authorised to initiate appropriate action against the person or agency making such disclosure.
In case the Commission finds the complaint to be motivated or vexatious, it shall be at liberty to take appropriate steps.
The Commission shall not entertain or inquire into any disclosure in respect of which a formal and public inquiry has been Annual Reported under the Public Servants Inquiries Act, 1850, or a matter that has been referred for inquiry under the Commissions of Inquiry Act, 1952.
Delegated Legislation The Central Govt. is empowered to make rules and regulations for carrying out the provisions of the proposed legislation by notification in the Official Gazette. Sub-Clause (2) of the Bill enumerates the matters in respect of which such rules may be made which are matters of procedure or administrative detail. The delegation of legislative power is to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto. The CA is empowered to make regulations consistent with the provisions of the proposed legislation and the rules made thereunder to provide for all matters for which provision is expedient for the purposes of giving effect to the provisions of the proposed legislation by notification in the Official Gazette with the previous approval of the Central Govt. or the State Govt., as the case may be. The rules and regulations made by the Central Govt. are required to be laid before each House of Parliament. Similarly, the rules and regulations made by the State Govt. are required to be laid before each House of the State Legislature. The Act specifies the procedure for disclosure in writing or appropriate electronic means; the manner in which the discreet inquiry is to be made by the CA; the additional matter in respect of which the CA may exercise the powers of a Civil Court. Similarly, the State Govts. are empowered to make rules for carrying out the provisions of the proposed legislation by notification in the Official Gazette. Powers & Functions of CA Subject to the provisions of this Act, the CA shall, on receipt of a public interest disclosure: i)
ascertain from the Complainant or the public servant whether he was the person or the public servant who made the disclosure or not;
18 ii)
conceal the identity of the Complainant unless the Complainant himself has revealed his identity to any other Office or Authority while making public interest disclosure or in his complaint or otherwise.
iii)
The CA shall, on receipt of the complaint and concealing the identity of the Complainant or the public servant in the first instance, make discreet inquiry, in such manner as may be prescribed, to ascertain whether there is any basis for proceeding further to investigate the disclosure. If the CA, either as a result of the discreet inquiry, on the basis of the disclosure itself without any inquiry, is of the opinion that the disclosure requires to be investigated, it shall seek comments or explanation or report from the Head of the Organisation/Authority/Board/Corporation/Office concerned within such time as may be specified by it.
iv)
While seeking comments, the CA shall not reveal the identity of the Complainant or the public servant and direct the Head of the Organisation/Office concerned not to reveal the identity of the Complainant; provided that if the CA is of the opinion that it has become necessary to reveal the identity of the public servant to the Head of the Organisation, the CA may reveal the identity of the Complainant or public servant. The Head of the Organisation concerned shall not directly or indirectly reveal the identity of the Complainant or public servant who made the disclosure.
After receipt of the comments, if the CA is of the opinion that such comments or explanations or report reveals either willful misuse of power or discretion or substantiates allegations of corruption, it shall recommend to the Public Authority to take any one or all the following measures: i)
initiating proceedings against the concerned public servant;
ii)
taking appropriate administrative steps for redressing the loss caused to the Govt. as a result of the corrupt practice or misuse of Office or misuse of discretion, as the case may be;
iii)
recommend to the appropriate authority or agency for initiation of criminal proceedings under the relevant laws for the time being in force, if so, warranted by the facts and circumstances of the case;
iv)
recommend for taking of corrective measures;
v)
take any other measures not falling under Clauses (i) to (iv) which may be necessary for the purpose of this Act. The Competent Authority, if after conducting an inquiry, is of the opinion that -a)
the facts and allegations contained in the disclosure are frivolous or vexatious; or
b)
there are no sufficient grounds for proceeding with the inquiry, it shall close the matter.
Deemed status of a Civil Court Without prejudice to the powers conferred upon the CA under Powers of any other law for the time being in force, the CA may direct the concerned authority, and may require for the purpose of any inquiry, any public servant or any other person who in its opinion shall be able to furnish information or produce documents relevant to the inquiry to do so as may be necessary. The CA shall be deemed to be a Civil Court for the purpose of 2 of 1974. Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, and every proceeding before the
19 CA shall be deemed to be a judicial proceeding 45 of 1860. within the meaning of Sections 193 and 228 and for the purposes of Section 196 of the IPC. Subject to the provisions of Section 7, there is no obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to the Govt. or 19 of 1923 any public servant, whether imposed by the Official Secrets Act, 1923 or any other law for the time being in force, shall be claimed by any public servant in the proceedings before the CA or any person or agency authorised by it in writing and the Govt. or any public servant shall not be entitled in relation to any such inquiry, to any such privilege in respect of the production of documents or the giving of evidence as is allowed by any enactment or by any rules made thereunder; Provided that the CA while exercising such powers of the Civil Court, shall take steps as necessary to ensure that the identity of the person making complaint has not been revealed or compromised. For the purpose of any such inquiry including the Preliminary Inquiry, the CA shall have all the powers of a Civil Court while trying a suit under the 5 of 1908 Code of Civil Procedure, 1908, in respect of the following matters, namely: a) b) c) d) e) f)
summoning/enforcing the attendance of any person and examining on Oath; requiring the discovery and production of any document; receiving evidence on affidavits; requisitioning any public record or copy thereof from any Court or Office; issuing commissions for examination of witnesses or documents; such other manner as may be prescribed.
Superintendence Every public Authority shall create an appropriate machinery for the said purpose. The CA shall exercise superintendence over the working of machinery created for the purpose of dealing or inquiry into the disclosures and give such directions for its proper functioning from time to time. Report on disclosures The CA shall prepare a consolidated Annual Report of the performance of its activities in such form as may be prescribed and forward it to the Central/State Govt., as the case may be. On receipt of the Annual Report, the Central/State Govt., as the case may be, shall cause a copy thereof to be laid before each House of Parliament/State Legislature, as the case may be. Matters not to be enquired upon Notwithstanding anything contained in the provisions of the Official Secrets Requirements 19 of 1923. Act, 1923, any public servant or any other person including any non-Governmental Organisation, may make a public interest disclosure before the CA, if such disclosure does not directly or indirectly relate to: i)
the members of the Armed Force or any matter relating to Armed Forces; or
ii)
the members of the Forces charged with the maintenance of Public Annual Report; or
iii)
persons employed in any Bureau/Organisation established by the State for purposes of intelligence or counter-intelligence or any matter relating to such Bureau/ Organisation; and
iv)
persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force/Bureau/Organisation referred to in Clauses (a) to (c) or any matter relating to such telecommunication system, Bureau or Organisation.
20 v)
If any, matter specified or an issue raised in a disclosure has been determined and inquired by a Court or Tribunal authorised to determine the issue after consideration of the matters the CA specified or issue raised in the disclosure, shall not take notice of the disclosure to the extent that the disclosure seeks to reopen such issue.
vi)
The CA shall not entertain or inquire into any disclosure: (a) in respect of which a formal and public inquiry has been Annual Reported under Public Servants (Inquiries) Act, 1850; or (b) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952.
vii)
No person shall be required or be authorised to furnish any such information or answer any such question or produce any document/information or render any other assistance in the inquiry under this Act if such question or document or information is likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, decency or morality or in relation to contempt of court, defamation or incitement to an offence, -a)
as might involve the disclosure of proceedings of the Cabinet of the Union Govt. or any Committee of the Cabinet;
b)
as might involve the disclosure of proceedings of the Cabinet of the State Govt. or any Committee of that Cabinet, and for the purpose of this subSection, a Certificate issued by the Secretary to the GOI/State Govt., or any Authority so authorised by the Central/State Govt. certifying that any information, answer or portion of a document is of the nature specified in Clause (a) or Clause (b), shall be binding and conclusive.
Subject to the provisions of the Act, no person shall be compelled for the purposes of inquiry under this Act to give any evidence or produce any document which could not be compelled to give or produce in proceedings before a court. Action taken in good faith No suit, prosecution or other legal proceedings shall lie against the authority/ employee/agency or person acting on its behalf, with regard to action taken in good faith, done or intended to be done under this Act. Time limits The CA shall not investigate any disclosure involving an allegation, if the complaint is made after the expiry of five years from the date on which the action complained against is alleged to have taken place. Nothing in this Act shall be construed as empowering the CA to question, in any inquiry under this Act, any bona fide action/discretion exercised in discharge of duty by the employee. Identity of Complainant The CA shall conceal, as required under this Act, the identity of the Complainant and the documents or information furnished by him for the purposes of enquiry under this Act unless so decided otherwise by the CA itself or it became necessary to reveal or produce the same by virtue of the Annual Report of the Court. Protection of witnesses For the purpose of making discreet inquiry or obtaining information from the Organisation concerned, the CA shall be authorised to take assistance of any Police Authority or any other Authority as may be considered necessary to render all assistance to complete the inquiry within the specified time. If the CA, either on the application of the Complainant or on the basis of information gathered, is of the opinion that either the Complainant or the public servant or the witnesses
21 or any person rendering assistance for inquiry under this Act need protection, the CA shall issue appropriate directions to the concerned Govt. Authorities which shall take necessary steps to protect such Complainant. Safe-guards The Central Govt. shall ensure that no person or a public servant who has made a disclosure under this Act is victimized by initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act. If any person is being victimized or likely to be victimized on the ground that he had filed a complaint or made disclosure or rendered assistance in inquiry under this Act, he may file an application before the CA seeking redress in the matter, and such Authority shall take such action and may give suitable directions to the concerned to protect from being victimized. Penalties
Offences by HOD: Where an offence under this Act has been committed by any Department of Govt., the HOD shall be deemed to be guilty of the offence shall be liable to be proceeded against and punished accordingly unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Where an offence under this Act has been committed by a Department of Govt. and it is proved that the offence has been committed with the consent or connivance of, or is attributable, such Officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Offences by Companies: Where an offence under this Act has been committed by a Company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly; Notwithstanding anything contained in sub-Section (1), where an offence under this Act has been committed by a Company (body Corporate/Firm/Association of individuals) and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any Director (in relation to a firm, means a Partner) Manager, Secretary or other Officer of the Company who shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Revealing identity of the Complainant: Any person, who negligently or mala fidely reveals the identity of a Complainant, without prejudice to the other provisions of this Act, be punishable with imprisonment for a term which may extend up to three years and also impose a fine which may extend up to fifty thousand rupees.
Furnishing incorrect report: Where the CA, at the time of examining the report or explanations on the complaint submitted, is of the opinion that the Organisations or Officials concerned, without any reasonable cause, has not furnished the report within the specified time or mala fidely leading refused to submit the report or knowingly given incomplete, incorrect or misleading or false report or destroyed record or information which was the subject of the disclosure or obstructed in any manner in furnishing the report, it shall impose a penalty which may extend to two hundred fifty rupees for each day till report is furnished, however, the total amount of such penalty shall not exceed fifty thousand rupees; provided that no penalty shall be imposed against any person unless he has been given an opportunity of being heard. False or frivolous disclosure: Any person who makes any disclosure mala fidely and knowingly that it was incorrect/false/ misleading shall be punishable with imprisonment for a term which may for false or frivolous disclosure extend up to two years and also impose a fine which may extend up to thirty thousand rupees. Provided that nothing contained in this sub-Section (1) shall render any such person liable to any punishment provided in this Act, if
22 he proves that the offence was committed without his knowledge or that he has exercised all due diligence to prevent the commission of such offence. Bar of jurisdiction No Civil Court shall have jurisdiction in respect of any matter which the CA is empowered by or under this Act to determine and no injunction shall be granted by any court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. No Court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder, save on a complaint made by the CA or any Officer or person authorised by it. No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act. Appeal to High Court Any person aggrieved by any Report of the CA relating to imposition of penalty may prefer an appeal to the High Court, within whose jurisdiction the cause of action arose, within a period of sixty days from the date of the Report appealed against; provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. Notification and rules Every notification issued and every rule made by the Central Govt. and every regulation made by the CA under this Act shall be laid as soon as possible after it is issued or made before each House of Parliament while it is in session. If both Houses agree in making any modification in the notification/rule/regulation, or disagreeing that it should not be made, the notification/rule/regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be. However, any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule or regulation. Similarly, every notification issued by a State Govt. and every rule made by a State Govt. and every regulation made by the CA under this Act shall be laid, as soon as may be after it is issued, before the State Legislature. Power to pass interim orders The CA, at any time after the making of disclosure by the Complainant, if it is of the opinion that any corrupt practice required to be stopped during the continuation of any inquiry for the said purpose may pass orders to stop such corrupt practice.
References 1.
CVC No.004/VGL/26; Office Annual Report No. 33/5/2004 dt. 17-5-2004
2.
Press Note dated 26th August, 2010 issued by the PIB, MOPP&PG, GOI
3.
GOI DOPT (Vigilance Division) P.No.37112/2/2007-AVD-III dt. 27-8-2010
4.
The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill No.97 of 2010
5.
Times of India, 28th Dec., 2011
6.
Official Website of Ministry of Personnel, Pensions & Public Grievances, GOI
.o.