G.1., C.V.C. Circular No. 98/DSP/9 (Part-2), No. 03/03/16, dated 7-3-2016
The Commission has been receiving references from departments/organizations seeking clarification on the action to be taken on pseudonymous complaints which were acted upon at different stages of process, including under disciplinary proceedings, before the issuance of CVC Circular No 07/11/2014 dated 25th November, 2014 on the captioned subject. A few Court decisions arising out of the Commission’s guidelines issued earlier on the subject were also brought to the notice of the Commission.
The Commission considered the details of the Court orders/judgments and in one instance, the Central Administrative Tribunal (CAT), Principal Bench, Delhi, had quashed the charge-sheet, dated 14-10-2004 issued to the delinquent official based on the pseudonymous complaints, dated 18-2-1997 and 2-4-1997, vide order dated 20-7-2005. The CAT had quashed the charge-sheet served mainly considering the circulars of the Commission dated 29-6-1999 and 31-1-2002 on the subject. In the order dated 20-7-2005, it was observed that the charge-sheet, dated 14-10-2004 was issued pursuant to pseudonymous complaints received earlier and therefore is in violation of the Commission’s circulars dated 29-6-1999 and 31-1-2002. The High Court agreed with the findings and observations of the CAT and dismissed the department’s Writ Petition filed against the order of the CAT in limine. Thereafter, the Supreme Court had also dismissed the department’s Civil Appeal in the matter. The CAT’s decision is based on the judgment dated 26-9-2003 of the Madras High Court (in another case) wherein it was observed that the preliminary inquiry report dated 25-52000 based on an anonymous complaint was subsequent to the CVC’s circular, dated 29-6-1999 and, therefore, is liable to be quashed and further the prohibition (in CVC circular) that “no action will cover all pending proceedings on that date”.
The instructions/guidelines issued from time to time on the subject matter by the DoP&T/CVC are as follows: (i) The DoP&T’s O.M. No. 321/4/910-AVD. III, dated 29-9-1992 that no action is required to be taken on anonymous/pseudonymous complaints in general, provided the option to inquire into such complaints which contained verifiable details.
(ii) The Commission’s initial Circular No. 3(v)/99/2, dated 29-6-1999 prescribing that no action should be taken on anonymous / pseudonymous complaints and should just be filed.
(iii) The Commission’s Circular No.98/DSP/9, dated 311-2002 reiterating that under no circumstances, should any investigation be commenced on anonymous/ pseudonymous complaints.
(iv) The Commission’s Circular No. 98/DSP/9, dated 11-10-2002 reviewing its earlier instructions of 1999, providing that if any department/organization proposes to look into the verifiable facts alleged in anonymous/ pseudonymous, complaints, it may refer the matter to the Commission seeking its concurrence through the CVO or the head of the organization.
(v) The DoP&T’s, O.M. No. 104/76/2011-AVD. I dated 1810-2013 that no action is required to be taken on anonymous complaints, irrespective of the nature of allegations and such complaints need to be simply filed.
(vi) The Commission’s Circular No. 07/11/2014 dated 2511-2014 withdrawing a Circular dated 11-10-2002 and reiterating previous circulars, dated 29-6-1999 and 31-1-2002 to the effect that no action should be taken on anonymous / pseudonymous complaints and such complaints should be filed.
Since the aforesaid issues arising out of the observations of the CAT and the High Court of Madras involve interpretation of substantial questions of law, the opinion of the Ld. Attorney-General for India was sought by the Commission. The Ld. Attorney-General for India has furnished his opinion and clarified that unless expressly stated, all executive circulars are prospective in nature and they do not have retrospective effect. Only a law can be retrospective if a law expressly states that it will be retrospective or the intention to that effect is very clear. It is further clarified that an anonymous/ pseudonymous complaint, say made in 1997, i.e, prior to the prohibitory circular, dated 29-6-1999, ought to have been generally not entertained but if there was verifiable material in accordance with the DoP&T’s O.M. of 1992 and investigation has commenced, the same would have to be taken to its logical conclusion notwithstandThe ing the issue of a later circular dated 29-6-1999.
Based on the opinion furnished by the Ld. Attorney-General, the following clarifications are being issued:
(i) No action should be taken on anonymous/pseudonymous complaints in line with Commission’s present instructions dated 25th November, 2014 and such complaints should be filed.
(ii) However, where action was initiated on anonymous/ pseudonymous complaints prior to the issue of the CVC’s circular dated 29-6-1999 and was pending as on 29-6-1999, it can be pursued further to its logical end.
(iii) Where action was initiated on anonymous/pseudonymous complaints between the period 11-10-2002 and 25-11-2004 with prior concurrence of the CVC but is pending, further action is permissible on such complaints.
(iv) Material/evidence gathered during the investigation/ verification of anonymous complaints when the action was prohibited on such complaints (i.e. between 29-6-1999 and 11-10-2002), or where such inquiry was initiated without the approval of the CVC, can be utilized for further initiation of disciplinary proceedings on misconducts noticed in such verification/inquiry.
All administrative authorities/CVOs may note the above clarifications for guidance/compliance while handling and processing matters arising out of anonymous/pseudonymous complaints. ■
action on anonymous/ pseudonymous complaints