Tripura High Court
Accused vs The State Of Tripura on 15 November, 2019
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
AB NO.140 OF 2019
Sri Yashpal Singh
S/O Late Hansraj Singh,
R/O 506, Parivar Apartment,
30-I.P.Extension,
New Delhi-110 092.
----Accused petitioner
Versus
The State of Tripura
Represented by the Secretary,
Department of Home, Agartala, West Tripura.
------Respondent
For petitioner(s) : Mr. Pijush Kanti Biswas, Sr. Advocate
Mr. Pranabasish Majumder, Advocate
Mr. Debajit Biswas, Advocate
For Respondent(s) : Mr. Ratan Dutta, P.P.
HON'BLE MR. JUSTICE ARINDAM LODH
ORDER
15.11.2019 The accused person, Sri Yashpal Singh is the former Principal Secretary, PWD and Chief Secretary under the Government of Tripura. Sri Singh is wanted in connection with West Agartala PS Case No.2019 WAG 251 registered under Section 409, 418, 420, 201, 120B of the Indian Penal Code and Section 13 of the Prevention of Corruption Act, 1988. Hence, Sri Singh has filed the instant application for granting pre-arrest bail to him under Section 438 of CrPC.
2. From the FIR dated 13.10.2019 it is revealed that there are two other accused persons, namely, Sri Badal Choudhury, former Minister for Public Works Department and Sri Sunil Bhowmik, former Chief Engineer, PWD under the Government of Tripura.
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3. The essential facts of the case, for purpose of consideration of the present bail application, are as follows:
3.1. A complaint was lodged by SI Badal Dutta of the Vigilance Organization, Government of Tripura on 13.10.2019 which was registered as formal FIR, as aforestated. It is stated that a vigilance enquiry was conducted during which major wrongdoings and criminal conspiracy came to light for finalization of tenders and awarding of projects at cost plus basis to some Public Sector Units(PSUs) and some private sector construction agencies during financial year 2008-09 for implementation of major infrastructural development projects by the State PWD.
3.2. The State of Tripura, in view of huge influx of funds to mobilize infrastructural development within the territory of Tripura undertook many projects. To bring transparency and cost effectiveness in implementing various project works, the Public Works Department(PWD) of the Government of Tripura had proposed to frame a specific policy for implementation and execution of various projects; and for that purpose, a memorandum was prepared for placing before the Council of Ministers(COM) vide Memorandum dated 31.05.2008. After considering various facets to facilitate quality and expeditious execution of works by the PWD, Government of Tripura, the said memorandum was placed before the COM and accordingly, it was approved by the COM, which would be evident from the record of decision of the meeting of COM held on 03.06.2008. 3.3. It is apparent from the said policy that the COM had taken into consideration many important facets to implement and Page 3 of 8 complete the projects within a stipulated period and it is noticed that the COM had also decided to provide incentives to the contractors or implementing agencies if the works were completed before the stipulated date. Salient features of the memorandum for the COM dated 31.05.2008 may be reproduced here-in-below for convenience, in extenso:
"1. ..........................
2. To overcome this typical situation and for the interest of smooth implementation of different sanctioned projects in time, the following proposals are submitted for kind perusal and decision please:
(i) PWD may be allowed to award the implementation of various projects directly to the Public Sector Undertakings at cost plus basis (Limited upto 10% of the estimated cost).
(ii) PWD may also be allowed to award works to the well reputed Private Sector Construction Agencies short listed after invitation of Expression of Interest with pre-
determined conditionalities as well as evaluation of their technical and financial capabilities, experience in the respective fields, etc. directly at cost plus basis(Limited upto 10% of the estimated cost).
3. Cost of the projects for this purpose is to be assessed based on the current Schedule of Rates prepared by State PWD. State PWD will update the Schedule of Rates at the earliest and will continue to update the same in the month of January every year subsequently on regular basis.
4. All relevant preliminary activities viz. survey, preparation of site plan/architectural drawing/preliminary estimate/detailed working and structural drawings/detailed estimate, sub-soil investigation etc. and submission of the said reports/documents to PWD followed by obtaining approval on the same by PWD shall be within the scope of such assignment, beside execution of the project and quality control.
5. Since, PWD intends to implement number of projects through such system, the proposal of PWD at Para 2, 3 and 4 herein Page 4 of 8 above is submitted for consideration and approval by the Council of Ministers.
6. ..........."
3.4. In view of the said memorandum, the then Chief Minister of Tripura had approved to place the matter before the Council of Ministers(COM) for consideration. From the memorandum dated 03.06.2008, it is revealed that the said policy, which was placed for consideration of the COM, was approved and the decision of the COM, as approved by the Chief Minister, was forwarded under Rule 20(2) of the Rules of Executive Business. 3.5. It was decided at sub-clause 2.1 that "PWD may be allowed to award the implementation of the various projects directly to the public sector undertaking at cost plus basis (limited upto 10% of the estimated cost)."
At sub-clause 2.2 it has again been stipulated that "PWD may be allowed to award works in the well reputed private sector construction agencies shortlisted after invitation of Expression Of Interest with determined conditionality's as well as evaluation of their technical and financial capabilities, experience in the respective field etc. directly at cost plus basis (limited upto 10% of the estimated cost)."
At sub-clause 2.3 it was again stipulated that "Cost of the projects for this purpose is to be assessed based on the current schedule of rates prepared by the State PWD. State PWD will update the Schedule of Rates at the earliest and will continue to update the same in the month of January every month subsequently on regular basis."
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At clause 4 under the head, "Invitation of Expression of Interest (EOI) from PSUs" it is stated under sub-clause 4.1 that "Government of Tripura has intended to implement certain important/major roads/bridge projects and buildings including Project Consultancy services through the Central and State governments Public Sector Undertakings(PSUs) and reputed Private Sector Construction Agencies on cost plus percentage basis(Project Cost based on Schedule of Rates(SOR) 2008 Tripura." 3.6. The above clauses, as decided by the COM, appear to be very firm over the cost plus percentage, i.e. Schedule of Rates, 2008 can be decided for an estimated project cost and it may be increased up to 10%.
3.7. In the present case, it is alleged that when Expression of Interest(EOI) were invited from various PSUs and Private Sector Construction Agencies(for both technical and financial), the approved clauses were suppressed and ceiling limit of 10% for award of works at cost plus basis was waived off and never mentioned in the tender documents. So, according to the complaint, all the accused persons, i.e. the then Chief Engineer, PWD, the then Principal Secretary, PWD and Sri Badal Choudhury, the then Minister for PWD had flouted the approved terms and conditions of the bid.
3.8. It is stated in the complaint that as per preliminary assessment, the estimated cost of the project including all the three sectors was Rs.638.30 crores whereas the total cost put to tender was Rs.866.64 crores, which was above by 35.73% (average) of the total estimated cost. Thus, based on the Page 6 of 8 preliminary assessment there was an excess expenditure of Rs.164.27 crores.
4. According to the complaint, all the accused persons had collusively violated/disregarded such important clauses. Further allegations are that on preliminary assessment, for the works under 10 packages, i.e. 4 nos. bridges packages, 4 nos. building packages and 2 nos. road packages, excess amount of Rs.20.50 crores was incurred which was 47.20% higher than the estimated cost of 10% above. It has also been alleged that Rule 172 of General Financial Rules, 2005 regarding separate bidding for technical and financial bids i.e. „two bid system‟ was also not followed and even prior to that Request for Proposal (for short-RFP under Rule 171, GFR) was also not complied, rather PWD directly went for inviting financial bid. According to the informant, as described in FIR, aiming to give unfair advantages to the private construction agencies, PSUs were given 14 days period for submission of financial bids whereas private agencies were given 26 days for the same task and despite the fact that post tender negotiation is strictly banned by the Central Vigilance Commission, said practice was encouraged under the chairmanship of Mr. Y.P Singh and despite having procedural weaknesses, WAB was persuaded by PWD to overlook the same as one time measure. It is also alleged that the then Principal Secretary, PWD, Mr. Y.P. Singh communicated that the Council of Ministers was briefed by him on 10.12.2008 regarding tender process followed, bids selected and SAB/WAB decision regarding overlooking the procedural weaknesses as one time measure vide his Note No.2 dated 10.12.2008, but no such cabinet Page 7 of 8 briefing/agenda was found in the memo/minutes of meeting of Cabinet of that day and in said Note No.2, Sri Badal Choudhury has also signed. Finally, it has been stated that vital documents and record including bids, comparison sheet relating to the finalization of tenders and award of those works were also found missing from the office of the Chief Engineer, PWD (NH) and separate FIR has been lodged to that effect.
5. Heard Mr. Pijush Kanti Biswas, learned Sr. counsel with Mr. Pranabasish Majumder, learned counsel appearing for the petitioner as well as Mr. Ratan Dutta, learned P.P. appearing for the respondent.
6. Mr. P.K. Biswas, learned Sr. counsel has submitted that to award the works in question and to increase the price beyond cost plus basis, there was approval from the Council of Ministers. To justify this fact, the learned Sr. counsel has drawn my attention to the decision of the SAB/WAB meeting held on 28.11.2008 (Annexure-5 to the bail application).
7. After meticulous scrutiny of the document aforementioned, I do not find anywhere that the rate would be increased ranging from 38% to 52%, and it appears that the said decision is vague, and there is enough ambiguity. In furtherance thereof, I do not find any such document by which the Council of Ministers has given a note to go ahead with the works at such exorbitant rate of increase of the cost plus basis price.
8. On the other hand, Mr. Ratan Datta, learned P.P. has strongly opposed the prayer for granting pre-arrest bail of the accused person stating that thorough interrogation of the accused Page 8 of 8 person in connection with the case is required to find out other persons who misappropriated the money.
9. Having heard the learned counsels of the parties, I am of the opinion that this is not the stage of granting pre-arrest bail to the accused person. Prima facie, it appears that as Principal Secretary of the Department, the accused-petitioner had played an active role to abnormally increase the price of works beyond the well-thought stipulated cost plus basis price at the rate of 10% as fixed by the Council of Ministers which is the Executive Head of the Government.
10. Accordingly, the instant bail application for granting pre- arrest bail to the accused petitioner is rejected.
11. However, the learned P.P. is directed to verify the document enclosed in the instant bail application as Annexure-7.
12. Return the Case Diary to learned P.P. [ JUDGE