M J Antony: A case against bureaucracy

OUT OF COURT

When the government makes a mistake or is blamed for its omissions and commissions, the bureaucrats who took the decision to act, or not to act, remain unknown to the public.

The courts often pass strictures on the guilty government or public authority and leave it at that. However, in recent times, the courts have gone a little further and asked the governments to identify the people who are responsible for the lapse and take action against them.

In a recent series of judgements on state housing boards, the Supreme Court discussed the role of the bureaucrats behind the unfair and arbitrary decisions of the public bodies. In Himachal Pradesh Housing Board vs Varinder Kumar, Kumar was allotted a house that was unfit for living.

He moved the district consumer forum, which called for the department files and found that the allegations were true. It then directed the government to pay damages to the allottee and further asked for an enquiry "to fasten liability on the officials who, at the relevant time, were in charge of the construction and who had passed the defective construction."

But instead of taking action against the officials, the housing board appealed to the state and national consumer commissions, failed, and then moved the Supreme Court.

At each stage, the courts noted that no action had been taken against the officials. The board was asked to return the money with 18 per cent interest to the allottee.

In the Supreme Court, the board got a more severe drubbing: "The conduct of the board is shocking. Being a public body performing a public service, they cannot act in such a blatantly callous and corrupt manner.

They have sold a flat which had major defects. Such a construction could not have been passed by the concerned officers unless they were in collusion with the contractor/ builder.

One would have expected that action had been taken not just against the builder but also the officers who colluded. In spite of the clear direction from the district forum, no action has been taken against these officers; on the contrary we are told that they have been exonerated."

In another such judgement, Haryana Urban Development Authority vs Seema Handa, the authority imposed penal interest on the payment made by the allottee. The court also asked it to pay cost to the Legal Aid Society and recover the amount personally from the officers who were responsible for the lapses.

Further, in Commissioner of Customs vs Essar Oil Ltd the Supreme Court found that three customs department officials were "clearly active participants in the well-planned deception and fraudulent acts leading to evasion of duty."

Though the department proposed action against them, the Central Excise and Gold Appellate Tribunal (CEGAT) had exonerated them. The Supreme Court set aside the CEGAT order.

In the continuing public-interest case on deforestation, the Supreme Court has unearthed a bureaucrat-timber mafia nexus and named about 80 officials.

But the Madhya Pradesh and Chattisgarh governments have been trying to shield them. Among them were officials of the rank of district commissioner and collector.

Some time ago, the Supreme Court had laid down the law that could be followed by all the courts dealing with such instances. It said in Common Cause vs Union of India (1996): "We take it to be perfectly clear that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant."

This judgement was closely followed by Shiv Sagar Tiwari vs Union of India, stressing the same principle. In both cases, top Union ministers were involved.

If our country has slipped further in the corruption index, as pointed out recently by Transparency International, one reason is the absence of fear of punishment among bureaucracy. Criminal proceedings against the top officials have only yielded excellent TV footage but no final verdict.

Therefore, the courts dealing with bureaucrats' venality should take a cue from these judgements and take exemplary action according to the prescriptions laid down by the apex judiciary.