2010 (9) TMI 774 - HC - Indian Laws

Legal Clarification: Inquiry Commission Procedures & Rights

ANDALEEB SEHGAL Versus UNION OF INDIA AND ANR

The Division Bench held that constituting a fact-finding inquiry commission outside the provisions of the Commission of Inquiry Act, 1952, is legally ... Ministry of Finance constituted an Authority named as 'Justice R.S. Pathak Inquiry Commission' to go to the root of certain matters of definite public importance - Power and scope of inquiry commission - the Commission of Inquiry Act, 1952? - held that:- When an authority is constituted by the competent government and resort is taken to Section 11 of the Commissions of Inquiry Act, 1952, it does not necessarily result in the application of Sections 8B and 8C of the Act to the proceedings before the Inquiry Authority / Commission.The legislature has the power to exclude the applicability of the principles of natural justice either expressly or impliedly and when Sections 8B and 8C of the Act have not been made applicable to the Inquiry Authority / Commission while issuing a notification under Section 11 of the Act, the doctrine of audi alteram partem stands excluded.Once the applicability of Sections 8B and 8C of the Act have not been made applicable to the Inquiry Authority / Commission which actually tantamounts to exclusion of the said provisions, a noticee, especially in an inquiry of the present nature which is a fact finding or preliminary inquiry, has no right to demand copies of the documents and affidavits or to be represented by legal practitioner or to cross-examine the witnesses examined by the Commission in the inquiry. Whether the opinion formed by the Government for not applying Sections 8B and 8C of the Act to an Authority / Commission is justified or not can be questioned in a court of law on permissible grounds, namely, arbitrariness, unfairness, unreasonability, irrationality, etc. Issues Involved:1. Constitution of a fact-finding inquiry commission outside the provisions of the Commission of Inquiry Act, 1952.2. Applicability of Sections 8B and 8C of the Commission of Inquiry Act, 1952, to proceedings before an Inquiry Authority/Commission.3. Rights of a noticee to demand copies of documents and affidavits, to be represented by a legal practitioner, and to cross-examine witnesses before an Inquiry Authority/Commission established outside the provisions of the Act.Issue-wise Detailed Analysis:Issue 1: Constitution of a Fact-Finding Inquiry Commission Outside the Provisions of the Commission of Inquiry Act, 1952The Division Bench, after hearing the learned counsel for the parties and placing reliance on the decisions in P.R. Nayak v. UOI & Ors. and Brahma Nand Gupta v. Delhi Administration & Ors., concluded that the constitution of a fact-finding inquiry commission/authority outside the provisions of the Commission of Inquiry Act, 1952, is legally permissible. The Bench found no merit in the contention raised by the petitioner's counsel.Issue 2: Applicability of Sections 8B and 8C of the Commission of Inquiry Act, 1952, to Proceedings Before an Inquiry Authority/CommissionThe Full Bench was constituted to address the importance of whether resort to Section 11 of the Act necessarily results in the application of Sections 8B and 8C to the proceedings. The Court examined the legal fiction created by the term 'deemed' in Section 11 and concluded that:- The term 'deemed' does not automatically apply all provisions of the Act to the Authority.- The competent government has the authority to exclude certain provisions when issuing a notification under Section 11.- Therefore, the application of Sections 8B and 8C to the Inquiry Authority/Commission does not necessarily follow from the issuance of a notification under Section 11.Issue 3: Rights of a Noticee to Demand Copies of Documents and Affidavits, to be Represented by a Legal Practitioner, and to Cross-Examine WitnessesThe Court considered whether these rights are available to a noticee independent of Sections 8B and 8C. It was held that:- Sections 8B and 8C fundamentally pertain to the principles of natural justice.- The exclusion of these sections by a specific notification under Section 11 amounts to a deliberate exclusion of the principles of natural justice.- The doctrine of audi alteram partem (right to be heard) does not apply when the statutory provisions specifically exclude it.- The Inquiry Commission in question was a fact-finding or preliminary inquiry, and thus, the noticee does not have the right to demand copies of documents, be represented by a legal practitioner, or cross-examine witnesses.Conclusion:1. Resort to Section 11 of the Act does not necessarily result in the application of Sections 8B and 8C to the proceedings before the Inquiry Authority/Commission.2. The legislature has the power to exclude the principles of natural justice, and such exclusion stands when Sections 8B and 8C are not applied.3. A noticee in a fact-finding or preliminary inquiry has no right to demand documents, legal representation, or cross-examination of witnesses if Sections 8B and 8C are excluded.4. The justification for not applying Sections 8B and 8C can be questioned in court on grounds such as arbitrariness, unfairness, or unreasonability.The reference was answered accordingly, and the matter was directed to be placed before the appropriate Division Bench for further adjudication.