All Sikkim Youth
Asson. & ANR. Vs. H.R. Subba & Ors.  INSC 831 (8 October 2010)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 1834 of 2002 All Sikkim
Youth Association & Another ...Appellants Versus H.R. Subba & Others
Dalveer Bhandari, J.
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.
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.
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.
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.
press reports, in general, had indicated and suggested departure from the established
norms and deviations in procedure had occurred on account of corruption.
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.
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
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
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
27. T.P. Karki A.E. 0.00
28. Neeraj A.E. 4324.00
0.00 4324.00 Pradhan
29. M.K. Mukhia A.E. 0.00
30. Unidentified -
39264.00 12832.00 52096.00 Grant Total 15680276.00 18410302.00 34090578.00
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.
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
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.
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.
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.
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
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.
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.
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.
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
Gen/R&B/96-97/245 dated 17.03.2000.
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
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.
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
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.
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
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.
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.
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.
appellants, aggrieved by the impugned judgment of the High Court, had
approached this Court under Article 136 of the Constitution.
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
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.
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.
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.
relevant Rule 245 of the Sikkim Public Works Code, 2009 reads as under:
following are the important initial accounts to maintain by the Assistant Engineer.
1. Ca sh Book:
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
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
our view, by the Sikkim Public Works Code, 2009 greater transparency has been
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.