In Shabih Haider v. State of U.P., 2018 (1) ADJ 327 it was held that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority. The power of the State Government to place Government Servant under suspension is creature of the Statute and/or contract and the decision be taken keeping in view the letter and spirit of the Statute. The power of suspension arises when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding. It was also held placing reliance on decision of a Five Judge Bench of the Hon’ble Allahabad High Court in State of U.P. v. Jai Sing Dixit, 1974 ALJ 92, that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension of a Government Servant. Vijay Kumar Agarwal v. State of U.P., 2020 (1) AWC 646.
Category Archives: Prevention of Corruption Act
A public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income maybe his or of anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account for such disproportionate pecuniary resources or property. The Explanation to Section 13(1)(e) of the Prevention of Corruption Act elucidates the words “known sources of income” to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant.
From the design and purport of clause (e) of sub-section (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at anytime during period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in the absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary else, of pecuniary resources of property disproportionate to his known sources of income. Vasant Rao Guhe v. State of M.P., (2017) 14 SCC 442.
Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people’s lives. It can affect the air they breathe, the water they drink and the food they eat. Going further, some more terminology can also be given to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle it is looked into, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty grows darker, and rich become more richer.
In Secretary, Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 34 it was held as under:
“When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as ‘corruption’”.
In High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, (1997) 6 SCC 339, the court held:
“Corruption, appears to have spread everywhere. No facet of public function has been left unaffected by the putrefied stink of ‘corruption’. ‘Corruption’ thy name is depraved and degraded conduct…..In the widest connotation, ‘corruption’ includes improper or selfish exercise of power and influence attached to a public office.”
In B.R. Kapur v. State of T.N., (2001) 7 SCC 231, it was held:
“scope of ‘corruption’ in the governing structure has heightened opportunism and unscrupulousness among political parties, causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions often without the popular mandate.”
In State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319, the Hon’ble Court stated as under:
“The word ‘corruption’ has wide connotation and embraces almost all the spheres of our day-to-day life the world over. In a limited sense, it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations.” In the Matter of I.F.C.A.I. v. D.K. Agrawal F.C.A., 2017 (123) ALR 374.
Section 20 of the Prevention of Corruption Act, 1988 states as under:
20. Presumption where public servant accepts gratification other than legal remuneration.—(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.
Absence of – Evidence of Demand
It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery alone would not be a ground to convict the accused. T. Subramanian v. State of Tamil Nadu, (2006) 1 SCC 401 : AIR 2006 SC 836.
The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act. It is also settled in law that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or reward as stipulated under Section 7 of the Act. It is obligatory on the part of the Court to consider the explanation offered by the accused under Section 20 of the Act and the consideration of the explanation has to be on the anvil of preponderance of probability. It has not to be proven beyond all reasonable doubt.
Presumption under – Is Obligatory
In the case of C.M. Girish Babu v. CBI, the Apex Court held as under:
“It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.”
A presumption under Section 20 of the Act becomes obligatory. It is presumption of law and casts an obligation on the Court to apply it in every case brought under Section 7 of the Act. Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80.
 Section 7 of the Act reads as under:
“7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanations.—(a) “Expecting to be a public servant.” If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) “Gratification.” The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) “Legal remuneration.” The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”