TaxTMI 
TaxTMI 
2011 (11) TMI 856
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....ith common facts and similar prayer raise common questions of law and therefore are being decided finally by this Order. The third writ petition; namely, W.P. No. 2647 (MB) of 2011 is however specific to district Pilibhit with slightly different prayer. The matter concerns the implementation of the National Rural Health Mission (NRHM) in the State of Uttar Pradesh. Gross abuse and misappropriation of NRHM funds by the State functionaries in a planned and concerted manner is alleged. Inquiry by the Central Bureau of Investigation (CBI) has been prayed for in the affairs of the Department of Health & Family Welfare, Government of Uttar Pradesh. During the course of hearing it was urged that CBI be directed to conduct preliminary enquiry into the matter from the financial year 2005-06. The Central Government has also specifically pleaded and pressed for CBI enquiry 2. Intervention of CBI to conduct an enquiry in the whole State cannot be directed at the instance of bald allegations or public interest litigations or writ petitions preferred with private vendetta. The law in this regard has been succinctly put by the Apex Court in Vishwanath Chaturvedi (3) v. Union of India, (2007....
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....of the State Government. Since the Departments of Health & Family Welfare were two separate departments in Uttar Pradesh; they were therefore merged under the directives of the Central Government. Merger of the two departments was a precondition contingent to the execution of the MoU. 5. The Society's primary responsibility, inter alia, is to receive, manage (including disbursement of funds to implementation agencies such as Directorate, District Societies, NGOs etc.) and account the funds received from the MoH&FW. The Governing Body of the Society is vested with full control of the affairs of the Society whereas the Executive Committee, Programme Committees and such other committees constituted by the Governing Body serve as its implementation agency. 6. The Chief Secretary is the Chairman of the Governing Body. The body is vested with the power to monitor the financial position of the Society to ensure smooth income flow and review the annual audited accounts and is required to convene meeting at least once every six months. Besides considering the annual budget and annual action plan for the Mission, the Governing Body evaluates at its annual meeting (a) the income and....
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....overnment of India. Procurement of services is specified to be in accordance with procedure as recommended by the Government of India or Government of U.P. 12. On similar lines, the District Health Mission, District Health Society and Hospital Management Societies known as "Rogi Kalyan Samiti" were contemplated by series of Government Orders dated 16.11.2006 annexed to the MoU. The Minister-in-Charge of the District was the Chairperson of the District Health Mission. The District Magistrate served as Coordinator of the District Health Mission and Chairperson of the District Health Society. Whereas, the Chief Medical Officer of the District held the office of Member Secretary in the District Health Mission, Coordinator in the District Health Society and Chairperson in the "Rogi Kalyan Samiti". 13. The funds made available for the Mission were subject to audit of the State and District societies organised by the State within six months of the close of every financial year. Thereafter, the State Government would prepare and submit a consolidated statement of expenditure, including the interest that may have accrued. Also such funds routed vide the MoU were liable to statutory au....
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....th Mission. On 18.7.2009, a separate Central Purchase Committee was constituted under the Chairmanship of Director General, Family Welfare by order of the Government without any reasonable basis. The Central Government on 28.7.2010 through its D.O. letter objected to the bifurcation of the Department of Health & Family Welfare stating the action of the State Government not to be in the interest of the Mission and requested the State Government to reconsider the aforesaid bifurcation. By the same letter, the State Government was also apprised of the fact that no full time Mission Director had been appointed which was detrimental to the implementation of the Mission in a big state as U.P. 16. From the period of inception of the program in the State of U.P., it is said that the Central Government has released to the State of U.P. grants amounting to Rs. 8579.38 crore but the Governing Body of the State Health Society has all this time met only twice i.e. on 25.1.2008 and 25.7.2008 until 15.5.2011. All decisions in its place, administrative or otherwise, were instead taken by the Executive Council of the State Health Society that did meet occasionally in the absence of a full-tim....
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....4.10.10, the State Government by an Order re-designated District Project Officer/Deputy District Project Officer as Chief Medical Officer/Deputy Chief Medical Officer (Family Welfare). Meanwhile, the MoH&FW vide Order dated 15.9.2011 directed the States to constitute District Vigilance and Monitoring Committee in each district to be headed by the local Member of Parliament and comprising members of local government and local representatives to monitor the program. A reminder was also sent to the State of U.P. vide D.O. letter dated 13.6.2011. However, nothing appears to have been done. 19. Pointing out the irregularities in purchasing the medical kits, medicines, equipment and other articles, the petitioners placed before us that all such work were routed through government corporations like U.P. Project Corporation Ltd. (U.P.P.C.L.), U.P. Processing & Construction Co-operative Federation Ltd. (PACCFED), Construction and Design Services (CDS), U.P. Jal Nigam, Uttar Pradesh Labour and Construction Cooperative Association Ltd. (LACCPED) and U.P. Small Scale Industries Corporation (U.P.S.I.C.) mainly to camouflage the irregularities being committed. It was argued that the Minister,....
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....ksha Yojana". In the Blindness Control Programme spectacles were supposed to be distributed to children free of cost. But nowhere spectacles have been distributed though full payment has been made to the Minister's close aide. Budgetary sanction of Rs. 400 crore was made for "Janani Suraksha Yojana" wherein payments were made to fictitious people. It was submitted that this fact came to light at the Red Cross Bal Mahila Chikitsalaya but nothing was done due to the involvement of the Minister. Also, none of the eight to ten women and children hospitals in Lucknow have been supplied with caesarean kits and related medical supply needed at the time of child birth. 22. Substantiating their pleading that the Government had knowledge of the NRHM irregularities and misappropriation of funds but it omitted to act prudently, since its functionaries were party to the gross irregularities and misappropriation of funds, the petitioners placed before us bulky documents including the Press Release by the Chief Minister Information Centre dated 7.4.2011, various orders of the State Government relating to NRHM, copy of FIRs registered in Lucknow alleging financial irregularities committed b....
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....een averred a deliberate act of the State Government so that funds could be misappropriated and misused for personal gains. 26. In nutshell, failure to reconstitute State Health Mission and gross irregularities in purchase of various items and failure on the part of the State Government to take effective measures to monitor the implementation of the NRHM so as to check the misappropriation of funds at various levels according to them makes out a clear case of enquiry by CBI. More so, when neither any FIR has been lodged nor the State undertook to take any action to identify the guilty persons until cognisance was taken by this Court in various writ petitions showing abuse and misuse of power by the State functionaries in the implementation of NRHM in the State of Uttar Pradesh. 27. Sri J.N. Mathur, learned Additional Advocate General assisted by Sri D.K. Upadhyaya, learned Chief Standing Counsel appearing for the State does not deny the fact that there have been large scale irregularities in the implementation of NRHM so far as the State of U.P. is concerned but according to him it cannot be termed as misappropriation of funds but it is a case of financial mismanagement. He s....
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....ng cognizable offences and therefore, an enquiry into the alleged irregularities in the functioning of a department of the State Government is outside CBI's mandate and purview. Questioning the competence of CBI to conduct a preliminary enquiry in the matter, learned Additional Advocate General argued that Section 6-A of the Delhi Special Police Establishment Act, 1946 (CBI Act) is not the source of power for CBI to conduct an enquiry. In fact, inquiry is not defined either in the CBI Act or the Central Vigilance Commission Act, 2003 and therefore one can only abide by the expression as defined in the Criminal Procedure Code, 1973 (Cr.P.C.), precisely Section 2(g) according to which inquiry means every inquiry, other than a trial conducted under the Cr.P.C. by a Magistrate or a Court. 30. In response, leading the arguments Ms. Kamini Jaiswal, learned counsel for one of the petitioners, refuted the aforesaid contention. She submitted that Section 6-A of the CBI Act clearly empowers the CBI to conduct an inquiry. Explaining further she stated that Chapter - IX of the CBI Manual provides for preliminary enquiry to be conducted by CBI where paragraph 9.1 of the CBI Manual contem....
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....sented his concerns that if CBI is directed to conduct what he terms as a "roving inquiry" into the affairs of a department of the State Government, if would lead to chaos. 34. In fact, we have noticed throughout the hearing of the matter that the State is curiously apprehensive about CBI. Learned Additional Advocate General has throughout the hearing of the matter urged only two things. First, that the State Government is doing all it can to instill the public confidence and punish the guilty. Second, the State does not want its functionaries to suffer the rigor of CBI which would otherwise be detrimental to its subjects. 35. There is no reason why the State should be so apprehensive about CBI's conduct. CBI is an independent and autonomous investigation agency. It was for the purpose of maintaining its autonomy to conduct enquiry and investigations in a fair, transparent and competent manner that the Apex Court in Vineet Narain v. Union of India, (1998) 1 SCC 226 insulated this institution by issuing comprehensive directions so that it functions in a strong and competent manner without executive interference. Distinction was drawn so far as the expression "superintenden....
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.... Sri B.K. Singh Parmar thus prayed that inquiry be directed from the year 2005-06 instead of 2007-08. Similar application was moved by Sri Sudhir Kumar, Advocate through Dr. L.P. Mishra, learned counsel appearing for the applicant. The third application was moved by Sri Saurabh Jain, the sole proprietor of M/s. Guru Kripa Enterprises and M/s. Siddhi Traders whose firms are named in the writ petition. 40. Sri S.K. Dholakia, learned senior counsel assisted by Sri Dwijendra Mishra, appearing for Sri Saurabh Jain strenuously argued that false and baseless allegations have been made against them in the writ petition. Learned counsel submitted that, in fact, U.P.S.I.C., awarded contract of Rs. 4,74,82,500 crore to M/s. Guru Kripa Enterprises and Rs. 13.69 crore to M/s. Siddhi Traders for different work which includes the task of fixing hoardings and not contracts worth Rs. 119 crore as averred in one of the writ petitions. 41. Sri S.K. Dholakia urged that CBI must not be ordered to hold an enquiry based on the averments of the instant writ petition which in his view are vague, bald, and baseless and if such an order is to be made, it ought to be made after giving him due opportunit....
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.... (i) November 16-18, 2007, districts Rai Bareilly and Jhansi: Improvement required in drugs and supplies logistics, Restrictive clauses on nurse and ANM recruitment excludes qualified nurses and ANMs substantially and thus requires changes. Miscommunications and misunderstandings are immediate bottlenecks which should be overcomed. Electricity supply gaps in all sub-centres and additional PHCs to be closed. (ii) November 25 to December 5, 2008. districts Unnao & Bahraich: Post-delivery stay in the facilities is very short - needs monitoring. Bio medical waste management needs attention. Mobile medical units not operationalized. Shortage of human resources at all levels. Acute shortage of multipurpose worker (male). Integrated vector control measures and surveillance of diseases is weak. Poor availability of MTP/MVA (medical termination of pregnancy) services. PRIs not uniformly involved for VHSC which are recently instituted but not active. (iii) November 3 to December 13, 2009,....
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....ining bank account outside the government system. States need to utilize the cap of 6% of approved PIP for Programme Management costs. With regard to financial reporting the States need to ensure a system of monthly reporting of expenditure from District to State. (ii) Second JRM Urgently place and train SPMU/DPMU staff included in NRHM PIP 2006-07 and expedite signing of MoU. (iii) Third JRM - January 16-20, 2007 Appointment of full time Mission Director in accordance with Government of India guidelines. Establishment of the Programme Management Unit structure at the State, division, district and block level. Completion of the mapping of human resources and physical structures (including equipment) and reallocate staff for optimal utilization of resources; Ensure that staff at district level and below as well as NGOs and Panchayati Raj institutions are aware of all available guidelines and sanctions. Sub-optimal utilization of existing resources. The existing specialists were not utilized appropriately as some of the supporting equip....
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....Hospital were very out-dated and not in working condition. Some labour rooms did not have new-born corner with resuscitation facilities, moreover, available equipment had not been kept inside the labour room. There appears to be lack of centralised equipment maintenance and management system. Referral services were mostly not available in the State; moreover, referral had not been seen as key priority. Ambulances were available at few CHCs, however not frequently used. District Accounts Managers have been recruited in all 71 districts; 823 posts for block level accountants have been approved. No proper system of reporting FMRs and books of account to the State by the Districts initiated. Reportedly the State has been able to get the concurrent audit initiated in 69 out of 71 districts. A few concurrent audit reports received from Sitapur, Balrampur, Kannauj, Lakhimpur, Kushinagar and Gorakhpur during 2008-09 were reviewed and it was noted that some important internal control observations pertaining to advances, fixed assets, bearer cheques being issued, bank reconciliation, etc.....
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....has been held during the Financial Years 2009-10 and 2010-11. Irregularity noticed in payments made for Civil contracts: As per the MoU ith U.P. Processing & Construction Co-operative Federation Ltd., U.P.C.L., it was been mentioned in the agreement papers that the release of funds would be as per the terms that 75% of the cost of the standard estimate would be released after agreement and remaining 25% of the standard estimate only after receipt of UCs [Utilisation Certificates] for 50% of the work completed and details of work wise estimate. However, 100% of the amount was released before completion of the work. The State DG (FW) office was not monitoring fund utilisation. No documents could be shown wherein the lacunae in the inspection reports [...] to the construction agencies and accountability fixed. Merely purchasing through a state government PSU does not satisfy the norms of propriety in fund utilisation. A procurement of kits from the UP Civil Supplies Corporation had been made at double the amounts specified in the PIP and the same had been signed off on by the DG without any tendering or comparison with other ....
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....ally. This substantial sum coupled with slow utilisation means that large funds are available at village level without sufficient monitoring of their utilisation. Numerous instances of cash books, ledgers, advance registers, fixed assets registers, bank reconciliation statements not being maintained or updated have been noticed during the visit to districts, blocks and sub-centres/villages. Internal controls governing release of funds, preservation of vouchers and bills there against, and to prevent diversion of funds needs to be strengthened. 47. In the second visit of the Finance Team during 10-15.5.2011, the inspection was carried out in State Headquarters and districts, namely, Faizabad, Rai Bareilly, Unnao, Hardoi, Mirzapur, Chandouli, Sonbhadra, Sitapur, Kanpur Dehat, Barabanki, Sultanpur and Lucknow. Few observations are as below: Procurements: In 2009-11, Rs. 334.62 crore was available with DG(FW) office for various procurement activities. However, expenditure for Rs. 178.65 crore (53%) only had been reported till 12.5.2011 and advances of Rs. 93.62 crore were lying with implementation agencies comprising of state agencies of ....
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....nds amounting to Rs. 1,25,75,78,910.00 were found unutilized; Advances amounting to Rs. 81,04,41,000.00 being disbursed for supply of medicines and other material without assessing the capacity of the firms to supply the required material which were in fact not supplied; Financial approval of Rs. 353.71 crore was not given and therefore State could not fulfill its commitment of State share in the Mission. Utilization certificate of amount of Rs. 25,81,07,380.00 could not be obtained from the districts; advances of Rs. 2,79,75,95.223 were not adjusted; Firm was endowed to do work was changed inadvertently without assigning any cogent reason after payment of advances to the tune of Rs. 89 crore. Contract for supply of furniture and equipment to the tune of Rs. 8.10 crore was given to a firm without inviting tenders which resulted in loss to the State exchequer of the lowest supply rates against which contract could have been floated. Hoarding work of Rs. 9.75 crore done without floating tender, the State incurred a loss of Rs. 6.16 lakhs; 988 ambulances were ordered....
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.... of internal control procedures in respect of transfer of funds, issuance of guidelines for utilisation of funds by H.O., payments of advances and its adjustments at the districts, submission of timely SOEs by the districts, monitoring of outstanding advances and periodical reconciliation etc. are not in commensurate with size and nature of the business of the organization and needs to be strengthened for effective monitoring and control. Management Letter: Frequent change in DDO is made due to transfer of CMO and Dy. CMO (RCH). Charge is handed over and taken over only on cash book, meaning thereby charge of assets viz. stores, furniture etc. are not handed over to the new comer. Procurement: Procurement of furniture, equipment, books consumables have done generally by obtaining quotations from at least three suppliers and preparing comparative chart of the solicited quotations. (iii) Year 2007-08 Minutes books of purchase committee not maintained properly. Payment through Cheque--JSY: In case of payments of incentives for Janani Suraksha Yojna, there was an instruction from State Project Management Unit to make ....
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....Union of India. The main findings in the report of the year 2009-10 are quoted below: Report of districts--Unnao, Bijnaur, Kannauj, Sultanpur, Auraiya, Ghazipur, Jalaun, Balrampur, Aligarh and Kanpur Nagar: Human Resources: Post of multipurpose worker (male) vacant at most of the SCs in Aligarh, Balrampur, Kanpur Nagar districts. Specialists at CHC Chhibramau in Kannauj district. Regular driver at PHC Balrampur district. RKS & VHSC: Guidance required for smooth functioning of RKS at PHC level in 4 out of 10 visited districts. No VHSC meeting organised after June 2008. Meeting of RKS held irregularly at DH in Ghajipur and was non-functional at CHCs and PHCs. Untied Funds: ANM in Ghazipur not properly guided for utilization of untied funds. No expenditure reported by CHCs/PHCs/SCs in time in Jalaun & Aligarh districts. Funds not utilized in a few of the SCs in Aligarh & Kanpur Nagar. Due to non-submission of utilization certificates for last two years, the centres in Ghajipur districts were not given fund in 2008-09. In Jalaun district, 55% of the allocated fund utilized till December 2008. Report of districts....
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....ng utilisation of NRHM funds. The facts reported aforesaid are also supported by the State's own Press Release issued by Chief Minister Information Centre, Information and Public Relations Department, Uttar Pradesh dated 7.4.2011 placed before us by the petitioners. The relevant portion is quoted below: 52. None of the parties including the State dispute that siphoning of funds and irregularities have been committed in the implementation of NRHM in Uttar Pradesh. Though the learned Additional Advocate General puts it as financial mismanagement; but he did not throw any light on the context and use of the expression in the present set of facts and circumstances. It is also not disputed that State Health Mission was not reconstituted nor the fact that the Executive Committee took all the decisions concerning implementation of the Mission without any approval being accorded to such decisions by the Governing Body and that no full time Mission Director had been appointed during all such period and that the Principal Secretary and certain other officers/officials acted as the Mission Director and disbursed and operated the NRHM funds from time to time without any due authorisa....
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....e the status of the report as an important material before this Court to decipher the irregularities and anomalies that have been committed in utilisation of the NRHM funds and implementation of the Mission. 57. We do not find it necessary to enter into the niceties of the visit report aforesaid considering that it is a report on sample survey and also in view of the material brought on record otherwise. 58. Learned Additional Solicitor General also drew our attention to para. 11.1 of the MoU which underlines the State Government's commitments. The clause is quoted below: 11.1 The State Government commits to ensure that the funds made available to support the agreed State Sector PIP under this MoU are: (a) used for financing the agreed State Sector PIP in accordance with general financing schedule and not used to substitute routine expenditures which is the responsibility of the State Government. (b) kept intact and not diverted for meeting ways and means crisis. 59. Relying on the above-quoted clause from the MoU, learned Additional Solicitor General stated that (1) the MoU has been entered into between the Government of In....
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....ay can be partially appreciated in the light of the decentralised administration envisaged in the MoU. However, it cannot be lost sight of, that the MoU which governs the implementation of NRHM in the State was entered into with the State and not with the State Health Society or any other body which is only an implantation agency of the whole Mission. The Chief Minister was designated the ex-officio Chairperson whereas Minister, Health & Family Welfare was the ex-officio Co-Chairperson of the State Health Mission only to ensure that the whole system remains under his/her vision and check, so that the objectives sought to be achieved by the introduction of NRHM is not lost due to administrative turbulence. Undoubtedly, paragraph 11.1 puts the duty on the state to monitor the utilization of funds and progress of the Mission in the State. The involvement of the State in the implementation of the Mission so far as the State itself is concerned cannot be ousted. The Reports on record including those extracted above and the Press Release of the State highlight the irregularities and the manner in which affairs of NRHM have been dealt with which has led the two Ministers tender their resi....
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....rged functions of Mission Director, however it admitted that such persons were never appointed as Mission Directors nor such persons could have been appointed. Letting an officer operate NRHM funds which he was not otherwise authorised speaks volumes about the manner in which NRHM was sought to be implemented in the State which establishes that the funds were allowed to be dealt with by unauthorised persons. 68. More so, Sri Jagdish Narain Shukla, petitioner appearing in person in one of the writ petitions submitted that though the State is pressing that CAG Report be obtained before entrusting the matter to CBI but it has not been able even to protect the record relating to NRHM. He brought to our notice instance at Agra where NRHM records were burnt and then again theft of some articles occurred at Godown of Department of Health at Lucknow against which FIR was also registered though we had requested the Chief Secretary in the meanwhile to issue necessary instructions to protect the records. 69. Considering the facts and circumstances of the present case, it is painful to see that a scheme meant for providing quality health services has taken the lives of three CMOs, the af....
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.... murders of two CMOs (Family Welfare), Dr. V.K. Arya and Dr. B.P. Singh, death of Dr. Y.S. Sachan while in judicial custody (Jail) and financial irregularities committed in the office of CMO, Lucknow all in relation to irregularities in NRHM are already being investigated by the CBI pursuant to the orders of this Court with the consent of the State Government. 74. The facts and circumstances, aforesaid make out a case for reference to CBI for making a preliminary enquiry in the affairs of NRHM in the entire State of U.P. right from the very inception of the NRHM. We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date. It is directed that the inquiry be completed within four months. The State Government is directed to hand over and make available all the records as may be required....
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....य चिकितà¥à¤¸à¤¾à¤§à¤¿à¤•à¤¾à¤°à¥€, परिवार कलà¥à¤¯à¤¾à¤£ दà¥à¤µà¤¾à¤°à¤¾ विà¤à¤¿à¤¨à¥à¤¨ असà¥à¤ªà¤¤à¤¾à¤²à¥‹à¤‚ में राषà¥à¤Ÿà¥à¤°à¥€à¤¯ गà¥à¤°à¤¾à¤®à¥€à¤£ सà¥à¤µà¤¸à¥à¤¥à¥à¤¯ मिशन के तहत चलाये जा रहे विà¤à¤¿à¤¨à¥à¤¨ कारà¥à¤¯à¤•à¥à¤°à¤®à¥‹à¤‚ के लिठवाहनों को किराये पर लेकर तथा उनके à¤à¥à¤—तान के मामलों में गंà¤à¥€à¤° वितà¥à¤¤à¥€à¤¯ अनियमितताये....