REPORTABLE

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 …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

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.

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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  

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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.  No.

Name Designation Plan Non-Plan Total

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

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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  

Gurung A.E. 370634.00 475374.00 846008.00

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  

Lepcha A.E. 12271.00 333820.00 346091.00

15. M.K. Pradhan A.E. 0.00 236802.00 236802.00 16. T.P.  

Sangderpa A.E. 0.00 230981.00 230981.00

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  

Sharma A.E. 0.00 104430.00 104430.00

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  

Singh A.E. 0.00 44672.00 44672.00

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  

Pradhan A.E. 4324.00 0.00 4324.00

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.

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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.   

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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.

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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. Cash 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  

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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.  

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…….……………………..J.       (Dalveer Bhandari)

…….……………………..J.      (Deepak Verma)

New Delhi; October 8, 2010.

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