Administration of Central Vigilance Commission

7/27/2019 Administration of Central Vigilance Commission

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AMITY LAW SCHOOL LUCKNOW

ADMINISTRATIVE LAW

An analysis of administration of

CVC

SUBMITTED TO: SUBM ITTED BY:

PANCH RISH I DEV SHARMA APARAJITA KUMARI .

B.A; LL.B (H ); IV(A)

A8111111049


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ACKNOWLEDGEMENT

The assignment work bears the imprint of many people, and I express my

gratitude to all those who have helped me and rendered their help in all the

possible ways in a completion of my assignment.

No work can be successful without the guidance and blessing of elders and this

work is no exception. It is a matter of immense pleasure to express my gratitude

to my faculty Honble Mr. Panch Rishi Dev Sharmafor her guidance and

excellent insights which gave direction and focus to this paper. I thank her for

lending her precious time in making this assignment an authentic piece of work.

I also owe sincere gratitude to the staff at library for always helping in the process

of finding material and other sources for research. I am very grateful to my

seniors and all the individuals involved in the subgroup for their contributions and

assistance in compiling this assignment and the recommendations that go with it:

they are the outcome of an open, interactive and creative cooperation.

I also thank social networking site for searching the required information in

precise and as per needed. How I can forget to give credit and my satisfaction to

my friends. My sense of gratitude is due to AMITY LAW SCHOOL,

LUCKNOW.

At last, I express my heartfelt gratitude to the God Almighty, without whose

blessing and motivation, the completion of this assignment would have been

impossible.

Thanks to all.......

Aparajita Kumari


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TABLE OF CONTENTS

Introduction....................................................................................................................4 History of creation of CVC.................................................................................... ....5-6 Jurisdiction of CVC....................................................................................................7-8 Corruption......................................................................................................................9 Complaint.....................................................................................................................10 Action against person making false statement.............................................................11 Demerits of CVC....................................................................................................12-13 Need for amending the act............................................................................................14


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INTRODUCTION:

Vigilance in context of any organisation would mean keeping a watchful eye on

the activities of officer and officials of the unit to ensure integrity of the personal

in their official transactions. Vigilance, in other words is to ensure clean and

prompt administrative towards achieving efficiency and effectiveness of

employees in particular and organisation in general, as lack of leans to waste,

losses and economic decline. Corruption in the administration is a serious

problem affecting Indian polity. Incorruptibility is an essential requirement for

public confidence in the administration of government department. Governmentin order to strengthen the existing mechanism created Central Vigilance

Commission in February 1964. The main concern regarding the formation of

CVC was to

(a)Prevention of corruption and maintenance of integrity among public servant and,(b)Ensuring just and fair exercise of administrative powers vested in various

authorities by statutory rules.

Here, two major matters were meant to be addressed, cases related to corruption

and cases related to maladministration but later were not accepted by the

government. The Vigilance Commission has jurisdiction and power in respect of

matters to which executive power of the centre extends.

The Centr al Vigi lance Commission compr ises of :

(a)Central Vigilance Commissioner - Chairperson(b)Not more than three vigilance Commissioners Members; Secretary to the

Government of India.


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HISTORY OF CREATION OF CVC:

The Central Vigilance Commission was established by the Government of India

in 1964 on the recommendations of the Santhanam Committee on Prevention of

Corruption. Before finalising its report, the Committee submitted its interim

recommendations to the government in two parts. The first recommended the

establishment of the Central Vigilance Commission. The second suggested

conferring powers on the Commission, similar to those under Sections 4 and 5 of

the Commission of Enquiry Act, 1952, so that it could undertake an inquiry into

transactions where public servants were suspected of having acted improperly orin a corrupt manner.

The Committee envisaged a wide role for the CVC. It was not satisfied merely

with the existing arrangements intended to investigate and punish corruption and

misuse of authority by individual officers. While this is indispensable, the

Committee feels that the Central Vigilance organisation should be expanded so as

to deal with complaints of failure of justice or oppression or abuse of authority

suffered by the citizens though it may be difficult to attribute them to any

particular official or officials.

The Committee therefore recommended that the CVC should be vested with

jurisdiction and power, inter alia, to inquire into and investigate: (a) complaints

against acts or omissions, decisions or recommendation, or administrative

procedures or practices on the grounds that they are: (i) wrong or contrary to law;

(ii) unreasonable, unjust, oppressive or improperly discriminatory; (iii) in

accordance with a rule of law or a provision of any enactment or a practice that is

or may be unreasonable, unjust, oppressive or improperly discriminatory; or (iv)

based wholly or partly on a mistake of law or fact.

The Government of India did not accept this recommendation. The Resolution

with which the CVC was set up did not have this clause in its charter of functions.


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The reasoning for its exclusion was explained in these words: The importance

and urgency of providing a machinery for looking into grievances of citizens

against the administration and for ensuring just and fair exercise of administrative

power is fully recognised.

But it is considered that the problem is big enough to require a separate agency or

machinery and that apart from this the Central Vigilance Commission would be

overburdened if this responsibility were to be placed upon it, and the Commission

might as a result be less effective in dealing with the problem of corruption. The

recommendation made by the Committee in the second part that the CVC should

be given through suitable legislation certain powers to enable it to undertake

enquiries remained unimplemented till 2003 when the CVC Act was legislated.

Though these powers are now available with the Commission, they are not used

by it.

The Resolution of 1964 had two significant provisions. One, it defined the charter

of the CVC. Its main function was to undertake an enquiry or to cause an enquiry

or investigation to be made into any complaint of corruption, misconduct, lack

of integrity, or other kinds of malpractices or misdemeanour on the part of a

public servant including members of the All India Services even if such members

are for the time being serving in connection with the affairs of a state

government.

The other was to maintain that though the Commission will be an attached office

of the Ministry of Home Affairs, in the exercise of its powers and functions it

will not be subordinate to any Ministry/Department and will have the same

measure of independence and autonomy as the Union Public Service

Commission.


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JURISDICTION OF CVC:

The commissions jurisdiction is co-terminus with the executive power of the

union therefore it extends to all matter. It can take any inquiry into any

transaction in which a public servant is suspected or alleged to have acted for an

improper or corrupt purpose; or cause such an enquiry or investigation to be made

into any complaint of corruption, gross negligence, misconduct, recklessness,

lack of integrity or other kinds of malpractices or misdemeanours on the part of a

public servant. The commission tenders appropriate advice to the concerned

disciplinary authorities in all such matters having a definite or potential vigilanceangle and an element of corruption or criminal misconduct or malafide.

CVC exercise superintendence over CBI in the matters relating to the

investigation of the all offences alleged to have been committed under the

prevention of corruption act1988.

CVC renders advice at two stages on vigilance matters:

(a)FIRST STAGE: To consider investigation report and advice about the type ofproceedings (major/minor) to be initiated.

(b)SECOND STAGE: To consider inquiry report and advice about the penalty to beimposed.

VIGI LENCE DEPARTMENTSTRUCTURE

Chief Vigilance Officer

General Manager (vigilance)

Dy. Chief Vigilance Officer (Investigation)

Dy. Chief Vigilance Officer (Technical)

Sr. Managers/ Managers/ Asst. Managers


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However with the increase in the scope of administration in India, a feeling has

arisen in the public mind that vesting of such vast power in the administration has

generated possibilities and opportunities of abuse or misuse of power by

administrative functionaries resulting in maladministration and corruption. The

CVC is primarily entrusted with the task of looking into matters of corruption in

administration. It is further clarified that complaints to the commission are

meant to result in punitive action against the erring public servant. Relief as such

in the matter to the complainant is only incidental to the vigilance action.

Redressal of grievances vis-a-vis government organisation or public sector

enterprises should not be the focus of complaint to the commission.


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CORRUPTION:

Whoever being or expecting to be a public servant, accepts or obtains, or agrees

to accept, or attempts to obtain gratification. Whatever, other than legal

remuneration as a motive or a reward for doing or for bearing to do any official

act or for showing or for bearing to show, in the exercise of his official functions

favour or disfavour to any person with the Central or State Government or

Parliament or Legislature of any state or with any public servant as such. It is held

to be the abuse of public office for private gain.

Corruption is also described as the acquisition of forbidden benefit by officials oremployees, so bringing into question their loyalty to their employers. From 1964

to 1993, for nearly three decades, the CVC rolled along without making any

visible dent on the problem of corruption in the country. A very important

milestone in its history occurred when the Supreme Court pronounced its

judgement in what is popularly known as the Hawala Case.

The gist of allegations made in the writ petitions filed on 4 October 1993 was

that:

financial support was given to terrorists by clandestine and illegal meansusing tainted funds obtained through hawala transactions;

the CBI and other agencies failed to investigate these properly andprosecute those who were involved in committing the offences; and

this was done deliberately to protect persons who were influential and powerful.The Court found that the inertia of the investigating agencies was the common

rule whenever the alleged offender was a powerful person. It was therefore

necessary to take permanent measures to prevent reversion to inertia of the

agencies in such matters.


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COMPLAINT:

Information about corruption, malpractice or misconduct on the part of public

servants may come to light from any source, such as administrative authority.

Complaints received or intelligence gathered by the Central Bureau of

Investigation and by Police authorities, inspection report, and stock verification

surveys, Audit report on government accounts and on the accounts of public

undertakings. Reports of any irregularities in accounts revealed in the routine

audit of accounts e.g. tampering with records, over-payment, misappropriation of

money or materials.

Complaints received in the central vigilance commission will be registered and

initially examined in the commission. The commission may decide, according to

the nature of each complaint, that

1. It should be sent for enquiry and disposal/report to the administrative ministry/departmental concerned.

2. It should be sent to the Central Bureau of Investigation for enquiry/investigation.3. Commission should undertake the enquiry itself.

The government of India has reason to believe that a good many anonymous

complaint are false and malicious and that such complaint are not a reliable

source of Information. Inquiries into such complaint have an adverse effect on the

moral of the services. The government of India have accordingly decided that no

action should be taken on anonymous complaint against government servants.


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ACTION AGAINST PERSONS MAKING FALSE STATEMENT:

There is remedial action available against those who send false petition. If

complaint made by a public servant is found to be malicious, vexatious or

unfounded, serious action may be considered against the complaint. A person

making a false statement can be prosecuted on a complaint lodged with a court by

the public servant to whom false complaint was made or by some other public

servant to whom he is subordinate.

Alternatively, if the complaint is a public servant, it may also be considered

whether departmental action should be taken against him as an alternative or in

addition to prosecution.


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DEMERITS OF CVC:

Commission is an agency of Executive and not of the Legislature. He owes his

position to executive will as it has no statutory basis. It has no investigationmechanism at its disposal; it depends upon other public agencies for the purpose.

InSuni l Kumar v. State of West Bengal,

An enquiry officer was appointed to enquire into certain charges against the

appellant who was a member of Indian Administrative Services. Report of the

enquiry was sent to the Vigilance Commissioner for his advice. Thereafter the

disciplinary authority, i.e. state government came to the conclusions. The

appellant was reduced from higher to lower salary in the same grade. He

challenged the order, and contended that consultation with Vigilance officer who

had no statutory status and Government, did not furnish report of officer.

Court held that Disciplinary Committee committed no irregulatory, and

conclusions were not based on advice tendered by Vigilance officer, but arrived

independently.

The preliminary findings of the disciplinary authority happened to coincide with

the views of vigilance commissioner was neither here nor there. If the

commissioners report is not to be taken into account at all by concerned

authority or if it does not play any role in influencing its mind, then consultation

with him is an empty formality which serves no purpose, therefore, institution

practically become otiose. PSC had a constitutional status, while vigilance

commissioner has merely an administrative status.

And according to Natural Justice, which requires decision making authority must

apply its own mind, and ought not to be influenced by others.

However present day situation is very unsatisfactory. In order to avoid, options

available are:

1. Government shouldnt consult Vigilance Commissioner for drawing conclusionfrom record.


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2. Vigilance Commissioner be given a legal status. And provisions must be made inlaw for consulting him.


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NEED FOR AMENDING THE ACT:

President of India as the chairman and a nominee of the Chief Justice of India a

member of the selection committee. The selection must be by consensus amongthe members, and selection by the majority of the members present should be

adopted only in exceptional circumstances and for reasons to be recorded in the

committees proceedings. The proceedings, along with full particulars of persons

considered for the preparation of the panel and the reason based on which the

final selection was made, should be published. This would ensure that the

composition of the committee does not give a steam-roller majority to the

government and that the committee functions in a non-partisan and transparent

manner.

The vigilance commission has jurisdiction and powers in respect of matters to

which the executive of the centre extends. The following categories of employees

come within the commissions purview: government servants employed in the

ministries and departments or the government of India and union Territories,

employees of public sector undertakings, statutory corporations and post trusts.

But as a practical matter, the commission has restricted itself to cases pertaining

only to Gazetted Officers, employees of public undertakings and nationalised

banks etc. drawing a basic pay of Rs. 1000 per month and above. The Central

Vigilance Commissioner is to be appointed by President. The commission is

attached to the Ministry of Home Affairs, but it is not subordinate to any Ministry

or Department and has same measure of Independence and autonomy as the

UPSC.


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BIBLIOGRAPHY

1. TAKWANI ;C.K: LECTURES ON ADMINISTRATIVE LAW2. SATHE; S.P : ADMINISTRATIVE LAW3. JAIN;M.P AND JAIN; S.N: PRINCIPLES OF ADMINISTRATIVE LAW

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Administration of Central Vigilance Commission