Supreme Court of India
ALL SIKKIM YOUTH ASSOCIATION & ANOTHERversusH.R. SUBBA & OTHERS
- Citation
- 2010 INSC 692
- Decided
- 8 October 2010
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
No interference is called for as the inspection found no misappropriation or breach of the Sikkim Financial Rules, and the petition is dismissed.
Summary
The All Sikkim Youth Association filed a public‑interest writ petition under Article 226 alleging massive financial irregularities and misappropriation of funds by officials of the Sikkim Public Works Department (Roads and Bridges), seeking a CBI or CVC investigation. The High Court dismissed the petition, holding that an inspection team had examined the matter and found no misappropriation or breach of the Sikkim Financial Rules, 1979. On appeal, the Supreme Court examined the affidavits, the inspection report, and the Sikkim Public Works Code, 2009, and concluded that the allegations were unsupported; the advances shown as outstanding were merely temporary advances pending adjustment, not evidence of fraud. Consequently, the Court found no ground for interference or for directing a central investigation. The appeal was dismissed, leaving each party to bear its own costs.
Issues considered
- Whether the writ petition seeking CBI/CVC investigation into alleged misappropriation in the Sikkim Public Works Department is maintainable under Article 226.
- Whether the facts disclosed by the inspection team establish any breach of the Sikkom Financial Rules, 1979 or misappropriation of public funds.
- Whether the outstanding temporary advances constitute a recoverable liability or evidence of corruption warranting central investigation.
- Whether the High Court erred in dismissing the petition without ordering a CBI/CVC probe.
Subjects
public interest litigationArticle 226misappropriation of fundstemporary advancesSikkim Financial Rules, 1979Sikkim Public Works Code, 2009CBI investigationCVC investigationadministrative law
Judgment
[2010] 13 (ADDL.) S.C.R. 345
ALL SIKKIM YOUTH ASSOCIATION & ANOTHER A
v.
H.R. SUBBA & OTHERS
(Civil Appeal No. 1834 of 2002)
OCTOBER 8, 2010
B
[DALVEER BHANDARI AND DEEPAK VERMA, JJ.)
Constitution of India, 1950 - Article 226 - Public Interest
Litigation - Filed on the basis of news items published in News
Papers - Alleging grave irregularities in Public Works C
Department (Roads and Bridges) - On the basis of Report
of the Finance Department of the State also alleging
misappropriation of public exchequer by certain officials of the
Department - Prayer made for direction of investigation into
the case by CBI or eve - High Court dismissing the petition D
- On appeal, held: Judgment of the High Court does not call
for interference - The Inspection team, on direction of the
High Court did not find any misappropriation of funds - No
breach of Sikkim Financial Rules found - Sikkim Financial
Rules, 1979 - Sikkim Public Works Code, 2009. E
The appellant-Association filed a writ petition in
public interest in the High Court. It was stated that the
Public Works Department (Roads and Bridges) of Sikkim
had submitted a report to the Finance Commission,
showing a financial liability of more than 60 crores and F
after investigation into the matter by a Committee formed
by the Chief Minister, the liabilities came down to 40
crores from 60 crores. It was alleged that there were
grave irregularities in the Public Works Department
(PWD) in repair of roads and bridges. The allegations were G
based on news items and articles published in various
news papers. It was also alleged that on verification of
cash-books and other relevant records of the PWD, Road
345 H
346 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A and Bridges Department, it was found that a sum
exceeding Rs. 3.41 crores was outstanding against
certain departmental officials as on 29.2.2000. The names
of the officials were mentioned in the writ petition. It was
further alleged that despite the report of the Finance
B Department of the State, recommending for recovery of
the amount of Rs. 3.41 crores, no action was taken for
the recovery and neither any criminal nor disciplinary
action was taken against the erring officials; that most of
the officials had acquired assets disproportionate to their
c known sources of income. It was prayed that directions
be issued for investigation by a competent investigating
agency such as Central Bureau of Investigation (CBI) or
the Central Vigilance Commission (CVC) to investigate
into the acts of commission or omission of the officials
mentioned in the report of the Finance Department; and
0
also for recovery of the amount. In defence of the case,
it was submitted that the allegations of misappropriation
against the officials was incorrect and the relief sought
in that regard was misconceived, ma/a fide and motivated.
E The High Ccurt, dismissing the petition, held that it was
not necessary to refer the matter for investigation to CBI
or CVC. Therefore, the instant appeal was filed.
Dismissing the appeal, the Court
F HELD: In the facts of the instant case, no interference
is called for. The inspection team, on the direction of the
High Court, had thoroughly examined the entire matter
and did not find any misappropriation of funds. Before
the High Court, the Chief Secretary and the Finance
G 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. The appellants could not
point out any breach of the Sikkim Financial Rules, 1979
or misappropriation of funds by the respondents. The
H
ALL SIKKIM YOUTH ASSOCIATION & ANR. v. H.R. 347
SUBBA & ORS.
Government of Sikkim, Roads and Bridges Department A
had revised the Code and now Sikkim Public Works
Code, 2009 has been introduced, wherein greater
transparency has been introduced. (Paras 24, 28, 29, 30,
32 and 33] (356-B; 355-D; 356-D-F; 357-F-G]
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1834 of 2002.
From the Judgment & Order dated 19.10.2001 of the High
Court of Sikkim at Gangtok in Civil Writ Petition No. 17 of 2001.
c
K. Swami, Prabha Swami for the Appellants.
J.L. Gupta, Harish Chandra, A. Mariarputham, Annam D.N.
Rao, Neelam Jain, Shweta Verma, A.K. Sharma (for P.
Parmeswaran), Aruna Mathur (for Arputham, Aruna & Co.),
Ashok Mathur for the Respondents.
0
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. This appeal is directed
against the judgment and order dated 19.10.2001 passed in E
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 F
Observer', a National Hill Weekly, from 13th to 17th November,
2000 under the title 'Transparency and Accountability-I'. In 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 G
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 H
348 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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'
B
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.
c
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
D 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
E 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
F 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
G 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,
H the Ravangala Sub Division. There was reference to the North
ALL SIKKIM YOUTH ASSOCIATION & ANR. v. H.R. 349
SUBBA & ORS. [DALVEER BHANDARI, J.]
East Circle comprising of the Singtam Sub Division, the A
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 B
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.
SI. Name Desi- Plan Non-Plan Total
No. gna-
c
ti on
.
1. H.R. Subba A.E. 4539373.00 3919092.00 8458465.00
2. B.K. Rai A.E. 1318451.00 3489045.00 4807490.00
D
3. S.S. 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
E
6. M.K. Subba A.E. 1008192.00 1184673.00 2192865.00
7. G.Lachungpa A.E. 304471.00 1883666.00 2188137.00
8. P.K. Bhujel A.E. 1354484.00 297453.00 1651937.00
9. D.C. Rai A.E. 0.00 1039577.00 1039577.00 F
10. Mohan A.E. 370634.00 475374.00 846008.00
Gurung
11. M.B. Gurung D.E. 325000.00 417908.00 742908.00
G
12. B.P. Khare! 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
H
350 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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. Oadul D.E. 166193.00 48921.00 215114.00
B
18. Raju Rai A.E. 48995.00 ao497.oo 129492.00
19. S.T. Bhutia A.E. 14720.00 104798.00 119518.00
20. Yongendra A.E. 0.00 104430.00 104430.00
c 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
D Singh
24. 0.8. Rai D.E. 28000.00 0.00 28000.00
25. P.N. Sherpa A.E. 25000.00 0.00 25000.00
E 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
F 29. M.K. Mukhia A.E. 0.00 100.00 100.00
30. Unidentified - 39264.00 12832.00 52096.00
Grant Total ~ 5680276.00 18410302.00 34090578.00
G 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.
H
ALL SIKKIM YOUTH ASSOCIATION & ANR. v. H.R. 351
SUBBA & ORS. [DALVEER BHANDARI, J.]
9. The grievance of the appellants in the writ petition was A
that all the officers mentioned in Chapter 5 were heading
responsible posts in the Public Works Department and other
Departments in tile 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. B
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 c
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.
D
10. It was lastly submitted in the writ petition that the citizens
of the State of Sikkim had a constitutional guarantee 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 E
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 F
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 G
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 Wo.rks Department, Roads
and Bridges. The appellants further prayed that appropriate H
352 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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
C 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
0
necessary to explain what an advance is, under the prevailing
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
E
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
F
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
G 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
H as per the prevailing system of the Department. After
ALL SIKKIM YOUTH ASSOCIATION & ANR. v. H.R. 353
SUBBA & ORS. [DALVEER BHANDARI, J.]
disbursement of the payment. to the drawees, the detailed A
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 B
Engineers or the Divisional Engineers. Till the expenditure was
booked in the proper debitable head, the amount drawn
remained to be shown as ou_tstanding against the name of the
officer, even though the accounts may have been already
rendered by the officer concerned. If the budgetary provision c
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.
D
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 E
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, F
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 G
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 the year 1999.
Therefore, to meet the demand for restoration works and H
354 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A maintenance works of the roads, the requirement of funds was
rnuch more than the funds allocated in the year 1999-2000 i.e.
Rs.s_,oo crores.
19. In such circumstances, the adjustment of these
advar11:es could be effected only in the year 2000-2001 that
B was afiter 31.03.2000 and most of the advances were adjusted
after 31.3.2000, in a few cases the advances shown as
unadjusted pertain:s to past years. In these cases it was found
that the .officers tiad submittecl the vouchers and details of
accounts and the .A.ccounts Division also had made entries in
c the cash book. Bu1t, in the register, where the advance was
recorded, the nece$sary 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
D shown as outstandin~1 against the officers erroneously.
20. In .some cases the officers had submitted the vouchers
and obtained receipts from the cash section. However, they
remained unadjusted inadvertently. Such cases are very few
and there accounts had reconciled later on after due
E verification. In fact, all the advances against all the respondents-
officers had been settled.
21. ·.Detailed verification of the accounts and paid
· cicquittance rolls were submitted by the officers concerned from
F time to time anc! 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.
G 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
H total advance got adjusted to zero level and therefore, this
ALL SIKKIM YOUTH ASSOCIATION & ANR. 1v. H.R. 355
SUBBA & ORS. [DALVEER BHANDARI, J.]
amount of advance that could not be assigned to anyone A
remained undetected. This amount obviously ha, d rolled over
from past many years. Efforts were being made to reconcile
this. The department had kept the record of tota I amount of
money which was outstanding against the officers: at the end ·
of the every month and periodic adjustments were t ieing made B
regularly. It was stated that a!I the advances a:·gainst 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 C
relief sought in this regard was misconceived, mala fide and
motivated.
24. It is pertinent to mention here that before the Higt1 Court
Chief Secretary and Finance Secretary had filed affidavits and
0
gave details of the entire expenditure of Rs.3,40,57,582/- and
liability of the only unidentified amount of Rs.32,990/- coulld 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 E
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 F
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. G
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
Nas mentioned that in the instant case there was no
H
356 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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.
28. The inspection team, on the direction of the High Court,
had thoroughly examined the entire matter and did not find any
B 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
C 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
D 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
E not point out any breach of the Sikkim Financial Rules, 1979
or misappropriation of funds by the respondents.
30. It may be pertinent to mention here that the Government
of Sikkim, Roads and Bridges Department had revised the
F 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 'ccounts to
G
maintain by the Assistant Engineer.
1. Cash Book:
The Assistant Engineers/Divisional Engineers
should maintain cash book in Form 1 in accordance
H
ALL SIKKIM YOUTH ASSOCIATION & ANR. v. H.R. 357
SUBBA & ORS. [DALVEER BHANDARI, J.]
with the instructions contained in Chapter VI. The A
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 B
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 corred and as a
further precaution, the total of the cash column on c
both sides 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 D
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 E
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 F
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 G
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.
K.K.T. Appeal dismissed. H
\_~
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