Punjab-Haryana High Court
Bhupinder Singh Hooda vs State Of Haryana & Ors on 9 May, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:065248
CWP-24139-2016 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-24139-2016 (O&M)
Reserved on: 25.04.2024
Date of decision: 09.05.2024
Bhupinder Singh Hooda
..Petitioner
Versus
State of Haryana and others
.Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Narender Hooda, Sr. Advocate with
Mr. Pardeep Singh Poonia, Advocate
Mr. Pulkit Dhanda, Advocate
Mr. Shivendra Dwivedi, Advocate
Ms. Rashi Chaudhary, Advocate
Mr. Karan Hooda, Advocate
for the petitioner
Mr. B.R.Mahajan, Advocate General, Haryana with
Mr. Samarth Sagar, Addl. AG, Haryana and
Mr. J.S.Pannu, AAG, Haryana
ANIL KSHETARPAL, J
1. Brief facts of the case:-
1.1 Although there was unanimous opinion of the esteemed
members of the Division Bench on the substantive issues, however, there
was difference of opinion on a small issue, which has resulted in
reference to this Bench as third Judge. In substance, one esteemed
brother Judge has held that it shall be open to the Commission to
proceed further from the stage when notice under Section 8B of the
Commissions of Inquiry Act, 1952 (hereinafter referred to as '1952 Act')
was required to be issued whereas the other respected brother Judge
granted liberty to the Government to appoint a Commission of Inquiry.
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The difference has been summarized in the short order passed by the
Bench on 10.01.2019 which reads as under:-
"Anupinder Singh Grewal,J. has authored
separate judgment, wherein the conclusion in respect of
broad issues dealt in the judgment written by Ajay Kumar
Mittal,J. has been concurred. However, there is difference in
the operative portion of the respective judgments. Ajay
Kumar Mittal,J. has concluded as under:
"69.Having perused the report, we find
that it touches and opines on the conduct of the
petitioner and affects the reputation thereof. In such
circumstances, it was essential to have issued the
notice under Section 8B of the Act which has not been
done as the notice which was issued did not fulfil the
conditions essentially required thereunder.
Accordingly, the report submitted by the Commission
is held to be non est and the same shall not be
published. However, it shall be open for the
Commission to proceed further from the stage when
notice under Section 8B of the Act was required to be
issued and submit fresh report in accordance with
law. The writ petition is disposed of in the manner
indicated hereinbefore."
According to Anupinder Singh Grewal,J., the following
conclusion has been arrived:
"In the case at hand, the Commission of
Inquiry was appointed on 14.5.2015 and its term was
for a period of 6 months. The term was extended by
period of 6 months vide notification dated 7.12.2015
and further extended till 31.8.2016 by notification
dated 1.7.2016. The Commission submitted its report
on 31.8.2016. The Commission is no longer in
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existence and thus, it would not be possible for it to
issue afresh notice under Section 8-B of the Act.
It is in those cases where the Commission is
functioning that a direction could be issued for it to proceed
afresh from the stage of issuing notice under Section 8-B. As
the tenure of the Commission has come to an end, it has
submitted the report and ceased to exist only a fresh
Commission can be appointed under the Act. In such
circumstances, it would be in the interest of justice if the
respondent is granted liberty to appoint a Commission of
Inquiry on the same subject matter.
Resultantly, I would partly allow the petition.
The report of the Commission is not sustainable and is
hereby quashed. It shall not be published as it cannot be
read against the petitioner and no action on the basis
thereof be taken against the petitioner. The respondent No.1
would, however, be at liberty to appoint a Commission of
Inquiry on the same subject matter."
In view of the difference in the operative
portion of the judgments of Ajay Kumar Mittal,J. and
Anupinder Singh Grewal,J., the matter be placed before
Hon'ble the Chief Justice for appropriate orders.
In the meantime, the original record and the
report of the Commission in sealed cover be returned to the
Advocate General, Haryana, with the direction to produce
the same as and when required by the Court."
1.2 The detailed facts, submissions of the learned counsel
representing the parties and their respective opinions have elaborately
been noticed and dealt with by the Court in the concurrent opinions
except difference on a short but interesting issue. Hence, it is not
considered necessary to narrate the detailed facts. However, in order to
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comprehend the controversy involved in the present case, the relevant
facts are discussed briefly:-
1.3 The Chief Minister of Haryana ordered the appointment of a
'Commission of Inquiry' under the 1952 Act on 14.05.2015. On
18.08.2015, another notification was issued clarifying the scope and
ambit of the aforesaid 'Commission of Inquiry'. Vide notification dated
07.12.2015, the term of commission was extended by another six months
i.e June, 2016, which was further extended upto 31.08.2018 vide
notification dated 01.07.2016. The Commission of Inquiry on
completion of its inquiry submitted its report to the State Government.
On 02.09.2016 the Governor of Haryana issued a notification on
31.08.2016, while ending the term of the the Commission of Inquiry.
The said notification reads as under:-
"No. 44/1/2015-5 Pol.- The Governor of
Haryana hereby orders that the term of Commission of
Enquiry headed by Mr. Justice S. N. Dhingra (Retd.) Judge
of Delhi High Court constituted vide Notification No.
44/1/2015-5 Pol, dated 14.5.2015 and further amended vide
Notificiation No. 44/1/2015-5 Pol, dated 18.8.2015 for the
purpose of making an Inquiry into the issues concerning the
grant of license for developing colonies by the Department
of Town & Country Planning, Government of Haryana, to
some entities in villages Sihi, Shikohpur, Kherki Daula and
Sikandarpur Bada in district Gurgaon, Gurgaon and their
subsequent transfer/disposal, allegations of private
enrichment, ineligibility of the beneficiaries under the rules
and/or other matters incidental thereto or connected
therewith; shall come to an end with immediate effect from
31.08.2016.
Chandigarh D.S.Dhesi
st
The 1 September, 2016 Chief Secretary to the Government
of Haryana"
1.4 The first Judge identified the following two issues in the
paragraph 10 of judgment:-
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"10. Broadly, from the contentions of
the learned counsel for the parties, the following
issues emerge for consideration:-
I) Whether the action of the respondent-State
Government in setting up Commission of Inquiry
against the petitioner is legal and valid as per the
provisions of Section 3 of the Act?
II) Whether proper notice under Section 8B of the Act
was issued to the petitioner? If not, its effect?"
1.5 In para 11, the Court identified the following facets of the
matter, which require adjudication:-
"11. Taking up first broad issue noticed
above, the following facets of the matter require to be
answered:-
I) Whether there was relevant, cogent or objective material
before the State Government to form an opinion under
Section 3 of the Act for constituting a Commission of
Inquiry involving "definite matter of public importance"?
II) Whether ex post facto approval granted by the Council
of Ministers was valid and constitution of the Commission
of Inquiry was not vitiated.
III) Whether amendment to the terms of the reference at the
instance of Justice Dhingra Commission is permissible
under the Act?
IV) Whether the action of the Government in setting up
Commission of Inquiry is malafide?"
1.6 Both respected members of the Division Bench
unanimously agree on all four questions. However, as already noticed,
there is a small difference, which has resulted in reference being made to
this Court, after soliciting orders from the Hon'ble Chief Justice.
2. Arguments put forth by the learned counsel representing the
parties:-
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2.1 Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook.
2.2 Considering the legal issue on which the opinion of this
Bench has been sought, it was not considered necessary to requisition
the record from the Government or the report submitted by the
Commission.
2.3 On 05.04.2024, the learned counsel representing the parties
were requested to file their convenience notes containing the gist of their
arguments well before the next date of hearing. The learned counsel
representing the petitioner has filed a detailed convenience note. Para 6
of the note containing the substance of submissions of the learned
counsel representing the petitioner is extracted as under:-
(a) That as has been pointed out by the
Respondent- State of Haryana,the Commission of
Inquiry Act, 1952 is a complete code in itself. In the
exercise of power under Section 3 of the Act, the
government can appoint a Commission of Inquiry if it
thinks that it is necessary to do so to make an inquiry
into any definite matter of public importance and perform
such functions within a stipulated period as may be
specified in the notification. After the inquiry by the
Commission of the Inquiry so appointed and the
submission of its report, the Commission of Inquiry
becomes functus officio. In the instant case, the time
limit for the Commission of Inquiry for submission of its
report was extended only up to 31.08.2016. It is on the
last date i.e. on 31.08.2016 that the Commission
submitted its report and thereby ceased to be in
existence. Even otherwise, a statutory order had already
been passed by the government bringing term of the
Inquiry Commission to an end. Therefore, no
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proceedings can be taken up by or before the
Commission of Inquiry ceased to be in existence.
(b)That revival of a commission of inquiry is not
permissible in law as there is no provision under the Act
authorizing the government to restore an Inquiry
Commission which has already ceased to exist. It is
respectfully submitted that when statute does not permit
such revival, this Hon'ble Court cannot remand the
matter back to already closed Commission of Inquiry
thereby impliedly reviving it. Therefore, in any
eventuality, proceedings from the stage of section 8-B of
the Act cannot be initiated.
(c) That it is a settled proposition of law that higher
courts can remand the matter for deciding it fresh only if
the authority which passed the original order is in
existence. In a situation like present one where the
inquiry commission/ original authority, whose report has
been quashed, is admittedly no more in existence and
hence the matter cannot be remanded back. In a similar
situation under the Arbitration and Conciliation Act of
1996, which again is a complete code in itself, the
Hon'ble Supreme Court in the case of Kinnaria Mullick &
Anr. Vs. Ghanshyam Das Damani (2018) 11 SCC 328
has held that the court cannot remand back the matter to
the Arbitrator after the award is set aside for the reason
that after the passing of the award, Arbitral Tribunal
ceases to exist and there is no provision under the
Arbitration Act permitting remand. A reference can also
be made in this regard to a judgment of the Hon'ble
Patna High Court in the case of Arthur Butler Workers'
Union vs. The Management of the Arthur Butler & Co.
(Muzaffarpur), Ltd.& Ors. reported as 1952 SCC Online
Pat. 41.
(d) That the Hon'ble Apex Court in case of Sanjay Gupta
& Ors. vs. State of Uttar Pradesh reported as 2022 (7)
SCC 203 has held that "the Commission under the
Inquiry Act, 1952 can be appointed either by the
executive or by the legislature and not by the judiciary in
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terms of the provisions of the Act". Therefore, remanding
the case back to the author of quashed report, who has
admittedly ceased to be in existence, tantamounts to
appointing/ reviving the Commission of Inquiry which is
not permissible in law.
(e) That a Division Bench of Hon'ble Gujarat High Court
in the case JanSangharsh Manch vs. State of Gujarat &
Anr reported as 1998 SCCOnline Guj. 65 after
examining various provisions of the Act has conclusively
held that the court has no power to direct the
government to appoint the Commission under the Inquiry
Act,1952. It was found in the case that on account of the
efflux of time,the term of the Commission had expired
and the same was not extended by the government in
that situation, it was held that the court cannot compel
the government to expand the term of the Commission. If
the Commission of Inquiry cannot be ordered to be
restored at the instance of a private individual, the same
cannot be restored at the instance of the Government or
by the Hon'ble Court on its own. It was also held that
statutory order/ notification was required to be issued for
cessation of a commission under section7 of the Act only
in case of its continued existence and not otherwise as
where its term has already come to an end or it has
submitted its final report.
(f)That the Hon'ble Division Bench of Andhra Pradesh
High Court at Hyderabad in case of Peela Pothi Naidu
vs. State of Andhra Pradesh& Ors. reported as 2005
SCC Online AP 334 has conclusively held that the power
under section 3 of the Inquiry Act, 1952 is only to appoint
the Commission at the first instance and not for
revival/re-constitution. Thus, even the government or the
legislature do not have the power to reconstitute/ revive
a Commission of Inquiry under the provisions of the Act.
It is again a settled principle of law that if something
cannot be done directly, the same cannot be done
indirectly as well.
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(g) That the Hon'ble Apex Court in case of State of
Madhya Pradesh vs.Ajay Singh & Ors. reported as 1993
1 SCC 302 after surveying all the provisions of the
Inquiry Act, 1952 as well as Section 21 of the General
Clauses Act, 1897, authoritatively held that the scheme
of the Act indicates that Section 21 of the General
Clauses Act 1897cannot be invoked to enlarge the
government's power to reconstitute Commission
constituted under section 3 of the Act in a manner other
than expressly provided in the Act. It has further been
held that there is no express power given by the Inquiry
Act,1952 to the appropriate government to re-constitute
Commission of Inquiry under section 3 of the Act by a
replacement. In the said judgment, the Hon'ble Apex
Court emphasized that the Commission functions as an
independent agency free from any governmental control
after its constitution and that after appointment, the
Commission should not be dependent on the will of the
government to secure its independence.
(h) That remanding the matter back to the same
commission of inquiry would also be against the
principles of natural justice in the facts of the case at
hand. Because by preparing and thereafter submitting its
report to the government, commission of inquiry has
already expressed its views on the merits of the case
especially when such report has been quashed by this
Hon'ble court on the ground that adverse observations
had been made affecting reputation of the petitioner in
violation of mandatory provisions of the Act. In this
factual background, the exercise of sending the
petitioner back to the same commission for completing
the formality of giving the opportunity of hearing cannot
be considered legal and will be a classic case of fait
accompli.
(i)That it is respectfully submitted that opinion of Hon'ble
second Judge granting liberty to respondent- state of
Haryana to appoint a commission of inquiry on the same
subject matter, may be interpreted to mean that the
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Hon'ble court has directed the government to constitute
a fresh commission of inquiry. To this extent, it cannot be
said to be legal and in conformity with the provisions of
section 3 of the Act as per which the appropriate
government will have to form an opinion afresh before
appointment of a commission of Inquiry that a definite
matter of public importance still persists which requires
an inquiry even after lapse of so many years and
subsequent events. Otherwise also, no liberty is
warranted for exercising a statutory power if it is
otherwise permissible in law. It is further respectfully
submitted that such course of action would be prejudicial
to the interests of petitioner limiting his rights of laying
challenge to constitution of commission of inquiry in
terms of liberty granted by judicial order.
2.4 Per contra, the learned Advocate General, Haryana has also
filed the synopsis containing the gist of the submissions, which reads as
under:-
"The opinion of J. Grewal is in ignorance of
the relevant statutory provisions and based on a
presumption of fact and law that is not supported by the
specific language of the statute. Therefore, the said opinion
ought not to be accepted as the correct position in law.
Grewal's opinion is based on the following premise:
1. The term of the Commission of Inquiry was extended till
31.08.2016 to enable it to submit its report.
2. The Commission of Inquiry submitted its report on
31.08.2016.3. With the submission of its report on
31.08.2016, its term expired. As a result of the same, the
Commission of Inquiry is no longer in existence.
The above premise is based on a presumption that the term
of the Commission of Inquiry came to an end on
31.08.2016. Furthermore, the expiry of the term led to an
automatic cessation of the Commission of Inquiry.
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The above presumption is gravely and manifestly erroneous.
In fact, it is totally contrary to and in the teeth of the
provisions of the Commission of Inquiry Act,1952. Under
the scheme of the Act, there is no automatic or implied
termination/cessation of the Commission of Inquiry
constituted under Section 3(1)of the 1952 Act. Section 7
provides a detailed procedure for bringing an end to the
existence of a Commission of Inquiry. The mandatory and
imperative language of Section 7 clearly indicates that a
Commission of Inquiry can cease to exist only in
accordance with the procedure laid therein, and on the
issuance of a notification under Section 7(1)(a) where the
Government specifies its intention and reasons for the
discontinuation of the Commission and specifies the date
from which the notification is to take effect.
The Petitioner may argue that the notification dated
02.09.2016 vide which the term of the Commission of
Inquiry in the present case was brought to an end
on31.08.2016 amounts to termination of the Commission of
Inquiry. However, this fact cannot come to rescue of the
petitioners. The notification dated 02.09.2016 is not a
notification issued under Section 7(1) of the Act of 1952. It
is merely notification regulating the term within which the
Commission of Inquiry was to mandatorily finish its task. Its
purpose and object was to declare the outer limit within
which the Commission of Inquiry was to submit its report
and signal the intention of the Government to deliberate on
the report submitted by the Commission and take action in
accordance with law. It did not amount to a declaration of
cessation of the existence of the Commission of Inquiry,
which can only be done in accordance with Section 7 of the
Act of 1952.
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Therefore, unless a notification is issued under Section 7,
specifying the reasons for its discontinuance and the date
on which the Commission of Inquiry shall cease to exist,
there can be no implicit or implied termination of a
Commission of Inquiry. Furthermore, the mere expiry of the
time within which it has to submit its report also will not
lead to an implied cessation of the Commission of Inquiry.
Ref:
I.Prafulla Kumar Mahanta v. State of Assam and ors.,
(2019) 1 Gau. LR 354
II. State of Madhya Pradesh v. Ajay Singh, AIR 1993 SC
In light of the above, it is humbly submitted that the opinion
by J. Grewal is factually and legally erroneous and in
ignorance of the explicit statutory scheme and judicial
pronouncements on the issue.
It is further submitted that the opinion by J. Mittal is the
correct interpretation of the law and ought to be accepted
as correct."
3. Discussion by this Court:-
3.1 Before this Court analyses, evaluates and considers the
arguments put forth by the learned counsel representing the parties, it is
important to have a brief look at the provisions of the Act. Sections 3, 7
and 8A of 'the 1952 Act' are extracted hereunder:-
"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 1 [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 such functions and within such time
as may be specified in the notification, and the
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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. 2 [(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
2 [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.]
xxxx xxxx xxx xxx
[7. Commission to cease to exist when so notified.--
(1) The appropriate Government may, by notification
in the Official Gazette, declare that-- (a) a
Commission (other than a Commission appointed in
pursuance of a resolution passed by 4 [each House of
Parliament or, as the case may be, the Legislature of
the State] shall cease to exist, if it is of opinion that
the continued existence of the Commission is
unnecessary; (b) a Commission appointed in
pursuance of a resolution passed by 4 [each House of
Parliament or, as the case may be, the Legislature of
the State] shall cease to exist if a resolution for the
discontinuance of the Commission is passed by 4
[each House of Parliament or, as the case may be, the
Legislature of the State]. (2) Every notification issued
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under sub-section (1) shall specify the date from
which the Commission shall cease to exist and on the
issue of such notification, the Commission shall cease
to exist with effect from the date specified therein.]
[8A. Inquiry not to be interrupted by reason of
vacancy or change in the constitution of the
Commission.--(1) Where the Commission consists of
two or more members, it may act notwithstanding the
absence of the Chairman or any other member or any
vacancy among its members. (2) Where during the
course of an inquiry before a Commission, a change
has taken place in the constitution of the Commission
by reason of any vacancy having been filled or by any
other reason, it shall not be necessary for the
Commission to commence the inquiry a fresh and the
inquiry may be continued from the stage at which the
change took place."
3.2 The Commission can be established/ appointed by the
Government in exercise of its executing powers under Section 3(1) of
the '1952 Act' or on the resolution passed by each House of Parliament
or as the case may be, Legislation of the State in this behalf. However,
if resolution has been passed by the each house of Parliament or as the
case may be, Legislation of the State, the Government shall constitute a
Commission of Inquiry, whereas, in other eventuality, the Government
has the discretionary power. Sub-section 3 of Section 3 of the 1952 Act
enables the appropriate Government to fill any vacancy, which may arise
in the office of the Commission whether consisting of one or more
members. Section 7 lays down the procedure with respect to the
cessation of the Commission. Sub-section (1) of Section 7 provides that
appropriate Government may, by notification in the Gazette, declare that
the Commission has ceased to exist. Sub-section (1) lays down two
ways in which a Commission can be ceased, the first method says that
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when its continued existence becomes unnecessary and second method
says that if a resolution is passed by Legislature in this regard then it
ceases to exist. Sub-section 2 of Section 7 requires the Government to
specify the date from which the Commission shall cease to exist and
issuance of notification under Section 7 is mandatory. Section 8A
provides that Inquiry shall not be interrupted by the reason of vacancy or
change in constitution of the Commission. In a multi member
Commission, the proceedings will not be interrupted on account of
absence of the Chairman or any other member. Sub-section 2 of Section
8A shall play a significant role in the decision of this case. The
aforesaid Section provides that if a change takes place in the
constitution of the Commission by the reason of any vacancy having
been filled or by any other reason, it shall not be necessary for the
Commission to commence the Inquiry afresh, and it may continue from
the stage at which the change took place. From a careful reading of
Section 8(2), it is evident that the Commission of Inquiry is considered
as an institution of continued existence till it ceases to exist by a
notification issued under Section 7 declaring that it has ceased to exist.
The language articulated in sub-section 2 sheds light on the aforesaid
aspect. In case of single member Commission, the Act envisages that by
the reason of any vacancy having been filled or by any other reason, it
shall not be necessary for the Commission to commence the new
Inquiry, and the inquiry may proceed from the stage, it was left at.
3.3 Now, this Court proceeds to examine the submissions is put
forth by the learned counsel representing the parties.
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3.4 Submission no.(a) put forth by the learned counsel
representing the petitioner is correct to a certain extent. The term of
Commission of Inquiry came to an end on issuance of notification dated
02.09.2016, which has already been reproduced above.
3.5 Per contra, the learned Advocate General submits that the
notification under Section 7 of the 1952 Act has never been issued. The
official notification that was issued was only to declare that the term of
the Commission has come to end with immediate effect from
31.08.2016. However, this notification is not in terms of Section 7 of the
1952 Act. It appears to be the most appropriate interpretation of the
provisions of the 1952 Act. Section 8A (2) helps the Court to come to a
conclusion that the Inquiry Commission constituted under the Act as
envisaged continues till it achieves the purpose for which it was
constituted. The Commission ceases to exist when the Government
forms opinion that the continued existence of the Commission is
unnecessary and issues notification under Section 7 (1)(a) in this regard.
In other words, Section 7 is divided into two clauses (a) and (b). If
Commission has been appointed other than the Commission appointed in
pursuance to resolution passed in each house of Parliament or as the case
may be, the Legislature of the State, it ceases to exist only where the
Government notifies its intention of doing so by issuing notification
under Section 7 (1)(a) of the '1952 Act' or when resolution for the
discontinuance is passed by each House of Parliament or as the case may
be, by the Legislature. The only ground that has been enshrined in the
aforementioned provision is that the Commission can be ceased by the
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Government in case it's existence becomes unnecessary. Similar powers
are conferred on the each House of the Parliament or the State
Legislature, as the case may be. The attention of the Court has not been
drawn to any provision which debars the Government from revival of
the Commission in case of various contingencies. Undoubtedly, the
argument put forth by the learned counsel representing the petitioner that
the Court has no power to revive the Commission with changed/ new
Commissioner if a conscious decision was already taken under Section 7
of the '1952 Act' declaring that its continuation is unnecessary seems
meritorious. However, there is no restriction on the enabling power of
the appropriate Government to take decision in the peculiar facts of the
case once the previous tenure for which Commission was constituted
came to an end. The purpose of establishing the Inquiry Commission is
to inquire into any definite matter of public importance and performing
such functions as specified. Hence, in the absence of a conscious
decision by the Government to the effect that the purpose for which the
Inquiry Commission was appointed became unnecessary, the
Commission of Inquiry, subject to the decision of the Government,
continues in suspended animation. The Division Bench has found no
merit in the various submissions of the learned counsel representing the
petitioner. However, the Court has found that the notice issued to the
petitioner was illegal as it failed to disclose the sufficient details for
which the petitioner was being summoned and the conditions laid down
under Section 8B of the '1952 Act' have not been complied with. In
these circumstances, it shall be open for the Government to take a
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relevant decision. The aforesaid discussion elaborately covers
submission no.(a) and (b) of the petitioner.
3.6 With regard to submission no. (c), it shall be noted that the
judgment relied upon by the learned counsel representing the petitioner
relates to the provisions of the Arbitration and Conciliation Act, 1996.
This Court has already observed that the Court may not have the power
to remit the matter back to the Commission for deciding afresh,
however, the Government has the power to order continuation/revival of
the Commission in the peculiar facts of the case. Similarly, the
judgment in Arthur Butler Worker's case (supra) is also not
applicable to the peculiar facts of the case because it arises from the
Tribunal constituted under the Industrial Disputes Act, 1947.
3.7 Submission under clause (d), put forth by the learned
counsel representing the petitioner is not disputed, however, as already
noticed the enabling power of the Government to revive the Commission
is not abridged or taken away. The judgment in Sanjay Gupta's case
(supra) is in the context of the Court Commissioner, who was appointed
to inquire into an unfortunate incident which resulted in loss of life of 65
persons and left 160 people injured. Initially the State of Uttar Pradesh
appointed the Commission of Inquiry under the provisions of 1952 Act,
however, the Supreme Court, while agreeing with the judgment of the
Uttar Pradesh High Court appointed one man Commission under the
orders of the Court. Supreme Court held that the aforesaid Commission
would constitute as a Court Commissioner, who was appointed with the
consent of the parties.
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3.8 In submission no.(e), the petitioner relies upon the judgment
passed in Jan Sangharsh Manch's case delivered by Hon'ble Division
Bench of Gujarat High Court. In that case, the Government formed an
opinion that continuity of commission was unnecessary, hence,
notification dated 02.09.1997 was issued, which was made the subject
matter of challenge before the Court. In para 9 of the judgment, the
Court considered the effect of the notification and examined the powers
of the Court to order revival or its continuance. It was held that the
discretionary power that has been exercised by the Government can
under no circumstances be treated as malafide. Thus, the Special Civil
application was dismissed. However, it nowhere lays down that the
Commission cannot be restored or revived at the instance of the
Government if its previous term has come to an end. There is no
automatic cessation of the Commission . The Commission only ceases
when a conscious decision is taken by the competent authority in this
regard.
3.9 In Peela Pothi Naidu's case(supra), the Government, after
issuance of notification, declaring that Commission of Inquiry has
ceased to exist issued fresh notifications for withdrawal of earlier
notification and the continued existence of Commission. In that context,
it was held that the Commission, which has ceased to exist cannot be
revived to life by equating the analogy of life of a human being, which
comes to an end with death. The court was also impressed by the fact
that it was not the case of the Government that it has implied power to
revive the Commission. The facts of this case are totally different. In
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this case, there is no conscious decision of the Government to declare
that the Commission of Inquiry has ceased to exist. Notification issued
on 02.09.2016 is only to the effect that the term of Commission of
Inquiry shall come to an end with immediate effect, from the date of
notification. However, subsequently, the Division Bench found an error
in the procedure followed by the Commission while conducting the
inquiry. In such circumstances, the judgment of the Division Bench will
not be applicable. Even the judgment passed in Kinnari Mullick's case
(supra) would not be applicable qua the opinion of the second Judge,
particularly when it is left to the Government to take a decision. In
absence of any prohibition or restriction in the Act, this Court does not
find it appropriate to hold that the Government does not have the power
to reconstitute or revive a 'Commission of Inquiry', particularly when
the Act envisages continuous proceedings, irrespective of vacancy, for
any reason and non-interruption of proceedings by reason of vacancy or
change in constitution of the Commission. Sub-section 2 of Section 8A
of the '1952 Act' specifically provides that a fresh and de novo inquiry is
not required on account of change which has taken place in the
constitution of provision by reason of any vacancy having been filled or
by any other reason. The inquiry may be continued at the stage at which
the change took place.
3.10 The judgment of Ajay Singh's case (supra) is not
applicable in the matter at hand. Initially, the Commission of Inquiry
was presided over by Shri Justice S.T.Ramalingam, Judge of Madras
High Court. Subsequently, he was sought to be substituted with Justice
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G.G.Sohani, who showed his disinclination to continue with the
assignment and tendered his resignation. Thereafter, Justice Kamlakar
Choubey was appointed as the sole member constituting the Commission
of Inquiry. The court held that appointment of Justice G.G.Sohani as
invalid because there was no vacancy in the office to enable the
Government to exercise powers under Section 3(3) of the 1952 Act.
Hence, the aforesaid judgment has been passed on the facts that are
visibly and substantially different from this case. In para 21 of the
afoesaid judgment, the Supreme Court culled out the following issue:-
"21.The real question for decision in the
present case is:Whether the appropriate Government
after constituting the Commission under Section 3 of
the Act is empowered to reconstitute the Commission
substituting another person as the sole member in
place of the initial appointee? In substance, it is this
power that the State Government claims to have
exercised in the present case and is attempted to be
justified by the argument advanced by Shri Shanti
Bhushan to support the appointment first of Justice
G.G. Sohani and then of Justice Kamlakar Choubey
in place of Justice S.T. Ramalingam. To recapitulate,
the argument of Shri Shanti Bhushan is that the
power of reconstituting the Commission in this
manner is available to the State Government
under Section 21 of the General Clauses Act which
can be invoked in aid of the power of the Government
under Section 3 of the Commissions of Inquiry
Act. Section 8-A of the Commissions of Inquiry Act is
referred to by Shri Shanti Bhushan as an indication of
the existence of this power in the State Government
even though he does not rely on it as a source of this
power. Shri Kapil Sibal, on the other hand, contends
that the scheme of the enactment shows that the
appropriate Government cannot interfere with the
working of the Commission after its constitution
except in the manner expressly provided in the Act
and Section 7 is a clear indication that interference
with the functioning of the Commission is not
permissible in any other manner. Shri Sibal contends
that Section 21 of the General Clauses Act is not
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available to support the Government's action in the
present case.
3.11 Once the Government has the power to appoint a
Commission, its continuation, filling up of any vacancy, in order to
ensure completion of the Inquiry, in that case the submission by the
learned counsel for the petitioner that the Government has no power to
revive the commission in order to complete the Inquiry, in accordance
with law, on account of subsequent order passed by the Court would be
against the spirits of the Act. He has submitted that this issue was never
debated and discussed during the course of hearing. It is probably for
this reason that the Hon'ble Senior Judge made casual observations in
this regard. The Second Judge upon reading the draft judgment of the
First Judge got an opportunity to examine the matter and it resulted in a
separate opinion.
3.12 Since submission no.(g) is practically the same as
submission made under clause (c), hence, to avoid repetition, reference
may be made to para 3.6. Needless to observe that the Division Bench
has not quashed the Inquiry report on the merits rather it has only be
quashed the report on account of technical or procedural defect which is
capable of being cured. Hence, it is for the Government to take a
decision about the continuation of the Commission.
3.13 With respect to argument no.(i), it is necessary to note that
this Court has not found any error in the decision of the Government for
appointment of a Commission of Inquiry. Rather the Division Bench
has found under facet no.1 of para 11, that the decision of the State
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Government was based on relevant, cogent and objective material.
Hence, the State Government is not required to form an opinion afresh
before ordering continuation of the Commission.
3.14 The first submission of the learned Advocate General is
required to be examined in the context of the language implied by the
statue. Section 3 (1) provides that the appropriate Government shall
appoint a 'Commission of Inquiry' for the purpose of making an Inquiry
into any definite matter of public importance and performing such
functions and within such time, as may be specified, in the notification.
It is significant to focus on the word 'time', as the Act requires the
Government to specify the time for its operation. It is mandatory that
while appointing a Commission of Inquiry under the Act, the period
within which the Inquiry is required to be completed shall be specified,
which can be extended from time to time in view of the subsequent
developments. The tenure of the Commission of Inquiry would come to
an end at the expiry of the specified period unless the specified period is
extended. However, Section 7 provides for a different situation. Section
7(1)(a) deals with a situation when appropriate Government forms an
opinion that the continued existence of the Commission is unnecessary.
The word 'unnecessary' has a broad connotation, as the Act has not laid
down an exhaustive list in this regard. This situation can arise when the
appropriate Government considers that the continuation of Commission
of Inquiry is not required in view of various grounds or situations arising
subsequent to the appointment of Commission of Inquiry or for any
other reason. Similarly, Section 7(1)(b) deals with a situation where the
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Commission of Inquiry is constituted pursuant to a resolution passed by
each house of Parliament or as the case may be, the Legislature of the
State and a conscious decision to discontinue the Commission of Inquiry
has been taken. Sub-section 2 of Section 7 provides for issuance of a
notification while specifying the date from which the Commission of
Inquiry shall cease to exist. Section 7 does not deal with a situation
where the term of the Commission has come to an end or the
Commission has already submitted its final report, it only mandates the
appropriate Government to specify a date if the Commission ceases to
exist either under Section 7(1)(a) or Section 7(1)(b). In this case, the
report had been submitted by the Commission on 31.08.2016, the last
day of the term of the Commission. Thus, the purpose for which the
Commission was constituted came to an end. However, in view of the
judgment of the Court, partially setting aside the report on technical
ground due to failure to follow the procedure would not debar the
Government from ordering its continuation as the purpose for which the
Commission was constituted has not been fulfilled. For fulfilling the
purpose for which the Commission was issued, it shall be open to the
Government to issue a notification in this regard. It is found that the
Commission can be continued by the Government in view of the
subsequent development i.e the judgment passed by the Court.
3.15 The second argument put forth by the learned Advocate
General can also not be admitted because on issuance of notification
dated 02.09.2016, the Government declared that the term of
'Commission of Inquiry' has come to an end. Thereafter, the working of
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Commission of Inquiry ended i.e it was in suspended animation or
hibernation. Similarly, the argument that the 'Commission of Inquiry'
had to mandatorily finish its task has no substance because the
Government in its wisdom may refuse to extend the period or it may
cease the Commission under Section 7 of the 1952 Act.
3.16 This Court has carefully read the judgment passed by the
Gauhati High Court in Prafulla Kumar Mahanta vs. State of Assam
and others (2019) 1 Gauhati Law Reports 354. In the aforesaid case
Justice (Retd.) Meera Sarma was appointed as the sole member of the
Commission, who was relieved from the Commission on a personal
ground. Thereafter, in her place, Justice Shri J.N.Sarma (Retd.) was
appointed. He submitted an interim report which was not accepted by
the Government. A fresh Commission of Inquiry headed by Justice
(Retd.) K.N.Saikia was constituted on 22.08.2005, which was
challenged in the court. During the pendency of the court proceedings, a
report was also submitted. Ultimately, the court held that the
Commission of Inquiry headed by its sole member Justice (Retd.)
J.N.Sarma did not cease to exist and it was not appropriate for the
Government to reconstitute the Commission under the Chairmanship of
Justice (Retd.) K.N.Saika. In para 39, the Court held as under:-
"39. At this stage, reference may once
again be made to section 3 and section 7 of the 1952
Act. On the question of discontinuation or cessation
of a Commission of Inquiry constituted under section
3(1) of the 1952 Act, there cannot be any implicit
termination of a Commission of Inquiry. In other
words there cannot be any implicit discontinuation of
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a Commission of Inquiry once constituted under
section 3(1) of the 1952 Act. A conjoint reading of
section 3 and section 7 of the 1952 Act will make it
abundantly clear that the appropriate Government
has to issue a notification in the Official Gazette
declaring that the particular Commission of Inquiry
shall cease to exist if it is of opinion that continued
existence of the Commission is unnecessary. Such
notification must specify the date from which the
Commission shall cease to exist and it is from the
issue of such notification that the Commission shall
cease to exist with effect from the specified date.
Respondents have not been able to place any such
notification before the court to indicate
discontinuation or cessation of the Justice (Retd.)
J.N. Sarma Commission of Inquiry. Mere expiry of
time stipulated in the section 3(1) notification for
submission of report by the Commission cannot be
construed to mean that the Commission had ceased to
exist without there being any section 7 notification.
Assertion of respondent No. 1 that the Justice (Retd.)
J.N. Sarma Commission was discontinued is, thus,
devoid of any legal and factual support. Therefore,
when the Justice (Retd.) J.N. Sarma Commission of
Inquiry was still in existence and had only submitted
its interim report, the State acting as the appropriate
Government could not have constituted the
Justice(Retd.) K.N. Saikia Commission of Inquiry to
conduct enquiry on the same subject-matter. This was
legally impermissible having regard to the provisions
contained in sections 3(1), 3(3) and 7 of the 1952 Act.
Viewed in the above perspective, the impugned
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notification dated 22.8.2005 cannot be sustained in
law."
3.17 From reading of the entire evidence and the judgments
passed by the courts, it becomes crystal clear that the official notification
issued by the Government ending the tenure of the 'Commission of
Inquiry' and a notification issued under Section 7 of the the '1952 Act'
for cessation of the aforesaid commission cannot be equated. As already
discussed, the continued existence of Commission ceases to exist only
as per the procedure laid down in Section 7(1) (a) and (b). Since the
'Commission of Inquiry' in the present case was constituted by the
appropriate Government under its executive action, it shall have ceased
to exist only if the appropriate Government had issued a notification
under 7(1)(a). Section 7(1)(b) is not applicable to the 'Commission of
Inquiry' constituted herein. In the present case, the appropriate
Government ended the working of the 'Commission of Inquiry' by
issuing a notification, however, it was not a notification of cessation of
'Commission of Inquiry' under Section 7 (1) (a) of the 1952 Act. It is
important to mention that the Government never issued a 'cessation
notice' under Section 7(1)(a) till date. Hence, after submission of the
report, the Commission remained in suspended animation and the same
shall be considered to be subject to the decision of the case. In the
considered opinion of the Court, this shall be the most appropriate
interpretation in the facts and circumstances of the case. Hence, this
Court is in consonance with the opinion formed by the second Hon'ble
Judge while declaring that if the Government decides to continue with
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the Inquiry as the inquiry report has been quashed the appropriate
Government may issue a notification reviving the Commission.
3.18 In common parlance the expressions "come to an end" or
"cessation" may sound similar, however, in the context of the '1952 Act'
both the expressions have a different meaning or connotation. Section 7
of the '1952 Act' provides for a conscious decision of the appropriate
Government or both Houses of the Parliament or the Legislature of the
House for ceasing the 'Commission of Inquiry' due to reasons
mentioned in the Section. In the present case, the appropriate
Government by an official notification ended the term of the
'Commission of Inquiry' as the purpose for which it was constituted was
fulfilled but here the period can be extended by the Government as the
Commission did not cease to exist.
3.19 In the context of this case, the aforesaid distinction holds
paramount significance. It has nowhere been mentioned in the
Commissions of Inquiry Act, 1952 that after the submission of the
'Inquiry Report' by the 'Commission of Inquiry' it becomes functus
officio or it ceases to exist. Section 7 of the 1952 Act clearly lays down
the particular procedure where the appropriate authority decides to
declare that the Commission ceases to exist. The '1952 Act' mandates
the appropriate Government to cease the Commission by way of a
notification and such notification is issued by the Government on the
following two grounds:-
i) if the continued existence of the Commission is unnecessary,
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(ii) and in case of Commission appointed in pursuance of Legislation,
the Commission shall cease to exist if a resolution in that regard is
passed by the appropriate Government (i.e the Legislature).
Section 7(2) enshrines that the notification shall specify the date from
which the Commission shall cease to exist, and on such notification the
Commission shall cease to exist.
3.20 In the matter at hand, the appropriate Government has
nowhere notified the cessation of the Commission of Inquiry under
Section 7(1)(a) of the 1952 Act as mandatorily required. The courts
have no power to implicitly derive from a statute what has not been
explicitly granted. The courts should not assume powers or meanings
beyond what is clearly stated in law. Instead, the statutes shall be
interpreted according to the Legislative intent. So the argument that the
Commission of Inquiry becomes functus officio or ceases to exist is
erroneous as the Commission never ceased to exist. The appropriate
Government Vide the notification dated 2nd September, 2016 ended the
term of the Commission for making an Inquiry, however, it shall not be
considered as the notification issued under Section 7 of the 1952 Act.
When the Commission has not ceased to exist, it can be revived by the
appropriate Government for the fulfilment of its purpose, as it will be in
consonance with the spirit of the provisions of the Act.
4. Decision:-
4.1 While expressing concurrence with the opinion of the 2nd
Judge of the Division Bench, the writ petition is partly allowed. The
appropriate Government shall be at liberty to take a decision for
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continuation of the Commission, as it may deem fit. It shall be open for
the Commission to continue the proceedings from the stage when notice
under Section 8B of the 1952 Act was required to be issued.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
09.05.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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