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Coal convictions~II

Shantanu Basu |

Regretfully, successive governments and courts, for long attuned to believing there was no replacement for government rules, paid heed to the scandalizing of nearly all public policy decisions on natural and public resources, without much visible and final gain on the legal enforcement of accountability, several years later. Needless to add, opacity surrounding appointment of top civil servants to sensitive posts has always been the subject matter of extensive debate, merit being the critical casualty. Many a constitutional functionary and investigative agency head are presently under the scanner.

A survey conducted by UNODC in 2011 showed that there was corruption in 9.68 per cent of PPP procurement, 19.35 per cent fabricated and false financial statements, another 19.35 per cent colluded with governments to select a pre-determined bidder while 22.58 per cent resorted to bribery to government’s PPP related partners. On the government’s side, 10.11 per cent of officials surveyed felt that government tender evaluators colluded with the private partner, 13.48 per cent accused politicians of colluding with politicians, 20.22 per cent believed that independent consultants hired by the government colluded with the concessionaire, 25.84 per cent believed that there was misrepresentation of facts by bidders and 30.34 per cent thought that concessionaires misrepresented facts. Private PPP partners felt that the prime reason for corruption was due to lack of rules (26.90 per cent), lack of transparency (19.23 per cent), weak monitoring procedures (15.38 per cent) and the absence of enforceable penal provisions (19.23 per cent).

On the other hand, the government responded by blaming lack of due diligence (9.17 per cent), lack of transparency (12.50 per cent), lack of rules and guidelines (14.10 per cent), no penal provisions (14.17 per cent), poor grievance redressal (14.17 per cent) and weak monitoring (18.33 per cent) as the major cause of corruption in PPP ventures. In fact, both government and PPP partners agreed that confidentiality of bids were shared by both partners and that corruption also had its genesis in the definition of the pre-qualification criteria. Likewise, government and their PPP partners agreed that there was pressure from senior members of the government. India is no exception when it comes to PPPs. The coal case possibly had all these failings.

Did the “Coal Trio” have the support of unambiguous rules and regulations in their endeavours in this cess pool? Further, did they have any option but to pay heed to their political master even when their service rules demanded an absolute level of probity that even God would not have? In that event, why did they not record their objections to their Minister even if that meant an outward kick to a sinecure or voluntary retirement? Did investigators and courts consider the fact that these civil servants violated non-binding guidelines? No mens rea has been found in the case against Gupta, Kropha and Samaria, say media reports. Then what is the legal basis of the conviction is the next obvious question? How do government rules and regulations distinguish between a corrupt act and a bona fide but failed business decision and who judges such failures? There are no answers so far.

Almost everyone is harping on a particular provision of the Prevention of Corruption Act and service conduct rules that have landed the “Coal Trio” in trouble and which is wide enough to encompass matters from coal mine allocation to sneezing on duty, all justified in the name of “unbecoming behaviour” and the need for “absolute integrity”. Ironically, the very rules that civil servants had authored in the distant colonial past have never been rewritten to address the demands of our democracy.

For instance, taking advantage of government’s travelling allowance rules, a colleague of mine bought two Manipuri ponies while he was posted in that state. On his transfer to Mumbai, the government paid for the transport of his horses. This officer then made a tidy killing at Mumbai’s Mahalaxmi Race Course where these ponies earned handsome rewards till they were sold for several lakh rupees.

Was this “unbecoming behaviour”? Was this “absolute integrity”? Should the officer have deposited his winnings in the races or the sale consideration of the ponies years later? One could argue either way. That, precisely, is the crux of the Coal Trio’s ongoing tribulations.

Finally, in 1994, a Maharatna’s apex executives were found to be receiving large telephone bills at their official home phones with call details showing overseas outward calls having been made. These executives were also incurring abnormally high entertainment expenses and staff car running costs. This Maharatna then faced a severe orders crunch and were rapidly losing their senior general managers to the emerging private power producers. The company had no choice but to overlook such expenditures if they were to retain their top management. In fact, their gross salaries ran into paltry thousand rupees every month whereas their contract approving powers were Rs. 50 crore and above. For the manifold risks incurred by the Coal Trio and many others like them, present and future, there is neither corresponding protection of rules nor hedging by larger salaries. The quality of recruits to covenanted services is declining in academic attainment standards every year and there are gaping holes in the working strength of each central and allIndia service, often ranging upwards of an unsustainable 40 per cent. Yet the civil services needs just a bare pass mark in an undergraduate pass course although technical, legal and finance officers face barriers like a 60 per cent undergraduate aggregate, GRE, GMAT, CLAT and other scores, work experience, specialised degrees, for much lower salaries. The coal case has made government service even more unattractive, way beyond the absence of pension for post-2003 recruits.

(Concluded)