The court dismissed a writ petition seeking an independent enquiry into alleged bribery of NHAI officials. The petition relied on a US DOJ notice. The court noted an FIR was registered by the CBI, rendering the writ unnecessary.
Petition and application dismissed; no order for enquiry made due to CBI FIR.
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PRAVEEN KUMAR SINGH ..... Petitioner
Through: Mr. Sanjay Baniwal with Mr. Kamlesh Kr. Mishra, Advocates.
versus
NATIONAL HIGHWAY AUTHORITY OF INDIA AND ORS.
..... Respondents
Through: Ms. Gunjan Sinha Jain, Advocate for R-1/NHAI. Mr. Ashok C. Prakash Malhotra, Advocate for NHAI. Mr. Anil Soni, CGSC with Ms. Priyanka Singh, Advocate for R-3 & R-5. Mr. Nikhil Goel with Mr. Ashutosh Ghade, Advocates for CBI.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE C.HARI SHANKAR
O R D E R
C.M. APPL. 5649/2018 ( exemption )
W.P.(C) 1360/2018
Boston, Massachusetts, U.S.A. concerning violations of the Foreign Corrupt Practices Act. The petitioner has relied upon a communication dated 21.06.2017 issued by the Criminal Division of the U.S. Department of Justice stating as follows:-
“ The Department’s investigation found that CDM Smith, through its employees and agents, and those of its wholly owned subsidiary in India (“CDM India”), paid approximately $1.18 million in bribes to government officials in India in exchange for highway construction supervision and design contracts and a water project contract resulting in approximately $4 million in net profits.
From approximately 2011 until approximately 2015, employees of CDM Smith’s division responsible for India operations and CDM India illegally paid bribes to officials in the National Highways Authority of India (“NHAI”), India’s stateowned highway management agency and an “instrumentality” under the FCPA, in order to receive contracts from NHAI. The bribes generally were 2-4% of the contract price and paid through fraudulent subcontractors, who provided no actual services and understood that payments were meant to solely benefit the officials. In addition, CDM Smith’s division is responsible for India and CDM India paid $25,000 to local officials in the Indian state of Goa in relation to a water project contract. All senior management at CDM India (who also acted as employees and agents of CDM Smith and signed contracts on behalf of CDM Smith, including CDM India’s country manager) were aware of the bribes for CDM Smith and CDM India contracts, and approved or participated in the misconduct.
The Department’s decision to close its investigation of this
matter is based on a number of factors, including but not limited t: (1) CDM Smith’s timely, voluntary self-disclosure of the matters described above; (2) CDM Smiths’s thorough and comprehensive investigation; (3) CDM Smith’s full cooperation in this matter (including its provision of all known relevant facts about the individuals involved in or responsible for the misconduct); (4) CDM Smith’s agreement to disgorge to the Department all profits it made from the illegal conduct; (5) the steps CDM Smith has taken and continues to take to enhance its compliance program and its internal accounting and controls; and (6) CDM Smith’s full remediation, including but not limited to terminating all of the executives and employees who were involved in or directed the misconduct.
Pursuant to this letter agreement, CDM Smith agrees to disgorge $4,037,138 USD (the “Disgorgement Amount”), which represents the profit to CDM Smith from the illegally obtained contracts in India. CDM Smith shall pay S1,037,138 of the Disgorgement Amount to the United States Treasury within ten (10) business days of its execution of this letter, $1,000,000 by August 1, 2017, $1,000,000 by September 1, 2017 and $1,000,000 by October 1, 2017. CDM Smith acknowledges that no tax deduction may be sought in connection with any part of its payment of the Disgorgement Amount. CDM Smith further agrees that it will not seek or accept directly or indirectly reimbursement or indemnification from any source with regard to the Disgorgement Amount.
This letter agreement does not provide any protection against prosecution of any individuals, regardless of their affiliation with CDM Smith. If the Department learns information
that changes its assessment of any of the factors outlined above, it may reopen its inquiry.”
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
FEBRUARY 13, 2018 av
1 issue framed by the court
Whether any writ of mandamus is necessary to compel an enquiry into bribery allegations against NHAI officials after an FIR was registered by the CBI.
Praveen Kumar Singh
National Highway Authority of India
Central Bureau of Investigation
C. Hari Shankar
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
