Bhupinder Singh Hooda v. State Of Haryana & ORS
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"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 Accordingly, the report submitted by the Commission is held to be non est and the same shall not be published.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
existence and thus, it would not be possible for it to issue afresh notice under Section 84B 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 84B. 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 It shall not be published as it cannot be read against the petitioner and no action on the basis thereof be taken against the petitioner.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."
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"No. 44/1/201545 Pol.4 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. 44/1/201545 Pol, dated 14.5.2015 and further amended vide Notificiation No. 44/1/201545 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.
D.S.Dhesi The 1st September, 2016 Chief Secretary to the Government of Haryana"
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?10.
Broadly, from the contentions of the learned counsel for the parties, the following issues emerge for consideration:4 I) Whether the action of the respondent4State 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?" /
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?11.
Taking up first broad issue noticed above, the following facets of the matter require to be answered:4 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?"
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(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
< 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.
(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
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.
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?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.
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.
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."
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"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
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 sub4section (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
under sub4section (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." ;
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"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 84A 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.
available to support the Government's action in the present case. ;
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"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
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 subject4matter. This was legally impermissible having regard to the provisions contained in sections 3(1), 3(3) and 7 of the 1952 Act.
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notification dated 22.8.2005 cannot be sustained in law."
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