Work with Wisdom series – 001

Practical Guide

Administrative Procedures

for

Law Enforcement Officers

-- — Law & Practice.

By a former Law Enforcement Officer.


 

Proper Officer – Law Enforcement – Law v. Equity – Discretionary Power – Reasonable Belief – Facilitation – Administrative Discipline – Supervisory / Controlling Officer  – Infrastructure – Meetings/Discussions with Officers / Outsiders – Practice vs. Law – System Failure - Organizational Structure – Administrative Powers of Officers – Recording reasons –  Consultation with Subordinates – Signatory of Outgoing Letters – Sequence of Disposal


 

P. JACOB

 

CONTENTS

Preface

 . . . 03

Procedures

 . . . 04

Officer

 . . . 05

Proper Officer

 . . . 07

Jurisdiction

. . . 07

Law

 . . . 08

Law Enforcement or Execution of Law

 . . . 09

Law v. Equity

 . . . 10

Discretionary Power

 . . . 10

Reasonable Belief / Satisfaction / Good Faith

. . . 10

Facilitation

 . . . 11

Administrative Discipline

. . . 11

Supervisory / Controlling Officer

 . . . 12

Infrastructure

 . . . 12

Meetings and Discussions with Officers

 . . . 12

Meetings and Discussions with Outsiders

 . . . 13

Practice vs. Law

 . . . 13

System Failure

 . . . 13

Organizational Structure

 . . . 14

Administrative Powers of Officers

 . . . 14

Consultation with Subordinates

 . . . 14

Signatory of Outgoing Letters

 . . . 15

Order / Sequence of Disposal of Files, Claims, Applications, etc. by an Officer of the State

 . . . 16

Recording reasons

 . . . 16


 

An apology as a Preface


Let us do what is right even if it appears to be difficult. 

It takes years to build a reputation and seconds to destroy it.

-- Directorate of Publicity & Public Relations, Customs & Central Excise


 

Procedures prescribed by the bureaucracy to execute laws made by the legislature are subordinate laws. Nevertheless they are equally important and hence to be complied with in its entirety. Objective of an enacted law can be achieved only if prescribed procedures are followed scrupulously.  

The very moment an official fails to implement prescribed procedure in full, the safeguard provided for actions performed in good faith is no longer available to him. Moreover, when an executive neglects to ensure compliance of prescribed procedure and as a result anybody obtains undue benefit, it amounts to committing criminal misconduct attracting penal action under Section 13 (d) of the Prevention of Corruption Act,  even if he does not get bribe. 

Four ingredients are essential to an officer to administer or to enforce the law efficiently. 

1.     Technical Knowledge of the Law [of the respective department], one is entrusted to enforce.

2.     Knowledge of Administrative Law since every action of an officer has 3 Dimensional consequences [1st, 2nd  and 3rd person] – i.e., affecting career of self, the wellbeing of the beneficiary and the employer - the people.

3.     Cognizance of Jurisprudence – the legal and procedural safeguards and remedies available from judiciary to a Law Enforcement Officer. And

4.     Strategic measures to tackle unexpected impediments thrown from within or from outside.

It appears that until now, hardly any effort has been taken by any of the Senior Officers to transfer their knowledge to the officers of the new generations, either during their service or after retirement. This superior knowledge, accumulated over many years of experience, could be leveraged by the workforce of today, for the benefit of the society, nation and the mankind.  

We extend an unconditional apology, for a few harsh expressions which have crept in, when we tried to sensitize about the maladies and the exigency for remedy in our venture to solutionize. The apparent fact is that almost all in authority today are unaware of their powers and responsibilities.  Hence we want to sound a gentle alert ‘Be-Aware-of’ or even shout out in louder and clear voice ‘Beware-of’ the three dimensional consequences of every action of a person in authority.             

                                                                                                                              TOPG

 

Procedures

01.  What is a procedure?                                                                                        TOPG

          A procedure is a string of sequential events / steps as prescribed by law through which a task / function of the State is initiated, processed and completed in order to deliver the mandated service to the citizenry and thus, to achieve the object of law.

          Hence, the objective of law can never be achieved without following the prescribed procedures.

            e.g., If a ration-card has to be obtained from the State, the procedure prescribed may be as below: -


i.              To apply in proper form

ii.            To attach proper documents

iii.           To file in the jurisdictional Civil Supplies Office

iv.           To file within the last date [limitation]

v.             To get acknowledgement

vi.           To Register in the Registers / System

vii.          To conduct inquiry and verifications by the Civil Supplies Office

viii.         To report to the office

ix.           To process the application by the initiating / intermediary officers on file and offer recommendation as to issue of ration card or rejection of application,

x.             To approve or reject by the Proper Officer

xi.           To communicate the decision of approval to the printer / to communicate the decision of rejection to the applicant

xii.          To print the Ration Card

xiii.         To despatch

xiv.       To file acknowledgement of delivery.


02.  Why procedure is prescribed by law?                                                           TOPG

a.     In a democracy, any function of the State is not allowed to be performed and completed by a single individual in its entirety.  So every work is divided and entrusted to more than one person.  Thus, how each division has to seamlessly proceed to work, without exceeding its brief, has to be and is prescribed as procedure.

b.     The procedure acts as a viable check against misuse of power by any individual authority-holder and strikes a fine balance among the various stakeholders.

c.      Procedure allows many citizens to participate in a decision-making process of the State.

d.     Following the procedure prevents arbitrariness in exercise of State power and ensures fairness in decision-making.

e.     Procedures give the citizens a more perfect clarity of steps to be pursued in getting the service delivered.  This clarity prevents probable chaos in the minds of millions.

f.      To serve as the simplest and only means to ensure Rule of Law in a civil society.

g.     To ensure equality to all citizens in the treatment by the State.

h.     Procedural laws are the only safeguards available to the citizens against the might of the State.

i.       In view of the all above, following the procedures promotes a vibrant democracy.

03.  Is compliance of procedure by the State mandatory?                               TOPG

            Yes.

04. Why is it important to follow procedures by an officer of  the State?

a.     Government officers have to strictly follow prescribed procedure in their official business. The concerned officer is personally held responsible for any deviation or dilution even on account of presumptive liberalisation / facilitation.

b.     The State has to necessarily follow procedure in its entirety.  Superior Courts have often held that even substantial compliance of procedure is insufficient and that absolute compliance as mandated by law alone is always required.

c.      Such rigidity of prescribing and following procedures within the office of a private party is not mandated by law. Even if mandated by the private party in his office, any violation of his own procedure by him will not vitiate his benefits to be received from the government.

05. Can compliance of procedure be relaxed by an officer of  the State?     TOPG         Yes.

         A competent authority alone may relax a procedure, but only in writing, making such relaxation available to all citizens without any discrimination.  The competent authority to relax should have been specifically designated by the authority who prescribed such procedure.

06. What if the procedure is selectively side-stepped by the law enforcement of officer?                                                                                                                      TOPG

a.     Results in abuse of the Law.

b.     It defeats the democracy itself. [Please refer answer to the Question No.2 above.]

07. What are the consequences if a prescribed procedure is violated or is not followed or not complied with by the officers of the State?

a.     In the eyes of law any decision taken violating / without following / without complying with a prescribed procedure is null and void ab initio – liable to be quashed by the courts.

b.     The superior courts [High Court and Supreme Court] have original jurisdiction to entertain a Writ Petition against such a decision.

c.      The Vigilance / Prosecuting Agencies have always held that a violation of  procedural law to be ground for disciplinary action / prosecution.

Officer                                                                                                                      TOPG

08. Who is an Officer of a Government / State?

         A person who has been –

a.     – duly designated as Officer and vested with a position of authority or command by the State. And,

b.     – provided with an office with a demarcated enclosure to discharge his functions without interference from others.  And,

c.      – vested with powers to be exercised independently – exactly according to the law in force, for which he should not even informally receive any direction from his superior officer since he is solely responsible for his decisions.  And,

d.     – provided with subordinates to assist in all routine and repetitive functions, forming part of his brief, e.g., typing/ receiving / registering / photocopying / transmitting / despatching / maintaining / safekeeping of Daks, files, registers, records, etc.  And,

e.     – entrusted to guide/advise his superior officer, if the latter happens to be the ‘proper officer’.  On the effective, sincere and lawful presentation of facts / law / case at hand, the superior officer will be obliged to approve the recommendation of his subordinate officer.  This endows every subordinate officer to be a de facto proper officer in the lawful decision-making by the superior officer.  Any deviation from the recommendation of the subordinate officer would cost the superior officer dearly.  And,

f.      – provided with by the Head of Office / Department all required infrastructure at his disposal to exercise his jurisdiction and discharge his responsibilities.  Any failure will make the Administration [read the proper officers for relevant infrastructure] personally responsible for any delays, failures, deficiencies of the Officer.  And,

g.     – required to perform the functions which require application of mind on case-to-case basis.  And,

h.     – mandated to desist from performing and completing a task on his own.  He should get the work done through his subordinates only.  He has only a very limited role of ensuring the correctness of the decision, adding value to the work [ensuring correctness] done by his subordinates.  Normally, the Officer is barred from entirely dealing a case on hand, as it would lead to autocracy.

09. What should be the essential characteristics of an officer?                      TOPG

  To have a fair working Technical Knowledge [e.g., laws of Customs / Central Excise / Income-tax / Police / Forest, etc.] of the responsibilities to be discharged.

a.     To have a  fair working knowledge of  Administrative Laws and Procedures and pre-emptive administrative measures available to be used strategically as and when required without any hesitation.

b.     To have a fair working knowledge of laws on most appropriate and effective Legal and Judicial Remedies available and be fully prepared to resort to, in order to overcome any false charges or impediment, failing which any honest officer might be an easy target and victim of evil forces to destroy the reputation and career built for years.

c.      To have determination to ‘work to rule’ with courage and to say ‘No’ to do anything unlawful even under duress.

d.     To endure till the end declining / abhorring any undue benefit either from government or from any stake-holder.

Proper Officer                                                                                                       TOPG

10. Who is a Proper Officer?

a.   Proper Officer is a person who, by designation, is conferred upon with the jurisdiction and authority to perform an assigned function of the State.

b.   Proper Officer has powers to accept, modify, reject or return the  proposal of the subordinate, and hence the proposal is a simple recommendation only.

c.    Proper Officer is the one who conclusively ensures correctness and legality of any decision proposed by his subordinate.

d.   Proper Officer is the one who finally signs / countersigns / approves / makes decision in the hierarchy.  On his signature being affixed, the Proper Officer has taken a decision, and the decision becomes enforceable and normally irreversible.

e.   Proper Officer is solely and independently responsible for any decision taken or action committed / omitted by him  even when he was guided / misguided by his subordinate. Not correctly guided by the subordinate officer cannot be a valid ground for the proper officer to escape punishment for any deficiency imputed.

f.    Proper Officer alone is answerable for any short-coming or illegality noticed and responsible for all civil / criminal liabilities.  Accordingly, no subordinate officer who initiated or intermediated can ever be legally proceeded against.

Jurisdiction                                                                                                            TOPG


“Where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not Sovereign actions. The officer is not doing the business which the Sovereign has empowered him to do or he is doing it in a way which the Sovereign has forbidden.

His actions are ultra vires his authority” [1]


11. What is meant by ‘Jurisdiction’?

      Authority / power to perform a particular duty, conferred upon an Officer, by a Competent Authority in writing.

12. How jurisdiction is conferred upon?                                                TOPG

      Jurisdiction is conferred upon by a duly notified detailed Order of Work Allocation.  Due to lack of jurisdiction an officer should refrain from doing any work until such a Work Allocation Order is issued.

 13. Who can confer, modify or revoke the jurisdiction?                                 TOPG

       Only the Competent Authority can confer / modify / revoke jurisdiction.

 14. On what basis jurisdiction is conferred upon Officers?                          TOPG

       Generally, on the basis of –

a.         territory.   [e.g., Tuticorin Customs Commissionerate]

b.         pecuniary limit. [e.g., monetary limit of Rs. 2 Lakhs]

c.         function or subject-matter.[e.g., Assessment, Examination, Appeal, Revision, Refund, Review]

d.        time. [e.g., Day / Night Shifts, 0915 – 1745 hrs.]

 15. Can jurisdiction be trespassed and exercised by a Coordinate Officer?

      No.

16. In normal course can jurisdiction be exercised by a Superior Officer?

      No.  Jurisdiction cannot, in normal course, be usurped by a higher authority.  To avoid any motive to be attributed, it is just and fair for the superior officer to discharge the functions of the subordinate officer only in exigencies on case-to-case basis after recording the reasons therefor in the relevant file. 

 17. Can jurisdiction be transferred to another officer by the officer holding the jurisdiction?                                                                                                             TOPG

       No.

 18. Can jurisdiction be conferred upon an Officer by consent of a party to a proceeding [e.g. importer / exporter / assessee]?                                              TOPG

        No.  [e.g., A case falling within the jurisdiction of a Commissioner cannot be adjudicated by any lower authority or by another Commissioner, just because the opposite party consents for such an arrangement, declaring that he wants an immediate decision and will not question the jurisdiction.] 

19. What is the consequence of wrong exercise of jurisdiction?                    TOPG

a.     Exercise of  wrong jurisdiction makes the order null and void ab initio.

b.     The subject matter considered under the exercise of wrong jurisdiction cannot be re-opened in a fresh proceedings.  Hence, the liability of the opposite party ends absolutely.

c.      The action of an officer beyond his jurisdiction is considered to be an action of a private individual and not of the State – he is doing the business which the State has not empowered him to do. The Officer who is not vested with a particular jurisdiction in respect of that subject-matter is not an officer in the eyes of law.  He is like a commoner on the street.  His actions are, hence, ultra vires his authority. Hence, the officer is liable for both civil and criminal consequences.

20. What is the remedy for exercise of wrong jurisdiction?                            TOPG

      No remedy is available in regular appeals to cure the exercise of wrong jurisdiction. The only way-out is that there is a possibility to approach the Supreme Court and seek relief of complete justice under Article 142 of the Constitution of India.

Law                                                                                                                            TOPG

21. What is law?

      A law is a set of instructions and prohibitions issued / enacted by competent authority, duly notified to the citizens, to be followed by the citizens and to be enforced by the State prospectively and equally. 

22. What are the various names / titles / nomenclatures of law?                   TOPG

      Constitution, Act, Rules, Regulations, Notification, Code, Protocol, Guideline, Order, Standing Order, Public Notice, Trade Notice, Policy, Circular, Manual, Handbook, Instruction, etc. 

23.  What are the kinds of law?                                                                             TOPG

a.   Law which affects any citizen in any manner or to be enforced on citizens – to be invariably notified in the official gazette.

b.   Internal laws of the organs or agencies of the State – to be followed by the Officers of the State – hence to be duly communicated in writing to each law enforcement officer by name.  An uncommunicated internal law will not have any demeanour on the commissions and omissions by a law enforcement officer.  Hence, the commissions or omissions or losses, if any, directly attributable to the proper officer who has the responsibility to communicate it.

c.   If a law is covered under both the above categories, it should be notified in the official gazette. 

            e.g., if the Customs / Income-tax / Police department stipulates certain law in the name of Manual – such Manual containing instructions or guidance as to how to draw a recovery /    search mahazar, or record the statement of a witness / accused are also necessarily be notified in the Official Gazette and in the absence of which the mahazar / statements would become null and void. 

24.  Can the law be passed by an authority which is not competent?           TOPG

      No. 

25. Can the law passed be enforced without notification in the Gazette?   TOPG

      No. 

26.  Can the law passed by a Competent Authority be amended by a Subordinate Authority?

      No. 

27.  Can the process of legislation (law-making) be delegated?                     TOPG

       Yes.  Only by vesting competency. 

28.  What is the hierarchy of delegated legislation?                                          TOPG

      Every subordinate legislation should be infra vires of the superior legislation. 

Law Enforcement or Execution of Law                                                       TOPG

29. What is law enforcement?

·       To apply law on the case on hand, as written in statute books / as interpreted / declared by the judiciary.

·       There is no verbal law to be ever followed by anyone.

·       A Law Enforcement Officer is a totally distinct subordinate person of the law-maker.  Hence, no law-maker can be a law-enforcer in any particular subject-matter and vice versa.  [e.g., the Commissioner has to enforce the law made by his superiors, viz. Chief Commissioners, Board, and Parliament.  whereas the same Commissioner may, in his law-making capacity, issue a Standing Order to be executed only by his subordinates.]  

30. What are the options available to a Law Enforcement Officer?              TOPG

      The moment a law [in any name viz. Act, Rule, Regulation, Notification, Code, Protocol, Manual, Circular, Hand Book, Guideline, Instruction, Order, Notice, etc.] is enacted and notified, the law enforcement officer has only one option, i.e., to enforce / execute it in its entirety. 

31. Can the law enforcement be diluted / relaxed / omitted to be executed by the proper officer?                                                                                                         TOPG

       Unless manifest discretionary power is conferred upon an officer by the same law which empowers him, nothing can be omitted to be done or relaxed or diluted on any pretext.

32. If a party claims it is practically difficult to follow certain law, can it become a valid reason for the law enforcement officer to relax / dilute / ignore the written law?                                                                                                                            TOPG

      No.  [e.g., If any  stake-holder finds it difficult to comply with Section 28 C of the Customs Act, 1962, the only way-out is to approach the government with justifications, if any, and get it amended]. 

33.  Can the ground of “enforcement-resulting-in-absurdity” be a valid reason to relax / dilute / ignore the written law?                                                                TOPG

       No.

Law v. Equity                                                                                                         TOPG

34.  Does the law enforcement officer have more than one option in law enforcement?

     To enforce law as written / interpreted is the sole and only option available to the Law Enforcement Officer even if such enforcement leads to apparent injustice or even if it leads to absurdity. This is due to the fact that law enforcement agency /administration has no power to make law enforcement on the basis of equity. 

Discretionary Power                                                                                          TOPG

35.  What are the principles governing exercise of Discretionary Power?

a. Discretionary Power should have been specifically and expressly vested on an officer in the particular law itself.

b. Discretionary Power should not be exercised arbitrarily or selectively.

c.  Discretionary Power should be exercised only after recording reasons on the file on case-to-case basis.

d. Discretionary Power duly exercised by an officer cannot be altered even by a superior officer / forum unless any mala fides is attributed and proved.

e. Exercise of discretionary powers should be impersonal, i.e., in a given case, irrespective of person who exercises discretion, the same decision should invariably be arrived at.

f.  The outcome of the exercise of discretion should be predictable in a given situation. 

Reasonable Belief / Satisfaction / Good Faith                                         TOPG

36. Can anything done on Reasonable Belief / Satisfaction / Good Faith as per law be questioned?

       Reason to believe or being satisfied of a particular action are squarely in the domain of the Proper Officer which cannot be questioned unless any mala fides is attributed and proved.  [e.g., (i) To direct a green channel passenger to the examination desk.  (ii) To stop a speeding vehicle by police for a random check.  (iii) To select a package from any location for examination / sample-drawing, etc.]. 

Facilitation                                                                                                             TOPG

37.   What is meant by Facilitation?

a.   Deviation / Dilution / Relaxation of rigours of prescribed procedures, issued in writing by a competent authority and made available to all beneficiaries of a class. e.g.,    RMS, ACP, Green Channel facilities, etc. are facilitations. But, not demanding COO certificate for clearing an import consignment, where mandated, is not at all facilitation.

b.   It cannot be extended to an individual alone or selectively.

c.   Non-enforcement of law is not facilitation but is a violation of law, making the enforcing officer liable for punishment for commission or omission.

38.  What is the consequence of deviating, diluting or relaxing law in the name of facilitation on oral orders of superiors?

      It would amount to committing an offence and hence the deviating law enforcement officer would invite punishment.

Administrative Discipline                                                                    TOPG

39. What is Administrative Discipline?

      Inside an office, the immediate superior officer alone is the boss whose lawful written directions should always be obeyed.

40.  If an immediate superior officer issues any unlawful written direction, should it be obeyed?                                                                                                            TOPG

      No.  Never.

41. Can an immediate subordinate officer be bypassed by the superior officer in an assigned office work?                                                                                       TOPG

       Yes. But only in exigencies, on case-to-case basis, that too only after recording the extenuating circumstances in the relevant file.  

42.  Can an immediate superior officer be bypassed by a subordinate officer in office work?                                                                                                             TOPG

       No. 

43.  Should oral orders be obeyed and if yes, what are the precautions to be taken?

            Inside an office, any instruction to a subordinate officer has to be in writing only. Oral instructions received on exceptional circumstances, should be reduced in writing by the subordinate officer in the relevant file and acted upon accordingly only thereafter.

Supervisory / Controlling Officer                                                                  TOPG

 

44.  Who is a supervisory officer?

      A supervisory officer in government service is the one who is to perform a well defined work, by allocating among 5 to 10 immediate subordinates provided to him. 

45.  What is the primary role of a Supervisory / Controlling Officer?           TOPG

      He should warrant that –

a.   the subordinate official attached to him invariably reports only to him in all official matters;

b.  all files are submitted / routed through him;

c.   leave applications, resume of work done, etc. are submitted only to him;

d.  relief on transfer / training / other duties should be done by him;

e.   joining subordinate should report to him.

 

e.g. Annual Confidential Report / Annual Performance Appraisal Report [ACR / APAR] of a subordinate officer is to be initiated / reported only by the immediate superior [cadre] officer under whose charge the immediate subordinate [cadre] officer has worked for the required period of time.  Bypassing the immediate superior officer to initiate and write ACR / APAR makes the ACR/APAR so completed as squarely illegal, null and void and amounts to forum-shopping by the subordinate.  Any other coordinate officer or any citizen can challenge such ACR/APAR in a court any time and get it quashed.                                                                     

Infrastructure                                                                                                       TOPG

46.  Who has to provide sufficient infrastructure / resources on posting of an [Frontline / Field] Executive Officer?                                                                  TOPG

      The officer issuing the posting order is obliged to provide to the officer posted along with order a list of names, designations of subordinate officers at his disposal, details of infrastructure provided to him viz. Room No., office furniture, office equipments, phone, etc., and a list of books containing all laws to be enforced / internal laws to be followed to discharge the function assigned.

47. What if sufficient infrastructure / resources on posting of an [Frontline / Field] Executive Officer is not provided by the superior Officers?                          TOPG

       Only the competent authorities to provide above resources or infrastructure are responsible for deficiency, if any noticed, of the Frontline / Field Executive Officer.  The Frontline / Field Executive Officer posted cannot be held responsible for the commission / omission arising. 

e.g., i.   If furnished office space as per prescribed norms is not provided, the senior officer holding charge of CHS is responsible for any deficiency, delay, commission or omission in the execution of law.

ii. If the eligible phone / intercom connection is not provided, the senior officer holding charge of TELECOMMUNICATIONS is responsible for any deficiency, delay, commission or omission in the execution of law.

iii.  If vehicle is not provided for office work, senior officer holding charge of VEHICLES is responsible for any deficiency, delay, commission or omission in the execution of law.

iv.  If required office machines viz. computer, printer etc. are not provided, senior officer holding charge of EDI is responsible for any deficiency, delay, commission or omission in the execution of law.

Meetings and Discussions with Officers                                                     TOPG

48.   What are the pre-requisites of an official meeting or discussion?

a. A formal written invitation to attend a meeting  along with the agenda is to be served on each prospective participant well in advance by the convenor of the meeting.

b.Normally nothing except the agenda may be discussed in the meeting since the participants can not come prepared with required information to discuss new topics.

c. An uninvited officer should not be allowed to attend any meeting or discussion since her/his attendance in the meeting is not only unwarranted but also illegal.

d.          The officer who chairs the meeting / discussion should, at the beginning itself, nominate a person to prepare and issue the minutes of the meeting to the participants immediately after the conclusion of the meeting or at least before close of office hours of the same day.

e. An informal meeting or a discussion has no place in government proceedings and has no legal backing.  A subordinate officer cannot take any defence for execution of verbal instructions given during such meeting.

Meetings and Discussions with Outsiders                                                 TOPG

49.  What are the pre-requisites of an official meeting or discussion with the Outsiders?

a. No officer either at a subordinate level or at a higher level can meet any outsider without a pre-recorded appointment and without the issue-to-be-discussed brought to the notice of the officer by the stake-holder in writing in advance.

b. Each and every person need to enter his name and the office reference in the register maintained before allowed to meet the officer.

c. A file ought to have already been opened to enable the minutes of the meeting is promptly recorded therein by the officer. 

d. In the event of any stake-holder is allowed to meet the officer casually, it is done at his own risk of inviting trouble by loose-talk, misquote, getting predictions of decisions, giving scope for planting of offending materials by the outsiders to be caught by policing agencies, etc.

Practice vs. Law                                                                                                    TOPG

50.  Does any practice have precedence over the law?  Do courts approve any practice followed by individual officers contrary to law?

      No.  Practice by any number of people for any amount of time is not a valid ground to act contrary to law.  Hence, taking defence that a process was done as per the existing practice which resulted in loss of revenue, etc. not legally acceptable and courts do not approve such practice.

System Failure                                                                                                      TOPG

51.  Is there any System Failure as such?

      Literally ‘No’.  System Failure is a myth or a pretext because every system is operationalized by a person at the helm with powers and responsibilities.  So, it is the failure of that person and cannot be attributed to the system. 

52. Who is held responsible where System Failure is claimed as an excuse for any commission or omission?                                                                                      TOPG

      Even though it is often claimed that there is a system failure as an excuse for commission or omission, factually there can never be a system failure.  The person who heads the system is squarely responsible for frauds, losses, omissions, commissions etc. as he is vested with powers to do all that is required to prevent such failure, especially when particular omission or commission is noticed in such frauds, etc.

Organizational Structure                                                                                  TOPG

53.  What is the organizational structure of a Law Enforcement Machinery / Agency?

      The existing organizational structure in Customs upto the level of  Assistant Commissioner is strictly pyramidal, i.e., every subordinate officer has to report to and to be controlled by only by his immediate superior.  Thus every person is answerable to his immediate superior only. 

54.   Is flat organizational structure in lower subordinate level is permitted?

      No. However, in practice organizational structure in lower subordinate level frontline / field officers viz. Supt. / AO / PO / EO / Inspector / Ministerial and Group D officers is not pyramidical.  These categories of frontline / field Officers are directly and personally controlled by the AC / DC himself in the Custom House  resulting in creation and maintenance of a flat organization.  This practice of direct controlling is widely prevalent especially in the exercise of powers of granting leave/permission, writing ACR / APAR, relieving on transfer / training / other duties, admitting a newly joining member into the Section on transfer, etc.  The outcome is that AC / DC alone can extract any work out of them and no Group B or C officer can ever extract work from any subordinate cadre.  [ Please read Answer to Q.57] 

55.  What if a Pyramidal Organization is thrown to the wind?                       TOPG

            i. Where an AC / DC directly controls every subordinate officer, the entire responsibility of extracting work falls on the AC / DC alone and he can not hold any of his subordinate officers responsible for any deficiency / delay / failure, etc., since he has usurped the powers of his subordinates.

          ii. An a flat organizational set up, since the  Administrative Powers have been usurped by the AC/ DC,  the subordinate officer is responsible only to his assigned work and absolutely freed from any supervisory responsibility.   e.g. Getting an approved draft typed or despatched is not in his domain.

56.  What determines a position of an officer in an organizational structure?

            As could be derived from Office Procedure Manual, the organizational structure is very simple.  In any unit / section / cell / department / branch, the pay-scale of a cadre determines the position of that cadre in the hierarchy, i.e., higher the pay-scale, the higher the position and lower the pay-scale, the lower the position.

Administrative Powers of Officers                                                               TOPG

57.  What are the Administrative Powers and responsibilities of an officer?

a.       If a responsibility is assigned to an officer, it is his sole duty and responsibility to get the work done by his appropriate subordinates, by all lawful means.  Simply doing the assignment fully by himself is not a remedy for this.

b.         This administrative power is inherently vested with the officer, the moment any of his functions requires assistance from other subordinates.  Absence of an explicit investment of power is immaterial.    

E.g., if a counter-affidavit has to be filed by the department, the officer entrusted with the job of preparing the counter-affidavit has to necessarily engage the services of appropriate subordinates for technical input, typing, copying, printing, etc.

c.         In order to extract any appropriate work from any of his subordinate level officers or staff the officer has to exercise all his administrative powers like sanction / denial / cancellation of leave / permission, issue of memo, recommending for transfer, recommending for disciplinary action, reporting or grading in an ACR / APAR, etc., as the case may be. 

d.        On grounds of absence of any explicit administrative powers the officer can never claim immunity for his failures, delays, inferior standards, etc. 

e.         He should remember that the moment he draws a superior scale of pay in that organization, it is his legally bounden duty to supervise all the staff under his charge who are drawing lesser pay scales.

Consultation with Subordinates                                                       

58.       What is the role and authority of subordinates in decision-making process of the State?                                                                                                                                               TOPG

          In an organizational hierarchy, if a lowest level officer initiates a work and offers recommendation on two grounds, and

          – if the superior officer / proper officer concurs with those two grounds he can simply concur with the recommendation and approve the same.

          – if there is any disagreement with any of those grounds, the proper officer has to record reasons on file as to why [s]he is not in agreement, and take a contrary decision.

          –  if the proper officer simply overrides the recommendation without recording reasons, it is improper and motive is attributable.

         In an organizational hierarchy if an issue is initiated by the lowest level officer and concluded by the proper superior officer, the superior officer has to necessarily obtain the opinion / advice / recommendation of all his immediate subordinates right from the initiator on all grounds. In case, the initiator offers a recommendation on two grounds and the superior officers or the proper officer feels a third ground is available to take a contrary view, it is obligatory on the superior or proper officer that when the third ground strikes his mind he should necessarily raise a query and send the file back to the initiator,  to elicit consideration and recommendation on the third ground.  Otherwise, the decision so taken would be a colourable exercise of power and arbitrary.

Signatory of Outgoing Letters                                                                         TOPG

59.   Who should sign letters?

Nature of Correspondence

Signatory

Addressee

Correspondences of routine nature addressed within the Office.

The lowest level officer of the writing section.

Lowest level officer of receiving section.

Correspondences of non-routine nature addressed within the Office

Any appropriate Officer

Equal cadre officer

Reply correspondences within the Office.

Equal Cadre Officer

Sender of original communication.

Correspondences of routine nature addressed to an outsider of the Office

The lowest level officer of a section.

Outsider

Correspondences of non-routine nature addressed to an outsider

Any appropriate Officer

Outsider

Reply communications to an outsider

The officer to whom the original communication was addressed.

Outsider

Any correspondence by the PROPER OFFICER

PROPER OFFICER

Anybody whether an outsider or superior officer or any other office

 

Order / Sequence of Disposal of Files, Claims, Applications, etc. by an Officer of the State

60.  Is it mandatory that the universal rule of ‘First in First Out’ to be followed in all official work?                                                                                                     TOPG

      Yes. Except where the superior officer gives direction in writing, all work should be attended to on ‘First in First Out’ basis only.  Jumping the queue will render the officer liable for commission or omission in abetting the criminals.

Recording reasons                                                                                              TOPG

61.  Is recording reasons which led to a decision mandatory?

      In administration or law enforcement functions,  the decision-making authority is obliged to first record reasons which led him to arrive at a decision, both on file and in the order communicated.  A decision arrived at without recording reasons or an order without communicating reasons, is not a decision / order in the eyes of law.  Hence, it is liable to be quashed by the courts, if approached.


Official Hierarchy – a Relay Race

In the democratic system of governance, absolute power is not vested with a single individual. 

e.g., Normally in an office, receiving the refund application, sanctioning the refund and despatching the order – all the functions are not assigned to be done by a single officer. The role of each officer is demarcated by written order by issue of general or individual specific orders in advance.  The claim travels through the hierarchy of officials without bypassing anybody in between [unless any compelling reasons warranting such action is recorded in the file]. Democratic governance deters autocracy in any form since it might eventually lead to tyranny. 

 

                                                                                                                                                                                                                            TOPG

Resources consulted:

1. Manual of Office Procedure – Twelfth Edition – Ministry of Public Grievances,  and Pensions, Department of Administrative Reforms and Public Grievances - May, 2003  http://www.rtiindia.org/forum/attachments/rti-act-circulars/467d1222174730-manual-office-procedure-manual-office-procedure.pdf

2. Central Secretariat Manual of e-Office Procedure_First Edition  -  http://darpg.nic.in/darpgwebsite_cms/Document/file/CSMeOP_1st_Edition.pdf

3. Manual on Office Procedure, Lok Sabha Secretariat, New Delhi Third Edition - LOK  SABHA  SECRETARIAT NEW  DELHI November, 2009 Kartika, 1931 (Saka) http://164.100.47.132/LssNew/Secretariat/Office%20procedure%20manual_2009.pdf

4. National Rural Road Development Agency – Office Procedure – December 2004 http://pmgsy.nic.in/downloads/opman.pdf 

5. Record Retention Schedule for all departments – Common to all Departments – Department of Administrative Reforms and Public Grievances - http://darpg.nic.in/darpgwebsite_cms/Document/file/RRS_WC.pdf  

6. All India Council for Technical Education – Office Procedure - http://www.aicteindia.org/downloads/officeprocedure.pdf#toolbar=0&zoom=85 

7. Institute of Management in Government - Manual of Office Procedure - http://www.img.kerala.gov.in/docs/downloads/mop.pdf

8. Central Excise Circle and Divisional Office Manual – Corrected upto 30.4.1973 – Issued under the authority of the Central Board of Excise and Customs.

9. Arthur’s Hand Book on Central Government Rules, 2001 - by Arthur A. Christy Paul

10. Swamy’s Manual on Office Procedure – S3 – 2010


Our Nation is in the threshold of a spectacular change.

It is just around the corner!

Let us be the change that we wish to see in the world!


“We did not inquire of him about how to do it in the prescribed way." 1 Chronicles 15:13  [NIV]


                                                                                                                                       TOPG


 


About the Author

 

“First they ignore you. Then they laugh at you.

Then they fight you. Then you win.”

                                                                                                                  - Mahatma Gandhi


            The Author is a former Indian Revenue Service (Customs & CE) Officer - an upright and an effective Administrator and LEO.  Since May 2007– the first day of his retirement, he serves in the Board of Trustees of ‘Right Information International Forum’ as Principal Educator. [www.rightinformer.org]

            He improved upon his mentors by his implicit submission to them, all the while observing and absorbing their strengths – to work within the framework of law. In turn, those who were/are being guided by the author, on account of their varied capabilities, outperform him to bring about a marked change in the bureaucratic culture.  

            The author was known in the underworld as ‘Karthar’ taking cue from his often uttered phrase ‘kartharukku chiththamaanaal’ [meaning ‘If it is the Lord’s will’].   The teams physically led by him set benchmark in detection and investigation work bringing to book entire gangs in almost all major cases. [e.g.: 66.1 Kg. (plus 374 kgs. of opium on follow up) and 58.4 Kg. – biggest single seizures of very high purity Brown Sugar in the southern part of India.]. 

            Declaration of Proper Officer [Notification No. 40/2012-Customs (N.T.) dated 02-05-2012 and amendment of Section 3 of the Customs Act, 1962 are some of the fruits of his relentless efforts.  The author, through RIIF, draws attention of authorities to public interest grievances. [e.g.  ‘The law stipulates that MRP details are to be printed on packages and labels are not permitted to be pasted on packages.  But, importers are allowed to paste easily removable MRP labels on packages before customs clearance.  This helps importers to evade duty and cheat consumers too.’]

            Often LEOs do not enforce an entire law or some portions, to mitigate undue hardship to violators on a misplaced apprehension.  But the author has a strong conviction that bureaucrats are duty bound to execute / administer all the laws in force entrusted to them and nothing should be done or omitted to be done unless explicitly provided for in law. If aggrieved the judiciary or the legislature are there to resolve.

            His official creed is: - “My every deed is a seed sown in the field and in due time I will indeed reap a manifold harvest of what I have sown – good or bad.”

Enforce Law LawfullyPeace & Prosperity only through Justice. [RIIF]

We assist executives to enforce law lawfully.

We help citizens to stand in support of law enforcement, law making and in dispensing justice.

On request, the Author counsels officials to surmount hurdles in performing official duties as per law.

TOPG



[1] Madras HC:  UOI v. Shanmugham on 23 July, 1957  http://indiankanoon.org/doc/218628/

[Larson v. Domestic and Foreign Commerce Corp. 337 US 682, 69 S. Ct. 1457, 93 L. Ed. 1628

- Supreme Court, 1949 http://www.law.cornell.edu/supremecourt/text/337/682]