I had mentioned in my last article, “The Drama in West Bengal” that a notice had been issued to the then Chief Secretary, West Bengal under the Disaster Management Act (DMA) that could result in criminal liability.

The last article focused more on the initial notice issued under Rule 6(1) of Code of Conduct Rules.

Let us now examine whether an action under DMA is legally tenable, whether there was a need for such an action by the Central Government and the implications of such an action. Before we do that, just a brief re-cap of what happened on the fateful date May 28, 2021.

The Prime Minister was on an official visit to West Bengal to assess the damage caused by “Yaas” but the events during the course of the visit caused greater damage to the ethos of administration and propriety.

Mamata Bannerjee should have been there on time to receive the Prime Minister as per the protocol despite the political relationship between the two. The meeting convened by the PM to discuss the fall out of “Yaas” should have been attended by the CM.

Apparently irked at the presence of Leader of State Opposition, she did not attend the meeting. The Chief Secretary got caught in the political cross-fire.

As I mentioned in my previous article, being a part of the State Government, the Chief Secretary had no option but to go by the directive of the Chief Minister as he was working directly under the control of the Chief Minister and not the PM.

Perhaps aware of the fact that the then Chief Secretary could not be held administratively responsible (having superannuated on May 31) for any misdemeanor under Rule 6(1) of Code of Conduct Rules, the Central Government issued a notice under the Disaster Management Act. Section 51(1) of the Act has the following penal provision:

“Whoever, without reasonable cause…..refuses to comply with any direction given by or on behalf of the Central Government ……….shall on conviction be punishable with imprisonment…."

The objective of this notice issued subsequently under DMA is apparently to hold the officer criminally liable. This is perhaps the first instance where an alleged administrative lapse is being sought to be penalized as a crime.

On the face of it, even this appears to be flawed because the Chief Minister of the state has gone on record to say that that Alpan Bandopadhyay was with her for reviewing disaster relief work. This, in all likelihood, will be deemed to be a “reasonable cause” under section 51 of DMA.

There will be many other questions that will need to be answered before determining the culpability of the then Chief Secretary:

It is not clear whether a notice was issued under Disaster Management Act to convene the meeting that was held on May 28. If it was just a review meeting and not specifically convened under DMA, can an officer be held liable criminally for not attending the meeting? The CM has gone on record to say that she had requested for a separate meeting with the PM.

What was the leader of State Opposition doing in this official meeting if it was convened under the DMA?

The Chief Minister is herself the head of the State Authority under DMA and she had desired the Chief Secretary to be with her as she was reviewing disaster relief work. If the Chief Secretary had disobeyed her order and left to attend the meeting of the Prime Minister, would that not also tantamount to violating the provisions of the Act?

If for the sake of argument, Chief Secretary is held liable, shouldn’t the Chief Minister be held equally liable for the same?

Prima facie there appears to be no criminal case made out against the Chief Secretary.

Those that advised the PM perhaps didn’t do their home-work or didn’t have time to examine the issue before initiating this precipitate action. Even all those that consider “impertinent” on the part of the CS for attending the meeting of the PM, also feel that a criminal case is not made out against the concerned officer.

There are, of course, those that want ‘action’ either because of their dislike of Mamta Bannerjee or on account of lack of understanding about how administration gets conducted in a state. Quite surprisingly it includes a handful of former civil servants as well for reasons best known to them.

Then, what is the way forward? It would be too embarrassing for the Central Government to withdraw the notice issued under DMA. The best course of action for the Central Government is not to pursue this notice like many other cases where such notices are allowed to die their natural death. This notice too deserves a burial.

Such issues can’t be resolved by launching criminal proceedings against bureaucratic head of a State. They will only complicate matters. We can continue to debate about the action of the Chief Secretary but perhaps no one will agree that it was a criminal act. It appears to be an attempt to settle political score administratively.

Such actions will certainly make life difficult for officers belonging to All India Services. Everyone should appreciate the delicate role of All India Service Officers. It is different from Central Government employees who are paid by the Central Government and work under its superintendence and guidance.

All India Service officers do so when they are deputation to the Central Government but so long as they work with the State Government, they have to go by the directive issued by the State. This balance needs to be maintained.

What is now sought to be done against the Chief Secretary has left a lot of All India Service officers in a quandary. The delicate balance between the Centre and the State in a federal structure is being sought to be disturbed.

Much more difficult and complex situations like those in Coal and Goods and Services Tax have been resolved in the past by this Government. It required the maturity and sagacity of late Shri Arun Jaitley.

A similar maturity will be required to handle the resolve the issues between the Centre and the State. Pettiness and vindictiveness will be counter-productive.

— Anil Swarup is former Secretary, Government of India and author of the book 'Not Just A Civil Servant'. The views expressed are personal

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