Jharkhand High Court
Shiv Shankar Sharma vs The Jharkhand Vidhan Sabha Through Its ... on 23 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (PIL) No. 1811 of 2022
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Shiv Shankar Sharma, aged about 43 years, Son of Sri
Gautam Sharma, resident of Village-Tikara Toli, Nagri, Piska,
P.O. & P.S.-Nagri, District-Ranchi, Jharkhand.
... ... Petitioner
Versus
1.The Jharkhand Vidhan Sabha through its Secretary
General, P.O. & P.S.- Dhurwa, District-Ranchi, Jharkhand.
2.The Secretary General, Jharkhand Vidhan Sabha, P.O. &
P.S. - Dhurwa, District - Ranchi, Jharkhand.
3.The Director, Central Bureau of Investigation, Plot No. -
5/B, 6th Floor, CGO Complex, Lodhi Road, Jawaharlal Nehru
Stadium Marg, P.O. & P.S. - Lodhi Road, New Delhi, Delhi
110003.
4.Alamgir Alam, the then Speaker cum Cabinet Minister,
Department of Rural Development, Government of
Jharkhand, Project Building, P.O. & P.S. - Dhurwa, District-
Ranchi, Jharkhand.
5.The Speaker, Jharkhand Vidhan Sabha, Jharkhand, P.O. &
P.S.- Dhurwa, District-Ranchi, Jharkhand.
6.The Principal Secretary to Governor, The Governor‟s
Secretariat, P.O. Ranchi College, P.S. Kotwali, District-
Ranchi, Jharkhand.
... ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Petitioner : Mr. Rajeev Kumar, Advocate
Ms. Niteshwari Kumari, Advocate
For the State : Mr. Rajiv Ranjan, Advocate General
Mr. Piyush Chitresh, AC to AG
For the Vidhan Sabha: Mr. Indrajit Sinha, Advocate
Mr. Anil Kumar, SC
Mr. A.K. Jha, AC to SC
For the Governor : Mr. Prashant Pallav, Advocate
Mr. Parth Jalan, Advocate
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CAV on 20/06/2024 Pronounced on 23/09/2024
Per Sujit Narayan Prasad, A.C.J:
Prayer:
1. The instant writ petition has been filed, in the form of
„pro bono publico‟, under Article 226 of the Constitution of
India, for the following reliefs:
A. For direction upon the respondent no.1 and 5 to
implement the directive of the then Hon'ble Governor,
Jharkhand Rajbhawan issued vide letter no. 2098
dated 10.09.2018 to the then Speaker to implement 30
reference points of Enquiry Commission regarding the
illegal appointments in Vidhan Sabha and to enquire
into the matter by the Central Bureau of Investigation.
B. For direction upon the respondents specially
respondent no. 3 to investigate 30 reference points of
the Commission constituted by the State Government,
but the same has not been implemented due to
connivance of the officials of Vidhan Sabha including
the then speaker and the present Speaker, the action
has not been initiated and as it has been observed by
the Hon'ble Governor vide letter no. 2098 dated
10.09.2018.
C. For the direction upon the respondent no. 3 to
investigate the property earned by respondent no. 4
earned from illegally appointed 360 employees in
Vidhan Sabha without following the due process and
as a result of enquiry commission's report everything is
clear that the money has travelled from 300 employees
to respondent no. 4 and specially paid to the Cabinet
Minister of the present Government, properties earned
by respondent no. 4 requires to be attached after
adopting procedure law under the of Prevention of
Money Laundering Act, 2005.
D. For the direction upon the respondent no. 1 and 5, to
look into the gravity of the letter of the Hon'ble
Governor dated 10.09.2018 which has not been
implemented in connivance of the 150 members
illegally appointed in Vidhan Sabha.
E. For the direction upon the respondents to submit the
status report before this Hon'ble Court."
Brief facts of the case, as per writ petition:
2. The brief facts of the case, as per the pleading made in
the writ petition, read as under:
3. The writ petitioner, who claims to be a social worker,
and has filed number of „Public Interest Litigations,
approached this Court by filing the instant writ petition on
the backdrop of the fact that on the issue of irregularities in
the matter of public employment in Jharkhand Vidhan
Sabha, he submitted an application before the Office of
Hon‟ble Governor under the Right to Information Act, 2005
seeking the copy of file/report which was given to the
Governor with respect to „Vidhan Sabha Appointment Scam‟
in the period of former speaker. Upon this, the Secretariat of
the Governor responded vide letter no. 1260 dated
20.07.2020 annexing therewith the copy of letter dated 2098
dated 10.09.2018 sent by the then Governor to the then
Speaker, wherein certain recommendations/directives
including recommendation for investigation of the matter by
the „Central Investigation Agency‟ in the matter of irregularity
committed in public appointment in Vidhan Sabha and
concerned CD was made.
4. It has been stated that in the said CD [compact disc] the
corrupt practices adopted by respondent no. 4 is there, which
the Governor has directed to be investigated by the Central
Bureau of Investigation but the Speaker neither bothered to
implement the 30 points reference, as mentioned in letter
dated 10.09.2018 nor took any action on the additional four
points as directed by the Governor.
5. The concern of the petitioner is that even the
direction/order of the Governor, who is the executive head of
the State, has not been implemented by the then Speaker of
the Vidhan Sabha, which shows the connivance of the
Speaker in said illegal appointment.
6. In the aforesaid backdrop, the instant writ petition has
been filed under Article 226 of the Constitution of India
seeking reliefs, as quoted hereinabove.
7. After filing of the present PIL, the matter was placed
before the Co-ordinate Bench of this Court on 10th June,
2022, wherein order was passed to file counter affidavit giving
para-wise reply and time was granted to remove the defects,
as pointed out by the office. For ready reference, the said
order is quoted as under:
"Mr. Anil Kumar, learned counsel for respondent
Nos.1, 2 & 5(4), appears and submits that he has to
file counter affidavit.
Let him do so within four weeks.
Besides para-wise reply, the counter affidavit
must explain what action has been taken with respect
to the report of One Man Commission, appointee-wise
details and action taken against them as well as the
action taken against the concerned persons who are
involved in giving such type of illegal appointments.
As prayed, put up this case on 15.07.2022.
In the meantime, the defects pointed out by the Office
must be removed by the petitioner."
8. Thereafter, the matter was taken up on 28.03.2023,
whereby direction was passed by the Co-ordinate Bench to
the Jharkhand Vidhan Sabha to take appropriate instruction
and submit the status report. The order is quoted as under:
Let the learned counsel appearing for the Secretary
General of the Jharkhand Vidhan Sabha take appropriate
instruction and submit the status report within four weeks.
List this case on 02.05.2023 under the same category.
9. Again the matter was taken up by the Co-ordinate
Bench on 02.05.2023, but the status report was not
submitted as such observation was made that though the last
order has not been complied with by the Secretary General of
Jharkhand Vidhan Sabha, however, the matter is adjourned
to be listed on 13.06.2023. Order dated 02.05.2023 reads as
under:
The last order has not been complied by the Secretary
General of the Jharkhand Vidhan Sabha.
Let it be complied within three weeks.
List this case on 13.06.2023.
10. The matter was taken up by the Co-ordinate Bench on
13.06.2023. The Co-ordinate Bench again directed the
Secretary General, Jharkhand Vidhan Sabha to file report
prepared by first one-man judicial commission and the
matter was adjourned to 18.07.2023, wherein the Co-
ordinate Bench was constrained to observe that let the
previous order be complied within three weeks, failing which
this Court would be constrained to direct for personal
appearance of the Secretary, Jharkhand Vidhan Sabha. For
ready reference, order dated 18.07.2023 passed by Co-
ordinate Bench of this Court is quoted as under:
"The previous order has not been complied with.
Learned Senior Counsel would submit that three
weeks‟ time may be granted for compliance of the
previous order dated 13.06.2023.
As prayed, let it be complied within three
weeks, failing which this Court would be
constrained to direct for personal appearance of
the Secretary, Jharkhand Vidhan Sabha.
Matter be listed on 16.08.2023.
Let a free copy of this order as well as the
previous order dated 13.06.2023 be handed over to Mr.
Jai Prakash, learned Senior Counsel appearing for the
Legislative Assembly for early compliance."
11. The matter was listed on 16.08.2023 but the previous
order was not complied with, however, Co-ordinate Bench,
on the request made by Mr. Jai Prakash, learned senior
counsel for the Vidhan Sabha, adjourned the matter to be
listed on 04.10.2023.
12. On 04.10.2023, the Co-ordinate Bench of this Court
taking serious view of the matter observed that in spite of
several directions/adjournments granted to the respondent-
Jharkhand Vidhan Sabha to file the report of first one man
judicial commission, the same is not being produced by the
Secretary of the Jharkhand Vidhan Sabha and constrained to
observe that the report is deliberately not produced before the
Co-ordinate Bench even though her Excellency, the then
Governor of the State, has directed the Speaker of Vidhan
Sabha to carry out the proposals given in the report.
Therefore, the Co-ordinate Bench consider it to be an
obstruction to justice and directed the Secretary of
Jharkhand Vidhan Sabha to produce the aforesaid report
within seven days, failing which the Court would be
constrained to initiate a criminal contempt for obstruction to
justice. For ready reference, order dated 13.06.2023 is quoted
as under:
"Vide our order dated 13.06.2023, we had directed
the Secretary, Jharkhand Vidhan Sabha to file the
report prepared by xxxx. However, the report has not been
produced by the Secretary of the Jharkhand Vidhan Sabha
inspite of three adjournments.
Mr. Jai Prakash, learned senior counsel appearing for
the Jharkhand Vidhan Sabha, would submit that some time
may be granted for production of the report. We see that the
report is deliberately not produced before us even
though her Excellency the then Governor of the State has
directed the Speaker of Vidhan Sabha to carry out the
proposals given in the report. So we consider it to be an
obstruction to justice and direct the Secretary of
Jharkhand Vidhan Sabha to produce the aforesaid
report of xxxx Commission within seven days, hence,
failing which we would be constrained to initiate a
criminal contempt for obstruction to justice.
List this case on 12.10.2023.
Let a free copy of the order be handed over to Mr. Jai
Prakash, learned senior counsel appearing for the
Jharkhand Vidhan Sabha, for early compliance."
13. On the next date fixed also no report was produced and
adjournment was sought for on the ground that the In-charge
Secretary of the Jharkhand Vidhan Sabha has already
written a letter to the Chairman of the Single Judge
Committee for returning the copy of the report of first one
man judicial commission filing in this case. The Co-ordinate
Bench, however, granted one more chance to the
respondents to file the report with the observation that if the
order is not complied with, we will pass appropriate order and
try to dispose of the Public Interest Litigation without
perusing the report, basing on the recommendations made by
Her Excellency The Then Governor of Jharkhand. For ready
reference, the order dated 12.10.2023 passed by the Co-
ordinate Bench is quoted as under:
Mr. Jai Prakash, learned State Counsel, would bring to
our Court that on 10.10.2023 the Incharge Secretary of the
Jharkhand Vidhan Sabha has already written a letter to the
Chairman of the Single Judge Committee for returning the
copy of the report of xxxx for filing in this case.
So, we given one more chance to the respondents
to file the same at least 48 hours prior to the next
date of listing.
List this matter on 09.11.2023.
If the order is not complied with, we will pass
appropriate order and try to dispose of the Public
Interest Litigation without perusing the report, basing
on the recommendations made by Her Excellency The
Then Governor of Jharkhand.
Let a free copy be handed over to Senior Advocate Mr.
Jai Prakash for early compliance.
14. Thus, it is evident from perusal of the various orders
passed by the Co-ordinate Bench of this Court that in spite
of the consistent orders passed by the Co-ordinate Bench,
the respondents did not produce the report before the Court
for about two years for one pretext or the other, which was
already submitted four years ago in the year 2018 and the
present „Public Interest Litigation‟ was filed in the year 2022.
However, after the stringent orders having been passed by the
Co-ordinate Bench, when the matter came before this Court,
the report(s) submitted by the One-man Judicial Commission
was produced before this Court, apprehending the fact that if
the report will not be submitted then based upon the
recommendations given by then Governor, wherein
recommendation has been made to refer the matter to the
CBI, the report as also the counter affidavits have also been
filed by the respondents.
15. Further, from the orders so passed by the Co-ordinate
Bench as quoted hereinabove, it is apparent that neither the
State nor the Jharkhand Vidhan Sabha has taken the ground
of maintainability of the writ petition before the Co-ordinate
Bench and also not taken the ground of credibility of the writ
petitioner.
Pleadings made in the counter affidavit/Supplementary
counter affidavits:
16. In the counter dated 22.11.2022 filed on behalf of
respondent nos. 1, 2 and 4 [Vidhan Sabha], it has been
stated that, taking initiative regarding the implementation of
the report of the enquiry commission, the then Speaker gave
approval on the compulsory retirement of two officers,
namely, Ramsagar and Ravindra Kumar Singh vide
notification dated 26.08.2019.
- 10 - W.P. (PIL) No. 1811 of 2022
17. It has further been contended in the counter affidavit
that letter dated 10.09.2018 of the then Governor contains 04
points out of which 03 points relate to the personnel of the
Assembly Secretariat, who were working with the commission
of enquiry at the time of investigation by the Commission. So
far recommendation on „30 points of reference‟ is concerned it
has been stated that recommendation on „30 points of
reference‟ was sent to the Assembly Secretariat, in which
some actions were suggested by the Commission. After going
through the reports on 30 points of reference, it was found by
the Assembly Secretariat that in some of the reference points
some actions have been suggested against the persons named
in those references whereas some of the reference points have
been left inconclusive. Further, many of reference points,
which have though been answered but involve complicated
questions of law and facts.
18. In the counter affidavit, raising the legal issue, it has
been contended that the first one-man judicial Commission,
submitted its report before the Governor and not before the
State Government but under the Commissions of Inquiry Act,
1952 in particular Section 3(4) thereof, the report was
required to be tabled and laid before the legislature of the
State within a period of six months from the date the report
was submitted before the appropriate government.
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19. It has further been contended in the counter affidavit
that the validity of the rule and the action taken thereon and
continuance of the employees for pretty long period, Rule
2(ka) of Jharkhand Vidhan Sabha Sachivalaya (Recruitment
and Condition of Services Niyamavali, 2003) and the power of
the Speaker vis-à-vis his discretion in the rule are all critical
issues involving interpretation of complicated question of law
and facts. Keeping all points of facts into consideration, the
Speaker has given his approval to take initiative regarding the
constitution of another one-man judicial commission under
the provisions of Commissions of Inquiry Act, 1952 so that
the report given by the first commission could be scrutinized
and examined.
20. In pursuance to the recommendation of Speaker, the
Department of Cabinet Secretariat and Co-ordination
(Parliamentary Affairs) has issued Notification No. 1130 dated
21.09.2022 regarding constitution of another one man
judicial commission to scrutinize and examine the
complicated question of law and fact involved arising out of
the report given by the first one man judicial commission.
21. It has further been contended that from perusal of
report, it is quite clear that in the process of
appointment/promotion there is no allegation of money
transaction.
- 12 - W.P. (PIL) No. 1811 of 2022
22. Thereafter, on the query put forth by this Court to the
Legislative Assembly and the State, a supplementary counter
affidavit was filed by the respondents-Cabinet Secretariat and
Vigilance Department (Co-ordination) Jharkhand, Ranchi.
For ready reference, the query put forth by the Court is
quoted as under:
"(A) This Court wants to know from the State that if any
irregularity in the matter of public employment has been said
to have been committed in the Legislative Assembly, where is
the jurisdiction of the State to interfere with the affairs of the
Legislative Assembly?
(B) This Court also wants to know from the State why the
report of the One-Man Commission has been placed before the
Cabinet?"
23. Pursuant thereto, affidavits have been filed by the
respondents-Cabinet Secretariat and Vigilance Department
(Co-ordination) Jharkhand, Ranchi replying the query made
by this Court.
24. At paragraph 13 and 14 of the counter affidavit dated
19.03.2024, it has been stated inter alia that Action Taken
Report (ATR) was prepared by the Jharkhand Legislative
Assembly and vide its letter dated 16.01.2024 directed to the
Cabinet Secretariat and Vigilance Department (Parliamentary
Affairs) for the report along with Action Taken Report (ATR) to
be tabled on the next Session of the Legislative Assembly.
- 13 - W.P. (PIL) No. 1811 of 2022
Further, the Cabinet Secretariat and Vigilance Department
(Parliamentary Affairs), upon getting approval from the
Council of Ministers (Cabinet) meeting dated 24.01.2024 the
Minister, Parliamentary Affairs Department, the then
Speaker, vide letter dated 05.02.2024, requested Secretary,
Jharkhand Legislative Assembly for the report along with
Action Taken Report (ATR) to be tabled in Jharkhand
Legislative Assembly on 06.02.2024, as per Section 3(4) of the
Commissions of Inquiry Act, 1952.
25. It has further been averred that the State Government is
bound by the provisions of the Act, 1952 and as such there is
no interference in the affairs of the Legislative Assembly and
further the State Government has placed the report as per
the provisions of the Commissions of Inquiry Act, 1952.
26. In this regard, a supplementary counter affidavit has
been filed on 20.03.2024, supplementing the statement made
in earlier counter affidavit dated 19.03.2024, stating inter alia
that the report along Action Taken Report (ATR) provided to
the State Government by Jharkhand Legislative Assembly
was decided to be tabled before the Jharkhand Legislative
Assembly by the council of Ministers (Cabinet) in its meeting
dated 24.01.2024 and the matter was closed interim by the
State Government as per Section 3(4) of the Commission of
- 14 - W.P. (PIL) No. 1811 of 2022
Inquiry Act, 1952. For ready reference, the relevant part of
the supplementary affidavit is quoted as under:
"....... The report along with Action Taken Report
(ATR) provided to the State Government by
Jharkhand Legislative Assembly was decided to be
tabled before the Jharkhand Legislative Assembly
by the Council of Ministers (Cabinet) meeting dated
24.01.2024 and the matter was closed interim by
the State Govt. as per Section 3(4) of the
Commission of Inquiry Act, 1952".
Submissions advanced on behalf of the petitioner:
27. Learned counsel for the petitioner has submitted that it
is a fit case where the matter is required to be investigated by
the central agency, i.e., by the Central Bureau of
Investigation, as the matter involves illegal appointment made
in the Jharkhand Legislative Assembly, with connivance of
the high ups of the State including the then Speaker.
28. It has been submitted that on the initiative taken by the
Governor Secretariat finally a committee was constituted, for
making inquiry into the matter of irregularities in
appointment and promotion of employees in Jharkhand
Assembly, Ranchi, under the Chairmanship of one retired
Judge, High Court of Jharkhand vide notification dated
07.07.2014 issued by the Cabinet Secretariat & Co-
ordination Department, Govt. of Jharkhand, who was
- 15 - W.P. (PIL) No. 1811 of 2022
directed to submit its report before the Governor.
Accordingly, after completion of enquiry the one-man
commission submitted its report before the Governor. But
when no action was taken, the petitioner on the basis of
information received under Right to Information Act, 2005
has came to know from the Secretariat of the Governor that
the report of the one man commission along with letter dated
10.09.2018 by then Governor has already been sent to the
then Speaker making recommendation therein for
investigation of the matter by the „Central Investigation
Agency‟ in the matter of irregularities committed in public
appointment in Vidhan Sabha and concerned CD as also to
implement the 30 points reference as mentioned in the report
of one man commission. But no action was taken on the
recommendation of the said one man judicial commission,
therefore, the petitioner has filed the present Public Interest
Litigation.
29. It has further been submitted that in the present PIL
counter affidavit has been filed by the respondents-Vidhan
Sabha, wherein it has been submitted that implementing the
report of enquiry commission the then Speaker gave approval
of compulsory retirement of two officers, namely, Ramsagar
and Ravindra Kumar Singh vide notification dated
26.08.2019.
- 16 - W.P. (PIL) No. 1811 of 2022
30. Learned counsel for the petitioner vehemently argued
that even the direction/order of the Governor, who is the
executive head of the State, has not been implemented by the
Speaker of the Vidhan Sabha, who had clearly directed that
the matter is to be investigated by the CBI and further the
said CD (compact disc), which contains the corrupt practice
of the then Speaker, which the Governor has directed to
investigate by the Central Bureau of Investigation has not
been examined even by the expert body and for eye wash only
two of the officers has been compulsorily retired from service.
31. It has further been submitted that for a long period of
time even the report submitted by one man commission was
knowingly not produced before this Court and only when the
Co-ordinate Bench of this Court took note of the fact in
order dated 04.10.2023 that the report is deliberately not
being produced before it and found the same to be
obstruction to justice ordered that if the report would not be
submitted on the next date of hearing criminal contempt for
obstruction of justice would be initiated and further vide
order dated 12.10.2023 it has been directed that "...If the
order is not complied with, we will pass appropriate order and
try to dispose of the Public Interest Litigation without perusing
the report, basing on the recommendations made by Her
Excellency The Then Governor of Jharkhand...." . Only then,
- 17 - W.P. (PIL) No. 1811 of 2022
after a long period of time, the report has been submitted in
sealed cover.
32. Learned counsel for the petitioner has submitted that
this conduct of the respondents itself shows the mala fide
conduct of the State Legislative Assembly and the State
Government in placing the report before this Court.
33. Learned counsel for the petitioner has further submitted
that during pendency of the instant petition, vide notification
dated 21.09.2022 another one man judicial commission was
constituted to scrutinize and examine the complicated
question of law and fact involves arising out of the report
given by the Hon‟ble one commission constituted under the
chairmanship one retired Judge, High Court of Jharkhand.
34. Learned counsel for the petitioner has questioned the
very constitution of another judicial commission and
submitted that it is only constituted to clean-up the
irregularities in the matter of public employment done in
Jharkhand Vidhan Sabha and to save the high ups of the
State who are involved in the matter.
35. The petitioner further questioning the appointment of
second one-man judicial commission, has submitted that it is
nothing but to cover up the issue of illegality which has been
found to be there in the matter of appointment in the report
of first one-man judicial commission.
- 18 - W.P. (PIL) No. 1811 of 2022
36. It has further been contended that by no stretch of
imagination the second one man judicial commission can be
said to be permitted to be constituted or even for the purpose
of scrutinizing the report of the earlier one man judicial
commission, which would be evident from the provision of
Commissions of Inquiry Act, 1952 as no provision is there for
constitution of another commission to scrutinize the report of
earlier one man judicial commission As a matter of fact,
purposely another one-man judicial commission has been
constituted only in order to protect the appointees and other
high ups of the State and as such there is legally no
justification in appointing another one-man judicial
commission.
37. It has been submitted that it is very surprising that the
State Legislative Assembly and the State, in order to show
their bona fide, has taken the ground that action has been
taken on the report of earlier one man commission by taking
action against two of the officers of the Legislative Assembly
by issuing the order of compulsory retirement and as such
has virtually accepted the said report but on the other hand
when the matter came up before this Court by way of filing of
instant Public Interest Litigation, the respondents constituted
the second one man commission on the ground that since the
first one man judicial Commission submitted its report
- 19 - W.P. (PIL) No. 1811 of 2022
directly before the Governor and not before the State
Government and under the Commission of Inquiry Act, 1952
in particular Rule 3(4), the report was required to be tabled
and laid before the legislature of the State.
38. Furthermore, the second one-man judicial commission
was constituted only for the purpose to scrutinize and
examine the complicated question of law and fact involved
arising out of the report given by the first one man
commission. Therefore, in either of the cases, the report of
first one man judicial commission is to be implemented.
39. Learned counsel for the petitioner has submitted that
recommendation given by the then Governor, who is the
executive head of the State vide its letter dated 10.09.2018 to
the then speaker, is required to be implemented.
40. It is further contended that so many appointments have
been found to be illegal and high ups of the State of
Jharkhand including the then Speaker is deeply involved in
the issue and that is the reason the new one-man judicial
Commission has been constituted.
41. Learned counsel for the petitioner further drawn
attention of the Court that earlier the State while appointing
One Man Judicial Commission has made it in consultation
with the High Court so far proposal of name of the Hon‟ble
Judge for conducting enquiry in such a grave matter is
- 20 - W.P. (PIL) No. 1811 of 2022
concerned. But, while constituting the later one-man
commission, there was no consultation from the High Court
rather on the recommendation/opinion made by the learned
Advocate General, one-man judicial commission was
constituted. For that there is no justification either in the
counter affidavits or any pleading has been made before this
Court to that effect, which seriously casts a doubt upon the
credibility of the appointment of second one man judicial
commission.
42. Learned counsel for the petitioner has further submitted
that when the present writ petition (PIL) has been filed only
after that the respondent-Vidhan Sabha took steps for
constitution of second one-man commission as
correspondence in this regard has been made by the
Secretary, I/C of the Vidhan Sabha, namely, Syed Jawed
Haider, for the first time on 03.08.2022 whereas the present
writ petition has been filed on 18.04.2022 that is much
before writing of letter by the Secretary I/C who himself is
one of the beneficiaries in illegal appointment/promotion in
the State Legislative Assembly.
43. It has been submitted that not only that the affidavit(s)
has been sworn by said Syed Jawed Haider before this Court,
who is also one of the beneficiaries of the unfairness
committed in the matter of fulfilling the public post in the
- 21 - W.P. (PIL) No. 1811 of 2022
State Legislative Assembly and he is who has assisted the
later one-man commission.
44. Learned counsel for the petitioner has further submitted
that purposely the report submitted by first one man judicial
commission was not placed before this Court even after some
stringent orders having been passed by the Co-ordinate
Bench of this Court and after a long period of time, the report
was submitted in the year 2024, which was received by the
State Legislative Assembly way back in the year 2018 and
only after report having been submitted by another
committee where the matter has been tried to be closed, the
same has been produced before this Court on 18.04.2024.
45. The learned counsel for the petitioner based upon the
aforesaid grounds has submitted that since the high ups of
the State of Jharkhand is involved in fulfilling the various
posts in Jharkhand Legislative Assembly which has come in
the report, hence it is not feasible to have proper investigation
if the matter would be investigated by the State Police/State
agency.
46. On the backdrop of aforesaid facts, learned counsel for
the petitioner has submitted that considering the conduct of
the respondents in the matter of dealing with the issue of
irregularities in the matter of public employment under
Jharkhand Vidhan Sabha in order to save the illegal
- 22 - W.P. (PIL) No. 1811 of 2022
appointees and the high ups of the State, the matter of
irregularities/illegalities in appointment/promotion as also
the concerned CD, in which the corrupt practice adopted by
respondent no. 4, who was the then speaker is there, is
required to be investigated by the central agencies like
Central Investigation Bureau.
Submission on behalf of respondent-State of Jharkhand
and Jharkhand Legislative Assembly:
47. Written submissions on behalf of respondent-State of
Jharkhand and Jharkhand Legislative Assembly have been
filed on 22.06.2024. Let it be kept with the record.
48. Learned counsel for the respondents-State and State
Legislative Assembly have jointly placed their argument and
have submitted that it is the State which constituted the first
one-man judicial commission under the Chairmanship of one
retired Judge, High Court of Jharkhand, now deceased vide
notification dated 07.07.2014 to inquire into the
irregularities/illegalities committed with respect to
appointment/promotions in the Jharkhand Legislative
Assembly Secretariat. The one-man judicial commission
submitted its report before the Governor. The Governor vide
letter dated 10.09.2018 requested the then Speaker to take
appropriate action in the light of recommendations of the
report.
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49. It has been submitted that since in the report some
complicated question of facts and law were involved and in
the meantime, Hon‟ble Chairman of One Man Commission,
has died, as such for interpretation of such complicated
question of facts and law, the opinion of learned Advocate
General was sought for, who opined that since the first report
was not placed before the State Government and laid before
the State Legislature, an appropriate another Commission is
required to be constituted and accordingly, another one man
commission was constituted to scrutinize and examine the
complicated question of law and fact involved arising out of
the report given by the first Hon‟ble one man commission.
50. Mr. Rajiv Ranjan, learned Advocate General has
submitted that the reason for constituting the another one
man judicial commission is that in view of provision of
Section 3 of Commissions of Inquiry Act, 1952 the
commission is required to submit report before the State
Government but herein the report has been submitted before
the Governor of the State, which would be evident from letter
10.09.2018 issued by the then Governor addressed to the
Speaker, as such the same is vitiated as per law.
51. It has further been contended that since the report was
to be submitted before the State Government in view of
provision 3(4) of the Commission of Inquiry Act, 1952 hence
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the opinion was sought for from the Advocate General and
taking into consideration the non-observance and statutory
provision as contained under Section 3(4) of the Commission
of Inquiry Act, 1952, the opinion was given and thereafter,
another commission has been constituted.
52. It has further been submitted that the second one-man
commission has submitted its report to the Cabinet
Secretariat and Vigilance Department (Parliamentary Affairs),
which from approval of Cabinet has been placed before the
Jharkhand Legislative Assembly.
53. It has further been submitted that „Action Taken Report‟
[ATR] was prepared by the Jharkhand Legislative Assembly
and was decided to be tabled before the Jharkhand
Legislative Assembly by the Council of Ministers (Cabinet) in
its meeting dated 24.01.2024 and accordingly the matter was
closed by the State Government as per Section 3(4) of the
Commission of Inquiry Act, 1952.
54. In support of their argument, learned counsel for the
respondent-State as also the respondent-Legislative Assembly
has relied upon the judgment rendered in the case of Ram
Krishna Dalmia Vs. S.R. Tendolkar & Ors [AIR 1958 SC
538]; Ghanshyam Upadhyay Vs. State of U.P. & Ors.
[(2020) 16 SCC 811]; Shakeel Ahmed V. Union of India
[2022 SCC OnLine 1519]; State of W.B. Vs. Committee for
- 25 - W.P. (PIL) No. 1811 of 2022
Protection of Democratic Rights [(2010) 3 SCC 571];
Shree Shree Janki Ji Asthan Tapovan Mandir vs. State
of Jharkhand [(2019) 6 SCC 777].
55. Learned counsel for the respondents, on the aforesaid
premise, has submitted that the present „Public Interest
Litigation‟ is not sustainable in the eyes of law and is liable to
be dismissed in limine.
Analysis:
56. We have heard learned counsel for the parties, perused
the documents available on record as also the pleadings
available on record.
Issue of Maintainability
57. Though the issue of maintainability and the issue of
credential of the petitioner were not raised before the Co-
ordinate Bench fairly for a long period of about two years, as
discussed above, and as would be evident from the orders
passed by the Co-ordinate Bench, which is quoted above,
but, for the first time, in the written note of argument after
conclusion of final hearing submitted by the respondent-
Jharkhand Vidhan Sabha, issue of maintainability and
credential has been raised. Even though there is no specific
plea raising the issue of maintainability so that the petitioner
may have a chance to response even then, this Court before
entering into the merit of the case, deems it fit and proper to
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decide the issue of maintainability of the writ petition as well
as credential of the writ petitioner first.
58. However, before entering into the aforesaid issue, it is
necessary to deal with the meaning of expression 'public
interest litigation'.
59. In Strouds Judicial Dictionary, Volume 4 (IV
Edition), 'Public Interest' is defined thus: "Public Interest - a
matter of public or general interest does not mean that which
is interesting as gratifying curiosity or a love of information or
amusement but that in which a class of the community have
a pecuniary interest, or some interest by which their legal
rights or liabilities are affected."
60. In Black's Law Dictionary (Sixth Edition), "public
interest" is defined as follows :
"Public Interest something in which the public, or some
interest by which their legal rights or liabilities are
affected. It does not mean anything the particular
localities, which may be affected by the matters in
question. Interest shared by national government...."
61. In the case of Janata Dal vs. H.S. Chowdhary and
Others, [(1992) 4 SCC 305], the Hon‟ble Apex Court has
considered the scope of „Public Interest Litigation‟ and at
paragraph 52 of the said judgment, it has laid down as
under: :-
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"52. In Black's Law Dictionary (6th edn.), ‗public interest„ is
defined as follows: ―Public Interest -- Something in which
the public, the community at large, has some pecuniary
interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow
as mere curiosity, or as the interests of the particular
localities, which may be affected by the matters in question.
Interest shared by citizens generally in affairs of local, state
or national government ....‖"
62. At paragraph 53 the Hon„ble Apex Court in the case of
Janata Dal vs. H.S. Chowdhary and Others (supra) has
defined the expression „litigation‟ which is quoted hereunder
as:-
"53. The expression litigation means a legal action including
all proceedings therein, initiated in a court of law with the
purpose of enforcing a right or seeking a remedy. Therefore,
lexically the expression PIL„ means a legal action initiated in
a court of law for the enforcement of public interest or general
interest in which the public or a class of the community have
pecuniary interest or some interest by which their legal rights
or liabilities are affected. There is a host of decisions
explaining the expression PIL„ in its wider connotation in the
present day context in modern society, a few of which we
will refer to in the appropriate part of this judgment."
63. At paragraph 62 of the said judgment, it was pointed
out that "be that as it may, it is needless to emphasise that the
requirement of locus standi of a party to a litigation is
mandatory; because the legal capacity of the party to any
litigation whether in private or public action in relation to any
specific remedy sought for has to be primarily ascertained at
the threshold."
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64. At paragraph 96 of the said judgment, it has further
been observed that "while this Court has laid down a chain of
notable decisions with all emphasis at their command about
the importance and significance of this newly-developed
doctrine of PIL, it has also hastened to sound a red alert and a
note of severe warning that courts should not allow its process
to be abused by a mere busybody or a meddlesome interloper
or wayfarer or officious intervener without any interest or
concern except for personal gain or private profit or other
oblique consideration."
65. In subsequent paragraphs of the said judgment, it has
been held that "it is thus clear that only a person acting bona
fide and having sufficient interest in the proceeding of PIL will
alone have a locus standi and can approach the court to wipe
out the tears of the poor and needy, suffering from violation of
their fundamental rights, but not a person for personal gain or
private profit or political motive or any oblique consideration.
Similarly, a vexatious petition under the colour of PIL brought
before the court for vindicating any personal grievance,
deserves rejection at the threshold"
66. It has further been propounded in the aforesaid
judgment that the Public Interest Litigation is a weapon
which has to be used with great care and circumspection and
the judiciary has to be extremely careful to see that behind
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the beautiful veil of public interest, an ugly private malice,
vested interest and/or publicity seeking is not lurking. It is to
be used as an effective weapon in the armoury of law for
delivering social justice to citizens. The attractive brand name
of public interest litigation should not be used for suspicious
products of mischief. It should be aimed at redressal of
genuine public wrong or public injury and not be publicity
oriented or founded on personal vendetta.
67. In view of law laid down by Hon‟ble Apex Court, it is
required that the Court must be careful to see that a body of
persons or member of public, who approaches the court is
acting bona fide and not for personal gain or private motive or
political motivation or other oblique consideration. The Court
must not allow its process to be abused for oblique
considerations by masked phantoms who monitor at times
from behind. Some persons with vested interest indulge in
the past time of meddling with judicial process either by force
of habit or from improper motives and try to bargain for a
good deal as well to enrich themselves. Often, they are
actuated by a desire to win notoriety or cheap popularity. The
petitions of such busybodies deserve to be thrown out by
rejection at the threshold, and in appropriate cases with
exemplary costs.
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68. Therefore, the Court has to be satisfied about the
credentials of the applicant; the prima facie correctness or
nature of information given by him; and the information
being not vague and indefinite.
69. Herein, this Court after going through the pleading
available on record and after hearing learned counsel for the
parties at length, has found from the statement made under
paragraph 3 of the writ petition that description about the
credential of the petitioner has been given, as per "Jharkhand
High Court (Public Interest Litigation) Rules, 2010". Further
though counter affidavit has been filed but no reply in
rebuttal has been filed regarding the credential of the
petitioner.
70. However, at belated stage, when hearing concluded one
statement has been made in the written note of argument
raising the issue of maintainability. But the written notes of
argument cannot be said to be part of the pleading rather it is
gist of argument advanced by the party concerned based
upon the pleading made in the affidavit (s) and if any
substantial question is being raised, even with respect to the
credential of the petitioner, the respondent ought to have
come out with the specific denial on the issue of credential by
filing affidavit.
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71. But, in the instant case, although the affidavits have
been filed both on behalf of State of Jharkhand and the
Jharkhand Vidhan Sabha but there is no denial of the issue
of credential, as would be evident from the affidavits filed on
their behalf.
72. The question, therefore, is that merely on the basis of
statement made in the written notes of argument by which
the respondents has raised fingers upon the credential of the
petitioner, can the issue credential of the petitioner as also
the maintainability be raised, after conclusion of final
argument in the matter. The answer of this Court is in
Negative.
73. Further, from the orders passed by the Co-ordinate
Bench, as quoted and referred above, it is evident that the
issue of maintainability of the writ petition and credential of
the petitioner has never been raised.
74. This Court, as such, is satisfied that the present writ
petition is to be heard on merit.
Analysis on Merit of the case:
75. This Court, on the basis of facts and pleadings available
on record considers that for coming to a logical conclusion,
following issues are required to be answered:
Issues framed by the Court:
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I. Whether the report, if submitted by the chairman of first
one-man judicial commission, before the Governor directly,
even though the same is in compliance of Government
Notification dated 07.07.2014 wherein one-man judicial
commission was requested to submit the report before the
Governor directly, can it be said to be contrary to the
mandate of Section 3(4) of the Commissions of Inquiry Act,
1952?
II. Whether in facts and circumstances of the case, if the
Governor has forwarded the report of the first one-man
judicial commission before the Speaker directly can it be
said to suffer from error where the State itself has taken
decision vide notification dated 07.07.2014 to submit the
report before the Governor based upon the order passed in
the name of Governor?
III. Whether even accepting the argument advanced on behalf
of the State that the Governor was having no power to
forward the report before the speaker of the Assembly
directly and in place thereof the report was required to be
sent before the State can the fact finding given by earlier
one-man judicial commission be said to suffer from
irregularity or illegality; or if irregularity was there, was it
curable?
IV. Whether the action of the Governor, being Executive Head
of the State, can be questioned and said to be in the teeth
of Section 3 of Commissions of Inquiry Act, 1952 when the
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aforesaid mandate provides that the State Government is
to appoint judicial commission and to send the report
before the Assembly?
V. Whether the constitution of later one-man judicial
commission can be said to be proper that too for the
purpose of scrutinizing and examining the complicated
question of law and fact involved arising out of the report
given by the first one man judicial commission constituted
under the chairmanship of one retired judge, High Court of
Jharkhand, which is allegedly stated by the State bad in
law as per Section 3(4) of the Act, 1952?
VI. Whether the conduct of the State Government and State
Legislative Assembly be said to be proper as on the one
hand accepting the report of first one man judicial
commission, the then Speaker gave approval of compulsory
retirement of two officers, namely, Ramsagar and Ravindra
Kumar Singh vide notification dated 26.08.2019 while on
the other hand the State is questioning the said report of
one man judicial commission to be violative of Section 3 of
the Act, 1952 that too after filing of the instant Public
Interest Litigation?
VII. Whether considering the conduct of the respondents-
State/Legislative Assembly and the issues involved therein
requires thorough investigation by the agency like CBI, as
directed by the then Governor vide letter dated
10.09.2018?
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76. Since issues nos. I to VI are inter-linked, as such they
are taken up together. Outcome of these issues shall govern
the fate of issue no. VII, therefore it will be answered later on.
77. As such, this Court is now proceeding to appreciate the
pleadings as also the documents available on record to
answer the questions framed by this Court, as above, on the
merit of the matter.
78. Since in the instant case the contention has been
raised about the implication of Section 3 sub-clause 4 of the
"Commissions of Inquiry Act, 1952" [hereinafter referred to as
„Act, 1952‟], therefore, before adverting to prayer made in the
writ petition and appreciating the arguments advanced on
behalf of the parties, reference of object and purport of
enactment in the nature of the Commissions of Inquiry Act,
1952 would be worthwhile to mention herein to the extent it
is relevant in the instant case.
79. The Hon‟ble Apex Court in the case of State of M.P. v.
Ajay Singh, [(1993) 1 SCC 302] has elaborately dealt with
the object and purpose of enactment of Act, 1952 and has
observed as under:
"In all countries, certainly in those which enjoy freedom of
speech and a free Press, moments occur when allegations
and rumours circulate causing a nation-wide crisis of
confidence in the integrity of public life or about other
matters of vital public importance. No doubt this rarely
happens, but when it does it is essential that public
- 35 - W.P. (PIL) No. 1811 of 2022
confidence should be restored, for without it no
∼democracy can long survive. This confidence can be
effectively restored only by thoroughly investigating
and probing the rumours and allegations so as to
search out and establish the truth. The truth may
show that the evil exists, thus enabling it to be
rooted out, or that there is no foundation in the
rumours and allegations by which the public has
been disturbed. In either case, confidence is
restored. How, in such circumstances, can the truth best
be established?"
It is for the purpose of ascertaining the truth in such
circumstances that the Commissions of Inquiry Act, 1952
has been enacted. While construing the provisions of the
enactment, it would be useful to bear in mind its object if
occasion arises for illumination of any grey areas with
reference to the object of the enactment as a permissible aid to
construction."
[Emphasis supplied]
80. Thus, it is evident that for the purpose of ascertaining
the truth as well as to restore the faith of general public in
the existing democratic set up of our country and to enquire
in the matter of public importance, the Act, 1952 has been
enacted.
81. This Court would also like to refer herein Section 3 of
the Commissions of Inquiry Act, 1952, which reads as under:
3. Appointment of Commission.--(1) The appropriate
Government may, if it is of opinion that it is necessary so to
do, and shall if a resolution in this behalf is passed by [each
House of Parliament or, as the case may be, the Legislature
of the State], by notification in the Official Gazette, appoint a
Commission of Inquiry for the purpose of making an inquiry
into any definite matter of public importance and performing
- 36 - W.P. (PIL) No. 1811 of 2022
such functions and within such time as may be specified in
the notification, and the Commission so appointed shall
make the inquiry and perform the functions accordingly:
Provided that where any such Commission has been
appointed to inquire into any matter--
(a) by the Central Government, no State Government
shall, except with the approval of the Central Government,
appoint another Commission to inquire into the same matter
for so long as the Commission appointed by the Central
Government is functioning;
(b) by a State Government, the Central Government
shall not appoint another Commission to inquire into the
same matter for so long as the Commission appointed by the
State Government is functioning, unless the Central
Government is of opinion that the scope of the inquiry should
be extended to two or more States.
(2) The Commission may consist of one or more members
appointed by the appropriate Government, and where the
Commission consists of more than one member, one of them
may be appointed as the Chairman thereof.
[(3) The appropriate Government may, at any stage of an
inquiry by the Commission fill any vacancy which may have
arisen in the office of a member of the Commission (whether
consisting of one or more than one member).
(4) The appropriate Government shall cause to be laid
before [each House of Parliament or, as the case may
be, the Legislature of the State], the report, if any, of
the Commission on the inquiry made by the
Commission under sub-section (1) together with a
memorandum of the action taken thereon, within a
period of six months of the submission of the report by
the Commission to the appropriate Government.]
82. The object of appointing the Commission of Inquiry is to
enable the Government to make up its mind as to what
legislative or administrative measures should be adopted to
eradicate the evils found or to implement the beneficial
- 37 - W.P. (PIL) No. 1811 of 2022
objects it has in view.
83. In other words, the Commission of Inquiry is only a fact
finding body for the benefit of the Government when there is
a definite matter of public importance.
84. Section 3 provides for appointment of a Commission of
Inquiry. Sub-section (1) of Section 3 lays down that a
Commission of Inquiry, for the purpose of making an inquiry
into any "definite matter of public importance", may be
appointed by the appropriate Government if it is of opinion
that it is necessary so to do and shall make such an
appointment if a resolution in this behalf is passed by each
House of Parliament or, as the case may be, the Legislature of
the State, by notification in the official Gazette.
85. Sub-section (2) of Section 3 says that the Commission
may consist of one or more members appointed by the
appropriate Government, and where the number is more than
one, one of them may be appointed as the Chairman.
86. Sub-section (3) of Section 3 enables the appropriate
Government to fill any vacancy which may arise in the office
of a member of the Commission whether consisting of one or
more than one member, at any stage of an inquiry.
87. Sub-section (4) of Section 3 requires the appropriate
Government to cause to be laid before each House of
Parliament or, as the case may be, the legislature of the
- 38 - W.P. (PIL) No. 1811 of 2022
State, the report, if any, of the Commission of Inquiry
together with a memorandum of the action taken thereon,
within a period of six months from the submission of the
report by the Commission to the appropriate Government.
88. At this juncture, it will be profitable to discuss the other
allied provisions of Act, 1952 also.
89. Section 4 prescribes that the Commission shall have the
power of a civil court while trying a suit under the Code of
Civil Procedure in respect of the matters mentioned therein.
90. Section 5 deals with the additional powers of the
Commission. Section 5-A relates to the power of the
Commission for conducting investigation pertaining to
inquiry. Section 5-B deals with the power of the Commission
to appoint assessors.
91. Section 6 provides for the manner of use of the
statements made by persons to the Commission. Section 6-A
provides that some persons are not obliged to disclose certain
facts.
92. Section 7 deals with the manner in which a Commission
of Inquiry appointed under Section 3 ceases to exist in case
its continuance is unnecessary. It provides for a notification
in the official Gazette by the appropriate Government
specifying the date from which the Commission shall cease to
exist if it is of the opinion that the continued existence of the
- 39 - W.P. (PIL) No. 1811 of 2022
Commission is unnecessary. Where a Commission is
appointed in pursuance of a resolution passed by the
Parliament or, as the case may be, the Legislature of the
State, then a resolution for the discontinuance of the
Commission is also to be passed by it.
93. Section 8-A provides that the inquiry is not to be
interrupted by reason of vacancy or change in the
constitution of the Commission and it shall not be necessary
for the Commission to commence the inquiry afresh and the
inquiry may be continued from the stage at which the change
took place. Section 8-B prescribes that persons likely to be
prejudicially affected by the inquiry must be heard. Section 8-
C deals with the right of cross-examination and
representation by legal practitioner of the appropriate
Government, every person referred to in Section 8-B and,
with the permission of the Commission, any other person
whose evidence is recorded by the Commission.
94. Sections 9, 10 and 10-A relate to ancillary matters while
Section 12 contains the rule-making power of the appropriate
Government. Section 11 provides that the Act is to apply to
other inquiring authorities in certain cases and where the
Government directs that the said provisions of this Act shall
apply to that authority and issues such a notification, that
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authority shall be deemed to be a Commission appointed
under Section 3 for the purposes of this Act.
95. Further, it is required to refer herein that Sub-section
(4) of section 3 was introduced by Amending Act 79 of 1971.
96. Sub-section (4) was introduced in the light of the
experience gained indicating that many Governments do not
place the Commission's report before the Assembly at all
though they relate to important issues of national interest
and public importance.
97. It was thought necessary to compel the Government to
place the Report before the Parliament or the appropriate
Legislative Assembly together with a memorandum of action
taken thereon, within a period of six months from the date of
submission of the Report, the amendment was introduced.
98. The Hon‟ble Apex Court in the case of Fazalur Rehman
v. State of U.P., (1999) 7 SCC 683 while expressing the
anguish over manner in which reports of the Commissions of
Inquiry are being treated by the State Governments has
observed that when in a matter of "definite public
importance", a Commission of Inquiry is appointed under the
Commissions of Inquiry Act, 1952, the State Government
should examine the report expeditiously and decide what
action, if any, is required to be taken on that report promptly.
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For ready reference the relevant paragraphs of the aforesaid
judgment are being quoted as under:
4. However, before parting with this case, we would like to
express our anguish at the manner in which reports of
the Commissions of Inquiry are being treated by the
States. In this case, it has taken more than a decade for the
State Government to take notice of the Report of the
Commission of Inquiry headed by a former Judge of the High
Court. On account of such inaction for a long period of time,
the very purpose of the constitution of a Commission of
Inquiry under the Commissions of Inquiry Act, 1952 gets
frustrated and the argument that such Commissions are
appointed under the Act only as an eyewash acquires
credibility.
5. It is appropriate that when in a matter of "definite
public importance", a Commission of Inquiry is
appointed under the Commissions of Inquiry Act, 1952,
the State Government should examine the report
expeditiously and decide what action, if any, is
required to be taken on that report promptly. To keep
a report pending for years together and, as in this
case, for a decade, does no credit to anybody. Reports
of Commissions of Inquiry should not be allowed to
gather dust for years together as it reflects adversely
on the utility of such Commissions and would affect
the credibility of the entire exercise.
[Emphasis supplied]
99. Now this Court, before answering these issues as
mentioned above, deems it fit and proper to refer the
constitutional frame-work of the country which provides the
democratic set up wherein the decision is required to be
initiated by the concerned department and through a routine
channel i.e. through Cabinet Secretary. Such decision or
- 42 - W.P. (PIL) No. 1811 of 2022
agenda will be produced before the Cabinet and once the
Cabinet will approve it the same will be sent before Governor
of the State for its assent and thereafter the file will again be
returned through the same channel i.e., before the concerned
department for its notification and publication in official
gazette, meaning thereby merely because the Cabinet has
approved the agenda it will not take the shape of an order so
long as the notification in this regard is issued by way of
publication in official gazette and duly assented by the
Governor of the State.
100. Nobody has got any authority to make any addition or
alteration in the decision taken by the Cabinet under the
democratic set up of the Government which is prevailing in
our country.
101. Reference in this regard be made to the judgment
rendered in the case of Samsher Singh Vs. State of Punjab
& Anr. reported in AIR 1974 SC 2192, in particular
paragraphs 27 and 28, which reads hereunder as:
"27. Our Constitution embodies generally the Parliamentary
or Cabinet system of Government of the British model both
for the Union and the States. Under this system the President
is the constitutional or formal head of the Union and he
exercises his powers and functions conferred on him by or
under the Constitution on the aid and advice of his Council of
Ministers. Article 103 is an exception to the aid and advice of
the Council of Ministers because it specifically provides that
the President acts only according to the opinion of the
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Election Commission. This is when any question arises as to
whether a Member of either House of Parliament has become
subject to any of the disqualifications mentioned in clause (1)
of Article 102.
28. Under the Cabinet system of Government as embodied in
our Constitution the Governor is the constitutional or formal
head of the State and he exercises all his powers and
functions conferred on him by or under the Constitution on
the aid and advice of his Council of Ministers save in spheres
where the Governor is required by or under the Constitution
to exercise his functions in his discretion."
102. Role of the Governor as executive head in the
democratic set-up is fully defined and all executive actions of
the government of a State are formally taken in name of
Governor and Governor can make rules specifying the
manner in which the orders and other instruments made and
executed in his/her name shall be authenticated. Further,
the Governor can make rules for more convenient
transactions of the business of a state government and for
the allocation among the ministers of the said business.
103. The Hon‟ble Apex Court in the case of M. Karunanidhi
v. Union of India, (1979) 3 SCC 431 has observed that
".....under Article 166(3) of the Constitution the Governor can
allocate this business to any Minister he likes. Moreover,
there can be no doubt that a Minister is subordinate to the
Governor. The Governor is the executive head of the State
and this position he does not share with the Chief Minister or
any other Minister."
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104. Further, the Hon‟ble Apex Court in the case of
Samatha v. State of A.P., (1997) 8 SCC 191 has
categorically held that the Governor of each State is its
executive head and the executive power of the State shall be
exercised by the Governor either directly or through officers
subordinate to him in accordance with the Constitution as
envisaged under Article 154 of the Constitution of India. The
executive power of the State, subject to the provisions of the
Constitution, by operation of Section 162, shall extend to the
matters with respect to which the legislature of the State has
power to make laws. For ready reference the relevant
paragraphs of the aforesaid judgment are being quoted as
under:
62. Under Part VI of the Constitution titled "The States",
Article 152 defines "State". For the interpretation of the
Constitution, by operation of Article 367, unless the context
otherwise requires or modifies, the General Clauses Act shall
apply. Section 3(23) thereof defines Government to include
both the Central Government and State Government. Section
3(8) defines "Central Government" and Section 3(60) defines
"State Government" as regards anything done and or to be
done, shall mean the Governor. The Governor of each State is
its executive head and the executive power of the State shall
be exercised by the Governor either directly or through
officers subordinate to him in accordance with the
Constitution as envisaged under Article 154. The executive
power of the State, subject to the provisions of the
Constitution, by operation of Section 162, shall extend to the
matters with respect to which the legislature of the State has
- 45 - W.P. (PIL) No. 1811 of 2022
power to make laws. The proviso thereto is not relevant for
the purpose of this case.
63. The executive power, therefore, of the State is
coextensive with that of the legislative power of the State.
The Governor shall appoint the Chief Minister and on his
advice, he appoints the Council of Ministers, who shall aid
and advise the Governor in the exercise of his function
except, insofar as he is, by or under the Constitution,
required to exercise his functions or any of them, in his
discretion. The Council of Ministers, headed by the Chief
Minister, shall be collectively and individually responsible to
the legislature and the people in the matter of the governance
of the State. All executive actions of the Government of a
State, shall be expressed to be taken in the name of the
Governor and the business of the Government is conducted in
accordance with Article 166 and the Business Rules made,
by the Governor, by clause (3) thereof."
105. Thus, from the above case laws, it is evident that the
Governor of each State is its executive head and the executive
power of the State shall be exercised by the Governor either
directly or through officers subordinate to him in accordance
with the Constitution as envisaged under Article 154 of the
Constitution of India. Furthermore, it is also evident that
under Article 166(3) of the Constitution the Governor can
allocate this business to any Minister he likes. Moreover,
there can be no doubt that a Minister is subordinate to the
Governor. The Governor is the executive head of the State
and this position he does not share with the Chief Minister or
any other Ministers.
- 46 - W.P. (PIL) No. 1811 of 2022
106. So far as interpretation of the Inquiry of Commissions
Act, 1952, in the context of present case, is as to whether the
subsequent Commission is to be appointed, the consideration
is required to be made of Section 3 read with Section 8-A of
the Act, 1952. Section 8-A provides that the inquiry is not to
be interrupted by reason of vacancy or change in the
constitution of the Commission and it shall not be necessary
for the Commission to commence the inquiry afresh and the
inquiry may be continued from the stage at which the change
took place. It is, thus, evident by going through the provision
of Section 8-A of the Act, 1952 that even in case of, the
inquiry is not to be initiated afresh. But, herein on conclusion
of the first inquiry and after submission of its report, the
second commission has been instituted.
Analysis of facts & pleadings:
107. In the backdrop of aforesaid facts, case laws and power
of Governor, this Court is now proceeding to examine the
factual aspects of the present case.
108. The petitioner has prayed for direction to implement the
directive of the then Hon'ble Governor, Jharkhand issued
vide letter no. 2098 dated 10.09.2018 to the then Speaker to
implement 30 reference points of Enquiry Commission
regarding the illegal appointments in Vidhan Sabha where it
- 47 - W.P. (PIL) No. 1811 of 2022
has categorically been directed that the matter must be
enquired by the Central Bureau of Investigation.
109. After filing of writ petition, the matter was taken up on
10.06.2022 and the Co-ordinate Bench of this Court
directed the respondent nos. 1, 2 and 4 to file counter
affidavit giving para-wise reply and also to explain what
action has been taken with respect to the report of first one
man judicial commission constituted under the chairmanship
of retired judge, High Court of Jharkhand, appointee-wise
details and action taken against them, as well as action taken
against the concerned persons, who are involved in giving
such type of illegal appointment.
110. But instead of filing counter affidavit, an Interlocutory
Application being I.A. No. 6158 of 2022 was filed seeking
extension of further eight weeks‟ time for filing counter
affidavit and lastly on 22.11.2022 counter affidavit was filed
by the respondent no. 1, 2 and 4.
111. In the Counter affidavit, which was filed on behalf of
respondent nos. 1, 2 and 4 [Vidhan Sabha] on 22.11.2022, it
has been stated that taking initiative regarding the
implementation of the report of the enquiry commission, the
then Speaker gave approval on the compulsory retirement of
two officers, namely, Ramsagar and Ravindra Kumar Singh
vide notification dated 26.08.2019.
- 48 - W.P. (PIL) No. 1811 of 2022
112. It has further been stated in the counter affidavit that
after going through the reports on 30 points of reference, it
was found by the Assembly Secretariat that in some of the
reference points some actions have been suggested against
the persons named in those references whereas some of the
reference points have been left inconclusive. Further, many of
reference points, which have been answered also involve
complicated questions of law and facts.
113. Further, on the law point, in the counter affidavit it has
been alleged that the one man judicial Commission submitted
its report before the Governor and not before the State
Government as under the Commission of Inquiry Act, 1952 in
particular Section 3(4), but the report was required to be
tabled and laid before the legislature of the State.
114. In the counter affidavit, it has further been stated that
since critical issues are involved in the report for
interpretation of complicated question of law and facts and
keeping all points of facts into consideration, the Speaker has
given his approval to take initiative regarding the constitution
of another one man inquiry commission under the provisions
of Commissions of Inquiry Act, 1952 so that the report given
by the first one man judicial commission could be scrutinized
and examined.
- 49 - W.P. (PIL) No. 1811 of 2022
115. In continuance of the recommendation of Speaker, the
Department of Cabinet Secretariat and Co-ordination
(Parliamentary Affairs) has issued Notification No. 1130 dated
21.09.2022 regarding constitution of another one man
commission to scrutinize and examine the complicated
question of law and fact involved arising out of the report
given by the first one commission.
116. From the orders passed by this Court, it appears that
continuously, this Court asked for the report submitted by
the one man judicial commission, but for the one pretext or
the other the original report was not submitted before this
Court and lastly on 18.04.2024 it was placed before this
Court in sealed cover.
117. But at this stage, it would be apt to mention here the
circumstances after which, the report was placed before this
Court showing the conduct of the respondents.
118. For the first time, the Co-ordinate Bench of this Court
vide order dated 10th June, 2022 directed to file counter
affidavit stating what action has been taken on the report of
one man commission appointee-wise details and action taken
against them as well as the action taken the concerned
persons who are involved in giving such type of illegal
appointments but no counter affidavit was filed. Thereafter
continuously orders were passed by the Co-ordinate Bench,
- 50 - W.P. (PIL) No. 1811 of 2022
all orders have been quoted above, but neither the report was
filed nor the action taken report was filed by the respondents.
The Co-ordinate Bench vide order dated 13.06.2023 directed
to comply with previous order but again it was not complied
with however on the request of respondents-Vidhan Sabha
the matter was time and again adjourned i.e., on 18.07.2023,
16.08.2023, 04.10.2023 but the first report was not produced
before this Court, therefore, the Co-ordinate Bench of this
Court, considering the conduct of the respondents, has
constrained to pass order on 04.10.2023 that the report is
deliberately not produced before this Court and consider this
to be obstruction to justice. At the risk of repetition, the
relevant part of order dated 04.10.2023 is quoted as under:
„...We see that the report is deliberately not
produced before us even though her Excellency the
then Governor of the State has directed the Speaker of
Vidhan Sabha to carry out the proposals given in the
report. So we consider it to be an obstruction to
justice and direct the Secretary of the Jharkhand
Vidhan Sabha to produce the aforesaid report ..........
within seven day, hence, failing which we would be
constrained to initiate a criminal contempt for
obstruction to justice."
[Emphasis supplied]
119. Thereafter, the matter was placed before the Co-ordinate
Bench of this Court on 12.10.2023 and by way of last
- 51 - W.P. (PIL) No. 1811 of 2022
indulgence time was granted to produce the report. Relevant
part of order is quoted as under:
".....If the order is not complied with, we will pass
appropriate order and try to dispose of the Public
Interest Litigation without perusing the report,
basing on the recommendations made by Her
Excellency The Then Governor of Jharkhand...."
120. After such stringent order having been passed, the order
passed by the Co-ordinate Bench was not complied with
rather an Interlocutory Application being I.A. No. 10249 of
2023 was filed on behalf of respondent-Jharkhand Vidhan
Sabha taking the ground for delay in submission of report
that the original copy of the first report since has been
handed over to second one man commission and
unfortunately the copy of the first report could not be
retained by the office of Vidhan Sabha, hence it could not be
produced before this Court.
121. Thereafter, when the matter was taken up on
18.04.2024 i.e., after about one year, the reports of One-Man
Commission was placed before this Court in sealed cover.
122. For the sake of clarity, it is worthwhile to mention
herein that initially there was nomination of one man judicial
commission, the retired judge of High Court of Jharkhand,
who refused to conduct inquiry. Thereafter, another one man
commission was constituted vide notification dated
07.07.2014 who conducted inquiry and submitted the report
- 52 - W.P. (PIL) No. 1811 of 2022
as such for the sake of convenience we have mentioned it as
„first one man judicial commission‟, who factually is the first
who conducted enquiry and submitted first report, as such,
report submitted by it is mentioned as „first one man judicial
commission report‟. Thereafter, vide notification dated
21.09.2022 with modification vide notification dated
21.10.2023, another one man commission was constituted
which is mentioned as „second one man judicial commission‟
and report submitted by the said Commission is mentioned
herewith as „second one man judicial commission report‟.
123. In the backdrop of aforesaid factual aspects and
submissions made on behalf of parties, it is evident that to
enquire into the irregularities in the appointment and
promotion in Jharkhand Legislative Assembly Secretariat,
one retired Judge of High Court of Jharkhand was appointed
as Chairman vide notification no. 802 dated 07.07.2014 by
the order of Governor with the condition that the report shall
be placed before the Governor. For ready reference, the
relevant portion of notification dated 07.07.2014 is quoted as
under:
>kj[k.M ljdkj
eaf=eaMy lfpoky; ,oa leUo; foHkkx
&&&
v f/k lw p uk
jk¡ph] fnukad 07 tqykbZ 2014
- 53 - W.P. (PIL) No. 1811 of 2022
bZ0A
la0la0& 5@e0e0l0&¼la0 dk;Z0½ 06@2013 802@ekuuh;
>kj[k.M mPp U;k;ky; ds i=kad 6748&49@Appt., fnukad 17-06-2014 ds
vkyksd esa >kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ksa ,oa izksUufr;ksa esa cjrh
xbZ vfu;ferrkvksa dh tkap djus gsrq tkap vk;ksx ds v/;{k ds in ij
>kj[k.M mPp U;k;ky; ds lsokfuo`r U;k;ewfrZ xxxxxx dks fu;qDr fd;k
tkrk gSA
2- bl tkap vk;ksx }kjk lEiw.kZ ?kfVr ?kVukØe ,oa ?kVuk ds fy,
ftEesokj O;fDr;ksa ds laca/k esa tkap dj tkap izfrosnu egkefge jkT;iky]
>kj[k.M ds le{k izLrqr fd;k tk,xkA
3- bl vk;ksx dks os lkjh 'kfDr;k¡ iznku dh tkrh gSa] tks tk¡p
vk;ksx vf/kfu;e] 1952 dh fofHkUu /kkjkvksa ds }kjk xfBr ,d tk¡p vk;ksx
dks iznÙk gSA
4- bl tkap vk;ksx dks vko';d lfpoky;h; lgk;rk ¼Secretarial
Support½ >kj[k.M fo/kku lHkk] jkaph }kjk iznku fd;k tk;sxkA
5- mDr tkap vk;ksx ds v/;{k dks vafre osru ?kVko isa'ku ds
lerqY; osru@ekuns; fn;k tk,xkA
>kj[k.M jkT;iky ds vkns'k ls
¼ts0 ch0 rqfcn½
ljdkj ds iz/kku lfpo
124. Pursuant thereto, the commission enquired into the
matter and submitted its report before the Governor as per
the stipulation made in notification no. 802 dated 07.07.2014
which was issued by the State Government in the name of
order of Governor, whereby it was stated that the report is to
be submitted before the Governor.
125. After receipt of said report, the then Governor vide letter
no. 2098 dated 10.09.2018 requested the then Speaker to
implement the recommendation of the report of the
- 54 - W.P. (PIL) No. 1811 of 2022
commission and requested to enquire the matter as also the
concerned CD (Compact Disc) by Central Bureau of
Investigation. Relevant portion of said letter is quoted as
under:
Jherh xxxxxx
jkT;iky] >kj[k.M
v0l0 i= la[;k&2098
fnukad 10@09@18
fiz; xxxxxx]
>kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ksa ,oa izksUufr;ksa esa cjrh
xbZ vfu;ferrkvksa dh tk¡p gsrq jkT; ljdkj }kjk U;k;k/kh'k xxxxxx
¼lsokfuo`r½ dh v/;{krk esa tk¡p vk;ksx xfBr fd;k x;k FkkA mDr tk¡p
vk;ksx }kjk viuk izfrosnu jktHkou dks izLrqr fd;k x;k gSA
tk¡p vk;ksx }kjk dqy&30 Reference Points ij viuk foLr`r
izfrosnu izsf"kr fd;k x;k gSA izR;sd Reference Points ij foLr`r tk¡p djrs
gq, leh{kk ds i'pkr~ visf{kr dkjZokbZ Li"V :i ls izfrosnu esa mfYyf[kr gSA
Reference fcUnq 30 esa cjrh xbZ vfu;ferrkvksa ds fy, tokcnsg
inkf/kdkjh@dfeZ;ksa dk mYys[k gS rFkk izLrkfor dkjZokbZ dk Hkh mYys[k fd;k
x;k gSA ¼izfrfyfi layXu½
U;kf;d tk¡p vk;ksx }kjk fuEukafdr&04 fcUnqvksa ij Hkh vyx ls
vuq'kalk dh xbZ gSA
1- vk;ksx ds lkFk izfrfu;qDr fo/kku lHkk dfeZ;ksa dks fdlh izdkj ls izrkM+uk
ugha gksA
2- Jh ohjsUnz dqekj dks rRdkyhu v/;{k }kjk fn, x, ltk ij iqu% fopkj
fd;k tk;A
3- bl fu;qfDr izdj.k ls lacaf/kr lhMh dh tkap lh0ch0vkbZ0 ds }kjk djk;h
tk;A
4- vk;ksx ds lkFk izfrfu;qDr dfeZ;ksa dks muds dBksj ifjJe ds vkyksd esa
,d vfrfjDr osruo`f) Lohd`r dh tk;A
- 55 - W.P. (PIL) No. 1811 of 2022
jkT; dh fo/kku lHkk yksd ra= dh jkT; esa loksZPp laLFkk gSA vr%
;g vko';d gS fd fo/kku lHkk ds lHkh dk;ksZa dks laiw.kZ ikjn'khZ rjhds ls
laiUu fd, tk;A U;kf;d tk¡p vk;ksx }kjk lq&O;ofLFkr rjhds ls fo/kku
lHkk esa iwoZ esa fd, x, fu;qfDr;ksa rFkk izksUufr;ksa dh tk¡p dh xbZ gSA ;g
visf{kr gS fd tk¡p vk;ksx }kjk fd, x, vuq'kalk ds vkyksd esa fo/kku lHkk
ds }kjk le;c) rjhds ls dkjokbZ lqfuf'pr dh tk; ftlls fd bl laLFkk
ij ukxfjdksa dk fo'okl cjdjkj jgsA
vkils vuqjks/k gS fd tk¡p vk;ksx ds izfrosnu esa fpfUgr nks"kh
O;fDr;ksa ds fo:) vk;ksx }kjk dh xbZ vuq'kalk ds vkyksd esa fof/klEer
dkjZokbZ lqfuf'pr djsaxs rFkk d`r dkjZokbZ ls v/kksgLrk{kjh dks Hkh voxr
djkus dk d"V djsaxsA
vuq0%;FkksifjA 'kqHksPNk lgA Hkonh;]
¼ xxxxxx ½
126. Taking initiative on the report of the enquiry
commission as also the directives of the Governor as
contained in letter dated 10.09.2018, the then Speaker gave
approval on the compulsory retirement of two officers,
namely, Ramsagar and Ravindra Kumar Singh vide
notification dated 26.08.2019.
127. However, after four years of submission of report to the
Governor and during pendency of the instant case vide letter
dated 03.08.2022 issued by the Jharkhand Legislative
Assembly Secretariat under the Signature of Syed Javed
Haider, Secretary In-charge, Jharkhand Legislative Assembly
to the Chief Secretary, Government of Jharkhand stating
therein that as per letter dated 25.01.2022 of the Speaker,
Jharkhand Legislative Assembly on the report of first one
- 56 - W.P. (PIL) No. 1811 of 2022
man judicial commission, legal advice is required to be taken.
For ready reference the letter dated 03.08.2022 is being
quoted as under:
>kj[k.M fo/kku&lHkk lfpoky;
i= la0&01LFkk0&08@2019 1701 @fo0 l0
izs"kd]
lS;n tkosn gSnj
izHkkjh lfpo]
>kj[k.M fo/kku lHkk] jk¡phA
lsok es]a
eq[; lfpo]
>kj[k.M ljdkj] jk¡phA
jk¡ph] fnukad&03@08@22
fo"k;%& Commission of Inquiry Act-1952 ds varxZr One Man Judicial
Commission ds xBu ds laca/k esAa
egksn;]
mi;qZDr fo"k; ds laca/k esa funs'kkuqlkj lwfpr djuk gS fd ekuuh; v/;{k]
>kj[k.M fo/kku&lHkk }kjk fnukad&25-01-2022 dks >kj[k.M fo/kku&lHkk esa fu;qfDr;ksa
,oa izksUufr;ksa esa gqbZ vfu;ferrkvksa dh tk¡p gsrq eaf=eaMy lfpoky; ,oa leUo; foHkkx]
>kj[k.M ljdkj ds ladYi la0&1164] fnukad&26-06-2015 }kjk Commission of
Inquiry Act-1952 ds varxZr xfBr ekuuh; U;k;ewfrZ ¼lsokfuo`Ùk½ xxxxxx iwoZ
U;k;k/kh'k >kj[k.M mPp U;k;ky; dh v/;{krk esa One Man Judicial Commission
ds izfrosnu ds fo"k; esa fof/kd ijke'kZ izkIr djus dk funs'k izkIr Fkk] mDr vkns'k ds
vkyksd esa egkf/koDrk >kj[k.M ls fof/kd ijke'kZ dh ekax dh xbZ] ftlesa egkf/koDrk
>kj[k.M }kjk mDr izfrosnu ij lkjr% fuEufyf[kr ijke'kZ fn;k x;k %&
"Seen from the above perspective that the report has not been
- 57 - W.P. (PIL) No. 1811 of 2022
placed before the State Government and laid before the State
Legislature, I opine that an appropriate Commission be constituted
under the Commission of Inquiry Act with specific terms of the reference
of scrutinizing the report of the Hon'ble Mr. Justice xxxxxx and for
examination of the various recommendations made vis a vis
complicated question of Law and fact involved and thereafter propose
specific actions required to be taken in the matter.
Thus a Judicial Commission under the chairmanship of former
distinguished Supreme court Judge who is well conversant with the
service jurisprudence can be appointed under the Commission of Inquiry
Act-1952.
I have already spoken and taken the consent of Hon'ble Mr.
Justice (Retd.) xxxxxx, Former Supreme Court Judge Who is well
acknowledged authority in the Service Jurisprudence to act as a one
Man Judicial Commission.
I, therefore, opine accordingly and appropriate action may be
taken."
ekuuh; v/;{k] >kj[k.M fo/kku&lHkk }kjk egkf/koDrk >kj[k.M ds mi;qZDr
fof/kd ijke'kZ ds vkyksd esa dkjZokbZ ysus dk vkns'k fn;k x;k gSA
vr% mDr ds vkyksd esa Commission of Inquiry Act-1952 ds varxZr
xfBr ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ xxxxxx iwoZ U;k;k/kh'k >kj[k.M mPp U;k;ky; dh
v/;{krk esa One Man Judicial Commission ds izfrosnu dh vuq'kalkvksa esa lekfgr
tfVy fof/k ,oa rF;ksa ds iz'uksa ds lek/kku gsrq Commission of Inquiry Act-1952
ds varxZr ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ xxxxxx iwoZ U;k;k/kh'k loksZPp U;k;ky; dh
v/;{krk esa One Man Judicial Commission dh fu;qfDr ds laca/k esa vko';d
dkjZokbZ fy;s tkus dh d`ik dh tk;A
vuqyXud %& ;FkksDrA
fo'oklHkktu
¼lS;n tkosn gSnj½
izHkkjh lfpo]
>kj[k.M fo/kku&lHkk] jk¡phA
- 58 - W.P. (PIL) No. 1811 of 2022
128. On the basis of the opinion as given by learned Advocate
General of the State and on the recommendation of the then
Speaker, the Cabinet Secretariat and Co-ordination
(Parliamentary Affairs) has issued a notification No. 1130
dated 21.09.2022 with modification vide notification dated
21.10.2023 regarding constitution of another one man
commission to scrutinize and examine the complicated
question of law and fact involves arising out of the report
given by the first one man judicial commission. For ready
reference, notification dated 21.09.2022 and its modification
issued vide notification dated 21.10.2023 are quoted as
under:
>kj[k.M ljdkj]
eaf=e.My lfpoky; ,oa leUo; foHkkx
¼lalnh; dk;Z½
v f/k lw p uk
jk¡ph] fnukad&21-9-2022
bZ0A
la0la0&5@ea0ea0l ¼la0 dk;Z0½&06@2013 1130 @>kj[k.M fo/kku
lHkk lfpoky; ds i=kad&1701 fnukad 03-08-2022 }kjk fo/kkulHkk lfpoky;
esa fu;qfDr;ksa@izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa dh tk¡p gsrq xxxxxx
ekuuh; U;k;ewfrZ ¼lsokfuo`Ùk½ dh v/;{krk esa tk¡p vk;ksx }kjk lefiZr tk¡p
izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa ds lek/kku gsrq fu/kkZfjr
'kÙkksZa ¼Terms of Reference½ ds v/khu ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ Jh
xxxxxx iwoZ U;k;k/kh'k] loksZPp U;k;ky; dh v/;{krk esa ,d lnL;h; U;kf;d
- 59 - W.P. (PIL) No. 1811 of 2022
vk;ksx ¼One Man Judicial Commission½ dk xBu fd;k tkrk gSA
2- bl U;kf;d vk;ksx }kjk Jh foØekfnR; izlkn] ekuuh; U;k;ewfrZ
¼lsokfuoÙ`k½ dh v/;{krk esa xfBr ,d lnL;h; tk¡p vk;ksx }kjk >kj[k.M
fo/kku lHkk lfpoky; esa fu;qfDr;ksa@izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa ds
vkyksd esa lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa dk
lek/kku dj izfrosnu v/;{k] >kj[k.M fo/kku lHkk ds le{k izL rqr fd;k
tk;sxkA
3- bl U;kf;d vk;ksx }kjk 03 ¼rhu½ ekg esa viuk tk¡p izfrosnu
lefiZr fd;k tk;sxkA
4- bl U;kf;d vk;ksx dks os lkjh 'kfDr;k¡ iznku dh tkrh gS] tks
tk¡p vk;ksx vf/kfu;e] 1952 dh fofHkUu /kkjkvksa ds }kjk xfBr ,d tk¡p
vk;ksx dks iznÙk gSaA
5- bl U;kf;d vk;ksx dks vko';d lfpoky;h; lgk;rk
¼Secretarial Support½ ;Fkk dfeZ;ksa dk inLFkkiu] dk;kZy; d{k bR;kfn
>kj[k.M fo/kkulHkk lfpoky; }kjk miyC/k djk;k tk;sxkA
6- bl U;kf;d vk;ksx ds v/;{k dks vafre osru ?kVko isa'ku ds
lerqY; osru@ekuns; fn;k tk;sxkA vk;ksx ds v/;{k ds fy, ,d ljdkjh
okgu ¼pkyd] bZa/ku vkfn½ eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼leUo;½
}kjk miyC/k djk;k tk;sxkA bl ij gksus okys O;; dk ogu eaf=e.My
lfpoky; ,oa fuxjkuh foHkkx] >kj[k.M] jkaph ds LFkkiuk en ls fd;k tk;sxkA
>kj[k.M jkT;iky ds vkns'k ls]
¼oanuk nknsy½
ljdkj ds iz/kku lfpoA
Kkikad&5@ea0ea0l ¼la0 dk;Z0½ &06@2013 1130@jk¡ph] fnukad 21-9-2022
- 60 - W.P. (PIL) No. 1811 of 2022
bZ0A
Letter Dated 20.10.2023
>kj[k.M ljdkj]
eaf=e.My lfpoky; ,oa fuxjkuh foHkkx
¼lalnh; dk;Z½
vf/klwpuk
jk¡ph] fnukad 20-10-2023
bZ0
la0la0&5@ea0ea0l ¼la0 dk;Z0½&06@2013¼va'k 1½ 1393@eaf=e.My lfpoky;
,oa fuxjkuh foHkkx ¼lalnh; dk;Z½ ds vf/klwpuk la[;k&1130 fnukad 21-09-
2022 ds dafMdk&2 esa vafdr ^^bl U;kf;d vk;ksx }kjk xxxxxx] ekuuh;
U;k;ewfrZ ¼lsokfuo`r½ dh v/;{krk esa xfBr ,d lnL;h; tk¡p vk;ksx }kjk
>kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ks@
a izksUufr;ksa esa cjrh xbZ
vfu;ferrkvksa ds vkyksd esa lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa
rF;ksa ds iz'uksa dk lek/kku dj izfrosnu v/;{k] >kj[k.M fo/kku lHkk ds le{k
izLrqr fd;k tk;sxkA** dks fuEu ls izfrLFkkfir fd;k tkrk gS %&
^^bl U;kf;d vk;ksx }kjk xxxxxx] ekuuh; U;k;ewfrZ ¼lsokfuo`r½
dh v/;{krk esa xfBr ,d lnL;h; tk¡p vk;ksx }kjk >kj[k.M fo/kku lHkk
lfpoky; esa fu;qfDr;ksa@izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa ds vkyksd esa
lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa dk lek/kku
dj tk¡p izfrosnu jkT; ljdkj ¼>kj[k.M½ ds le{k izLrqr fd;k tk;sxkA**
2- foHkkxh; vf/klwpuk la[;k&1130 fnukad 21-09-2022 dks bl gn
rd la'kksf/kr le>k tk;A
>kj[k.M jkT;iky ds vkns'k ls]
xxxxxx
ljdkj ds iz/kku lfpo
129. Thereafter vide letter no. 66 dated 16.01.2024 the In-
charge Secretary, namely, Syed Jawed Haider, Jharkhand
Legislative Assembly addressed to the Principal Secretary,
Cabinet Secretariat and Co-ordination (Parliamentary Affairs)
- 61 - W.P. (PIL) No. 1811 of 2022
submitted the copy of report submitted by the commission
along with original copy of action taken report and sought for
necessary action so that it be placed before the legislative
assembly. For ready reference, the said letter dated
16.01.2024 is quoted as under:
>kj[k.M fo/kku&lHkk lfpoky;
i= la[;k&01LFkk0&207@2022 66 @fo0 l0A
izs"kd]
lS;n tkosn gSnj
izHkkjh lfpo]
>kj[k.M fo/kku lHkk] jk¡phA
lsok es]a
iz/kku lfpo]
eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½]
>kj[k.M ljdkj] jk¡phA
jk¡ph] fnukad&16@01@24
fo"k;%& xxxxxx iwoZ U;k;k/kh'k loksZPp U;k;ky;] v/;{k] ,d lnL;h; U;kf;d
vk;ksx ¼One Man Judicial Commission½ ds fjiksVZ ds laca/k esaA
izlax%& eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½] >kj[k.M ljdkj dk
i=kad&5@ea0ea0l ¼la0 dk;Z0½&06@2013 ¼va'k&1½ 1627] fnukad&18-12-2023
egksn;@egksn;k]
mi;qZDr fo"k;d izklafxd i= ds laca/k esa funs'kkuqlkj lwfpr djuk gS fd
eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½] >kj[k.M ljdkj dh vf/klwpuk
la[;k&1130] fnukad&21-09-2022 }kjk xfBr xxxxxx] iwoZ U;k;k/kh'k loksZPp U;k;ky;]
v/;{k] ,d lnL;h; U;kf;d vk;ksx ¼One Man Judicial Commission½ ds fjiksVZ
¼Nk;kizfr layXu½ ,oa mDr fjiksVZ dk A.T.R. ¼ewy izfr layXu½ izsf"kr dh tk jgh gSA
vr% ekuuh; U;k;ewfr ¼lsokfuoÙ`k½ Jh xxxxxx] iwoZ U;k;k/kh'k loksZPp
U;k;ky;] v/;{k] ,d lnL;h; U;kf;d vk;ksx ¼One Man Judicial Commission½ ds
fjiksVZ ,oa mDr fjiksVZ dk A.T.R. iape~ >kj[k.M fo/kku lHkk ds vkxkeh l= esa lnu iVy
ij miLFkkfir djus ds laca/k esa vko';d dkjZokbZ djus dh d`ik dh tk;A
vuqyXud %& ;FkksDr ¼lhy can½A fo'oklHkktu
¼lS;n tkosn gSnj½
- 62 - W.P. (PIL) No. 1811 of 2022
izHkkjh lfpo]
>kj[k.M fo/kku lHkk] jk¡phA
130. Pursuant thereto, it appears from letter pad of the then
parliamentary affairs minister in the State Jharkhand, that
he issued instruction to place the copy of report [250 copies]
submitted by second one man commission before the
legislative assembly. For ready reference, letter dated
05.02.2024 is quoted as under:
xxxxxx >kj[k.M ea=ky;
ea=h
lalnh; dk;Z foHkkx] >kj[k.M ljdkj
--------------------------------------------------------------------------------------------------------------------------------------------------------
i=kad % 191 fnukad % 05@02@2024
lHkk lfpo]
>kj[k.M fo/kkulHkk] jk¡phA
Commission of Inquiry act 1952 dh /kkjk &3 ¼mi/kkjk&4½ ds
izko/kkuksa ds vkyksd esa eaf=e.My lfpoky; ,oa fuxjkuh foHkkx
¼lalnh; dk;Z½] >kj[k.M ljdkj ds vf/klwpuk la[;k& 1130]
fnukad&21-09-2022 }kjk xfBr ,d lnL;h; U;kf;d vk;ksx dk
izfrosnu ,oa bl ij lHkk lfpoky; dk d`r dkjZokbZ izfrosnu dh
izekf.kd`Ùk ,d&,d izfr layXu djrs gq, pyrs l= fnukad 06-02-2024
dks lHkk iVy ij j[kus dh bZPNk dh lwpuk nsrk gw¡A fnukad&06-02-
2024 dh dk;Zlwph esa vafdr djus dh dkjZokbZ Hkh djuk pkgsx
a sA
vuq0%&;FkksDr~ ¼250 izfr;ksa es½a A
Hkonh;]
¼ xxxxxx ½
131. Thereafter, a supplementary counter affidavit has been
filed on 19.03.2024 stating therein that "....That the report of
- 63 - W.P. (PIL) No. 1811 of 2022
Hon‟ble Justice (Retd.) xxxxxx, former Judge, was submitted
before the State Government. The report along with Action
Taken Report (ATR) provided to the State Government by
Jharkhand Legislative Assembly was decided to be tabled
before the Jharkhand Legislative Assembly by the Council of
Ministers (Cabinet) meeting dated 24.01.2024 and the matter
was closed interim by the State Govt. as per Section 3(4) of the
Commission of Inquiry Act, 1952".
132. In pursuance to order dated 20.03.2024, the copy of
both the one man commission report along with „Action
Taken Report‟ in sealed cover was placed before the Court,
which was kept in the safe custody of learned Registrar
General. Accordingly, the matter was adjourned to be listed
on 13.05.2024.
133. It appears that only after report [second one man
judicial commission report] having been placed before the
legislative assembly, the report of both one man commission
has been placed before this Court and before that for a year
for one reason or the other the report was not placed before
this Court the reason best known to the respondents.
134. On 13.05.2024, on the query made by this Court to
learned counsel appearing for the State and the Legislative
Assembly as to whether the said documents as also the
reports of the enquiry commission can be said to be
- 64 - W.P. (PIL) No. 1811 of 2022
confidential documents, learned State counsel as also Mr.
Indrajit Sinha, learned counsel appearing for the Jharkhand
Legislative Assembly, has submitted at Bar that since the
documents, in view of the provision of Section 3 of the
Commission of Inquiry Act, 1952, have been placed before the
Assembly, therefore, it cannot be said to be confidential
documents which is also evident from the letter dated
05.02.2024 of Department of Parliamentary Affairs,
Government of Jharkhand which has been appended as
Annexure-L Series to the Counter affidavit filed on behalf of
Cabinet Secretariat and Vigilance Department (Coordination)
Jharkhand, Ranchi.
135. In view of such specific submission advanced by learned
counsel for the respondents-State and State Legislative
Assembly, the State was directed to bring on record the said
copy of reports on affidavit.
136. Pursuant thereto, the State filed affidavit annexing
therewith the second one man commission report. However,
when this Court took note of the fact that only copy of report
of second one man commission has been submitted whereas
the report of first one judicial commission is the base of
second one-man judicial commission has not been submitted,
this Court directed to bring on record the copy of first one
judicial commission on record by filing affidavit.
- 65 - W.P. (PIL) No. 1811 of 2022
137. Accordingly, the first one judicial commission report was
brought on record by way filing supplementary affidavit.
Observation of the Court:
138. Learned counsel for the petitioner has vehemently
argued that the direction/order of the then Governor, who
was the executive head of the State, ought to have been
implemented by the Speaker of the Vidhan Sabha, who
clearly directed that the matter is to be investigated by the
CBI as also the said CD (compact disc), which contains the
corrupt practice by the then Speaker. The letter containing
the direction of the then Governor has already been quoted
and referred above.
139. On the other hand, learned counsel for the respondents
has submitted that since the report was to be submitted
before the State Government in view of provision 3(4) of the
Commission of Inquiry Act, 1952 hence the opinion was
sought for from the learned Advocate General and taking into
consideration the non-observance and statutory provision as
contained under Section 3(4) of the Commission of Inquiry
Act, 1952, the opinion was given and thereafter, the fresh
commission has been appointed.
140. This Court from the statement so made in the counter
affidavit has found that showing implementation of report of
first one-man judicial commission, it has been stated that
- 66 - W.P. (PIL) No. 1811 of 2022
taking action on „recommendation on 30 points of reference‟,
as mentioned in the first report of one-man judicial
commission, the report was sent to the Assembly Secretariat,
and accordingly, the then Speaker gave approval of the
compulsory retirement of two officers, namely, Ramsagar and
Ravindra Kumar Singh vide notification dated 26.08.2019.
141. This action of the respondents-Vidhan Sabha itself
suggests that the respondents also accepted that there is
something wrong in the appointment/promotion so made in
the Legislative Assembly.
142. Even accepting the contention of the respondents that
the some wrongs are there that the reason the follow up
action was taken with respect to the employees who have
been appointed, has been taken and if that was the stand
that only two illegalities have been found out then for what
purpose, the second one man judicial commission has been
appointed that too contrary to the mandate has contained
under Section 8-A of the Act, 1952 and the purpose of the
said statutory provision is that there cannot be any
subsequent enquiry for the purpose of conducting the fresh
one rather in view of the judgment passed by Hon‟ble Apex
Court in the case of Fazalur Rehman v. State of U.P.,
(supra) immediately after submission of the report the follow
up action is to be taken [paragraph 4 and 5 quoted and
- 67 - W.P. (PIL) No. 1811 of 2022
referred above]. But the decision has been taken to have a
second report and second commission has found no illegality
that is the issue herein having been highlighted in the writ
petition.
143. This Court has perused both the reports i.e., first man
judicial commission report and second one man judicial
commission report.
144. In the first one man commission report, the commission
has answered all the references with respect to appointment
and promotion in the Jharkhand State Legislative Assembly
finding therein several illegality/irregularity whereas in the
second one man judicial commission report on the same
reference has proposed that „No Action‟ is required to be
taken.
145. Here, it needs to refer herein the first commission
has submitted its report that action ought to have been taken
as per the judgment passed by Hon‟ble Apex Court in the
case of Fazalur Rehman v. State of U.P., (supra) wherein it
has been laid down that the Commission of Inquiry is
appointed under the Commissions of Inquiry Act, 1952, the
State Government should examine the report expeditiously
and decide what action, if any, is required to be taken on that
report promptly. To keep a report pending for years together
and, as in this case, for a decade, does no credit to anybody.
- 68 - W.P. (PIL) No. 1811 of 2022
Reports of Commissions of Inquiry should not be allowed to
gather dust for years together as it reflects adversely on the
utility of such Commissions and would affect the credibility of
the entire exercise.
146. Here, exactly the same situation that the first
report has been submitted in the year 2018 but the State has
taken no action and thereafter, after lapse of about 4 years, a
new commission has been decided to be constituted. The
aforesaid conduct of the State is found to be not proper.
147. It is pertinent to mention here that by the Governor the
report was placed in the year 2018 and for the four years the
respondents sat over the matter and all of a sudden wake up
from a deep slumber only when the matter came before this
Court they took stand that the first report so submitted by
one-man judicial commission suffers from error as it was not
placed before the State as per the mandate of Section 3(4) of
the Act, 1952, which action of the respondents cannot be
said to be a bona fide action.
148. The conduct of the State is also found to be doubtful
that the reports have not been submitted immediately after
passing of the direction rather on repeated directions, the
reports have been submitted that too initially only the second
enquiry commission report and thereafter when the Court
again directed the first commission report was submitted.
- 69 - W.P. (PIL) No. 1811 of 2022
149. The Court has also considered the conduct of the State
as to what necessitated for constituting the second one man
judicial commission since it has been argued that after filing
of the writ petition that on 18.04.2022, the second one man
judicial commission was constituted vide notification dated
21.09.2022 on the recommendation made by the then
Speaker, as would be evident from letter dated 03.08.2022
sent by Syed Jawed Haider, the Secretary, I/C of the Vidhan
Sabha, based upon the legal advice of learned Advocate
General.
150. Therefore, this Court is scrutinizing the submission
made on behalf of parties for constitution of second one man
judicial commission on the strength of letter dated
03.08.2022 sent by Syed Jawed Haider, the Secretary, I/C of
the Vidhan Sabha and opinion of learned Advocate General.
151. Learned counsel for the petitioner also questioned the
opinion so given by the learned Advocate General for
constitution of further one man judicial commission that too
only for the purpose of scrutinizing and examining the
complicated question of law and fact involved arising out of
the first report given by the one-man judicial commission. It
has been submitted that in the Act, 1952 there is no
provision for constitution of commission for scrutinizing the
- 70 - W.P. (PIL) No. 1811 of 2022
report of another one man commission, so the report of
second one man judicial commission is perverse in law.
152. Questioning the second one man commission,
submission has been made that for nomination of Hon‟ble
Judge to conduct such inquiry and constitute the
Commission, the consultation of the High Court was being
made but while constituting the second one man commission
solely on the basis of opinion of learned Advocate General
second one man judicial commission was constituted.
153. Whereas, learned counsel for the respondents has
submitted the when it came to the knowledge of the State
that first man judicial commission report has been submitted
de hors the rule and further in the report of first man judicial
commission there are certain complicated question of fact
and law, as such second one man judicial commission was
constituted as per Section 3(4) of the Act, 1952.
154. The instant writ petition was filed on 18.04.2022 and
the Bench of this Court, after hearing the matter on merit,
has called for the respondents-Legislative Assembly and
directed the respondent to place the report submitted by the
first one-man judicial commission vide order dated
13.06.2023 but for the one pretext or the other the first
report was not submitted before this Court and lastly after
one year in sealed cover the second report was submitted.
- 71 - W.P. (PIL) No. 1811 of 2022
155. It is pertinent to mention here that the first report was
placed before this Court only after submission of second one
man commission report.
156. It further appears that the second report was only
placed before the Council of Ministers (Cabinet) in meeting
dated 24.01.2024 and thereafter the matter was closed by the
State Govt.
157. From the discussions made herein above it is evident
that the respondents has failed to explain as to why they did
not constitute second one man judicial commission
immediately after submission of report before the Speaker, if
the first one man judicial commission was de hors the rule,
and waited for four years and only when the matter came
before this Court they constituted another one man
commission.
158. Furthermore, the Speaker, if he has no power to take
action on report submitted by the Commission then under
what capacity he opened the sealed report and take action
thereupon.
159. Now, in the established background of the fact that only
after filing of the present PIL, there was initiation of
constitution of second one man judicial commission, this
Court proceeds to examine the pleadings available on
records.
- 72 - W.P. (PIL) No. 1811 of 2022
160. It is well established from the conduct of the
respondents that even though after passing repeated orders
by the Co-ordinate Bench of this Court, which was stringent
in nature, the reports have not been placed before this Court,
fairly for a long period of two years.
161. The notification for constitution of second one man
judicial commission was issued on the basis of letter dated
03.08.2022 issued by the Jharkhand Legislative Assembly
Secretariat under the Signature, Secretary In-charge,
Jharkhand Legislative Assembly stating therein on the report
of first one-man judicial commission, legal advice is required
to be taken. As such, opinion of the learned Advocate General
was taken, extract of his opinion as mentioned in letter dated
03.08.2022, at the cost of repetition is made herein, as it has
bearing in the case.
"........., I opine that an appropriate Commission be constituted
under the Commission of Inquiry Act with specific terms of
the reference of scrutinizing the report of the Hon'ble Mr.
Justice (Retd.) xxxxxx and for examination of the various
recommendations made vis a vis complicated question of Law and
fact involved and thereafter propose specific actions required to be
taken in the matter.
Thus a Judicial Commission under the chairmanship of
former distinguished Supreme court Judge who is well conversant
with the service jurisprudence can be appointed under the
Commission of Inquiry Act-1952.
I have already spoken and taken the consent of
Hon'ble Mr. Justice (Retd.) xxxxxx, Former Supreme Court
Judge Who is well acknowledged authority in the Service
- 73 - W.P. (PIL) No. 1811 of 2022
Jurisprudence to act as a one Man Judicial Commission."
162. The State, acting on the said legal advice of learned
Advocate General, constituted second one-man judicial
commission only to scrutinize and examine the complicated
question of law and fact involved arising out of the report
given by the first one-man judicial commission.
163. For the opinion so given by learned Advocate General, it
is evident that he opined to constitute commission with
specific terms of reference of scrutinizing the report of the
first one-man judicial commission and learned Advocate
General has stated that he on his own spoken and taken the
consent of Hon‟ble Judge, who is well acknowledged authority
in the service jurisprudence to act as a one Man Judicial
Commission. Therefore, herein two folds question arises:
(i).Whether the opinion for constitution of second one man
judicial commission only to scrutinize the report of first one-
man judicial commission is as per mandate of Section 3 of the
Commission of Enquiry Act, 1952; and
(ii).Whether the learned Advocate General, as per
constitutional mandate is competent enough to take decision
so far finalization of name of one man judicial commission
giving the State no other choice.
164. To answer these questions, it would be apt to mention
that for the issue involved three one man judicial commission
was constituted and admittedly for the constitution of first
- 74 - W.P. (PIL) No. 1811 of 2022
two judicial commissions the opinion was sought for from the
High Court and accordingly judicial commission was
constituted.
165. But for constitution of last one man judicial
commission, the respondents in a very dubious manner did
not think proper to take advice of High Court for constitution
of judicial commission.
166. It is also admitted fact that in the law there is no
specific provision to consult the Hon‟ble Court before
constitution of judicial commission but since the High Court
is a constitutional body having all records and set up to have
all information regarding retired/working Hon‟ble Judges, so
the State used to take consultation for nomination of judicial
commission. But certainly, on the sole advice of the learned
Advocate General it ought not to have been done in the
circumstances of the case.
167. Furthermore, since learned Advocate General has
opined to constitute the second one man commission to
scrutinize the report of first one man judicial commission
report, therefore, this Court again perused the provisions of
Section 3 of the Act, 1952 and other provisions therein but in
the Act there is no provision to constitute another
commission to scrutinize and examine the complicated
- 75 - W.P. (PIL) No. 1811 of 2022
question of law and fact involved arising out of the first
report.
168. Therefore, the opinion so given by the learned
Advocate General does not appear to be in consonance with
the provisions of Commission of Inquiry Act, 1952, since
Section 3 does not confer any power to look into the propriety
of the report given by the first commission rather the power
under Section 3 read with Section 8-A of the Act, 1952 to the
Commission of Inquiry Act, 1952 is for the purpose of making
an inquiry into any definite matter of public importance as
stipulated under Section 3(1) of the Act, 1952, but in the
instant case, the second one-man judicial commission was
appointed on the recommendation of learned Advocate
General to scrutinize and examine the complicated question
of law and fact involved arising out of the first report, which
is contrary to the provisions of law laid down in the
Commission of inquiry Act, 1952.
169. The second one man judicial commission was
constituted only to scrutinize and examine the complicated
question of law and fact involved arising out of the first
report, therefore, in either of the cases the first report would
not have been brushed aside. Even otherwise also, if
appropriate action would have been taken immediately after
submission of first report, no occasion would have arisen for
- 76 - W.P. (PIL) No. 1811 of 2022
constitution of second one judicial commission but it appears
that only to cover up the findings arrived at in the first one-
man judicial commission report, the second one man
commission was constituted who proposed no action is
required.
170. However, from the pleadings available on record, it
appears that first report was never placed before the
Assembly, as per mandate of Section 3(2) of the Act, 1952.
Even if argument of learned counsel for the respondents is
accepted then also, the second report was to be placed and
read in conjunctive and not disjunctive with the first report.
171. Learned Advocate General while arguing the matter has
taken the ground that after submission of the first one-man
judicial commission report due to the death of the Hon‟ble
Chairman, the necessity was there for constitution of second
one-man judicial commission in order to consider the legal
issues, which has been crept up.
172. But, this Court is not in agreement with such
submission/ground reason being that after submission of
said report the speaker has opened the sealed cover of the
first one man judicial commission report and taken follow up
action by giving approval of compulsory retirement of two of
the officers of the Jharkhand Legislative Assembly then where
- 77 - W.P. (PIL) No. 1811 of 2022
is the question of constitution of second one man judicial
commission for having consultation on the legal issue.
173. Now coming to letter dated 03.08.2022 issued by the
Jharkhand Legislative Assembly Secretariat under the
Signature of Secretary In-charge, Jharkhand Legislative
Assembly to the Chief Secretary, Government of Jharkhand
wherein it has been stated that as per letter dated
25.01.2022 of the Speaker, Jharkhand Legislative Assembly
on the first report of one-man judicial commission, legal
advice is required to be taken. However, letter dated
25.01.2022 issued by then Speaker is not placed on record.
174. Herein, the question arises if the first report was
submitted in the year 2018 itself, then under what
circumstance the State Legislative Assembly slept over for a
long period of time of four years that too where the allegation
is of illegal appointment/promotion in the State Legislative
Assembly Secretariat and directly against the then Speaker
and high-ups of the State and after four years they wake up
from the deep slumber and sought for opinion from the
learned Advocate General that too only after filing of the
present Public Interest Litigation.
175. From the opinion so quoted and discussed hereinabove,
it is clear that that the learned Advocate General has opined
that there is procedural error in submitting the report by one-
- 78 - W.P. (PIL) No. 1811 of 2022
man judicial commission as the report directly has been sent
by the Governor to the Assembly and not before the State to
be laid before the State Assembly, as such opined to
constitute appropriate Commission under the Commissions
of Inquiry Act for scrutinizing the report of the first one-man
judicial commission. Further, there was no consultation of
the High Court while constituting third commission whereas
in earlier two occasions, there was prior consultation of the
Court.
176. The aforesaid conduct of the respondents has not been
explained rather time to time stand has been changed by the
respondents. Such conduct of the respondents creates doubt
in the mind of the Court.
177. Be that as it may, herein two-folds question arises, that
if the report has been sent before the Governor directly and
being the Executive head of the State and if the Governor in
compliance to the mandate of Section 3 has sent the said
report to the Assembly then how the State can come forward
questioning the decision of the Governor; will it not be
contrary to the constitutional mandate and the very structure
of Constitution of India wherein under our democratic set up
as per Constitutional mandate the Governor in the State and
the President in the Centre are the Executive head.
- 79 - W.P. (PIL) No. 1811 of 2022
178. It is settled principle of law that it is the constitutional
spirit that any decision taken by the State either will be in the
name of Governor so far it relates to the State affairs are
concerned and in the name of President so far it relates to
affairs of Union is concerned.
179. In the aforesaid pretext the question arises herein that if
the Governor has directly sent the report to the speaker and
even accepting the said to the irregularity in the process even
then where is the jurisdiction lies with the speaker to open
the sealed-cover report and to take follow up action based
upon the enquiry report.
180. At this juncture, it will be apt to mention the
submission of Mr. Prashant Pallav, learned counsel appearing
for the office of the Governor who has submitted that even
accepting the fact that there is some procedural error by the
office of the Governor in sending the report to the speaker
directly instead of sending the same to the State it cannot be
said that the entire enquiry report suffers from impropriety
rather the same will be said to be procedural irregularity and
for the reason of any procedural irregularity, the propriety of
the report cannot be said to suffer from any error.
181. This Court on appreciation of aforesaid submission is of
the view that Section 3 (4) provides that the State is to
furnish the report before the assembly. However, the report
- 80 - W.P. (PIL) No. 1811 of 2022
was submitted before the Governor of the State as per the
mandate of letter 07.07.2014 and the Governor has sent the
said report before the Speaker. The speaker in turn has
opened and taken follow up action by giving approval on the
compulsory retirement of two officers, namely, Ramsagar and
Ravindra Kumar Singh vide notification dated 26.08.2019.
182. The then speaker, thus, according to considered view of
this Court has exceeded his jurisdiction in opening the sealed
cover of the report and going through the same and instead of
placing the same before the Assembly so as to follow the
mandate of Section 3 of the Act, 1952, took action against
two of the officers and sat over the report.
183. It is evident from the provision of Section 3 of Act, 1952
wherein statutory provision has been made that when the
report submitted by the Commission appointed under Section
3 of the Act, 1952, the State will take endeavor to place it
before or Parliament or the State Legislature, as the case may
be.
184. But it is evident from the factual aspect that when the
report was submitted directly by the then Governor to the
then Speaker the same has been opened by him and
thereafter follow up action has also been taken by giving
approval on compulsory retirement of two of the officers of
the State Legislative Assembly, which action is nothing but
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contrary to the mandate as contained under Section 3(4) of
the Act, 1952. Otherwise also, if it is accepted that the report
ought to have been sent by the State and not by the
Governor, then also the Speaker not ought to have opened
the sealed covered of the report rather he ought to have sent
the report to the State for the purpose of taking follow up
action in pursuance of provision of section 3(4) of the Act,
1952 so that the report be placed before the floor of the
Assembly.
185. The conduct of the then speaker as such is in conflict
with the statutory mandate rather the Court is of the view
that he has exceeded his jurisdiction reason being that the
placing the report in the floor of the assembly cannot be said
to be power to exercise the Speaker, since the speaker is only
to preside the Session.
186. In the aforesaid backdrop this Court has considered
view that sending the first commission report directly to
speaker by the Governor it can best be said to be irregularity
and not illegality.
187. Irregularity could have been rectified without opening
the sealed covered and sending it before the Government by
the then Speaker, but that was not done, so that the
procedure laid down in 3(4) could have been complied with.
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188. Thus, even accepting that the Governor has send the
report directly before the then speaker, it cannot be said to be
illegal rather it can be said that some irregularity was
committed which was curable.
189. In that circumstance if the then Speaker would have
sent the report before the State the irregularity could have
been regularized.
190. The Hon‟ble Apex Court in the case of Uday Shankar
Triyar v. Ram Kalewar Prasad Singh and Another (2006)
1 SCC 75, has held that procedural defects and irregularities
which are curable should not be allowed to defeat substantive
rights or to cause injustice. Procedure should never be made
a tool to deny justice or perpetuate injustice by any
oppressive or punitive use. The Hon‟ble Apex Court observed
as under:-
"17. Non-compliance with any procedural requirement relating to
a pleading, memorandum of appeal or application or petition for
relief should not entail automatic dismissal or rejection, unless
the relevant statute or rule so mandates. Procedural defects
and irregularities which are curable should not be
allowed to defeat substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be made a tool
to deny justice or perpetuate injustice, by any oppressive or
punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes
specifically the consequence of noncompliance; (ii) where the
procedural defect is not rectified, even after it is pointed out and
due opportunity is given for rectifying it; (iii) where the non-
compliance or violation is proved to be deliberate or mischievous;
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(iv) where the rectification of defect would affect the case on
merits or will affect the jurisdiction of the court; (v) in case of
memorandum of appeal, there is complete absence of authority
and the appeal is presented without the knowledge, consent and
authority of the appellant.
191. Further, In the case of M/S Ramnath Exports Pvt. Ltd.
versus Vinita Mehta & Anr, the Hon‟ble Apex Court has
observed that it is a trite of law that the procedural defect
may fall within the purview of irregularity and capable of
being cured, but it should not be allowed to defeat the
substantive right accrued to the litigant without affording
reasonable opportunity.
192. Further, it is the constitutional spirit that any decision
taken by the State will be in the name of Governor so far it
relates to the State affairs are concerned and in the name of
President so far it relates to the affairs of Union is concerned.
193. In the instant case the State has raised the question
against the Governor itself, therefore, the question arises will
it not be said to be contrary to the constitutional spirit.
194. According to the considered view of this Court it will be
said to be contrary to the constitutional spirit since even the
Governor who has sent the earlier report is in pursuance to
the decision taken by the State Government, as would evident
from letter dated 10.09.2018 and furthermore, in the
democratic set-up, the Governor is the constitutional head.
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195. From the discussions made hereinabove, it can safely be
said that report, so submitted by the chairman of first one
man judicial commission, before the Governor directly, was in
compliance of Government Notification dated 07.07.2014
wherein one man commission was requested to submit the
report before the Governor directly.
196. Furthermore, even accepting the argument made on
behalf of the State that the Governor was having no power to
forward the report before the speaker of the Assembly directly
and in place thereof was required to send it before the State,
the fact finding given by earlier one man judicial commission
cannot be said to suffer from impropriety and even the State
has appointed another one man commission only to
scrutinize the said report, therefore, the State has also
accepted the first one man judicial commission report.
197. Further, this Court on the basis of discussions made
hereinabove, is of the view that the appointment of second
one-man judicial commission cannot be said to be proper for
the purpose of scrutinizing and examining the complicated
question of law and fact involved arising out of the report
given by the Hon‟ble first one-man judicial.
198. This Court is further of the view that the constitution of
second one-man commission, during pendency of the instant
case, prima facie indicates that it is the cover-up exercise by
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the authority concern to defeat the purpose for which the
earlier commission was constituted and also to frustrate the
very object and intent for which the Commissions of Inquiry
Act, 1952 was made.
Conclusion:
199. This Court has perused the report submitted by the
second one man judicial commission wherein by dealing with
the report given by the first one man judicial commission,
remark has been „no action proposed‟.
200. This Court, on consideration of Section 3 read with
Section 8-A of the Act, 1952, is of the view that no such
consideration is to be given by the subsequent commission
once the first commission has submitted its report rather it is
the authority of the State to deliberate upon the issue as per
the judgment rendered by Hon‟ble Apex Court in the case of
Fazalur Rehman v. State of U.P., (supra). This Court in
view of the above is not hesitant in coming to the conclusion
that the second one man judicial commission report has
acted as an appellate forum upon the report submitted first
one man judicial commission, which is not the mandate of
the Commissions of Inquiry Act, 1952.
201. From the discussions so made hereinabove and the
finding arrived at by this Court on the subject matter, this
Court has come to the conclusion that for the irregularity
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done in the matter of appointment/promotion in the
Jharkhand Legislative Assembly, the Government vide
notification dated 07.07.2014 constituted one man judicial
Commission under the chairmanship of retired judge of High
Court of Jharkhand, who submitted its report to the then
Governor, as per directives given in the notification dated
07.07.2014.
202. The Governor in turn forwarded the same before the
Speaker vide letter dated 16.09.2018 and requested to
implement ‟30 points reference‟ as mentioned in the report of
the commission and also requested that let an enquiry be
conducted by the CBI of the Compact Disc (CD) containing
matter of illegal appointment.
203. But thereupon, no action was taken neither the said
CD was ever examined by any agency or in Forensic Science
Laboratory nor any action was taken against the concerned
officers/employees or any high ups of the State rather the
then Speaker, in order to cover-up the matter, gave approval
on the compulsory retirement of two officers, namely,
Ramsagar and Ravindra Kumar Singh vide notification dated
26.08.2019 so as to close the matter.
204. But when the matter came before this Court in the year
2022 by way of filing the instant „Public Interest Litigation‟ on
18.04.2022, after four years of submission of first report, the
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Secretary In-Charge, Jharkhand State Asseembly, who is
allegedly one of the beneficiary, issued letter dated
03.08.2022 requesting the Government to constitute another
commission.
205. Thereafter, another one man commission was
constituted, which submitted its report whereafter the matter
was closed taking NO ACTION against anybody.
206. This Court has already discussed in the preceding
paragraphs and thereafter has come to the conclusion that
the report submitted by the first one-man judicial
commission is as per law and virtually no action has been
taken thereon and only for eye-wash two of the officers have
been compulsorily retired accepting the report of first man
judicial commission.
207. This Court has further come to the conclusion that
since the opinion so given by the learned Advocate General,
basis upon which the second one man commission was
constituted does not appear to be in consonance with the
provisions of Commission of Inquiry Act, 1952. As such
pursuant decision i.e., notification dated 21.09.2022 taken
on such opinion has also no base to stand.
208. Thus, it is evident from the discussions made
hereinabove that the State being aggrieved with the issue of
commission of illegality in the matter of fulfilling the public
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post in the Jharkhand Legislative Assembly constituted a one
man judicial commission in terms of Section 3 of the
Commission of Inquiry Act, 1952, who has submitted a report
answering the 30 reference points, which was referred but no
substantial action was taken, save and except, two officers of
the Jharkhand Legislative Assembly have been compulsory
retirement of vide notification dated 26.08.2019 on the
approval given by the then Speaker. Thereafter, the matter
was kept pending for about four years and when present
public interest litigation was filed and orders were passed by
the Co-ordinate Bench of this Court to produce the report of
first one man judicial commission as also the action taken
report thereon, for a long period of time of about two years
purposely the report of one-man judicial commission was not
produced and during pendency of the present „Public Interest
Litigation‟, second one man judicial commission was
appointed based upon the opinion of the learned Advocate
General that too allegedly for scrutinizing the complicated
question of law and fact involved in the first one man
commission.
209. This Court has gathered from the pleading made, as has
been taken note of hereinabove, that the second one man
judicial commission appears to be constituted in order to
hush-up the matter. It also appears that when the first one
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man judicial commission report was submitted the then
speaker has opened the sealed cover and taken follow up
action, by giving approval of compulsory retirement of two of
the officers of the Jharkhand Legislative Assembly, without
deliberation having been made upon the report by the State
and thereafter when the matter came up before this Court
after a long period of four years of submission of such first
one man judicial commission report, by way of filing present
Public Interest Litigation, on the basis of opinion of learned
Advocate General, the second one man judicial commission
was constituted for scrutinizing and examine the complicated
question of law and fact involves arising out of the report
given by the first one man judicial commission.
210. We have already come to the finding hereinabove that
under the provision of Section 3 and 8-A of the Commission
of Inquiry Act, 1952 there is no provision to scrutinize and
examine the or see propriety of the first one man judicial
commission, which was duly constituted under the provision
of the Act, 1952, rather, it is the power of the State
Government to look into this aspect of the matter.
211. So far the issue of handing over the
inquiry/investigation to the CBI, which is one of the prayers
in the present writ petition, is of the view that before delving
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upon the issue the judicial pronouncements in this regard
needs to refer herein
212. This Court in order to come to the logical conclusion has
considered the ratio laid down in the case of State of West
Bengal v. Committee for Protection of Democratic Rights,
reported in (2010) 3 SCC 571.
213. In the said judgment, the issue has been referred for the
opinion of the Hon‟ble Constitution Bench of the Apex Court
that whether the High Court, in exercise of its jurisdiction
under Article 226 of the Constitution of India, can direct the
Central Bureau of Investigation (for short "CBI"), established
under the Delhi Special Police Establishment Act, 1946 (for
short "the Special Police Act") to investigate a cognizable
offence, which is alleged to have taken place within the
territorial jurisdiction of a State.
214. Factual matrix of the case that one Abdul Rahaman
Mondal ("the complainant") along with a large number of
workers of a political party who had been staying in several
camps of that party at Garbeta, District Midnapore, in the
State of West Bengal has decided to return to their homes
from one such camp. When they reached the Mondal's house,
some miscreants, numbering 50-60, attacked them with
firearms and other explosives, which resulted in a number of
casualties. The complainant managed to escape from the
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place of occurrence and lodged a written complaint with
respective Police Station itself and the first information report
(FIR) for offences under was registered.
215. Thereafter, the Director General of Police, West Bengal
directed CID to take over the investigations in the case.
216. A writ petition under Article 226 of the Constitution was
filed in the High Court of Judicature at Calcutta by the
Committee for Protection of Democratic Rights, West Bengal
in public interest, inter alia, alleging that although in the said
incident 11 persons had died on 4-1-2001 and more than
three months had elapsed since the incident had taken place
yet except two persons, no other person named in the FIR
had been arrested and the police had not been able to come
to a definite conclusion whether the missing persons were
dead or alive. It was alleged that the police administration in
the State was under the influence of the ruling party as such
the incident may be handed over to CBI, an independent
agency
217. The High Court in the aforesaid background and taking
into consideration about the impartiality and fairness in the
investigation by the State police because of the political
fallout, hand over the investigation into the said incident to
CBI.
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218. Aggrieved by the order passed by the High Court, the
State of West Bengal filed a petition for special leave to appeal
before the Hon‟ble Supreme Court. When the matter came up
for hearing before a two-Judge Bench taking note of the
contentions urged by the learned counsel for the parties and
the orders passed by the Hon‟ble Court in Advance
Insurance Co. Ltd. v. Gurudasmal [(1970) 1 SCC 633]
and Kazi Lhendup Dorji v. CBI [1994 Supp (2) SCC 116] ,
the Bench was of the opinion that the question of law
involved in the appeals was of great public importance, it was
necessary that the issue be settled by a larger Bench and
accordingly, matter was referred before a before a
Constitution Bench.
219. The Hon‟ble Apex Court while taken into consideration,
the doctrine of distribution of legislative powers and purport
of Section 3, 4, 5 and section 6 of the Special Police Act has
observed that the power of the High Court under Article 226
of the Constitution cannot be taken away, curtailed or diluted
by Section 6 of the Special Police Act. Irrespective of there
being any statutory provision acting as a restriction on the
powers of the Courts, the restriction imposed by Section 6 of
the Special Police Act on the powers of the Union, cannot be
read as restriction on the powers of the constitutional courts.
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220. Thus, it is evident that he Hon‟ble Apex Court in the
facts of the aforesaid premise has laid down that even if the
FIR has been instituted and the matter is being investigated
by the State Police, but since the high ups of the State is
involved and as such the Hon‟ble Apex Court has been
pleased to come to the conclusion that matter must be
investigated by the CBI. The relevant paragraph is being
referred hereunder as:
"69. In the final analysis, our answer to the question referred is
that a direction by the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution, to CBI to
investigate a cognizable offence alleged to have been
committed within the territory of a State without the
consent of that State will neither impinge upon the federal
structure of the Constitution nor violate the doctrine of
separation of power and shall be valid in law. Being the
protectors of civil liberties of the citizens, this Court and the High
Courts have not only the power and jurisdiction but also an
obligation to protect the fundamental rights, guaranteed by Part III
in general and under Article 21 of the Constitution in particular,
zealously and vigilantly.
70. Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles 32 and
226 of the Constitution, while passing any order, the Courts must
bear in mind certain self-imposed limitations on the exercise of
these constitutional powers. The very plenitude of the power under
the said articles requires great caution in its exercise. Insofar as
the question of issuing a direction to CBI to conduct investigation in
a case is concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be exercised but
time and again it has been reiterated that such an order is not to
be passed as a matter of routine or merely because a party has
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levelled some allegations against the local police. This
extraordinary power must be exercised sparingly, cautiously and
in exceptional situations where it becomes necessary to provide
credibility and instil confidence in investigations or where the
incident may have national and international ramifications or
where such an order may be necessary for doing complete justice
and enforcing the fundamental rights. Otherwise CBI would be
flooded with a large number of cases and with limited resources,
may find it difficult to properly investigate even serious cases and
in the process lose its credibility and purpose with unsatisfactory
investigations."
221. In State of Bihar v. Ranchi Zila Samta Party,
reported in (1996) 3 SCC 682 : AIR 1996 SC 1515, the
Supreme Court has observed that the power under
Article 226 of the Constitution in a public interest litigation,
to order an inquiry and investigation to be taken over from
the State Police and entrusting it to the CBI, can be exercised
when it was to investigate corruption in public
administration, misconduct by the bureaucracy, fabrication
of official records, and misappropriation of public funds by an
independent agency that would command public confidence.
222. In the backdrop of aforesaid facts, discussions and
judicial pronouncement, this Court is now proceeding to
examine as to whether the matter can be investigated by the
State Agency or it is to be handed over to the independent
agency like that of CBI.
223. Thus, it is well settled that the High Court under
Article 226 of the Constitution and the Supreme Court under
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Article 32 of the Constitution can direct the CBI to investigate
into any specific case or to conduct an inquiry against a
person. It can do so only when there is sufficient material
before the Court to come to a prima facie conclusion that
there is a need for such an inquiry/investigation. Certainly,
such an inquiry/investigation cannot be ordered as a matter
of routine or merely because a party makes an allegation. If
after considering the materials on record the Court concludes
that such materials disclose a prima facie case calling for
investigation by the CBI, the Court can make the necessary
order.
224. In the case of NOIDA Entrepreneurs
Association v. Noida, reported in (2011) 6 SCC 508, the
Supreme Court, while directing the CBI to have a further
inquiry, observed that the public trust doctrine is part of the
law of the land. It was observed that the power vested by the
State in a Public Authority should be viewed as a trust
coupled with duty to be exercised in larger public and social
interest. A decision taken in an arbitrary manner contradicts
the principle of legitimate expectation. It was observed that
the public authorities cannot play fast and loose with the
powers vested in them. The Court also observed that
functioning of a democratic form of Government demands
equality and absence of arbitrariness and discrimination.
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225. As discussed in the preceding paragraphs, in the case of
State of West Bengal (supra), the Hon‟ble Supreme Court
observed that the very plenitude to the power under
Article 226 of the Constitution requires great caution in its
exercise. Such extraordinary power is required to be
exercised sparingly, cautiously and in exceptional situations
where it becomes necessary to provide credibility and instill
confidence in investigations or where the incident may have
national and international ramifications or where such an
order may be necessary for doing complete justice and
enforcing the fundamental rights.
226. Further, the Hon‟ble Apex Court in the case of K.V.
Rajendran v. CBCID, [(2013) 12 SCC 480] wherein, the
Hon‟ble Supreme Court has observed that when it is
imperative to retain public confidence in the impartial
working of the State agencies, in such circumstances,
investigation can be vested by the Court with the CBI.
227. Thus, from the aforesaid logical deduction it is amply
clear that when high officials are likely to be involved and a
question of public confidence in the impartial working of the
State agencies arises, the writ Court in exercise of its
jurisdiction under Article 226 of the Constitution of India is
certainly not powerless to order such inquiry and
investigation by the CBI.
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228. We are conscious of the proposition that extra ordinary
power in handing over the inquiry/investigation to the CBI is
to be exercised sparingly, cautiously and in exceptional
situations where it becomes necessary to provide credibility
and instill confidence in investigations or where the incident
may have national and international ramifications or where
such an order may be necessary for doing complete justice
and enforcing the fundamental rights.
229. Since learned counsel for the respondents has relied
upon judgments, as referred above, as such, it is the
bounden duty of the Court to deal with the judgments upon
which reliance have been placed by learned counsel for the
respondents.
230. In the case of Ghanshyam Upadhyay v. State of U.P
(supra) the petitioner of criminal miscellaneous
petition/application before the Hon‟ble Apex Court was the
petitioner in WP (Crl.) No. 177 of 2020 and the said writ
petition was filed under Article 32 of the Constitution of
India, in the nature of public interest seeking for issuance of
writ of mandamus with regard to the destruction of
residential building and other properties of accused Vikas
Dubey and to safeguard the life of the accused. Before the
petition was taken up for consideration, the said Vikas Dubey
was killed by the police in an alleged encounter. Along with
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the said writ petition, certain other writ petitions which were
also filed in public interest seeking for an appropriate
enquiry.
231. A Commission of Inquiry was constituted under the
Commission of Inquiries Act, 1951, headed by a former Judge
of the Allahabad High Court. Before the Apex Court the State
Government had undertaken the exercise to expand the
composition of the Commission. The Hon‟ble Apex Court
having considered it appropriate had vide order dated 22-7-
2020 accepted the constitution of the Commission of Inquiry
in the said manner and the writ petition was directed to be
listed along with the report of the Commission. The petitioner
filed interlocutory application wherein allegation of biasness
was alleged against one of the member of the commission.
232. In the above backdrop, the Hon‟ble Apex Court while
taking into consideration that the Chairman and a Member
of the Commission had held high constitutional positions and
while making allegations the petitioner has based his claim
only on the newspaper report and the manner in which the
averments are made in the application is unacceptable.
233. So far fact of the case in the case of Shakeel Ahmed V.
Union of India (supra) is concerned in the backdrop the
communal rites and violence, the Government of
Maharashtra by a notification dated 25th January 1993
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constituted a Commission under the Commissions of Inquiry
Act, 1952 (for short, „the 1952 Act‟) headed by Hon'ble Shri
Justice B.N. Srikrishna.
234. By another notification dated 23rd January 1996, the
State Government disbanded the Commission on a very
strange ground that there was an inordinate delay on the
part of the Commission in submitting its report but later on it
was revived by the notification dated 28th May 1996.
235. In background of the aforesaid, a petition was filed
before the Hon‟ble Apex Court for the implementation of the
recommendations of the said Commission. However, the State
Government did not agree with some of the conclusions
drawn by the Commission especially its findings on the
causes of the riots/violence but the Government agreed to act
upon majority of recommendations.
236. The Hon‟ble Apex Court has observed that the
recommendations of a Commission appointed under the 1952
Act cannot bind the Government. The Courts cannot compel
the Government to act upon the report, but, once the
Government accepts the recommendations, a Writ Court can
issue a mandamus for the implementation of the
recommendations as it becomes an obligation of the
Government to implement the recommendations.
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237. Further, in the case of Shree Shree Ram Janki Ji
Asthan Tapovan Mandir v. State of Jharkhand, [supra],
wherein an appeal was filed before the Hon‟ble Apex Court
against an order passed by the High Court of Jharkhand at
Ranchi in Atish Kumar Singh v. State of Jharkhand,
2017 SCC OnLine Jhar 1287 in which direction was passed
upon the Central Bureau of Investigation to investigate and to
take appropriate action at the earliest and conclude the
investigations preferably within six months.
238. The said directions were issued by the High Court
finding that the property of deity Shree Shree Ram Janki Ji
Asthan Tapowan (Mandir) at Ranchi has been transferred
against the mandate of the trust deed created by the author
of the trust to establish Shree Ram Janki Tapowan Mandir
(Trust) on 25-2-1948.
239. The directions issued by the High Court was subject-
matter before the Hon‟ble Apex Court wherein the Hon‟ble
Apex Court had observed that the public order (Entry 1) and
the police (Entry 2) is a State subject falling in List II of
Schedule VII of the Constitution and it is a primary
responsibility of the investigating agency of the State Police to
investigate all offences which are committed within its
jurisdiction. The investigations can be entrusted to Central
Bureau of Investigation on satisfaction of the conditions as
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specified therein only in exceptional circumstances as laid
down in State of W.B. [State of W.B. v. Committee for
Protection of Democratic Rights, (2010) 3 SCC 571] case. Such
power cannot and should not be exercised in a routine
manner without examining the complexities, nature of offence
and sometimes the tardy progress in the investigations
involving high officials of the State investigating agency itself.
240. This Court, after going through the said judgments, has
found therefrom that the said judgments are based upon
different facts, as herein after appointment of the first
commission the report has been acted upon and thereafter
contrary to the mandate of Section 8-A of the Act, 1952, the
second one man commission has been appointed in the
matter of filling up of the public post.
241. It appears from the first one man commission enquiry
report that serious irregularities have been committed.
However, in the second one man commission report no action
has been proposed to be taken.
242. This Court, in the aforesaid distinguishable fact is of the
view that the judgment upon which reliance has been placed
is not applicable.
243. Further, it needs to refer herein that if there is any
illegality in appointment in order to filling up of public post
and it has been pointed out that the illegality has been said
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to be rectified to maintain the public faith upon the system
with all fairness and transparency.
244. The law is well settled that the applicability of the
judgment is to be tested on the basis of facts governing the
case individually as per the ratio laid down by Hon‟ble Apex
Court in the case of Dr. Subramanian Swamy vs. State of
Tamil Nadu &Ors reported in (2014) 5 SCC 75. For ready
reference the relevant of the aforesaid judgment is being
quoted as under:
"47. It is a settled legal proposition that the ratio of any
decision must be understood in the background of the
facts of that case and the case is only an authority for
what it actually decides, and not what logically follows
from it. "The court should not place reliance on decisions
without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance
is placed."
245. This Court, in order to consider as to whether the case
is coming under the fold of the ratio as laid down by the
Hon‟ble Apex Court, as mentioned hereinabove, and further
in order to maintain the confidence in the mind of public the
matter is required to be handed over to the CBI or not, deems
it fit and proper to consider the following factual aspects,
which has been gathered by this Court based upon the
discussions made hereinabove:
I.The matter involves illegal appointment made in the
Jharkhand Legislative Assembly, allegedly with
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connivance of the high ups of the State including the
then Speaker, who is stated to be holding the post of
Cabinet Minister, therefore, it would be desirable to
entrust the investigation to an independent agency like
the Central Bureau of Investigation so that all
concerned including the then speaker of legislative
assembly may feel assured that an independent agency
is looking into the matter.
II.Further, since the allegation is against the senior
politician and in past holding a very high public post
like speaker of the legislative assembly of state of
Jharkhand and the allegations made by the petitioner
against him have cast a cloud on his integrity, therefore,
it is of utmost importance that the truth of these
allegations is determined by a competent forum.
III.It would be evident from letter dated 10.09.2018
issued by the then Governor of the State that view has
been expressed to hand over the matter to the CBI but
no action has been taken rather after lapse of four
years, the second one man judicial commission has
been constituted, which is contrary to the provision of
section 8-A of the Act, 1952. The said second one man
judicial commission has proposed no action be taken,
however, the constitution of the second commission is
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without jurisdiction in view of the judgment rendered in
the case of of Fazalur Rehman v. State of U.P.,
(supra).
IV.The first one man commission report was knowingly
not produced before this Court and took note of the fact in
order dated 04.10.2023 and 12.10.2023 that the report is
deliberately not being produced before it and found the
same to be obstruction to justice and ordered that if the
order is not complied with, the Court will pass
appropriate order and try to dispose of the Public Interest
Litigation without perusing the report, basing on the
recommendations made by Her Excellency The Then
Governor of Jharkhand, then only, after a long period of
time of one year, the report has been submitted in
sealed cover.
V.Further, the State after submission of the first one
man judicial commission in the year 2018 slept in deep
slumber for a long period of four years and only when
this „Public Interest Litigation‟ was filed in the year 2022
bringing notice of this Court to the alleged irregularities
committed in the appointment in Vidhan Sabha in
which high ups of the State are allegedly involved,
during pendency of the instant petition, vide notification
dated 21.09.2022 another one man judicial commission
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was constituted that too for scrutinizing and examine
the complicated question of law and fact involves arising
out of the report given by the first one commission,
which is not permissible in the eye of law since in the
Inquiry Act, 1952, there is nowhere any provision to
constitute another commission to scrutinize and
examine the complicated question of law and fact
involved arising out of the first report.
VI.It is admitted that affidavits filed on behalf of
respondents and on consideration of the purport of
Section 3 of Act, 1952, the Speaker ought not to have
opened the sealed cover. But he has opened the sealed
cover and gone through the contents of the first one
man judicial commission based upon that action was
taken against two of the officers of the Legislative
Assembly by giving approval on their compulsory
retirement but thereafter when the present case was
filed and for a long period of about of two years inspite
of stringent orders having been passed by the Co-
ordinate Bench of this Court, the report of first one man
judicial commission was not produced rather based
upon the opinion of the learned Advocate General
second one man judicial commission was constituted
that too for scrutinizing the report of the earlier one
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man judicial commission, which casts doubt as Speaker
ought not to have open the sealed cover of first one man
judicial commission rather it was to be placed before the
Assembly after deliberations being made by the State.
But the then Speaker, after going through the said
report sought for opinion, as such the same casts
doubt. If in such circumstances, again the State police
will be directed to conduct the investigation then there
is no likelihood to have proper investigation/enquiry.
VII.Further, there is direct allegation against the
Secretary, I/C of the Legislative Assembly who has
sworn affidavit(s) before this Court, and is allegedly one
of the beneficiaries of the unfairness committed in the
matter of fulfilling the public post in the State
Legislative Assembly and he is who has assisted the
second one-man commission.
VIII.Since the high ups of the State of Jharkhand is
involved in fulfilling the various posts in Jharkhand
Legislative Assembly which has come in the report,
hence it is not feasible to have proper investigation if the
matter would be investigated by the State Police/State
agency, therefore, for fair, honest and complete
investigation, and particularly, when it is imperative to
retain public confidence.
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246. This Court, on consideration of the reasons as aforesaid
is of the view that the factual aspects, as discussed
hereinabove, is having the exceptional situations since the
matter relates to the filling up of the public post of
Jharkhand State Legislative Assembly as such it became
necessary to provide credibility and still confidence in the
mind of public at large about the inquiry/investigation.
247. Further, from the logical deductions drawn from the
judicial pronouncements, as enunciated by Hon‟ble Apex
Court, the Constitutional power to hand over the
investigation to the CBI is in the following circumstances:
I. Where high officials of the State Authorities are
involved, or
II. Where the accusation itself is against the top
officials of the investigating agency thereby
allowing them to influence the investigation, or
III. Where investigation prima facie is found to be
tainted/biased.
248. Thus, on the basis of the discussion made hereinabove,
and judicial pronouncements by Hon‟ble Apex Court as
referred herein above, and the ratio laid down in the case of
State of West Bengal v. Committee for Protection of
Democratic Rights (supra) wherein also there was
involvement of high-ups of the State, as such the matter was
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handed over to the CBI to inquire/investigate into the matter
and herein also there is alleged involvement of high-ups of
the State including the then Speaker, and later holding the
post of Cabinet Minister in the Government, is of the view
that the instant matter to be Central Bureau of Investigation
for conducting preliminary inquiry.
249. In view of aforesaid discussions, the matter is handed
over to the Central Bureau of Investigation to conduct
preliminary enquiry in the matter pertaining to appointment
made in the Jharkhand Legislative Assembly.
250. No need to refer that in case any cognizable offence is
crept up in the said preliminary enquiry the follow up action
by instituting regular case in view of Para 9.1 of the CBI
Manual be taken.
251. The issue of conducting preliminary enquiry has been
dealt with by the Hon‟ble Supreme Court in the case of
Central Bureau of Investigation (CBI) and Another v.
Thommandru Hannah Vijayalakshmi @ T. H.
Vijayalakshmi and Another reported in 2021 SCC OnLine
SC 923, wherein at paragraph 37 and 39, it has been held as
under:
"37. If a preliminary enquiry is necessary, it is covered
by Chapter 9 of the CBI Manual. Para 9.1 notes:
"9.1.When, a complaint is received or information is
available which may, after verification as enjoined in
this Manual, indicate serious misconduct on the part of a
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public servant but is not adequate to justify registration
of a regular case under the provisions of Section
154CrPC, a preliminary enquiry may be registered after
obtaining approval of the competent authority...When the
verification of a complaint and source information
reveals commission of a prima facie cognizable offence, a
regular case is to be registered as is enjoined by law. A
PE may be converted into RC as soon as sufficient
material becomes available to show that prima facie
there has been commission of a cognizable
offence. When information available is adequate to
indicate commission of cognizable offence or its discreet
verification leads to similar conclusion, a regular case
must be registered instead of a preliminary enquiry. It is,
therefore, necessary that the SP must carefully analyse
material available at the time of evaluating the
verification report submitted by Verifying Officer so that
registration of PE is not resorted to where a regular case
can be registered..."
(emphasis supplied)
Hence, two distinct principles emerge from the above :
(i) a preliminary enquiry is registered when information
(received from a complaint or "source information") after
verification indicates serious misconduct on part of a
public servant but is not enough to justify the
registration of a regular case; and (ii) when the
information available or after its secret verification
reveals the commission of a cognizable offence, a regular
case has to be registered instead of a preliminary
enquiry being resorted to necessarily.
39. The precedents of this Court and the provisions of
the CBI Manual make it abundantly clear that a
preliminary enquiry is not mandatory in all cases which
involve allegations of corruption. The decision of the
Constitution Bench in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] holds that if the information received discloses
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the commission of a cognizable offence at the outset, no
preliminary enquiry would be required. It also clarified
that the scope of a preliminary enquiry is not to check
the veracity of the information received, but only to
scrutinise whether it discloses the commission of a
cognizable offence. Similarly, Para 9.1 of the CBI Manual
notes that a preliminary enquiry is required only if the
information (whether verified or unverified) does not
disclose the commission of a cognizable offence. Even
when a preliminary enquiry is initiated, it has to stop as
soon as the officer ascertains that enough material has
been collected which discloses the commission of a
cognizable offence. A similar conclusion has been
reached by a two-Judge Bench in Managipet [State of
Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3
SCC (Cri) 702] as well. Hence, the proposition that a
preliminary enquiry is mandatory is plainly contrary to
law, for it is not only contrary to the decision of the
Constitution Bench in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] but would also tear apart the framework
created by the CBI Manual."
252. It is evident from the paragraph 37 of the aforesaid
judgment that (i) a preliminary enquiry is registered when
information (received from a complaint or "source
information") after verification indicates serious
misconduct on part of a public servant but is not enough
to justify the registration of a regular case; and (ii) when
the information available or after its secret verification
reveals the commission of a cognizable offence, a regular
case has to be registered instead of a preliminary enquiry
being resorted to necessarily.
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253. The Hon‟ble Apex Court in Manohar Lal Sharma v.
Principal Secretary, [(2014) 2 SCC 532] a three-judge
Bench of the Court, had elaborated on the duty of the CBI
to convert a preliminary enquiry into a regular case, once
a prima facie case involving the commission of a cognizable
offence is evinced. For ready reference, paragraph 29 of
the judgment is quoted as under:
"29. Once jurisdiction is conferred on CBI to investigate the
offence by virtue of notification under Section 3 of the DSPE
Act or CBI takes up investigation in relation to the crime
which is otherwise within the jurisdiction of the State police
on the direction of the constitutional court, the exercise of the
power of investigation by CBI is regulated by the Code and
the guidelines are provided in the CBI (Crime) Manual. Para
9.1 of the Manual says that when, a complaint is received or
information is available which may, after verification, as
enjoined in the Manual, indicates serious misconduct on the
part of a public servant but is not adequate to justify
registration of a regular case under the provisions of Section
154 of the Code, a preliminary enquiry (PE) may be
registered after obtaining approval of the competent
authority. It also says that where the High Courts and the
Supreme Court entrust matters to CBI for inquiry and
submission of report, a PE may be registered after obtaining
orders from the head office. When the complaint and source
information reveal commission of a prima facie cognizable
offence, a regular case (RC) is to be registered as enjoined by
law. A PE may be converted into RC as soon as sufficient
material becomes available to show that prima facie there
has been commission of a cognizable offence. When
information available is adequate to indicate commission of
cognizable offence or its discreet verification leads to similar
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conclusion, a regular case must be registered instead of a
PE.
254. The Hon‟ble Supreme Court in the case of National
Confederation of Officers Association of Central Public
Sector Enterprises and Others v. Union of India and
Others reported in (2022) 4 SCC 764 while taking note of
ratio of the judgment laid down in the case of Lalita Kumari
v. Government of Uttar Pradesh and Others [(2014) 2 SCC
1] the issue of preliminary enquiry and CBI Crime Manual
have been taken note of, meaning thereby, the CBI Crime
Manual has also been found to be in consideration by the
Hon‟ble Supreme Court for the purpose of deciding the issue
as to what steps is to be taken if any cognizable offence has
been surfaced in course of preliminary enquiry since Para 9.1
of the CBI Crime Manual states that a preliminary enquiry
may be converted into regular case as soon as sufficient
material becomes available to show that prima facie there has
been commission of a cognizable offence. For ready reference,
paragraph 61 of the said judgment is quoted as under:
61. Chapter 9 of CBI Crime Manual details the process of
conducting preliminary enquiries. Para 9.1 states that "a
P[reliminary] E[nquiry] may be converted into R[egular] C[ase] as
soon as sufficient material becomes available to show that
prima facie there has been commission of a cognizable offence".
In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] , a Constitution Bench of this Court had
underscored the duty of the police to register an FIR when the
information received prima facie discloses the commission of a
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cognizable offence. However, the decision recognises that in
certain cases, a preliminary enquiry may be held. With specific
reference to CBI Manual, this Court noted that "the police can
conduct a sort of preliminary verification or inquiry for the
limited purpose of ascertaining as to whether a cognizable
offence has been committed. [Lalita Kumari v. State of U.P.,
(2014) 2 SCC 1, para 119 : (2014) 1 SCC (Cri) 524] " This Court
issued inter alia, the following directions : (Lalita Kumari
case [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1
SCC (Cri) 524] , SCC p. 61, para 120)
"120. In view of the aforesaid discussion, we hold:
***
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a
copy of the entry of such closure must be supplied to the first
informant forthwith and not later than one week. It must
disclose reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed. Action
must be taken against erring officers who do not register the
FIR if information received by him discloses a cognizable
offence.
120.5.The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence."
255. For the discussions and conclusions arrived at this
Court, following directions are being passed:
(i) The matter pertaining to irregularity committed in the
matter of illegal appointment/promotion in the
legislative assembly of State of Jharkhand, allegedly
with the aid of high-ups of the State, as also of the
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concerned Compact Disc (CD), is directed to be enquired
by the Central Bureau of Investigation.
(ii) The State of Jharkhand, through different
departments in the helms of affairs of the instant
matter, is directed to coordinate with the Central
Bureau of Investigation by handing over the documents
pertaining to appointment in the legislative assembly of
State of Jharkhand, as and when required by the CBI.
(iii).It is made clear that the Central Bureau of
Investigation would be at liberty to move an application
before this Court in case of non-cooperation from the
State Government or State Legislative Assembly on any
count.
(iv).The Central Bureau of Investigation may take the
assistance of documents and annexures available on
record and proceed with the investigation and enquire in
the matter with an open mind.
256. It is made clear that the investigating agency will neither
be prejudiced by any of the observations made by this Court
nor any of the reports so submitted by the one-man judicial
commission(s). However, if require the investigating agency
may take copy of the report so submitted by the one-man
commission constituted vide Government Notification dated
07.07.2014.
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257. Let the original report(s) be sent back to the concerned.
258. With the aforesaid observations and directions, the
present Writ Petition (Public Interest Litigation) is consigned.
I Agree (Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
(Arun Kumar Rai, J.)
Alankar/-
A.F.R
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