Law invoked for refusal to comply with direction of Central government.
Hours before he retired, former Chief Secretary of West Bengal Alapan Bandyopadhyay was served a show cause notice by the Union Home Ministry under Section 51 of the Disaster Management Act, 2005, punishable by an imprisonment of up to two years or a fine or both.
The section pertains to “punishment for obstruction” for refusal to comply with a direction given by the Central government.
Mr. Bandyopadhyay has been asked to “explain in writing” to the Home Ministry within three days as to “why action should not be taken against him” under Section 51 of the DM Act.
The notice was served barely a couple of hours before he retired on May 31. He had refused a three-month extension sanctioned to him by the State and Central government.
On May 31, the Department of Personnel and Training (DoPT) also shot off a letter asking him to comply with its May 28 order to report to the Central government’s office in Delhi.
Why the DM Act, 2005?
The DM Act, 2005, first came into existence after the 2004 tsunami, when thousands were killed. It was invoked for the first time in the country in the wake of the COVID-19 pandemic last year. On March 24, 2020, the Centre, through the National Disaster Management Authority (NDMA) headed by the Prime Minister, invoked the provisions of the Act to streamline the management of the pandemic, empowering District Magistrates to take decisions and centralise other decisions on supply of oxygen and movement of vehicles.
The Union Home Secretary is the chairman of the national executive committee under the NDMA. The Act is still in place and has been extended across the country till June 30.
Though the DoPT is the cadre-controlling authority of Indian Administrative Service (IAS) officers, the show cause notice was served under provisions of the DM Act, which is under the purview of the Home Ministry.
The notice said that since the Prime Minister is head of the NDMA and had gone to West Bengal to review Cyclone Yaas, the officer’s act of “abstaining himself” from the meeting amounted to violation of the Act.
What does the notice say?
The notice said that the officer, by abstaining himself from the review meeting taken by Prime Minister Narendra Modi at cyclone-affected Kalaikunda in West Bengal on May 28, “has acted in a manner tantamount to refusing to comply with lawful directions of the Central Government and is thus violative of Section 51 (b) of the Disaster Management Act, 2005.”
The notice stated that after the Prime Minister arrived at Kalaikunda for a scheduled review meeting with the Chief Minister and Chief Secretary of West Bengal, the “Prime Minister and other members of his entourage waited for nearly 15 minutes for the officers of the State Government to arrive.”
“In view of the absence, the Chief Secretary was called by an official as to whether they wanted to participate in the review meeting or not. Thereafter, the Chief Secretary arrived, along with the Chief Minister, inside the meeting room and left thereafter immediately,” the notice said.
What is Section 51 (b) of DM Act?
The section prescribes “punishment for obstruction” for refusal to comply with any direction given by or on behalf of the Central government or the State government or the National Executive Committee or the State Executive Committee or the District Authority under the Act.
It says that violation shall be punishable with imprisonment for a term that may extend to one year or with a fine or both upon conviction. It adds that if “such refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years.”
Can the Centre initiate action against the officer under Section 51 of the DM Act?
According to Meeran Chadha Borwankar, former Director General of Bureau of Police Research and Development (BPR&D), Section 51 of the Act has two important caveats.
“Under the Act, the action on the part of the person has to be ‘without reasonable cause’ and ‘failure of an officer to perform the duty without due permission or lawful excuse.’ I am sure the Chief Secretary had ‘reasonable cause’ and ‘lawful excuse’ for not attending the meeting. He can highlight both in his reply,” the retired Indian Police Service (IPS) officer said.
“It will be in the interest of the nation to concentrate on fighting Covid instead of wasting time and energy in Centre versus State at this crucial junction. The Centre should show dignified maturity in closing the case. Having worked in the government for 37 years, I can say with certainty that the Chief Secretary had no intention to disobey the Centre or show disrespect to the Prime Minister,” Ms. Borwankar added.
Were the said provisions used earlier?
Through the particular provision, the Home Ministry made spitting in public a punishable offence in April last year. The guidelines issued by the ministry under the DM Act, which are binding on States, also made “wearing of face masks in public places mandatory.”
On March 30, 2020, when thousands of migrants gathered at Anand Vihar railway station in Delhi due to the sudden announcement of the countrywide lockdown, two Delhi government officers were suspended and two others were served show cause notice by the Centre under the Act for dereliction of duty.
Three of them were senior IAS officers and the fourth is from Delhi, Andaman and Nicobar Islands Service (DANICS).
The National Executive Committee chaired by Union Home Secretary Ajay Bhalla found that the “officers, who were responsible to ensure strict compliance” to the instructions issued by Committee regarding containment of spread of COVID-19, “have prima facie failed to do so.”
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