All Sikkim Youth Asson. & Anr vs H.R. Subba & Ors

All Sikkim Youth Association & Another ...Appellants

Versus

H.R. Subba & Others ...Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and order

dated 19.10.2001 passed in Civil Writ Petition No. 17 of 2001

by the High Court of Sikkim at Gangtok.

2. The All Sikkim Youth Forum, a registered body, filed a

writ petition in public interest in the High Court. This appeal

was based on a news item which was published in the `Sikkim

Observer', a National Hill Weekly, from 13th to 17th November,

2000 under the title `Transparency and Accountability-I'. In

2

the news item it was published that according to well placed

sources the Public Works Department (Roads and Bridges),

Sikkim had submitted a report to the Finance Commission

showing a financial liability of more than Rs.60 crores.

Sensing some foul play in the matter, the then Chief Minister

of Sikkim had ordered for a thorough probe into the matter. A

Committee was formed for this purpose. The Committee

completed its investigation into the matter and submitted a

report to the State Government. Surprisingly, the liabilities

came down to Rs.40 crores from Rs.60 crores, showing a

difference of Rs. 20 crores.

3. It was also mentioned in the writ petition that a news

item was also published in another news-weekly `Sikkimese' in

its Gangtok Edition from 22nd to 28th November, 2000. In this

article it was published that the Sikkim Public Works

Department had indiscriminately defied the Rules and that

there had been grave irregularities by the Public Works

Department in repair of roads and bridges.

3 4. It was further mentioned in the writ petition that in the

"Weekend Review" under the title "Finance Department

stumbles upon Roads and Bridges excesses" an article was

published. It was stated in the article that the report revealed

that Roads and Bridges department of Public Works

Department had committed to 350 percent in excess of outlay

and it would take four years to clear the dues.

5. The press reports, in general, had indicated and

suggested departure from the established norms and

deviations in procedure had occurred on account of

corruption.

6. The officers of the Finance and Revenue departments had

been named in the writ petition. In the writ petition it was

stated that the petition was not aimed at any individual or set

of persons and was not filed with any ulterior motive. The

petition was genuinely filed in the larger public interest.

7. In the writ petition it was also stated that the report

received by the appellants was in 5 chapters. Chapter 1 dealt

4

with the introduction. Chapter 2 dealt with the administrative

set-up of the department. Chapter 3 dealt with the liabilities

projected-its general analysis. It also dealt with the South

West circle comprised of the Jorethang Sub Division, the

Namchi Sub Division, the Geyzing Sub Division, the Kaluk

Sub division, the Ravangala Sub Division. There was

reference to the North East Circle comprising of the Singtam

Sub Division, the Mangan Sub Division, Sub Division IV,

Station Sub Division and Pakyong Sub Division. Chapter 4

dealt with stores/stocks materials while Chapter 5 dealt with

temporary advance. It was further stated in the writ petition

that on verification of the cash book and other relevant

records of the said Roads and Bridges Department it was

found that a whopping sum exceeding Rs.3.41 crores was

outstanding against the following departmental officials as on

29.02.2000.

Sl. Name Designation Plan Non-Plan Total

No.

1. H.R. Subba A.E. 4539373.00 3919092.00 8458465.00

2. B.K. Rai A.E. 1318451.00 3489045.00 4807490.00

3. S.B. Subba A.E. 3014016.00 652895.00 3666911.00

4. L.D. Lamtha A.E. 1435025.00 1834112.00 3269137.00

5. C.V. Basnett A.E. 1218933.00 1321757.00 2540690.00

6. M.K. Subba A.E. 1008192.00 1184673.00 2192865.00

7. G. Lachungpa A.E. 304471.00 1883666.00 2188137.00

5

8. P.K. Bhujel A.E. 1354484.00 297453.00 1651937.00

9. D.C. Rai A.E. 0.00 1039577.00 1039577.00

10. Mohan A.E. 370634.00 475374.00 846008.00

Gurung

11. M.B. Gurung D.E. 325000.00 417908.00 742908.00

12. B.P. Kharel A.E. 232923.00 261681.00 494604.00

13. B.K. Tamang A.E. 220007.00 260771.00 480778.00

14. Tensung A.E. 12271.00 333820.00 346091.00

Lepcha

15. M.K. Pradhan A.E. 0.00 236802.00 236802.00

16. T.P. A.E. 0.00 230981.00 230981.00

Sangderpa

17. S. Dadul D.E. 166193.00 48921.00 215114.00

18. Raju Rai A.E. 48995.00 80497.00 129492.00

19. S.T. Bhutia A.E. 14720.00 104798.00 119518.00

20. Yongendra A.E. 0.00 104430.00 104430.00

Sharma

21. Raju Basnett A.E. 0.00 100000.00 100000.00

22. L.N. Sharma J.E. 0.00 50258.00 50258.00

23. Charanjit A.E. 0.00 44672.00 44672.00

Singh

24. D.B. Rai D.E. 28000.00 0.00 28000.00

25. P.N. Sherpa A.E. 25000.00 0.00 25000.00

26. G.T. Dungel A.E. 0.00 17515.00 17515.00

27. T.P. Karki A.E. 0.00 6672.00 6672.00

28. Neeraj A.E. 4324.00 0.00 4324.00

Pradhan

29. M.K. Mukhia A.E. 0.00 100.00 100.00

30. Unidentified - 39264.00 12832.00 52096.00

Grant Total 15680276.00 18410302.00 34090578.00

8. In the writ petition it was also incorporated that

advances drawn since 1994, 1995 onwards were outstanding

against the officers and the department was kept on adding

further advances without insisting on the adjustment of the

amount earlier advanced to them.

6 9. The grievance of the appellants in the writ petition was

that all the officers mentioned in Chapter 5 were heading

responsible posts in the Public Works Department and other

Departments in the state. No action had been taken as

recommended in the report for recovery of the amounts

totaling to Rs.3.41 crores approximately outstanding as on

29.2.2000. No disciplinary proceedings had been initiated

against these officials. No criminal action as to the misuse

and abuse of power had been initiated. The appellants

submitted that most of these officials had acquired assets

disproportionate to their known sources of income and it was

only by a proper investigation by an independent investigating

agency that the exact quantum of assets disproportionate to

their known sources of income could be ascertained,

warranting initiation of proceedings under the Prevention of

Corruption Act, besides Departmental Disciplinary

Proceedings.

10. It was lastly submitted in the writ petition that the

citizens of the State of Sikkim had a constitutional guarantee

7

to be governed by the rule of law and the funds of the State

should be prudently utilized according to the norms.

Arbitrary, whimsical and capricious acts of high officials in the

administration of the State resulting in a fraud on the State

exchequer, would result in violation of their fundamental

rights guaranteed under Article 14 of the Constitution. The

citizens of the State of Sikkim were also entitled to a life of

dignity and a loss to the State exchequer would deprive them

of access to developmental programmes, welfare measures

aimed at protecting their fundamental rights and other

constitutional rights.

11. In the writ petition the appellants had also prayed that

the Court may direct an investigation by a competent

investigating agency such as the Central Bureau of

Investigation or the Central Vigilance Commission to

investigate into the acts of commission or omission of the

officials mentioned in Chapter 5 of the Report of the Finance

Department, Government of Sikkim on the Public Works

Department, Roads and Bridges. The appellants further

8

prayed that appropriate steps may be taken for recovery of the

amount.

12. In pursuance to the notice of the High Court in the writ

petition, counter affidavit was filed by the respondents, which

revealed that the advances shown against each of the

individual officers being respondents No. 1 to 27, as

outstanding had in fact been already utilized for the purpose

for which it was advanced. It was also stated in the counter

affidavit that allegation of lapse or irregularity had been

categorically denied.

13. The appellants in this appeal were concerned with

Chapter 5 relating to temporary advances, these respondents

had also dealt specifically with the said part of the allegation.

The other allegations being of a general character had been

denied.

14. In the counter affidavit it was also stated that in order to

understand the matter in its proper perspective, it was

necessary to explain what an advance is, under the prevailing

9

system of the department and when the advance drawn was

considered adjusted. The Assistant Engineers or the

Divisional Engineers in the absence of the Assistant Engineer

drew money for payment of monthly wages of labour force or

supervisors who were employed throughout the year for

regular maintenance of roads or for the wages of labour force

and supervisors who were engaged to complete a particular

project.

15. The money was drawn on the basis of acquittance roll

that gives the number of labourers/supervisors, the number of

days for which the work was done and rates of wages payable

to them. Money was also drawn as advance for purchase of

materials immediately required for carrying out urgent works

like repair of bridges which needed immediate attention and

opening of roads closed by damages that occurred during

monsoon.

16. The most of the advanced amounts drawn, as explained

above, was for the payment of wages of labour force and

supervisors. They were considered as temporary advance as

10

per the prevailing system of the Department. After

disbursement of the payment to the drawees, the detailed

account along with the paid acquittance roll was submitted to

the Accounts Section of the Department. The Accounts

Section, on receipt of the details, examined the same and

finally booked the expenditure on the proper debitable head

and removed the amount from the list of advance given to the

Assistant Engineers or the Divisional Engineers. Till the

expenditure was booked in the proper debitable head, the

amount drawn remained to be shown as outstanding against

the name of the officer, even though the accounts may have

been already rendered by the officer concerned. If the

budgetary provision was not available in the particular

financial year, the expenditure was debited to the budgetary

provision of the succeeding year and the advance shown

against the name of the particular officer would remain till

that time, even though he had submitted the accounts and

paid acquittance roll.

11 17. The reports, as extracted in the paragraph under reply,

revealed that the advance money shown as outstanding as on

29.02.2000 against the names of the officers who had been

impleaded as respondents No. 1 to 28 is Rs.3.41 crores. Out

of the total amount of Rs.3.41 crores, the amount under Plan

was Rs.1.57 crores. The bulk of this amount could not be

adjusted during the financial year 1999-2000 because of the

cut in the plan allocation of funds for the financial year 1999-

2000. This cut in the allocation was corroborated by the letter

written by the then Principal Chief Engineer-cum-Secretary,

Roads & Bridges on 17.03.2000 addressed to the Principal

Secretary, Finance Department vide letter No. 2

[67]Gen/R&B/96-97/245 dated 17.03.2000.

18. In the case of non-plan, the budgetary provision was

extremely inadequate. Bulk of this could be adjusted only

after 31.3.2000 for the same reason as in the case of plan.

The road length was increasing every year. The cost of

maintenance of roads had also increased. Over and above,

there was unprecedented down pour during the monsoon of

12

the year 1999. Therefore, to meet the demand for restoration

works and maintenance works of the roads, the requirement of

funds was much more than the funds allocated in the year

1999-2000 i.e. Rs.8.00 crores.

19. In such circumstances, the adjustment of these advances

could be effected only in the year 2000-2001 that was after

31.03.2000 and most of the advances were adjusted after

31.3.2000, in a few cases the advances shown as unadjusted

pertains to past years. In these cases it was found that the

officers had submitted the vouchers and details of accounts

and the Accounts Division also had made entries in the cash

book. But, in the register, where the advance was recorded,

the necessary corrections in the entries were not made. That

is why the advance shown against the officers continued to be

shown as outstanding. In such cases, though there was no

actual advance outstanding, the advance was shown as

outstanding against the officers erroneously.

20. In some cases the officers had submitted the vouchers

and obtained receipts from the cash section. However, they

13

remained unadjusted inadvertently. Such cases are very few

and there accounts had reconciled later on after due

verification. In fact, all the advances against all the

respondents-officers had been settled.

21. Detailed verification of the accounts and paid acquittance

rolls were submitted by the officers concerned from time to

time and taking into account the budgetary sanctions

available in the financial year 2000-2001 etc. the advances

had been, as stated above, duly booked to the relevant budget

heads. It was stated that there were no outstanding advances

against any officer.

22. Out of Rs.3.41 crores, only an advance of Rs.32750

[Rs.12987 under Non-plan + Rs.19763 under Plan] which

could not be assigned to anyone was indicated. As the

previous advances taken by different drawees got adjusted,

new advances were drawn and, therefore, at no point of time

the total advance got adjusted to zero level and therefore, this

amount of advance that could not be assigned to anyone

remained undetected. This amount obviously had rolled over

14

from past many years. Efforts were being made to reconcile

this. The department had kept the record of total amount of

money which was outstanding against the officers at the end

of the every month and periodic adjustments were being made

regularly. It was stated that all the advances against the

respondents had been accounted for.

23. In view of the above, it was submitted that the allegation

that the officers concerned had misappropriated the amount

or that it was to be recovered from them was incorrect and the

relief sought in this regard was misconceived, mala fide and

motivated.

24. It is pertinent to mention here that before the High Court

Chief Secretary and Finance Secretary had filed affidavits and

gave details of the entire expenditure of Rs.3,40,57,582/- and

liability of the only unidentified amount of Rs.32,990/- could

not be established against any person.

25. The High Court had carefully examined the averments

made in the writ petition and the counter affidavits. The High

15

Court, after carefully considering the affidavits of the Chief

Secretary and the Finance Secretary and the report of the

Inspection Committee, came to a clear conclusion that in the

facts and circumstances it was not necessary to refer the

matter for investigation by the Central Bureau of Investigation

or Central Vigilance Commission and the writ petition filed by

the appellants was dismissed by the High Court.

26. The appellants, aggrieved by the impugned judgment of

the High Court, had approached this Court under Article 136

of the Constitution.

27. In pursuance to the court notices counter affidavits have

been filed by the respondents. The averments of the appeal

had been denied in the counter affidavit. In the counter

affidavits it was mentioned that in the instant case there was

no misappropriation of any funds and there was no culpable

conduct on the part of any one and the writ petition was

rightly dismissed by the High Court.

16 28. The inspection team, on the direction of the High Court,

had thoroughly examined the entire matter and did not find

any misappropriation of funds. It was also stated in the

counter affidavit that the enquiry by the inspection team was

an independent and impartial inquiry. In the counter affidavit

it was also denied that there has been any loss to the State

exchequer which had deprived the appellants access to the

development programmes, welfare measures aimed at

protecting their fundamental rights of the Constitution.

According to the impugned judgment the writ petition filed in

the High Court by the appellant was devoid of any merit and

was dismissed. The appellants being dissatisfied with the

impugned judgment approached this Court.

29. This Court in order to ensure probity and transparency

in the functioning of the government examined the matter in

great detail. We have also carefully examined the Sikkim

Financial Rules, 1979. In the instant case the appellants

could not point out any breach of the Sikkim Financial Rules,

1979 or misappropriation of funds by the respondents.

17 30. It may be pertinent to mention here that the Government

of Sikkim, Roads and Bridges Department had revised the

Code and now Sikkim Public Works Code, 2009 has been

introduced.

31. The relevant Rule 245 of the Sikkim Public Works Code,

2009 reads as under:

"245. The following are the important initial

accounts to maintain by the Assistant

Engineer.

1. Ca sh Book:

The Assistant Engineers/Divisional

Engineers should maintain cash book in

Form 1 in accordance with the instructions

contained in Chapter VI. The Assistant

Engineer should also see that the accounts

of all the imprest holders are received and

incorporated in the cash book before it is

closed for the account month concerned.

Immediately, after the cash book of a month

has been closed the cash balance i.e. report

should be prepared and sent to the Division

Office/circle Office.

The officer should satisfy themselves before

signing the cash book that the entries are

correct and as a further precaution, the

total of the cash column on both sides

18

should be expressed in words in their own

hand.

It is also permissible for officers to maintain

two alternative cash books one being

submitted in original to the Division Office/

Circle Office at the end of the month and

the other being used in the following month.

2. Temporary Advance Accounts

In case where the Assistant Engineer takes

cash from the Division Office for making

payment to persons stationed elsewhere, the

amount so taken out should be accounted

for as a temporary advance against his

name in the cash book and account should

be rendered to the Division before drawl of

next temporary advance."

32. In our view, by the Sikkim Public Works Code, 2009

greater transparency has been introduced.

33. We have carefully considered the averments, submissions

of the counsel appearing for the parties and the relevant rules.

In our considered opinion, no interference is called for. The

appeal, being devoid of any merit, is accordingly dismissed,

leaving the parties to bear their own costs.

19 .................................J.

(Dalveer Bhandari)

.................................J.

(Deepak Verma)

New Delhi;

October 8, 2010.