Systemic corruption is a human rights violation

Written by Indu Bhan | Indu Bhan | Updated: Oct 24 2012, 06:12am hrs
Eligible earlier, but not now

Remanding the case of Ratnagiri Gas & Power Pvt Ltd vs RDS Projects Ltd back to the Delhi High Court, the Supreme Court has asked it to decide afresh within four months whether RDS was eligible to compete for the works related to the revival of the Dabhol Power Project in terms of the first tender notice issued by Ratnagiri Gas & Power Pvt Ltd (RGPPL). RGPPL, a JV between GAIL and NTPC set up for the revival of Dabhol project, had invited bids in June 2009 for completion of Breakwater at LNG Terminal at its site in Maharashtra. Out of the four price bids, RDS was found to be the lowest bidder at R390 crore, which was less than the estimated cost of the project by R160 crore. Later on, RGPPL came out with a second tender for the project, after inserting a new clause with additional eligibility criteria, which eliminated RDS from the bidding process. RDS had challenged the annulment of the tender process and the rejection of its techno-commercial in the high court (HC), which also quashed RGPPLs decisions. While asking the HC to have a relook at the eligibility of RDS, the apex court said that if the HC came to the conclusion that RDS was ineligible in terms of the first tender, then RGPPL will be free to finalise the allotment of works in terms of the second tender notice that disqualified RDS. And if the HC concluded that RDS was eligible to compete for the works under the first tender, then RGPPL shall be free to issue a fresh tender notice without altering the conditions of eligibility as stipulated in the first tender and finalise the process on any other terms and conditions as it deemed fit.

Two cases for the same crime

Holding that there is no overlap between the criminal and the departmental proceedings, the Supreme Court said that even if a criminal court acquitted a bank employee accused of serious fraud, the disciplinary proceedings against him can be conducted and action can be taken against him on the same set of facts. Citing its earlier decision in the case of Divisional Controller, Karnataka State Road Transport Corporation vs MG Vittal Rao, the apex court said both departmental proceedings as well as criminal trial can be conducted simultaneously. In the case of Avinash Sadashiv Bhosale vs Union of India, a senior manager of State Bank of India was suspended from service in July 1998 for his involvement in fraudulent transactions to the tune of R12 crore. While the trail court had in December 2001 acquitted Bhosle of all the charges for lack of evidence, the departmental proceedings initiated simultaneously had held him guilty of misconduct. Even the Bombay High Court had upheld his dismissal from services. The top court accepted the stand of senior counsel Rakesh Dwivedi, appearing for the bank and others, that the conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the FIR, the bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. The failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary value of the material produced by the bank before in the departmental proceedings, it added.

A system eroded by individuals

Stating that the menace of systemic corruption violates human rights in the case of State of Maharashtra vs Balakrishna Dattatrya Kumbhar, the Supreme Court has cautioned the courts to put on hold convictions in such cases only in exceptional circumstance. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, it said, adding that systemic corruption is a human rights violation in itself, as it leads to systematic economic crimes. It set aside a Bombay High Court order that stayed the conviction of central excise officer Lumbar, who was convicted under the Prevention of Corruption Act for possessing assets disproportionate to his known sources of income. While the trial court had awarded Lumbar a sentence of two years, along with a fine of R1 lakh, the HC had suspended the conviction in 2008. ASG PP Malhotra, appearing for the state, argued that the HC was not justified in suspending conviction of a corrupt public servant as such orders would demoralise the employers and other public servants.