The Royal Civil Service Commission (RCSC) despite a recommendation by the Anti Corruption Commission (ACC) decided to not suspend Sherab Tenzin, Director General of the Department of Employment and Human Resources (DoEHR).
The RCSC in a detailed press release cited sections of the Supreme Court verdict in the Gyelpozhing case which left suspensions to the parent agency and also the Bhutan Civil Service Rules (BCSR).
The RCSC’s main point is that the DG’s continuation in office would not hamper the investigation which is already over and so there would no interference.
However, the main issue for the RCSC is not so much the suspension decision as the earlier decision by the second RCSC Commission to not take action on the separate administrative charges by ACC against the Labour DG.
The ACC in a cover letter on 7th January, 2019 to the RCSC informed the RCSC of four separate administrative charges against the DG, quite separate from the three criminal charges it was pursuing with the OAG.
The ACC wanted RCSC to take separate administrative action against the DG based on its investigation report and evidences.
However, in a surprising move the former Commission declined to act on the four separate administrative charges.
The explanation of the then Commission including the current one is that it would wait for the final court verdict as the administrative charges are linked to the criminal charges by the OAG.
However, a review of the ACC letter sent to RCSC has shown that this is not true as the administrative charges of the ACC are different and in issues where it has not framed criminal charges.
Also, only the RCSC is empowered to take administrative action against senior executives and even the OAG cannot take administrative issues to court.
In short, this means that the RCSC decided to not prosecute the four administrative cases against the DG and let him off the hook using the excuse of unrelated criminal charges in a court case and the wait for a final court verdict.
The ACC’s first administrative charge was, ‘Charging of placement fees upfront in contravention of Regulations 2013.’
ACC said that the agent was allowed to collect placement fee upfront even before sending students to Japan and this happened due to failure of DoEHR to regulate BEO.
The second administrative charge was charging of translation fees in contravention of Regulations 2013.
ACC said that in contravention of Regulation 2013, BOE charged translation fees and DoEHR failed to regulate BEO on this.
The third administrative charge was ‘Failure to disseminate the revised Regulations (Regulations on Bhutanese Overseas Employment Agent 2017).’
ACC in this regard said that the BEO collected visa fees and processing cost not included in proposal submitted by BOE and this was even pointed out by Internal Audit Report dated 22nd December 2017.
It said BEO refunded Visa fees and processing fees for 67 students (first batch – April 2017) but the subsequent batch not refunded citing amendment of Regulations 2013.
The fourth administrative charge was ‘Violations of code of conduct and Ethics.’ Here the ACC report said the DG developed personal relationship with Manav Dhingra of IIWS; the DG used to send his son to pick and drop Mr. Dhingra from airport and on request from the DG, Mr. Dhingra used to arrange pocket money for DG’s son studying in India.
The ACC letter clearly listed out the separate criminal charges against the DG which were to do with Issuance of Registration certificate to BEO without fulfilling the mandatory documents; Inaction/Inappropriate action of DG in contravention of Regulation 2013 and seeking financial assistance from placement contractor of DoEHR, MoLHR (for a tissue plant machine.)
The fact that the administrative charges and criminal charges are separate can be seen from the recent charges by the OAG which stuck to only the criminal charges of the ACC against the DG.
The decision of the previous Commission to not act on clear administrative charges by the ACC after an investigation backed up up evidences may set a new precedent where other civil servants at all levels can site this case to avoid any administrative action, pending a court verdict.
The RCSC Chairperson Karma Hamu Dorjee said that the previous Commission did not take action on the administrative charges as the administrative charges seem to be linked to the criminal charges.
She said that earlier a forest department had taken administrative action against a forester also charged with similar criminal charges but later the forester had been acquitted by the court.
She said that the RCSC as a Constitutional body has a responsibility and it cannot directly act on ACC’s reports but it has its own due process which includes looking at the issues carefully.
The RCSC Chair said that the suspension of the DG is not a punishment but it is only to ensure that he does not interfere with the investigation which is already over and so his suspension was not required.
The Chair said that ACC’s keeps sending it reports to take administrative action and RCSC does so and so the DG’s case will not set a precedent of civil servants at all levels wanting a court verdict before any administrative action.
She said that as administrative actions cannot be taken to the courts, which will not accept them, so court verdicts in these cases will not arise.
The RCSC Chair denied that the RCSC was being overtly defensive of the civil service and compromising bureaucratic accountability in the process.
She also denied that the RCSC had given extraordinary benefit of doubt to the DG despite there being clear administrative charges. She said that every case is unique.
The RCSC Chair said that one is innocent till proven guilty.
When asked about the fact that the administrative charges were distinct from the criminal ones as proved by the OAG taking up only the limited criminal charges, the RCSC Chair said that if the ACC feels the OAG has not taken up certain charges or it still wants administrative action then it can again write to the RCSC.
She said that the RCSC is not officially aware about the OAG’s legal charges not incorporating any of the administrative charges.
“We cannot put the cart before the horse,” said the Chair.
The decision of the Commission on the separate issue of the suspension in some aspects seemed to be following its earlier decision in the case of the JDWNRH President Lhab Dorji who is also undergoing legal prosecution for the Trongsa land case when he was the Trongsa Dzongda.
The ACC in that case to decided to not suspend him while legal proceedings are still on.