Saturday, July 2, 2011

Misappropriation of Government Money - Enquiry - procedure for.

Circular. No: GAD (S.1) 38 SSR 58, dated: 30th October 1958.
Sub:- Misappropriation of Government Money - Enquiry - procedure for.
In a case of misappropriation of government dues, a clarification has been sought, whether immediate steps are to be taken for recovery of the amount and a departmental enquiry started against the delinquent, simultaneously with the launching of a criminal prosecution.
2. Attention is invited, in this connection to the procedure laid down in para 20 of Official Memorandum No. GAD 3 CAR 57, dated 14th December 1957, wherein it has been prescribed the departmental enquiry should first be completed with the greatest despatch before initiating criminal proceedings. Therefore, in misappropriation cases, the proper procedure is first to start a departmental enquiry and to take steps for recovery of the amount from the delinquent, if he is found to have misappropriated the amount.
3. If, after completing Departmental proceedings, it is considered that the case is suitable for proceedings against the delinquent in a Criminal Court, such action should be taken. Once the criminal proceedings have been initiated no steps for recovery of the amount should be taken, until the criminal case is decided. Though there is no legal bar for recovery of the amount pending a criminal trial, it has been recognised as a rule of equity that nothing should be done during the pendency of a criminal trial that would prejudice the defence of the accused.
4. Further, in any case where criminal proceedings have already been initiated before the departmental enquiry has been completed, the departmental proceedings should also be stayed until the disposal of the criminal case, if the subject matter of such proceedings is also the subject matter of a charge against the delinquent in a criminal Court. Such cases should not normally occur hereafter.

ADDENDUM
Sub:- Criminal misconduct - Government Servants - Procedure to be followed.

Several doubts have been expressed regarding the exact procedure to be followed in cases of criminal misconduct committed by Government Servants. The following clarifications are issued in partial modification of Instruction 20 of Procedural Instructions issued in O.M.No.GAD (OM) 3 CAR 57, dated 14-12-57 and Circular No.GAD (S.1) 38 SSR 58, dated 30th October 1958, namely:-
1. Where officers are trapped or caught red handed while accepting illegal gratification, the investigation should be continued and completed and regular charge-sheet in the Court of the concerned Special Judge should be filed.
2. Where cases are initiated by the police either SUO MOTU or at the instance of the Head of a Department, if on completion of the investigation, it is found that the evidence collected is not sufficient so as to warrant a conviction in a Court of Law, the Anti-Corruption Department or the Police Department, as the case may be, should consider and move the concerned Court for obtaining the relevant summary for dropping the proceedings. After obtaining such a summary, the records of investigation should be forwarded to the Head of the Department who should decide about the sufficiency of the material for initiating a departmental enquiry under the M.C.S.(CCA) Rules, 1957 and take action accordingly.
3. Where departmental enquiries have been started without reference to the police, such enquiries should be continued and completed according to the rules. If at any stage of the enquiry, the Disciplinary Authority considers that the Offences disclosed are so grave that a prosecution in a Court of Law is essential in the interest of administration, then steps should be taken to launch regular prosecution and the Departmental enquiry should be kept in abeyance.
4. It is impressed on all concerned that delay in the institution of criminal prosecution not only frustrates the object of the prosecution but may possibly affect the credit to be attached to the evidence that will be adduced in support of the prosecution. Delayed prosecutions are looked upon with suspicion by Courts. It is essential therefore that prosecution should normally be conceived at the earliest stage as soon as the offence is committed and detected. If in any case there is delay in launching a prosecution, then such cases should be continued only departmentally.
5. Where a prosecution ends in an order of acquittal, then the question of Departmental enquiry does not arise if the accused has been acquitted on merits. If the order of acquittal is on some technical ground, then the propriety of starting a Departmental enquiry should be considered on the merits of each case after a careful scrutiny of the judgement.

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