1.4.1 Vigilance angle is obvious in the following acts:
(a) Demanding and / or accepting gratification other than legal remuneration in respect of an official act or for using his influence with any other official.
(b) Obtaining valuable thing, without consideration or with inadequate consideration from a person with whom he has or is likely to have official dealings or his subordinates have official dealings or where he can exert influence.
(c) Obtaining for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant.
(d) Possession of assets disproportionate to his known sources of income.
(e) Cases of misappropriation, forgery or cheating or other similar criminal offences.
1.4.2 There are, however, other irregularities where circumstances will have to be weighed carefully to take a view whether the officer’s integrity is in doubt. Gross or wilful negligence; recklessness in decision making;
blatant violations of systems and procedures; exercise of discretion in excess, where no ostensible public interest is evident; failure to keep the controlling authority / superiors informed of required transactions and issues in time; cause of undue loss or a concomitant gain to an individual or a set of individuals / a party or parties; these are some of the irregularities where the disciplinary authority with the help of the CVO
should carefully study the case and weigh the circumstances to come to a conclusion whether there is reasonable ground to doubt the integrity of the officer concerned.
1.4.3 Any undue / unjustified delay in the disposal of a case, perceived after considering all relevant factors, would reinforce a conclusion as to the presence of vigilance angle in a case. (CVC Office Order No. 74/12/05 dated 21.12.2005)
1.4.4 The purpose of vigilance activity is not to reduce but to enhance the level of managerial efficiency and effectiveness in the organisation.
Commercial risk-taking forms part of business. Therefore, every loss caused to the organisation, either in pecuniary or non-pecuniary terms, need not necessarily become the subject matter of a vigilance inquiry.
Thus, whether a person of common prudence, working within the ambit of the prescribed rules, regulations and instructions, would have taken the decision in the prevailing circumstances in the commercial / operational interests of the organisation is one possible criterion for determining the bona fides of the case. A positive response to this question may indicate the existence of bona-fides. A negative reply, on the other hand, might indicate their absence.
1.4.5 It would be quite unfair to use the benefit of hind-sight to question the technical merits of a managerial decision from the vigilance point of view. At the same time, it would be unfair to ignore motivated or reckless decisions, which have caused damage to the interests of the organisation.
Therefore, a distinction has to be made between a business loss which has
arisen as a consequence of a bona-fide commercial / operational decision,
and an extraordinary loss which has occurred due to any malafide,
motivated or reckless performance of duties. While the former has to
be accepted as a normal part of business and ignored from the vigilance
point of view, the latter has to be viewed adversely and dealt with under
the extant disciplinary procedures.
1.4.6 It follows that vigilance investigation on a complaint would not be called
for on the basis of a mere difference of opinion / perception or an error of
judgment simpliciter or lack of efficiency or failure to attain exemplary
devotion in the performance of duties. (Union of India vs. J. Ahmed AIR
1979 SC 1022). Such failures may be a matter of serious concern to the
organisation but not from the vigilance point of view. They have to be
dealt with separately.
1.4.7 The Commission has decided that the CVOs, while sending the case to the Commission for advice against the lapses of officers exercising quasijudicial
powers, should examine critically whether the criteria laid down by Hon’ble Supreme Court in K.K. Dhawan’s case was attracted or not.
The following criteria was laid down: –
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) If there is prima facie material to show recklessness or misconduct in the
discharge of his duty;
(iii) If he has acted in a manner which is unbecoming of a Government
Servant;
(iv) If he had acted negligently or that he omitted the prescribed conditions
which are essential for the exercise of the statutory powers;
(v) If he had acted in order to unduly favour a party;
(vi) If he had actuated corrupt motive, however, small the bribe may be. (CVC F.No.007/MISC/Legal/04(Pt.) Circular No. 39/11/07 dated 01.11.2007) Further, in a recent judgment dated 12th July 2016 in R.P. Parekh Case (Civil Appeal Nos. 6116-6117 of 2016, the Supreme Court has observed in para-15 of the judgment as under: –
“The issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal
principle. In the absence of a cogent explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an inference that the judicial officer was actuated by extraneous considerations can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with sensitivity and care. A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is
available. Evidence in regard to the existence of an incriminating trail
must be carefully scrutinised to determine whether an act of misconduct is
established on the basis of legally acceptable evidence. Yet in other cases,
direct evidence of a decision being actuated by a corrupt motive may not
be available. The issue which arises in such cases is whether there are
circumstances from which an inference that extraneous considerations have
actuated a judicial officer can legitimately be drawn. Such an inference
cannot obviously be drawn merely from a hypothesis that a decision is
erroneous. A wrong decision can yet be a bona fide error of judgment.
Inadvertence is consistent with an honest error of judgment. A charge of
misconduct against a judicial officer must be distinguished from a purely
erroneous decision whether on law or on fact. …………………..”.
The Supreme Court in R P Parekh case has laid down the following
conditions / procedure to be followed to determine as to whether an act of a judicial officer has been actuated by an oblique motive or corrupt practice:
(i) Since, direct evidence of corruption may not always be forthcoming in
every case involving a misconduct, a wanton breach of the governing
principles of law or procedure may well be indicative in a given case of
a motivated, if not reckless disregard of legal principle.
(ii) In the absence of cogent explanation, it is for the disciplinary authority
to determine whether a pattern has emerged on the basis of which an
inference that an officer was actuated by extraneous considerations can
be drawn.
(iii) The disciplinary authority has to determine whether there has emerged
from the record one or more circumstances that indicate that the decision
which form the basis of the charge of misconduct was not an honest
exercise of judicial power.
(iv) A charge of misconduct against a judicial officer must be distinguished
from a purely erroneous decision whether on law or on fact.
In addition to the principles enunciated in Commission’s Circular dated
1st November, 2007, the afore-mentioned criteria in the judgment may also
be kept in view by CVOs while examining alleged lapses / misconducts
in respect of officials exercising quasi-judicial functions / powers.
(CVC Circular No.12/10/16 dated 24.10.16)
1.4.8 Absence of vigilance angle in various acts of omission and Commission does not mean that the concerned official is not liable to face the consequences of his actions. All such lapses not attracting vigilance angle would, indeed, have to be dealt with appropriately as per the disciplinary procedure under the service rules.
1.4.9 Administrative misconduct such as lack of punctuality, drunken behaviour at work, insubordination, etc. would be left to the disciplinary authority to deal with in an appropriate manner. If the lapse is without a vigilance angle, the disciplinary authority would be within its rights to initiate appropriate penalty proceedings against erring employees. (CVC Office Order No.23/04/04 dated 13.04.2004)
Source : CVC Manual 2017
Connected: The Central Vigilance Commission Act, 2003
