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1992 (11) TMI 285
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....1992 of the High Court of Madhya Pradesh in Miscellaneous Petition Nos. 481 of 1992 and 533 of 1992 under Article 226 of the Constitution. The High Court has allowed both these writ petitions. 2. The material facts are these. In Miscellaneous Petition No. 3909 of 1987 filed in public interest by Kailash Joshi, then Leader of the Opposition in Madhya Pradesh Vidhan Sabha and now a Cabinet Minister in Madhya Pradesh, relating to the affairs of the Churhat Children's Welfare Society and the lottery conducted by it, the M.P. High Court by its judgment dated 20.1.1989 issued a direction for setting up an independent high power agency to hold an inquiry into the affairs of the said Society of which respondent No. 1 Ajay Singh was one of the office bearers. In compliance of that direction, the State Government passed a resolution on 24.2.1989 and also issued notification of the same date having the effect of setting up a Commission of Inquiry consisting of Justice S.T, Ramalingam, a Judge of the Madras High Court to investigate into the affairs of the said Society and the lottery conducted by it. The resolution and notification are as under :- Bhopal, the 24th February, 19....
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....t up to hold an inquiry into the affairs of the Churhat Children's Welfare Society; And whereas the State Government having regard to the nature of the inquiry to be made and other circumstances of the case is of the opinion that provisions contained in Sub-sections (2) to (5) of Section 5 of the Commissions of Inquiry Act, 1952, should be made applicable to the aforesaid Agency; Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 5 of the Commissions of Inquiry Act, 1952, the State Government hereby directs that the provisions of Sub-sections (2) to (5) of Section 5 of the said Act shall apply to the above described Agency. By order and in the name of the Governor of Madhya Pradesh, R.C. Shrivastava, Secy. 3. According to the terms of the above notification, the inquiry was to be completed within a period of six months from the date of issue of the notification. As the inquiry could not be completed within that period, by a notification dated 1,8.1990 the period for completing the inquiry was extended upto 22.8.1991; then by another notification dated 16.8.1991 the period was extended upto 31.3.1992; and then by an....
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....fication Nos. (1)F.1-3-89-I(i)- E.C., dated the 24th February 1989, (2) F.1-3-89-I(i)- E.C., dated the 24th February 1989 and (3) F.1-3-89-I(i)- E.C., dated the 24th February 1989, shall stand amended to this extent. By order and in the name of the Governor of Madhya Pradesh S.K. Misra, Secy. 6. Accordingly, by this notification, the State Government replaced Justice S.T. Ramalingam with Justice G.G. Sohani, retired Chief Justice of Patna High Court as the sole member of the Commission of Inquiry. The appointment of Justice G.G. Sohani in place of Justice S.T. Ramalingam was challenged in the M.P. High Court by a writ petition - M.P. No. 2359 of 1991 - by respondent No. 1 Ajay Singh. By an interim order dated 30.7.1991 passed by the High Court, the operation of the above notification dated 10.7.1991 was stayed. During the pendency of that writ petition, Justice G.G. Sohani conveyed to the State Government his disinclination to continue with the assignment and tendered his resignation. Consequently, the High Court dismissed that writ petition as infructuous on 5.9.1991. It was only thereafter that the Chief Secretary of the State Government sent a letter dated 12.9.19....
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..... Sohani, retired Chief Justice, High Court of Patna (Bihar) has since withdrawn his consent to work as single member of the said agency; Now, therefore, in exercise of the powers conferred by Sub-section (3) of Section 3 of the Commissions of Enquiry Act, 1952 (No. LX of 1952), read with Section 21 of the General Clauses Act, 1897 (No. 10 of 1897), the State Government hereby appoint Justice Shri Kamlakar Choubey, retired Judge of the Allahabad High Court as a single member of the said agency in place of Shri G.G. Sohani. Accordingly this department Notification Nos. (1) F.1-3-89-I(i)-E.C, dated 24th February, 1989, (2) F.1-3-89-I(i)-E.C., dated 24th February, 1989, and (3) F.1-3-89-I(i) E.C., dated the 24th February, 1989, shall stand amended to this extent. By order and in the name of the Governor of Madhya Pradesh, Sushma Nath, Secy. 8. In this manner, the State Government after replacing Justice S.T. Ramalingam first by Justice G.G. Sohani, thereafter replaced him by Justice Kamlakar Choubey, a retired Judge of the Allahabad High Court, as the sole member of the Commission. It is unnecessary to refer to the terms and conditions of appoint....
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....ill the implied vacancy was available. It was also urged by the learned Advocate General that vacancy in the office of the single member of the Commission was also implied from the fact that the appointment of Justice S.T. Ramalingam as the Commission of Inquiry was qua his status as a sitting Judge of the Madras High Court and, therefore, his retirement as a Judge resulted in creation of the vacancy. The learned Advocate General also placed reliance on Section 16 of the General Clauses Act, 1897, in aid of the State Government's power under Section 3(3) of the Commissions of Inquiry Act. Another submission of the learned Advocate General was that the State Government was the sole judge in this matter and was, therefore, competent to choose the person for making or continuing the inquiry in view of the power available under Section 3 of the Commissions of Inquiry Act read with Section 16 of the General Clauses Act. The learned Counsel appearing on behalf of Kailash Joshi placed reliance on Section 3(2) of the Commission of Inquiry Act read with Section 14 of the General Clauses Act to support the State Government's action appointing Justice Kamlakar Choubey contending that ....
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.... argument advanced before the High Court of the implied resignation of Justice S.T. Ramalingam giving rise to a vacancy or any implied vacancy on retirement of Justice Ramalingam as a Judge of the Madras High Court to enable exercise of power under Section 3(3) of the Commissions of Inquiry Act for first appointing Justice G.G. Sohani and then Justice Kamlakar Choubey in place of Justice S.T. Ramalingam. The case of the State of Madhya Pradesh in this Court was confined by Shri Shanti Bhushan to only one point. The only contention of Shri Shanti Bhushan is that the aid of Section 21 of the General Clauses Act is available to the State Government for exercising its powers under the Commissions of Inquiry Act 'to add to, amend or vary' the notification issued initially appointing Justice S.T. Ramalingam as the sole member of the Commission which enables the State Government to reconstitute the Commission by replacing Justice S.T. Ramalingam with any other person in the circumstances of the case. He argued that it is in exercise of this power that the period fixed initially for completion of the inquiry could be amended since, to the extent the provisions in the Commissions of....
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....onstituted under Section 3 of the Commissions of Inquiry Act by replacing the sole member appointed initially with another person during the availability of the sole member initially appointed. The validity of the aforesaid impugned notifications dated 10.7.1991 appointing Justice G.G. Sohani and dated 9.1.1992 appointing Justice Kamlakar Choubey to replace Justice S.T. Ramalingam depends on the answer to this question which alone now survives for decision. 17. A reference to the object and purpose of an enactment in the nature of the Commissions of Inquiry Act, 1952 would be worthwhile before proceeding to examine its scheme and the provisions therein. The object of the enactment, to the extent it is relevant, while construing the meaning of its provisions may be of assistance. 18. The Commissions of Inquiry Act, 1952 is similar to and is modelled on the corresponding English statute and provides this historical background for the Indian statute. The purpose of such an enactment is aptly summarised in the speech of Lord Salmon on 'Tribunals of Inquiry' as under :- In all countries, certainly in those which enjoy freedom of speech and a free Press, moments oc....
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....se of Parliament or, as the case may be, the Legislature of the 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. Section 4 prescribes that the Commission shall have the powers of a civil court while trying a suit under the CPC in respect of the matters mentioned therein. 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. 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. Section 7 deals with the manner in which a Commission of Inquiry appointed 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 ex....
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....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 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. ....
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....d, vary or rescind, notifications, orders, rules or bye-laws. Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to and to, amend, vary or rescind any notifications, orders, rule or bye-laws so issued. 21. It may be mentioned that Sub-sections (3) and (4) of Section 3 and Section 8-A were inserted while Section 7 was substituted in the Commissions of Inquiry Act, 1952 by the Commissions of Inquiry (Amendment) Act, 1971 (No. 79 of 1971) as a result of the recommendations of the Law Commission of India made in paras 26 and 34 of its 24th Report. In para 26, the recommendation made was to amend Section 3 of the Act 'to provide expressly for the filling up of vacancy or for an increase in the number of members whenever the Government thinks it necessary or expedient to do so'. In para 34 of the Report, the recommendation was to insert a new Section 8-A in the light of the proposed amendment in Section 3 to clarify that 'it is not necessary for the Commission to recommence its inquiry if a c....
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....i Bhushan concedes that there is no express provision in the Commissions of Inquiry Act, 1952 empowering the Government to replace or substitute the sole member of a Commission with another person during the continuance of the Commission, but he submits that this is implicit in the power to appoint a Commission and designate its personnel under Sub-sections (1) and (2) of Section 3 of the Commissions of Inquiry Act read with the power to amend or vary any notification available under Section 21 of the General Clauses Act. Shri Shanti Bhushan also conceded that the aid of Section 21 of the General Clauses Act is available only if the context and the scheme of the Commissions of Inquiry Act so permits. He submitted that the Government's power to extend the time specified in the initial notification for completing the work of the Commission is not to be found in any express provision in the Commissions of Inquiry Act, but is exercised by amendment of the initial notification only under Section 21 of the General Clauses Act. According to Shri Shanti Bhushan, the appointment of a Commission is under Sub-section (1) and it is under Sub-section (2) of Section 3 that the person constit....
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....l constitution. Whatever may have been the position prior to insertion of Sub-section (3) in Section 3, there can be no doubt that after its insertion, the scheme of the enactment excludes the power of reconstitution of the Commission in a manner not expressly provided therein. In view of Sub-section (3), it is not permissible to construe Sub-sections (1) and (2) of Section 3 in any other manner. If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial Constitution and permitted replacement or substitution of the existing member of a Commission with another person sans Sub-section (3) of Section 3, the power to fill any vacancy was not required to be provided separately and expressly. The mere fact that such a provision was considered necessary and has been enacted by inserting Sub-section (3) is sufficient to negative such a contention. It is also significant that in the amendment so made the power is limited only to filling any vacancy without conferring any power to reconstitute the Commission by replacement or substitution of the existing member which indicates that no such power of replacement or substitution of the existing member was....
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....the aid of Section 21 of the General Clauses Act. 27. It is common ground before us that Section 21 of the General Clauses Act can be invoked only if, and to the extent, if any, the context and the scheme of the Commissions of Inquiry Act so permits. The general power in Section 21 of the General Clauses Act is 'to add to, amend, vary or rescind any notification' etc. In the context of reconstitution of the Commission, the power to fill any vacancy in the office of a member of the Commission is expressly provided in Sub-section (3) of Section 3 of the Commission of Inquiry Act. Similarly, the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a notification in accordance with Section 7 of the Act which results in rescinding the notification issued under Section 3 constituting the Commission. Thus, the power to rescind any notification conferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme of the Commissions of Inquiry Act which expressly provides for the exercise of this power in relation to a Commission constituted under Section 3 of the Act. The only material remainin....
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....ess power given by the Commissions of Inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, no such power can be exercised by the appropriate Government. The scheme of the enactment is that the appropriate Government should have no control over the Commission after its Constitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a notification under Section 7 of the Act if the continued existence of the Commission is considered unnecessary. The vacancy in the office of a member of the Commission may arise for several reasons, including resignation by the member, when the Government's power to fill the vacancy under Section 3(3) of the Act can be exercised. Even though a case of implied resignation creating an implied vacancy was set up by the State of Madhya Pradesh before the High Court, that stand was rightly abandoned before us by Shri Shanti Bh....
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....cision have to be read in the context of the facts of that case. That decision is clearly distinguishable. 32. On the other hand, Shri Kapil Sibal placed reliance on The State of Bihar v. D.N. Ganguly and Ors.: (1958)IILLJ634SC . This decision also related to the reference of a dispute under the Industrial Disputes Act, 1947. It was pointed out that 'it was well settled that the rule of construction embodied in Section 21 of the General Clauses Act can apply to the provisions of a statute only where the subject-matter, context, and effect of such provisions are in no way inconsistent with such application'. On this basis it was held that it did not apply to Section 10(1) of the Industrial Disputes Act. On a construction of Section 10(1) of the Industrial Disputes Act, 1947, it was held that it does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose. Reliance placed on Section 21 of the General Clauses Act on behalf of the Government to invoke such a power by necessary implication was clearly negatived. The decision of th....