(See note 2 below paragraph 82)
General principles to regulate the enforcement of responsibility for losses sustained by Government through the fraud or negligence of individuals
I—G.O. no. A-3697/X—144, dated August 1, 1929, to all Heads of Departments, etc.
IN supersession of all previous orders on the subject, I am directed to enclose a memorandum embodying the general principles to regulate the enforcement of responsibility for losses sustained by the Government through the fraud or negligence of individuals which the Uttar Pradesh Government have formulated for the general guidance of themselves and of the authorities subordinate to them.
A memorandum of general principles to regulate the enforcement of responsibility for losses sustained by Government through fraud or negligence of individuals.
1. Means should be devised to ensure that every Government servant realizes fully and clearly that he will be held personally responsible for any loss sustained by Government through fraud or negligence on his part, and that he will also be held personally responsible for any loss arising from 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 the assessment of responsibility in such cases is that every public officer should exert the same vigilance in respect of public expenditure and custody and use of public property generally as a person of ordinary prudence would exercise in respect of the expenditure and the custody and use of his own money and property. While therefore the Government are prepared to condone an officer’s honest errors of judgment involving financial loss, provided the officer can show that he has done his best up to the limits of his ability and experience, they are determined to penalize officers who are dishonest, careless or negligent in the duties entrusted to them.
2. It is of the greatest importance to avoid delay in the investigation of any loss due to fraud, negligence, financial irregularity, etc. If any irregularity is detected by an audit or accounts officer in the first instance it will be his duty to report it immediately to the administrative authority, concerned. If an irregularity is detected by the administrative authority in the first instance, and if it is one which should be reported to the Accountant General in terms of paragraph 82 of the Financial Handbook Volume V, he must make that report immediately. Every important case should be brought to the notice of superior authority as soon as possible—the administrative authority should report to his superior and the audit or accounts authority to his superior. Should the administrative authority require the assistance of the accounts officer in pursuing investigation, he may call on that officer for all vouchers and other documents that may be relevant to the investigation; and if the investigation is complex and he needs the assistance of an expert accounts officer to unravel it he should apply forthwith for that assistance to the Government who will then arrange with the Accountant General for the services of an investigating staff. Thereafter the administrative authority and the accounts authority will be personally responsible, within their respective spheres, for the expeditious conduct of the inquiry.
3. In any case in which it appears that recourse to judicial proceedings is likely to be involved competent legal advice should be taken as soon as the possibility emerges. In the case of losses involving a reasonable suspicion of fraud or other criminal offence a prosecution should be attempted unless the legal advisers consider that the evidence available is not such as will secure a conviction. The reasons for not attempting a prosecution should be placed on record in all such cases.
4. In cases where loss is due to delinquencies of subordinate officials and where it appears that this has been facilitated by laxity of supervision on the part of a superior officer, the latter should also be called strictly to account and his personal liability in the matter carefully assessed.
5. The question of enforcing pecuniary liability should always be considered as well as the question of other forms of disciplinary action. In deciding the degree of the officer’s pecuniary liability it will be necessary to look not only to the circumstances of the case but also to the financial circumstances of the officers, since it should be recognized that the penalty should not be such as to impair the Government servants future efficiency.
In particular, if the loss has occurred through fraud, every endeavour should be made to recover the whole amount lost from the guilty persons, and if laxity of supervision has facilitated the fraud, the supervising officer at fault may properly be penalized either directly by requiring him to make good in money a sufficient proportion of the loss, or indirectly by reduction or stoppage of his increments of pay.
It should always be considered whether the depreciated value of the Government property or equipment lost damaged or destroyed by the carelessness of individuals entrusted with their care (e. g. bicycles, calculators, policeman’s rifles, a touring officers tents, a factory motor lorry, an engineers instruments etc.) should not be covered from the delinquent official. The depreciated value of the stores may be calculated by applying the 20 per cent depreciation in the case of vehicles including cycles, and 15 per cent in the case of calculating machines, on the reduced balance every year. The amount to be recovered may be limited to the Government servants capacity to pay.
(C. S. No. 90 Date 6-4-1989)
[Vitta (Lekha) Anubhag-1 File No. 15(2)]
6. One reason why it is important to avoid delay is that in the course of a prolonged investigation Government servants who are concerned may qualify for pension, and it is held that under the rules as they now stand a pension once sanctioned cannot be reduced or withheld for misconduct committed prior to retirement. It follows from this that, as a primary precaution, steps should be taken to ensure that an officer concerned in any loss or irregularity which is the subject of an inquiry, is not inadvertently allowed to retire on pension while the inquiry is in progress, and accordingly, when a pensionable Government servant is concerned in any irregularity or loss, the authority investigating the case should immediately inform the accounts officer responsible for reporting on his title to pension and the authority competent to sanction pension, and it will be the duty of the latter to make a note of the information and to see that pension is not sanctioned before either conclusion is arrived at as regard the Government servant’s culpability, or it has been decided by the sanctioning authority that the result of the investigation need not be awaited.
7. The fact that officers who were guilty of frauds or irregularities have retired and have thus escaped punishment should not be made a justification for absolving those who are also guilty but who still remain in service.
II—G.O. no. A-484/X—144, dated June 23, 1934, to all Heads of Departments etc.
I AM directed to refer to G.O. no. A-3697/X-144, dated August 1, 1929, regarding the general principles to regulate the enforcement of responsibility for losses sustained by Government through fraud or negligence of individuals and to forward a memorandum embodying certain additional instructions to be followed in the matter.
IN the memorandum circulated with G.O. no. A-3697/X—144, dated August 1, 1929, the general principles regulating the enforcement of responsibility for losses sustained by Government through fraud or negligence of individuals were fully stated. The following supplementary instructions are issued for the guidance of departmental officers, with special reference to cases in which prosecutions in criminal courts are, or are likely to be, necessary :
1. All losses of the kind referred to in paragraph 82 of the Financial Handbook, Volume V, Part I, must be reported forthwith by the officer concerned, not only to the Accountant General but also to his own immediate official superior. Reports must be submitted as soon as reasonable grounds exist for believing that a loss has occurred; they must not be delayed while detailed inquiries are made.
2. Reports submitted under (1) above must be forwarded forthwith to Government through the usual channel with such comments as may be considered necessary.
3. As soon as a reasonable suspicion exists that a criminal offence has been committed the senior officer of the department concerned present in this station will report to the District Magistrate and ask for a regular police investigation under the Code of Criminal Procedure, 1898.
4. If the District Magistrate agrees that an investigation may be made, the senior officer of the department concerned present in the station will—
(a) request the District Magistrate to arrange for the investigation to proceed from day-to-day ;
(b) see that all witnesses and documents are made available to the investigating officer ; and
(c) associate with the investigating officer an officer of the department who is not personally concerned with the irregularity leading up to the loss, but who is fully cognizant of the rules and procedure of the office in which the loss has occurred.
5. When the investigation is completed an officer of the department (accompanied by the officer who attended the investigation) must be made available for conferences with the authority who will decide whether a prosecution should be instituted. If it is decided not to prosecute, the case must be reported through the usual channel to the Government for orders.
6. If it is decided to prosecute, the departmental representative will as certain from the prosecuting officer whether, having regard to the engagements of the prosecuting staff and the state of work in the court which would ordinarily hear the case, it is necessary to move the District Magistrate to make special arrangements for a specially trial, and will request the prosecuting officer, to make any application that he may think necessary.
7. When the case is put into court by the police, the senior officer of the department concerned present in the station will see that all witnesses serving in the department and all documentary evidence in the control of the department are punctually produced, and will also appoint an officer of the department (preferably the officer who attended the investigation) to attend the proceedings in court and assist the prosecuting staff.
8. If any prosecution results in the discharge or acquittal of any person, or in the imposition of sentences which appear to be inadequate, the senior officer of the department concerned will at once consult the District Magistrate as to the advisability of instituting further proceedings in revision or appeal, as the case may be, and if the District Magistrate is of opinion that further proceedings are necessary, will request him to proceed as he would in any other case.
Appeals against acquittals can be made only under the orders of Government.
9. The senior officer of the department concerned present in the station will see that, in addition to the reports required under (1), (2) and (5) above, prompt reports are submitted to Government through the usual channel regarding—
(a) the commencement of a police investigation ;
(b) the decision to prosecute any particular case ;
(c) the result of any procescution ;
(d) the decision to proceed further in revision or appeal in any case ;
(e) the result of any proceedings in revision or appeal.
10. Notwithstanding anything contained·in (2) to (9) above, the senior officer of the department concerned present in the station may, if thinks fit, refer any matter through the usual channel for the orders of Government before taking action.
III—G.O. no. A-1186/X-144, dated January 3, 1936, to all Heads of Departments, etc.
IN G.O. no. A-3697/X—144, dated August 1, 1929, the Government laid down general principles to regulate the enforcement of responsibility for losses sustained by the Government through fraud or negligence of Government servants. It was therein stated (among other things) that it is of the greatest importance to avoid delay in the investigation of any such loss; that, where it appears that recourse to judicial proceedings is likely to be involved, competent legal advice should be taken as soon as the possibility emerges; that, where there is a reasonable suspicion of fraud or other cirminal offences, a prosecution should be attempted unless the legal advisers consider that the evidence available is not such as will secure a conviction and that, where loss is due to delinquencies of subordinate officials and where it appears that this has been facilitated by laxity of supervision on the part of a superior officer, the latter also should be called strictly to account.
Later the Government supplemented these principles by instructions contained in the memorandum attached to G.O.no. A-484/X—144, dated June 23, 1934. These instructions had special reference to cases in which prosecutions in the criminal courts are, or are likely to be, necessary, and laid down (among other things) that, as soon as a reasonable suspicion exists that a criminal offence has been committed, the senior officer of the department will report to the District Magistrate and ask for a regular police investigation. They also explained the procedure that should follow the investigation.
2. I am now directed to explain what is necessary to be done in the way of departmental inquiry where a prosecution is, or is likely to be instituted. It has been found that, where fraud or embezzlement of Government funds has occurred, there is a tendency for the Head of the Office or Department to regard the institutions of criminal proceedings as absolving him from the unpleasant and often laborious task of conducting immediately a thorough departmental inquiry. This natural reluctance may be enhanced by an apprehension that an inquiry may prejudice the result of the trial in a court of law. As a result, there has sometimes been great delay in taking departmental proceedings and the results have been inconclusive. Departmental inquiries should not necessarily be delayed pending decision of criminal cases, as at a later stage the evidence might disappear and the departmental inquiry could not be brought to any conclusion at all.
3. Experience shows that departmental proceedings cannot as a rule proceed concurrently with a criminal prosecution. Much of the evidence in a case of fraud or embezzlement is documentary. As soon as the criminal proceedings begin the documents go to the court as exhibits, and there they must remain till the case is over and (if an appeal is filed) till the appeal is over. But it is essential that everything should be done to carry the departmental proceedings as far as possible before prosecution begins. The stage to which departmental proceedings prior to prosecution, should be taken must depend on circumstances and cannot be precisely defined. The normal procedure is laid down in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules; and the stage which departmental proceedings can reach may according to circumstances be any one of the stage described or implied in the rule, i.e. the preliminary recording of evidence, the receipt of the delinquent’s written statement after the framing of a charge, the personal hearing, or the inquiry. If it is intended to prosecute, a finding and sentence should not be recorded in the departmental proceedings till after the disposal of the criminal case; but it must be emphasized that the proceedings should be completed up to the point that can properly be reached.
4. A common type of case is that where a number of persons are involved, one or more criminally, and others in such circumstances as show negligence, or warrant the suspicion of criminal abetment without sufficient proof to justify prosecution, or have similar features which necessitate a criminal prosecution of one or more and a departmental inquiry against others. In such cases the authority has sometimes neglected to institute a formal departmental inquiry, or to carry it to the requisite stage, before criminal proceedings are taken, with the result that many months later, when the criminal case is over, effective departmental action has been found impracticable.
5. The general rule should be that in all cases of fraud, embezzlement, or similar offences departmental proceedings should be instituted at the earliest possible moment against all the delinquents and conducted with strict adherence to the rules up to the point at which prosecution of any of the delinquents begins. At that stage it must be specifically considered whether further conduct of the departmental proceedings against any of the remaining delinquents is practicable ; if it is, it should continue as far as possible (which will not, as a rule, include finding and sentence). If the accused is convicted and awarded an adequate sentence, the departmental proceedings against him will be formally completed, and the proceedings against other delinquents continued. If the accused is not convicted, or he is inadequately, punished, the departmental proceedings against him will be resumed as will also those against the remaining delinquents.
6. The proceedings contemplated in these instructions are those which are regulated by the Civil Services (Classification, Control and Appeal) Rules. Where action is taken under the Public Servants (Inquiries) Act XXX VII of 1850, this ordinarily takes the place of a criminal prosecution as regards the person or persons accused; but the procedure as regards other persons involved against whom the Act is not employed should be in accordance with the instructions given above.
7. I am to request you to follow the above instructions strictly in the future.
IV-O.M. no. 4810/II-B—204-1955, dated March 1, 1958, read with O.M. no. 2165/II-B—204-1955, dated August 10, 1959, to all Heads of the Departments etc.
THE procedure for taking departmental proceedings against a Government servant involved in criminal misconduct, which is followed at present, is contained in Finance Department G.O. no. A-1186/X-144, dated January 3, 1936. It is laid down in the above-mentioned Government order that where it is intended to prosecute an employee for acts committed by him as a Government servant, everything should be done to carry the departmental proceedings to as advanced a stage as possible before prosecution began. The findings and the penalty in the departmental proceedings should not be recorded till after the disposal of the criminal case.
2. The above procedure has some defects in it in as much as the postponement of decision in the departmental proceedings till after the criminal case is finally disposed of, leads to undue delay in the completion of the proceedings. Moreover, if the Government servant is placed under suspension, he has to be paid subsistence allowance during the entire period of prosecution. In order to avoid these difficulties, as well as to ensure the earliest possible decision in such cases, it has now been decided that the following procedure should normally be adopted in cases of alleged criminal misconduct of Government servants.
3. As soon as sufficient evidence is available for the purpose in the course of investigation in cases of misconduct, whether such investigation is conducted departmentally or through the Police, action should be taken under the Civil Service (Classification, Control and Appeal) Rules or other appropriate disciplinary rules e.g. the Punishment and Appeal Rules for Subordinate Services, and disciplinary proceedings should be initiated forthwith. Such departmental proceedings need not interfere with the Police investigation, which may be continued, where necessary. After the departmental proceedings are concluded, and the penalty, if any, imposed as a result thereof, the question of prosecution should be considered in the light of such materials as may have become available as a result of the investigation.
4. In suitable cases criminal proceedings should thereafter be initiated. Before initiating such proceedings advice on evidence should be obtained from Government Counsel, and in more important cases from the Legal Remembrancer to Government or the Advocate General, Uttar Pradesh. Where the conduct of a Government servant discloses a grave offence of a criminal nature, criminal prosecution should be the rule and not the exception. Where the competent authority is satisfied that there is no criminal case which can be reasonably instituted against such a Government servant, criminal proceedings should not of course be resorted to, but prosecution should not be avoided merely on the ground that the case might lead to an acquittal.
5. Should the decision of the trial court or the appellate court, as the case may be, lead to the acquittal of the accused, it may be necessary to review the decision taken earlier as a result of the departmental proceedings. A consideration to be taken into account in such review would be whether the legal proceedings and the departmental proceedings cover precisely the same ground. If they did not, and the legal proceedings related only to one or two charges, i.e., not the entire field of departmental proceedings it may not be found necessary to alter the decision already taken. Moreover, it should also be remembered that while the court may have held that the facts of the case did not amount to an offence under the law, it may well be that the competent authority in the departmental proceedings might hold that the Government servant was guilty of a departmental misdemeanour and he had not behaved in the manner in which a person of his position was expected to behave.
6. In this connexion, attention is invited to the requirements of Article 311(2) of the Constitution in regard to the penalties of dismissal or removal or reduction in rank. It is necessary to observe the mandatory provisions of this Article in such cases for which clear instructions have already been issued in G.O s. no. O-1827/II-B—641-1941, dated March 30, 1950 and no. 2344/II-B—125-1955, dated July 18, 1956. Compliance with these requirements is not, however, required in cases covered by clause (a),(b) or (c) of the proviso to that article. Where, however, action is taken under clause (a) of this proviso on the basis of the conviction of person in a court of law and the conviction is set aside on appeal, the orders passed under the proviso automatically become in-operative. If departmental action against him is considered desirable, it will be necessary to follow the provisions of the relevant disciplinary rules and, where necessary the substantive provisions of Article 311(2).
7. The instructions contained in the foregoing paragraphs are not applicable to the members of the U. P. Police force who will continue to be governed by the rules contained in the U. P. Police Regulations.
V—O.M. no. 18/2/66-Apptt. (B), dated June 30, 1966 to all Heads of Departments etc.
1. The undersigned is directed to invite a reference to the instructions contained in paragraphs 3 and 4 of O.M. No. 4810/II-B—204-1955, dated March 1, 1958 wherein it has been laid down that after the departmental proceedings are concluded against a Government servant and the penalty, if any, imposed as a result thereof the question of prosecution should be considered in the light of such materials as may have become available as a result of the police investigation.
2. It is felt that bribery cases against Government servants seldom succeed in a court of law for various reasons. Government have, therefore, decided that in cases of this nature where sufficient evidence is, available on the basis of preliminary enquiry to bring home a charge against the delinquent Government servant, departmental action should be taken. Only in exceptional cases, where the initial or subsequent inquiries reveal that there are strong grounds to warrant criminal prosecution also, the case should as well be handed over to the police for investigation. If such investigation discloses tangible evidence in support of the offence so as to justify taking the case to a court of law, criminal prosecution should be launched irrespective of the fact whether the departmental proceedings have been concluded or are still under way.
The instructions contained in the Office Memorandum herein before referred to shall be deemed to have been modified to this extent.