THE WHISTLE BLOWERS PROTECTION ACT, 2011 – AN OVERVIEW – PART II

[Mr. M. GOVINDARAJAN]

Inquiry to public interest disclosure

Chapter III of the Act provides for inquiry in relation to public interest disclosure by the Competent Authority.    Section 6 provides the matters that are not to be inquired by Competent Authority as detailed below:

• If any matter specified or an issue raised in a disclosure has been determined by a Court or Tribunal authorized to determine the issue, after consideration of the matters specified or issue raised in the disclosure, the Competent Authority shall not take notice of the disclosure to the extent that the disclosure seeks to reopen such issue;
• The Competent Authority shall not entertain or inquire into any disclosure-

• in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850; or
• in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952;

• The Competent Authority shall not investigate any disclosure involving an allegation, if the complaint is made after the expiry of 7 years from the date of which the action complained against is alleged to have been taken place;
• Nothing in this Act shall be construed as empowering the Competent Authority to question, in any inquiry under this Act, any bona fide action or bona fide discretion (including administrative or statutory discretion) exercised in discharge of duty by the employee.

The procedure of inquiry by the Competent Authority is as detailed below:

• On receipt of  a public interest disclosure the Competent Authority shall-

• Ascertain from the complainant or the public servant whether he was the person or the public servant who made the disclosure or not;
• Conceal the identity of the complainant unless the complainant himself has revealed his identity to any other office or authority while making public interest disclosure or in the complaint or otherwise;

• The Competent Authority shall make discreet inquiry, in such manner and within such time as may be prescribed, to ascertain whether there is any basis for proceeding further to investigate the disclosure;
• The Competent Authority, either as a result of the discreet inquiry, or on the basis of the disclosure itself without any inquiry, is of the opinion that the disclosure requires to be investigated, it shall seek comments or explanation or report from the Head of the Department of the organization or authority, board or corporation concerned or office concerned within such time as may be specified by it.
• The Competent Authority shall not reveal the identity of the complainant or the public servant and direct the Head of the Department of the organization concerned or office concerned not to reveal the identity of the complainant or public servant;
• If the Competent Authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from  them on the public disclosure, become necessary to reveal the identity of the complainant or public servant  the Competent Authority may, with the prior written consent of the complainant or public servant, reveal the identity of the complainant or public service to such Head of the Department of the organization or authority, board or corporation concerned or office concerned for the said purpose;
• In case the complainant or public servant does not agree to his name being revealed to the Head of the Department, in that case, the complainant or public servant shall provide all the documentary evidence in support of the complaint to the Competent Authority;
• The Head of the organization or office concerned shall not directly or indirectly reveal the identity of the complainant or public servant;
• The Competent Authority, if after conducting an inquiry, is of the opinion that-

• The facts and allegations contained in the disclosure are frivolous or vexatious; or
• There are no sufficient grounds for proceeding with the inquiry,

it shall close the case;

• If the Competent Authority is of the opinion that such comments or explanations or reports reveals either willful misuse of power or  willful misuse of discretion or substantives allegations of corruption, it shall recommend to the public authority to take any one or more of the following measures:

• Initiating proceedings against the concerned public servant;
• Taking appropriated administrative steps for redressing the loss caused to the Government as a result of the corrupt practice or misuse of office or misuse of discretion, as the case may be;
• Recommend to the appropriate authority or agency for initiation of criminal proceedings under the relevant laws for the time being in force, if so warranted by the facts and circumstances of the case;
• Recommend for taking of corrective measures;
• Take any other measures not falling  above which may be necessary for the purposes of this Act;

• The public authority to whom a recommendation is made shall take a decision on such recommendation within three months of receipt of such recommendation, or within such extended period not exceeding three months, as the Competent Authority may allow on a request made by the public authority;
• In case the public authority does not agree with the recommendations of the Competent Authority, it shall record the reasons for such disagreement;
• The Competent Authority shall, after making an inquiry, inform the complainant or public servant about the action taken on the complaint and the final outcome thereof;
• In case where, after making an inquiry, the Competent Authority decides to close the case, it shall, before passing the order for closure of the case, provide an opportunity of being heard to the complainant, if the complainant so desires.

Powers of Competent Authority in relation to inquiry

The Competent Authority may require for the purpose of any inquiry, any public servant or any other person who in its opinion shall be able to furnish information or produce documents relevant to the inquiry or assist in the inquiry to furnish any such information or produce any such document as may be necessary for the said purpose.

The Competent Authority shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters, namely:

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring the discovery and production of any document;
• receiving evidence on affidavits;
• requisitioning any public record or copy thereof from any court or office;
• issuing commissions for the examination of witnesses or documents;
• such other matters as may be prescribed.

Other powers of Competent Authority

Section 9 provides that the Competent Authority shall, for the purposes of dealing or inquiry into the disclosures sent to it create appropriate machinery for the said purpose.   He shall exercise superintendence over the working of the machinery created for the purposes of dealing or inquiry into the disclosures and give such directions for its proper functioning, from time to time, as it may consider necessary.

The Competent Authority shall be authorized to take assistance of the Delhi Special Police Establishment or the police authorities or any other authority as may be considered necessary, to render all assistance to complete the inquiry within the prescribed time pursuant to the disclosure received by the Competent Authority.

Section 14 gives powers to the Competent Authority to pass interim orders.   The Competent Authority, at any time after the making of disclosure by the complainant or public service, if it is of the opinion that any corrupt practice required to be stopped during the continuation of any inquiry for the said purpose may pass such interim orders as it may deem fit, to prevent the immediate stoppage of such practice.

Protection to the persons making disclosure

Chapter V provides for protection to the person making disclosure.  Section 11 provides safeguards against victimization.   Section 12 provides protection of witnesses and other persons.   Section 13 provides for the protection of identity of the complainant.

Section 11(1) provides that the Competent Authority shall ensure that no person or a public servant who has made a disclosure under this Act is victimized by initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act.

Section 11(2) provides that f any person is being victimized or likely to be victimized on the ground that he had filed a complaint or made disclosure or rendered assistance in inquiry he may file an application before the Competent Authority seeking redress in the matter and such authority shall take such action as deemed fit and may give suitable directions to the concerned public servant or the public authority to protect such person from being victimized or avoid his victimization.  Before giving such directions the Competent Authority shall give an opportunity of hearing to the complainant and the public authority or public servant, as the case may be.  In such hearing the burden of proof that the alleged action on the part of the public authority is not victimization, shall lie on the public authority.

Every such direction given by the Competent authority shall be binding upon the public servant or the public authority against whom the allegation of victimization has been proved.   This power includes the power to direct the restoration of public servant making disclosure, to the status quo ante.

Section 12 provides that if the Competent Authority either on the application of the complainant or witnesses or on the basis of information gathered, is of the opinion that either the complainant or the public servant or the witnesses or any person rendering assistance for inquiry need protection, the Competent Authority shall issue appropriate directions to the concerned Government authorities (including police), which shall take necessary steps, through its agencies, to protect such complainant or public servant or persons concerned.

Section 13 provides that the Competent Authority shall conceal the identity of the complainant and the documents or information furnished by him, for the purpose of enquiry unless so decided otherwise by the Competent Authority itself or it became necessary to reveal or produce same by virtue of the order of the Court.

Offences and Penalties

Section 11(5) provides that any person who willfully does not comply with the directions of the Competent Authority under Section 11(2) shall be liable to a penalty which may extend up to ₹ 30,000/-

Section 15 provides that where the Competent Authority is of the opinion that the organization or official concerned, without any reasonable cause, has not furnished the report with the specified period of mala fidely refused to submit the report or knowingly given incomplete, incorrect or misleading or false report or destroyed record or information which was the subject of the disclosure of the disclosure or obstructed in any manner in furnishing the report, it shall impose-

• a penalty which may extend to ₹ 250 for each day till report is furnished, so, however the total amount of such penalty shall not exceed ₹ 50,000/-;
• a penalty which may extend to ₹ 15,000/- in case of incomplete, incorrect or misleading or false report or destroyed record or information which was the subject matter of the disclosure

Before imposing such penalty a reasonable opportunity of shall be given to the person concerned.

Section 16 provides that any person, who negligently or mala fidely reveals the identity of a complainant shall be punishable with imprisonment for a term which may extend up to 3 years and also to fine which may extend up to ₹ 50,000/-

Section 17 provides that any person who makes any disclosure mala fidely and knowingly that it was incorrect or false or misleading shall be  punishable with imprisonment for a term which may extend up to 2 years and also to fine which may extend up to ₹ 30,000/-

Section 18 provides that where an offence has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.  If it is proved that the offence has been committed with the consent or connivance of, or is attributable, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Section 19 deals with the offences by companies.  Where an offence has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless if such person proves that the offence was committed with his knowledge or that he has exercised all due diligence to prevent the commission of such offence.

Where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Appeal

Section 20 provides that any person aggrieved by any order of the Competent Authority relating to imposition of penalty under Section 14, 15 or 16 may prefer an appeal to the High Court within a period of 60 days from the date of the order appealed against.   The High Court may entertain the appeal after the expiry of the said period of 60 days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.

Bar of jurisdiction

Section 21 provides that no Civil Court shall have the jurisdiction in respect of any matter which the Competent Authority is empowered by or under the Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Court to take cognize

Section 22 provides that no court shall take cognizance of any offence punishable under this Act or rules or regulations made there under save on a complaint made by the Competent Authority or any officer or person authorized by it.  No Court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try an offence punishable under this Act.

Annual report

Section 23 provides that the Competent Authority shall prepare a consolidated annual report of the performance of its activities in such form as may be prescribed and forward it to the Central Government or State Government, as the case may be.  On receipt of the same, the Central Government or State Government, as the case may be, shall cause a copy thereof to be laid before such House of Parliament or the State Legislature, as the case may be.   Where any other law for the time being in force provides preparing of such annual report by the Competent Authority, then the said Annual report shall contain a separate part on the performance of activities under this Act by the Competent Authority.

The Whistle blower Protection (Amendment) Bill, 2015

Though the Act has obtained the consent of the President of India on 09.05.2014, the provisions of the Act have not yet come into effect.  In the meantime the Whistleblower Protection (Amendment) Bill, 2015 was introduced and the Lok Sabha passed the same during 13.05.2015.  The following are the features of the amendment bill:

• The proposed amendments allow whistleblowers to disclose some kinds of information only if it has been obtained through a Right to Information query. This includes intellectual property, trade secrets and even information that can be considered the “unwanted invasion of privacy” of an individual;
• Whistleblowers would be entitled to official protection only if all of these conditions are met, could face action if they are not, and the central and state governments would be the final authorities with the power to judge each case.