Mere violation of departmental norms not an offence under Prevention of Corruption Act: Jammu & Kashmir HC

The Jammu and Kashmir High Court recently ruled that a failure by government servants to follow departmental norms will not amount to an offence under the Prevention of Corruption Act, 1988 (PC Act), particularly when the concerned official has not secured any dishonest, pecuniary gain by such an omission [Dalip Thusu and another v. Union Territory of J&K]..Justice Sanjay Dhar held that such non-adherence to departmental norms can give rise to a cause for initiating a regular departmental enquiry but not criminal prosecution.The Court made this observation while quashing a criminal case initiated against two employees of the J&K Projects Construction Corporation (JKPCC) under the PC Act. The two government officials had been accused of failing to ensure proper vetting of a bridge construction project, which was blamed for the bridge's failure and loss to the State exchequer. "Unless it is shown that a public servant has obtained for himself or any other person any valuable thing or pecuniary advantage by resorting to corrupt or illegal means or by abusing his position as a public servant, the charge for offence under Section 5(1)(d) of PC Act is not made out ... Their (the government officials') non-adherence to the procedures and technical guidelines can, at best, give rise to a cause for initiating a regular Departmental enquiry against them, but not a criminal prosecution," the Court ruled while granting them relief. .The High Court was dealing with a plea filed by the General Manager and Deputy General Manager of the JKPCC.The two had been involved in the execution of a bridge construction but were accused of not getting all necessary technical approvals and not properly vetting technical aspects before executing the project. The bridge later collapsed and the two executing officials were accused of hatching a criminal conspiracy that had led to a loss to government exchequer. The investigation agency concluded that a criminal conspiracy was hatched by both parties, leading to the commencement of the bridge construction project without prior approval by the designs directorate and without addressing critical technical considerations beforehand.After a trial court framed charges against the two officials, they moved the High Court with a plea to quash the case. Their counsel argued that there was no allegation that they had secured any pecuniary gain by their acts or that they had misappropriated property entrusted to them for themselves or others. He further contended that a mere loss to the government exchequer caused by an act or omission of a public servant in the discharge of their official duties, without a corresponding gain to the public servant or any other individual, does not amount to an offence under the PC Act. .The High Court found merit in these arguments. "The material on record, at best, shows that that the petitioners have not adhered to the Departmental norms and technical guidelines while executing the project ... The prosecution has failed to collect any material to show that the petitioners did so with dishonest intention with a view to obtain for themselves or any other person any valuable thing or pecuniary advantage ... non-adherence to the procedures and technical guidelines can, at best, give rise to a cause for initiating a regular Departmental enquiry against them, but not a criminal prosecution," it said. The Court concluded that the trial court's decision to frame charges disregarded these aspects, particularly with reference to the ingredients of the offences under Section 5 of the PC Act, and reflected a non-application of mind. ."The framing of charge for offence under Section 5(1)(c) of PC Act against the petitioners by the Special Judge is, therefore, without any basis and deserves to be set-aside," the Court added while discharging the two officials from the criminal proceedings. .Advocate Ayushman Kotwal appeared for the petitioners.Senior Additional Advocate General (AAG) Monika Kohli appeared for the Jammu and Kashmir government..[Read Order]