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WHISTLE BLOWING: DEFINED
The term whistle blowing can be defined as raising a concern about a wrong doing within an organization. The concern must be a genuine concern about a crime, criminal offence, miscarriage of justice, dangers to health and safety and of the environment – And the cover up of any of these.
WHISTLE BLOWER: DEFINED
A whistleblower is an employee, former employee, or member of an organization, especially a business or government agency, who reports misconduct to people or entities that have the power and presumed willingness to take corrective action.
Generally the misconduct is a violation of law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations, and corruption.
Some of the instances of unethical practices/improper activities adopted by certain organisations, which is required to be reported or for which whistle should be blown are:
1. Theft2. Harassment3. Unethical practices4. Fraud5. Dishonesty6. Discrimination7. Lack of Independence of Board/Committees8. Improper Director Remuneration Packages9. Lack of Independence of Auditors10. Violation of Regulations and Code of Conduct11. Insider Trading12. Corruption13. Bribery14. Lack of Work Place Safety Hazards15. Financial Statement Misrepresentation16. Lack of Proper Internal Controls.
TYPES OF WHISTLE BLOWERS
INTERNAL
Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. Here the charge is not against the organization or system but against one individual.
EXTERNAL
External whistleblowers, however, report misconduct to outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies.
SOME STATISTICS FROM STUDY CONDUCTED AROUND THE WORLD.
233 individuals polled
40% responded ,
Negative Impacts of Whistle Blowing
51% of government employees lost their job
82% harassed by superiors
69% watched closely after blowing the whistle
63% lost job responsibilities
60% fired
10% attempted suicide
Positive Effects Of Whistle Blowing:
20% felt their actions resulted in positive changes
More than 50% (of responders) would do it again
WHISTLE BLOWING SCENE IN INDIA
There have been multiple instances of threatening, harassment and even murder of various whistleblowers. Two years later from murder of Satyendra Dubey, an Indian Oil Corporation officer, Shanmughan, was murdered for sealing a petrol pump that was selling adulterated fuel.
A Karnataka official SP Mahantesh, said to be a whistle-blower in controversial land allotments by societies was murdered in May 2012.
The Whistle Blower Resolution the Ministry of Personnel, Public Grievances and Pensions empowered the Central Vigilance Commissioner (CVC) to act on the complaints of whistle-blowers and to protect them. Through the resolution, the government authorized the CVC to act as the `designated agency' to receive written complaints.
India does not have a law to protect whistleblowers; however, Whistle Blowers Protection Bill, 2011 was approved by the Cabinet of India as part of a drive to eliminate corruption in the country's bureaucracy and passed by the Loksabha on 27 December 2011.The Bill is still pending before the Rajyasabha.
WHY WHISTLE BLOWING IS SO HARD IN INDIA??
ETHICAL DILEMMA
The Mum Effect --reluctance to blow the whistle Audit report may contradict the best judgment and vested interests of the powerful players backing a project; fear of reprisals.
The Deaf Effect --reluctance to hear the whistle “ I wrote lots of reports. I escalated things as much as I could, but in the end, they said, ‘We really appreciate your efforts, but thanks, but no thanks’”
The Blind Effect --reluctance to see the need to blow the whistle Established audit functions do not operate effectively because they try to conceal the information from management.
FEAR & DOUBT
Will I be viewed as a “rat” who ratted out the company? I will be resented by my colleagues. Stress could lead to resorting to drinking, self-destructive behavior. If I lose this job, what will my family do? What if “those” guys find out and harm
me?
There are a variety of theories as to why whistle blowing hasn't being used as extensively in India as it is internationally. Says Bharat K, chartered accountant, JR Desai & Co, "An organizational culture which encourages honesty, transparency and a sense of moral obligation or responsibility is most likely to give rise to individuals who would not hesitate to
blow the whistle in case they spot any wrongdoing. It is important for the whistleblower to have access to communication channels and reach the people that matter. Hence, a very hierarchical organizational set-up with a single nucleus of power, as we commonly see in India, can prove to be a major roadblock to whistle blowing."An interesting observation made by the ASSOCHAM.
Laws relating to whistle blowing and the protection of whistleblowers are also ambiguous and inadequate. Framing a whistleblower policy is not mandatory in India, although clause 49 of The Companies Act states that every company should disclose in its annual report whether a whistleblower policy is in place and who it is applicable to.
First, the Companies Act does not contain a provision that makes it mandatory for companies to have whistle blowing policies in India.
Indian companies don’t show any desire to have a whistle blowing policy in place. They don’t know how to handle such casesIn India there have been innumerable instances of whistle blowers being killed. So it’s hardly a surprise that such few people come forward with instances of wrong doing.
list of attacks made on whistle blowers in India
Name State Date Attack type Nature of Activism
Ketan Shah Gujarat 14 January 2013
Attacked, removed to hospital."Cops take RTI activist on fast to hospital". The Times of India. 15 May 2011. Retrieved 18 July 2013.
For exposing corruption
Rinku Singh Rahi Uttar Pradesh 26 March
2009
Assaulted, removed to a mental institution.[7]
Rahi is a bureaucrat who used RTI to expose welfare scheme fraud in Muzzaffarnagar
Firoz Ibrahim Khan Maharashta 11/17/07 Assault[8]
Gopalbandhu Orrisa 2 January Assault[9]
Name State Date Attack type Nature of Activism
Chhatria 2009
Ripu Daman Ohri Punjab 6 January
2009 Assault[10]
Munikrishna Karnataka 10/27/09 Assault[11]
Ajay Kumar Delhi 1 January 2010 Assault[12]
Used RTI to enquire about private house/shop construction on public land under authorization given by a Delhi politician.
Kiran Pandey Punjab 1 October 2010 Assault[13]
Sumaira Abdulali Maharashtra 3/16/10 Assault[14]
Abhay Patil Maharashtra 4 January 2010 Assault[15]
Ashok Kumar Shinde Maharashtra 7/17/10 Assault[16]
Budhai Kumar Uttar Pradesh8 September 2010
Assault[17]
S Channabasappa Patil Karnataka 9/16/10 Assault[18]
Yashwant Maharashtra 1 February Assault[19]
Name State Date Attack type Nature of Activism
Gavand 2011
Arun Baburao Mane Maharashtra 1 February
2011 Assault[20]
Salman Reddy Orissa 1/17/11 Assault[21]
Safdar Ali Jammu and Kashmir 1/20/11 Assault[22]
Vikrant Karnik Maharashtra 1/25/11 Assault[23]
Amar Pandey Uttar Pradesh 1/27/11 Assault[24]
Gopal Prasad, Anil Mittal, Nanda Sawant
Delhi 2 March 2011 Assault[25]
Mangala Ram Rajasthan 3 March 2011 Assault[26]
Bharat Guggul, Bhanji Jogen Gujarat 3 May
2011 Assault[27]
Vishnu Medhkar Maharashtra 4 February 2011 Assault[26]
Dilip Jaiswal Maharashtra 4 May 2011 Assault[28]
Arvind Kaushal Maharashtra 4 August Assault[29]
Name State Date Attack type Nature of Activism
2011
Popat Barge Maharashtra 4/17/11 Assault[30]
Jai Bhagwan and Karambir Haryana 5/21/11 Assault[31]
Ismail Patwari Maharashtra 5/27/11 Assault[32]
C.P. Singh Maharashtra 6/22/11 Assault[33]
Baghu Dewani Gujarat 6/24/11 Assault[34]
Ganasham Kunkolkar Goa 7/22/11 Assault[35]
Jaisukh Bambhania Daman and Diu 8 August
2011 Assault[36]
Sanjit Das Meghalaya 8/14/11 Assault[37]
Ajay Ambalia Gujarat 8/31/11 Assault[38]
Parshuram Kishanlal Mali Gujarat 9 July
2011 Assault[39]
Manisha Goswami Gujarat 9/21/11 Assault[40]
Mehul Kataria Maharashtra 10 July Assault[41]
Name State Date Attack type Nature of Activism
2011
Santosh M Tiwari
Maharashtra, Gujarat 10/16/11 Assault[42]
Poonam Solanki Gujarat12 February 2011
Assault[43]
Akhilesh Saxena Uttar Pradesh 2008 Assault[9]
Parameswar Sabar Orissa June 2011 Assault[44]
Niren Pareek, Christopher Minz Assam May 2007 Assault[45]
Tapal Ganesh Karnataka Unknown Assault[46]
Purshottam Chauhan Gujarat Unknown Assault[47]
Narayan Hareka Orissa Unknown Assault[48]
Akhil Gogoi Assam Unknown Assault[45]
Sumit Kumar Mahato Jharkhand Unknown Assault[9]
Bibhav Kumar, Rajeev Kumar Uttar Pradesh 1/26/07 Harassment[49][dead link]
Name State Date Attack type Nature of Activism
Tukaram Bansode Maharashtra 12/31/07 Harassment[50]
V Gopalakrishnan Tamil Nadu 3/13/09 Harassment[51]
Srikant Prabhu Maharashta 5 January 2009 Harassment[9]
Kishori Ram Bihar 7/21/09 Harassment[9]
Goverdhan Singh Rajasthan 3 January 2010 Harassment[9]
Mohit Sharma Delhi3 December 2010
Harassment[52]
Jay Kumar Raghuvanshi Maharashtra 3/13/10 Harassment[53]
Davinder Khurana Punjab 4 February
2010 Harassment[9]
Ramesh Agrawal Chattisgarh 6/23/10 Harassment[9]
Ganesh Borhade Maharashtra 7 July 2010 Harassment[54]
Manish Bhatnagar Maharashtra 7/18/10 Harassment[55]
Name State Date Attack type Nature of Activism
Harshad Patil Maharashta 8/13/10 Harassment[56]
Gopalkrishnan, Siva Elango, Madhav Vishnubhatta
Tamil Nadu 9 January 2010 Harassment[57]
Fatima Mynsong, Acquiline Songthiang, Matilda Suting
Meghalaya 9 January 2010 Harassment[58]
Abhijit Ghosh Maharashta 9 January 2010 Harassment[59]
Ratna Ala Gujarat 9/29/10 Harassment[60]
Bobby Basaiawmoit Meghalaya 2 January
2011 Harassment[61]
Mary Anne Pohshna Meghalaya
3 September 2011
Harassment[62]
Sanjay Gurav Maharashtra 3/22/11 Harassment[63]
M Z Ali Karnataka 5 October 2011 Harassment[64]
Ketan Shah Gujarat5 December 2011
Harassment[65]
Name State Date Attack type Nature of Activism
Ravinder Rathi Haryana 6 February 2011 Harassment[66]
Payi Gyadi Arunachal Pradesh
6 May 2011 Harassment[67]
Brijesh Kumar Delhi 8 February 2011 Harassment[68]
Ashok Paswan Bihar 8/19/11 Harassment[69]
Arvind Sharma Punjab 9 May 2011 Harassment[70]
Derrick Dias Goa9 November 2011
Harassment[35]
Subhash Aggarwal Delhi 10 July
2011 Harassment[71]
Sheeba Fehmi and Arshad Ali Fehmi
Delhi 10 August 2011 Harassment[72]
Sanjay Gurav Maharashtra 11/28/11 Harassment[73]
Anupam Saraf, Vaibhav Gandhi and Dinesh Shah
Maharashtra 12/13/11 Harassment[74]
R. Marijoseph Karnataka 12/30/11 Harassment[75]
Name State Date Attack type Nature of Activism
Kishan Lal Gera Haryana Since 2008 Harassment[76]
R V Prasanna Karnataka Since 2009 Harassment[77]
Shiv Prakash Rai Bihar May 2008 Harassment[69]
Takhellambam Ibempishak, Sagolsem Memcha
and Konjengbam Anita
Manipur Since Apr 2011 Harassment[78]
Pawan Sharma Uttar Pradesh Since 11 April 2011 Harassment[79]
Emmanuel Andhra PradeshFebruary and March 2011
Harassment[80][dead link]
Jagbir Singh DelhiSince February 2011
Harassment[81]
Biren Luwang Manipur Since April 2011 Harassment[82]
Injambakkam H Sekar Tamil Nadu
Since August 2011
Harassment[83]
Khirasindhu Sagria Orrisa
Since November 2011
Harassment[84]
Muzibur Rehman Unknown 2007 Harassment[85]
Name State Date Attack type Nature of Activism
Saleem Baig Uttar Pradesh 2007 Harassment[9]
Asith Sangma Meghalaya 2008 Harassment[9]
Ashok Verma Punjab 2009 Harassment[86]
Kheemaram Rajasthan 2010 Harassment[87]
Shivaji Raut Maharashtra June 2011 Harassment[88]
Ajay Gakhar Delhi July 2011 Harassment[89]
All Gujarat RTI users Gujarat July 2011 Harassment[90]
Ankur Patil Maharashtra September 2011 Harassment[91]
Gunjan Mehta Gujarat December 2011 Harassment[92]
Durga Delhi 2011 Harassment[93]
C J Karira Andhra Pradesh 2011 Harassment[94]
Nelapati Papireddy, Pachalla Suryanarayana Reddy
and Kovuru Satyanarayana Reddy
Andhra Pradesh 2011 Harassment[95]
Mohinder Kumar Punjab Unknown Harassment[96]
Anwar Shaikh Maharashtra Unknown Harassment[97]
Y. Ekyimo Kikon Nagaland Unknown Harassment[98]
Name State Date Attack type Nature of Activism
Ashok Rathod Gujarat Unknown Harassment[99]
Bharat H Gajjar, Milan Joshi Gujarat Unknown Harassment[100]
Rolly Shivhare Madhya Pradesh Unknown Harassment[9]
Jai Prakash Arya Delhi Unknown Harassment[101][dead
link]
Gian Singh Delhi Unknown Harassment[101]
Ram Sagar Delhi Unknown Harassment[102]
Sumankant Raichaudhari Bihar Unknown Harassment[103]
Piyusha Tiwari Rajasthan Unknown Harassment[104]
Rayabhai Zapadiya Gujarat Unknown Harassment[105]
Razuddin Harayana Unknown Harassment[106]
Rukhminibhai Andhra Pradesh Unknown Harassment[107]
Roshan Lobo Karnataka Unknown Harassment[108]
Bhadresh Wamja Gujarat Unknown Harassment[40]
Bhanjibhai Jogel and Bharatbhai Ghughal
Gujarat Unknown Harassment[40]
Lalit Mehta Jharkhand 5/15/08 Killed[109]
Mehta used RTI to expose NREGA related scams. Fought for the social audit ofNREGA
Kameshwar Yadav
Jharkhand 6 July 2008
Killed[3] Sought information on the nexus among officers, politicians, contractors
Name State Date Attack type Nature of Activism
and middlemen in NREGA related irrigation projects in Deori.
Venkatesh Karnataka 4 June 2009 Killed[110]
Satish Shetty Maharashtra 1/13/10 Killed[111]
Arun Sawant Maharashtra 2 January 2010 Killed[112]
Vishram Laxman Dodiya Gujarat
2 November 2010
Killed[113]
Shashidhar Mishra Bihar 2/14/10 Killed[114]
Sola Ranga Rao Andhra Pradesh4 November 2010
Killed[113]
Vitthal Gite Maharashtra 4/21/10 Killed[115]
Dattatraya Patil Maharashtra 5/22/10 Killed[116]
Amit Jethwa Gujarat 7/20/10 Killed[117]
Used RTI to expose illegal mining in the Gir Forest area. BJP MP Dinu Boga arrested by CBI in this case. Earlier Gujarat police has given clean chit to Dinu Boga.
Vijay Pratap (alias Babbu Singh)
Uttar Pradesh 7/25/10 Killed[118]
Ramdas Ghadegaonkar Maharashtra 8/27/10 Killed[119]
Name State Date Attack type Nature of Activism
Sonu Haryana 2 October 2011 Killed[120]
Niyamat Ansari Jharkhand 3 February 2011 Killed[1]
Exposed corruption by contractors in work under MNREGA.[1]
Amit Kapasia Gujarat 12/29/11 Killed[121]
Shehla Masood Madhya Pradesh 8/16/11 Killed[122]
S Bhuvaneswaran Tamil Nadu 1 October
2012 Killed[123]
Nadeem Saiyed Gujarat 11 May 2011
Killed (reason possibly unrelated)[124]
Ramvilas Singh Bihar 12 August 2011
Killed (reason possibly unrelated)[125]
V Balasubramanian Tamil Nadu 8/19/10 Killed(?)[126]
Jabbardan Gadhvi Gujarat 2/22/11 Suicide[127]
Ms. Poonam Solanki Gujarat 12 July
2011 Assault[43][128] Human Rights Activist
Dudhram Jaipur, Rajasthan 2 February 2012 Assault[129]
Premnath Jha Virar, Mumbai 25 Feb 2012 Killed[130]
Filed several RTI queries with the Vasai Virar Municipal Corporation seeking details of several construction projects
Akhil Gogoi Nalbari, Assam 5 July 2012 Assault[131]
Name State Date Attack type Nature of Activism
Ramesh Agarwal Raigarh, Chhattisgarh
7 July 2012 Shot[132]
Rajesh suresh Bobade
Amravati, Maharashtra
21 September 2012
Assault
Vasudeva Adiga Udupi,Karnataka 12 January 2013 Killed[133]
Ram Kumar Thakkur
Ratnauli Village, Muzzafarpur District, Bihar
23 March 2013 Killed[2]
Lawyer; Persisted with a legal case exposing "irregularities" in the implementation of NREGA welfare scheme in his village. Earlier, used RTI and exposed fraud involving sarpanch (village head).[2]
THE ROLE OF CENTRAL VIGILANCE COMMISION
THE WHISTLE RESOLUTION
The ministry of personnel, public grievances and pensions notified a resolution, empowering the central vigilance commissioner to action the complaints of whistleblowers and to protect them. Through the resolution the government authorizes the CVC to act as the “designated agency” to receive the written complaints.
The CVC has announced that it has the responsibility of keeping the identity of the complainant secret, even though it cannot stop the complainant himself from disclosing his identity or making the complaint public.
motivated No clarity on what “appropriate” steps would be taken against such a complainant.
GLIMPSE AT BILL INTRODUCED IN PARLIAMENT
The Bill faced considerable criticism because of following reasons:
1. Its jurisdiction is restricted to the government sector and encompasses only those who are working for the Government of India or its agencies; it does not cover the state-government employees.
2. The proposed law has neither provisions to encourage whistle blowing (financial incentives), nor deals with corporate whistleblowers; it does not extend its jurisdiction to the private sector even after the fraud at Satyam.
3. It outlines sanctions for false complaints. However, it does not provide a penalty for attacking a complainant.
LEGISLATIONS ACROSS COUNTRIES
UK- the United Kingdom is one of the first European states to legislate on the Protection of "whistle-blowers". The Public Interest Disclosure Act 1998 was enacted to protect workers from suffering a detriment, or being dismissed by their employers for raising concerns about serious misconduct or malpractice that threatens the public interest. The PIDA gives protection against victimization or dismissal to "whistleblowers", covering both private and public sector employees, voluntary sector employees, as well as other workers including agency staff, home workers, trainees, contractors and all professionals in the National Health Service (NHS), who raise concerns about serious fraud or malpractice at their work place, provided they have acted in a responsible way in dealing with the concerns, that they make the disclosure in good faith, that they reasonably believe the information to be substantially true and provided they do not act for personal gain.
US-U.S has a lot of provisions for federal employees. There are different Acts enacted at different levels which tries to protect the employees from illegal actions of the companies and rewarding whistleblowers at the same time. Some of these acts are- The False Claim Act, IRS Whistleblower Informant Award, The Occupational Safety and Health Act, State Whistleblower Law, Sarbanes Oxley Act, Whistle Blower Protection Act. The Corporate and Criminal Fraud Accountability Act of 2002, better known as the Sarbanes-Oxley Act, provides protection to the Employees of Publicly Traded Companies.(section 806)x The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers, or persons who work for the government who report agency misconduct.
CASE STUDY: GOLDEN QUARDILATERAL CORRIDOR PROJECT (NHAI)
WHISTLE BLOWER – SATYENDRA DUBEY
EDUCATION - B.Tech , M.Tech (Civil)
OCCUPATION - Astt. DirectorEMPLOYER - Govt. of India
In July 2002, he was employed by the National Highway Authority of India (NHAI).
Dubey became the Assistant Project Manager & managed a part of the Aurangabad-Barachatti section of National Highway 2 (The Grand Trunk Road).
This highway was part of the Golden Quadrilateral (GQ) Corridor Project. This was India's most ambitious road project - a network of 14,000 kilometers that would connect the four metro cities of Delhi, Mumbai, Chennai and Kolkata with multi-lane highways was initiated by the Prime Minister of India, Atal Bihari Vajpayee.
While working at the NHAI, Dubey discovered that the contracted firm assigned to build sections of the roads, LARSEN & TOUBRO had been subcontracting the actual work to smaller groups, controlled by the local mafia. He found that these smaller contractors did not have the expertise to build quality roads. Later on, Dubey reportedly had the contractor rebuild six kilometers of roads at a loss to the mafia.
He wrote a letter to his boss, NHAI Project Director SK Soni, and to Brig Satish Kapoor, regarding the irregularities in project, there was no action.
In August 2003, against his own will, he was transferred to Gaya. At Gaya, he experienced the same corruption found in Koderma. Frustrated with the lack of action, Dubey wrote directly to the Prime Minister.
November 2002, Satyendra Dubey sent a letter to the PMO detailing the financial and contractual irregularities in the project & large-scale systemic corruption in the National Highway Authority of India & poor quality control. He exposed a conspiracy between contractors building the roads and the officials appointed to check them & about contactors submitting forged documents to justify their technical and financial capabilities to execute the project.
He named four contractors and gave details of their misdeeds. He also made a special request that his name be kept secret when the PMO investigated the matter. While the letter was not signed, he attached a separate bio-data so that the matter would be taken more seriously. The PMO even then didn’t bother to investigate.
Satyendra's letter gave the names Centrosity of Russia, China Coal of China, LG of S.Korea and Pioneer Constructions Ltd. as being guilty of taking the contracts by manipulation and bribing and subsequently giving it away to subcontractors and making huge profits without doing any value adding work.
Despite a direct request that his identity be kept secret and the letter's sensitive content, accusing some of Dubey's superiors, the letter along with bio-data was forwarded immediately to the Ministry of Road Transport and Highways.
Satyendra name was not protected and the file containing his complaint was circulated to various offices.
On 27, November 2003, Satyendra Dubey was returning from a wedding. He reached Gaya railway station at three in the morning and found that his car was not able to start. Dubey never made it home. He was found by his personal driver, shot dead in Gaya.
In mid-January, 2004 key witness, Pradeep Kumar, "disappeared"
Two other witnesses, who were interrogated by the CBI in this case, allegedly committed suicide within a day in the end of January.
There was no investigation of these happenings or CBI's role in these suspicious deaths.
Three persons were sentenced to life imprisonment by a special CBI court for murdering NHAI engineer Satyendra Dubey namely Mantu Kumar, Udai Kumar, Pinku Ravidas under sections 302 of IPC for murder , Section 394 of IPC for voluntary causing hurt in committing robbery and the Arms Act for possessing unlicensed weapon.
As a whistleblower Dubey had his own moral guidelines on what he thought was right and wrong. While many people would have chosen to look the other way, Dubey believed that it was his responsibility to bring corruption to the attention of his superiors, for the good of India. In his letter to the Prime Minister, Dubey's request to keep his identity hidden was not an act of avoiding responsibility, but rather to secure his own personal safety. The Prime Minister of India and the Indian government not only failed to assist Dubey in correcting these contracting violations, but their actions may have led to Dubey's murder.
SATYENDRA K. DUBEY LETTER TO PM OF NOVEMBER11, 2002
To The Prime MinisterRepublic of IndiaPrime Minister’s OfficeNew Delhi - 110 001
Sub: National Highways Development Project (Golden Quadrilateral and North-South, East-West Corridors) — A dream project of unparalleled importance to the Nation but in reality a great loot of public money because of very poor implementation at every state. Honorable Sir,
Through this letter, I wish to draw your kind attention towards great lapse in the implementation of above project. Since such letters from a common man are not usually treated with due seriousness, I wish to clarify at the outset that this letter is being written after careful thought by a very concerned citizen of the country who is also very closely linked with the project. I request you to kindly go through my brief particulars (attached on a separate sheet to ensure secrecy) before proceeding further. Instead of writing at length, I would be very specific and to the point highlighting the areas where there have been great lapses and would suggest certain remedies to the best of my abilities. I have been posted both at NHAI, HQ and at site on NH-2 Projects and therefore my direct experience is with NH-2 Projects (World Bank Funded). However, the story is almost same with all other projects which are under implementation and would be no different for forthcoming Projects unless we take certain corrective measures immediately. I have gone through most of the files (even closed ones) dealing with NH-2 projects (their design consultancy, procurement of civil contractors, selection of supervision consultants, the mobilisation of contractors and consultants, etc.). The areas of concern are highlighted below: Preparation of detail project reports (DPRs) by the Design Consultants The DPRs prepared by the design consultants are in very poor shape and cannot be implemented in the field without major modifications. It appears that the design consultants have made the designs and drawings with little consideration for the actual ground conditions and the same have been accepted by NHAI without any scrutiny. The proof consultants (deployed for checking DPRs submitted by Design Consultants) appear to have done only cosmetic work and it appears that the officers in NHAI have not even opened the final DPRs submitted by the consultants before putting the works to tender. The result is that the DPRs, on the basis of which tenders have been called, are like garbage. When the problems are being noticed in DPR at the implementation stage and the design consultants are being requested to clarify them, we are getting a very cool and negative response from them. This is contributing to delay in the implementation of projects. A good DPR is one of the foremost requirements for the smooth implementation of the Project and we are faltering at the very initial stage. In the present system there appears to be no accountability on the part of Design Consultant. To ensure this, we should evolve a system whereby the design consultant can be made accountable for any problem in the implementation of DPR and their consequent implications in terms of time and cost overruns. A system of insurance may be devised to address this issue. The Design Consultant may be asked to keep his establishment at site in the initial stage of implementation of project, so that any design issue may be addressed speedily. Alternatively, we may link substantial portion of payment of Design consultants to the implementation of DPR in the field. Another way may be to award design consultancy (for preparation of DPR) and supervision consultancy (to supervise the execution of project) to the same consultancy firm so that any discrepancy noticed in DPR at the execution stage is corrected by the same firm. We may deliberate further to arrive at the most suitable option. Procurement of civil contractorsThe process of procurement appears to have been completely manipulated and hijacked by the big contractors. Many contractors are submitting forged documents to justify their technical and financial capabilities to execute the project. The big contractors have been able
to get all sorts of help (including even the most secret information and documents) from the officials in NHAI and even the note sheets carrying approval of chairman have been leaked outside. (This mostly appears to have been done by lower officials and supporting staff). Little thought has been given to the ability & sincerity of some of the contractors to do the work they have quoted for. The three striking examples are awards of NH-2 to M/s Centrodorstoy of Russia , M/s China Coal of China and M/s LG of South Korea which are all working like commission agents by collaborating with local incompetent and inexperienced firms and trying to get the work done through them. M/s Progressive Constructions Ltd is another contractor which appears to have completely manipulated the system to get the award of 2 projects on NH-2. This company is not organized on professional lines and it is run like a family business. They get one work and assign it to one relative, the second is assigned to another and the story goes on. There is an urgent need to have a fresh look at the whole procurement process and utmost care needs to be exercised at the time of selection of contractors. The whole process should be made more transparent and any official found colluding with the contractors should be severely punished. Mobilization of Contractors and Mobilization Advance to them NHAI officials have shown great hurry in giving mobilisation advance to the selected contractors (no surprise, as the commission to officials for award of work is linked to the contractors getting their first mobilization advance). In some cases the contractors have been given mobilization advance just a day after signing the Contract Agreement. The entire mobilization advance of 10 per cent of contract value (which goes up to Rs 40 crores in certain cases) has been paid to the contractors within a few weeks of award of work but there has been little follow-up to ensure that they are actually mobilised at site with the same pace. The result is that the entire mobilisation advance remains lying with contractors (or gets diverted in their other activities) for months — a way for contractors to make easy money and for client to loose interest charges on them. Most of the contractors have not mobilized even up to 50 per cent, a year after getting their mobilization advances. Similar diversion or idling of funds are taking place in case of equipment advances to the contractors, another 10 per cent of the contract value. In many cases, the equipment is not being purchased and, even if purchased, is being used somewhere else. The contractors are getting customs and excise duty exemptions on most of the road construction equipment. However, because of laxity on the part of NHAI, the contractors in many cases are buying equipment on behalf of or for other parties and appropriating a portion of the excise/custom duty exemptions in their pocket. We need to be vigilant and careful in giving advances to the contractors. The advances are given to the contractors to mobilise them quickly in the interest of project and therefore the same should be linked to their actual mobilisation at site. The advances should be given in installments and the release of next installment should be made dependent on utilisation of the previous installment. A strict vigil and audit needs to be done to ensure that the advances are used by contractors for quick mobilisation and are utilised in the same project for which they are being given. Selection of Supervision consultants and Design consultants
The concept of supervision consultancy is a step in very right direction and the amount spent on them (roughly 2-3% of the cost of civil works) is a good investment. But here again we are faltering at the implementation stage. There is a big fraud in the selection of Supervision/Design consultants which mainly depends on their technical manpower. To get the consultancy work, the consultants are proposing to deploy well-qualified and senior professionals in their technical proposals (many times their qualification and experience are being forged and NHAI officials are not taking any pain to ask for the documentary proof in support of their claims). Many a times, the same professional figures simultaneously in technical proposals forwarded by many consultants and NHAI officials are doing little to discourage it. However, once that work is awarded to them, they are invariably coming with the request for replacement of their proposed personnel with professionals of much less qualification & experience.To our shame, we in NHAI are giving least resistance to this trend and the proposals for replacement of professionals are being approved freely. The curriculum vitae of professionals are invariably being fabricated and manipulated by consultants to get approval, as the NHAI officials are not asking for any documentary proof in support of the qualification & experience claimed. Instead they are abetting this crime. The consultants in first instance come with the replacement CV to have an informal discussion with the officials. However, once they are given the feeling that the same can ’t be approved on file, the CV of same man is properly fabricated (in connivance with NHAI officials) and submitted formally and the approval is granted. This is the state of affairs.The end result is that the consultants propose to deploy the most qualified, experienced and senior men in their organisation (or outside their organisation) to get the work and, once awarded the work, replace them by much inferior persons. They propose the same senior team to get another work and repeat the same story of replacement and the drama goes on. This way, the consultants are completely manipulating the system. The well-qualified persons in head offices of consultancy firms are thus being used simply to get the work, but they are not being sent to the site, where they are being proposed to be deployed. The field units of these consultancy firms are instead being asked by their Head offices to look for the required personnel. The result is that many key professional posts are lying vacant for months or are being filled by unqualified person. In all these, it is the project which ultimately suffers. This whole drama can be very easily checked provided we have the will. It is all the more easy in the totally computerized system at NHAI. A few steps outlined below will go a long way in remedying this ill. (i) No consultant should be allowed to propose the deployment of same professional in more than one technical proposal.
(ii) It should be ensured that the same person is not proposed to be deployed by more than one consultancy firm.
(iii) It should be ensured that the person proposed by a consultancy firm is actually working
in the firm or is having a bond with the firm to work in the project if the firm is awarded the project.
(iv) Replacement should be approved only under very extraordinary circumstances and a penalty should be imposed on the firm for their inability to deploy the proposed professional.(v) All documentary proof in support of the qualification & experience claimed by a person should be asked. In summary, it should be ensured that the supervision consultants deploy a well qualified & experienced team for proper supervision of the work. This becomes all the more important, because the supervision consultant (known as Engineer in FIDIC contract document) has been given immense powers & responsibilities under FIDIC conditions of contract which we are following. The problem of subletting or subcontracting The NHAI is going for International Competitive Bidding to procure the most competent Civil Contractor for execution of its projects. The works are usually being awarded at high cost and the contractors are assuring the best quality in the execution of projects. However, when it comes to the actual execution of works, it is found that most of the works (sometimes even up to 100 per cent) are being sublet or subcontracted to small petty contractors who are not at all capable to execute such big projects and ensure the quality of construction assured by the Civil Contractors. As a result, the entire process of short listing & pre-qualification of contractors and International Competitive Bidding are being nullified and what we are getting are the numerous petty contractors working at site and making a mockery of the prestigious project. The main Civil Contractors who have been awarded the work by NHAI are doing all these under the veil of labor contract which is permissible under the Contract Agreement. But in reality, they are getting most of the work done through numerous small petty contractors (main contractors are supplying only a few critical equipment & materials) at 50-60 per cent of the price quoted by them and the rest 40 per cent of contract price is being pocketed by them without much effort. In the process, the main contractors are working just like commission agents. I would like to mention here that the above phenomena of subletting and subcontracting is known to all from top to bottom but everyone is maintaining a studied silence. It wouldnot be inappropriate to say that all these mouths have been shut by these big contractors who are manipulating the system and individuals alike. These petty contractors are bringing poor equipment & material, giving a big setback to the progress & quality of work. The main contractors are least bothered about the timely completion of projects (and penalties, if they are unable to finish the work in time) as they are quite sure of getting time extension by manipulating the individuals. They have already started fabricating spurious claims to make grounds for time extension and cost overruns. If this issue of subcontracting is not taken up with urgency, the entire project will be a very big failure both in terms of quality of construction and timely completion. This issue cannot be expected to be tackled by field units of NHAI as the decision to sublet the works are being taken by Head offices of the contractors & not their field units. To
address this, the top administration in NHAI has to take up the matter aggressively with the top management of contractors. NHAI organisation & office system It would not be inappropriate to say that there is no system in NHAI, there are only individuals. There is an urgent need to review and restructure the office procedure and office set up including the file system. Record keeping is very poor and it would be difficult to trace even the most important papers after some time. The entire organization is almost based on sourcing people on deputation basis. There is a need to have some permanent cadre strength in NHAI. In its zeal to maintain a lean and thin organization, one Accounts officer/Manager (Finance) is allotted to two Project Implementation Units spaced around 200-300 kms apart, which is a mere nonsense. There is an immediate need to deploy one Accounts Officer/Manager (Finance) in each PIU, which have to manage projects of around Rs.1,000 crores. The earlier we take up these issues, the better it is for the health of NHAI. If some well-planned measures are not taken soon, the NHAI as a system is headed for big failure.As a concerned citizen of the country, I have brought these issues to your notice for your kind intervention and necessary action. Looking at the enormity of public fund involved in the project, the matter needs your urgent attention. I have written all these in my individual capacity. However, I will keep on addressing these issues in my official capacity in the limited domain within the powers delegated to me. If any elaboration/clarification is needed on above issues I would be glad to render all my assistance in the interest of this very prestigious National Highways Development Project, which is undoubtedly the biggest ever project undertaken in India after independence. Thanking you,
Your sincerely,(For particulars please refer to the separate sheet) (See Box) Name: S.K. DubeyEducational Qualification: B.Tech (Civil Engineering) from IIT, KanpurProfession: Presently working as Manager (Tech.) in NHAI and posted at Project Implementation Unit, Koderma.Parent Cadre: Ministry of Road Transport and HighwaysOther details: After graduating from IIT Kanpur in Year 1994, I was selected in Engineering Services Examination, 1994 conducted by UPSC and joined the Ministry of Road Transport and Highways (MORTH) in March 1996. I was also selected in Civil Services Examinations 1997 (Rank-258) and 1999 (Rank 198) but decided to continue with the MORTH. Presently, I am on deputation to National Highways Authority of India.Address: S.K. Dubey, ManagerNational Highways Authority of IndiaProject Implementation Unit, KodermaGurdwara Road, Jhumri Telaiya, Koderma (Jharkhand)Phone: 06534-23436 (O), 22576 (O), 22619 (R)E-mail: satyendra_dubeyin@...
IMPACT
The Supreme Court issued notices to CBI seeking independent probe into the allegation of corruption in Rs 30,000 crore Golden Quadrilateral corridor Project.
The procurement of civil contracts, mobilizing of contracts and advances for projects, sub-contracting of projects and the "systemic failure" of the National Highway Authority of India (NHAI) in awarding contracts are some of the areas where discrepancies were found. CBI officials say they have been able to confirm "four of the six areas" of corruption that Dubey highlighted.
Scrutiny of documents and site inspections revealed that, in some cases, norms had been violated while paying out huge mobilization advances in just two days instead of the stipulated 30 days.
It was also found that private contractors had illegally sub-contracted work to a second, third, even fourth party.
In some stretches, sub-standard material and poor equipment had been used. On a number of occasions inflated bills had been submitted to the NHAI.
The NHAI eventually admitted that Dubey's charges were substantiated, and implemented "radical reforms" in selection and contract procedures.
In August 2013, a bench of Justices K S Radhakrishnan and Arjan Kumar Sikri ruled that identity of whistleblower can never be revealed to the accused facing prosecution under Prevention of Corruption Act, 1988
CONCLUSION
Today with Scandals like Satyam, Tyco, AIG, Enron, Worldcom, Zerox, need for more ethical governance has arisen. Whistle blowing has already been described as one of the basic tenets of Corporate Governance, but in India, there is no definite Whistle Blower law. If this tool of Corporate Governance is used in true letter and spirit, it can be savior for protecting the stakeholders and the larger public interest. It can be success factor for survival of corporates, build their brand image, which will support in raising funds. It can be effective tool in curbing and reporting corporate frauds, which earlier used to go unreported.
SILENCE IS DEFINITELY NOT A SOLUTION TO ANY TYPE OF MISCONDUCT / CORRUPTION.
As beautifully said by Napoleon; “world suffers not because of the violence of bad people but because of silence of good people”.
References
Websites:
https://www.gov.uk/whistleblowing
http://wbhelpline.org.uk/about-us/what-is-whistleblowing/
http://forbesindia.com/blog/business-strategy/why-whistle-blowing-is-so-hard-in-india/
http://articles.timesofindia.indiatimes.com/2013-09-09/work/41903181_1_india-inc-whistleblowing-organisation
http://www.bbc.co.uk/news/world-south-asia-12696470
http://en.wikipedia.org/wiki/Satyendra_Dubey
http://en.wikibooks.org/wiki/Professionalism/Satyendra_Dubey_and_the_National_Highways_Authority_of_India
http://www.thehindu.com/news/national/three-get-life-in-satyendra-dubey-murder-case/article315939.ece
http://articles.economictimes.indiatimes.com/keyword/satyendra-dubey
http://realityviews.blogspot.in/2012/08/short-biography-of-satyendra-dubey-read.html
http://prafulkr.wordpress.com/spiritual/satyendra-dubey/
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