Full Judgment Text
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PETITIONER:
KRISHNA BALLABH SAHAY AND ORS.
Vs.
RESPONDENT:
COMMISSION OF ENQUIRY & ORS.
DATE OF JUDGMENT:
18/07/1968
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
RAMASWAMI, V.
BHARGAVA, VISHISHTHA
VAIDYIALINGAM, C.A.
CITATION:
1969 AIR 258 1969 SCR (1) 387
CITATOR INFO :
E&R 1978 SC 68 (137,227)
R 1987 SC 877 (17)
RF 1992 SC 604 (140,142)
ACT:
Constitution of India, Arts. 153, 156(3), 160-Governor-
Continuance after term over-Validity.
Commission of Inquiry Act (60 of 1952)-Enquiry by succeeding
Ministry into conduct of outgoing Ministers-Powers of.
HEADNOTE:
Persons in opposition when the Congress Party was in power
in the Bihar State formed the Government on the voting out
of office of the Congress Ministry. As soon as the
succeeding ministry took over, the Governor announced
institution of an inquiry into the conduct of the appellants
who were ministers in the Congress Ministry, and a
notification ordering the enquiry was issued. The
notification was issued by the Governor, after 5 years of
his entering upon the office. The appellants unsuccessfully
filed a writ petition in the High Court. In appeal to this
Court, the appellants contended that (i) the Governor’s term
having come to an end under the Constitution, he was functus
officio and could not order the inquiry : (ii) power could
not be exercised by the succeeding Ministry to institute
inquiry into the conduct of the Ministry that goes out and
(iii) the inquiry was the result of malice and political
vendetta and the grounds were false and scurrilous.
HELD : The appeal must fail.
(i) The proviso to Art. 156(3) contemplates that the
Governor is to continue to hold office ’notwithstanding the
expiration of his term’. The effect of these words is to
exclude all questions of the legality of the holding of
office by a Governor after the expiry of his term. There
must always be a Governor under Art. 153 and the
interregnums is avoided by the proviso. There will
immediately be an interregnums, if after the term is over,
the Governor designate declines the office. No doubt the
provisions of Art. 160 may be resort-ad to but even that may
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not be sufficient to prevent an interregnums. Therefore, a
person once appointed a Governor continues to hold that
office till his successor enters upon his office. The
successor may be appointed under Art. 155 or an order may be
made under Art. 160. There may be cases in which neglect to
appoint a Governor soon may lead to an inference of failure
to act under the Constitution and it may require further
examination as to the remedy in such cases. [392 D-H]
(ii)When a Ministry goes out of office, its successor may
consider any glaring charges and may, if justified, order an
inquiry. Otherwise, each Ministry will become a law into
itself and the corrupt conduct of its Ministers will remain
beyond scrutiny. [393 C]
Shri P. V. Jagannath Rao v. State of Orissa, [1968] 3 S.C.R.
789 followed.
(iii)Without saying anything as to their merits. the charges
were specific, and details and particulars of -each charge
had been stated. The charges were such that an enquiry
could be ordered. Whether they are true or false is another
matter which ought to be gone into by the Commission.
Public life of persons in authority must never admit of such
388
charges being even framed against them. If they can he made
then an enquiry whether to establish them or to clear the
name of the person charged is called for. [393 H-394 C],
Whether the action was malafide or not could only be decided
if it could be held that the allegations were false. The
Court was not enquiring into the charges. [394 E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 150 of
1968.
Appeal by special leave from the judgment and order dated
November 4, 1968 of the Patna High Court in C.W.J.C. No. 702
of 1967.
A. K. Sen, K. K. Jain, Bishambar Lal, H. K. Puri, C. B.
Belwariar, Basudev Prasad, Bat Bhadra Prasad Singh, for the
appellants.
M. K. Nambiar, R. K. Garg, S. C. Agarwal, Bandnath Prasad
and Anil Kumar, for respondent No. 2.
J. P. Goyal and Sobhag Mal Jain, for respondents Nos. 3
to 6.
D. N. Mukherjee, for respondents Nos. 7 and 8.
R. K. Garg, S. C. Agarwal, Anil Kumar Gupta and B. S.
Khoji for respondent No. 9.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This appeal is brought against an order
of the High Court at Patna, November 4, 1967, dismissing a
petition under Arts. 226 and 227 of the Constitution. By
that petition the appellants sought a declaration that a
notification of the Governor of Bihar appointing a
Commission of Inquiry under the Commission of Inquiry Act,
1952, was ultra vires, illegal and inoperative’ and for
restraining the Commission from proceeding with the inquiry.
The High Court dismissed the petition without issuing a rule
but gave detailed reasons in its orders. The appellants now
appeal by special leave granted by this Court. After the
hearing of the appeal concluded, we ordered the dismissal of
the appeal but reserved the reasons which we now proceed to
give.
As is common knowledge there was for a time no stable Gov-
ernment in Bihar. The Congress Ministry continued in office
for some time first under Mr. Binodanand Jha and then under
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the first appellant, Mr. K. B. Sahay. When the Congress
Ministry was voted out of office, a ministry was formed by
the United Front Party headed by Mr. Mahamaya Prasad Sinha.
The United Front Ministry also resigned on 25th January,
1968 and another Ministry was formed by the Shoshit Dal
headed by Mr. B. P. Mandal. This Ministry also went out
of office on March
389
22, 1968 to be succeeded by another headed by Mr. Bhola
Paswan Shastri. During the continuance of the Congress
Minis-try Mr. Mahamaya Prasad Sinha helped by Mr. Kamakhya.
Narain Singh and his ’brother Mr. Basant Narain Singh and
others were in opposition. When the United Front Ministry
emerged these opponents became ministers. The Ministry
began to function from March 5, 1967. On March 17, 1967,
the Governor announced in his speech that an inquiry would
be made against the conduct of some of the Ministers who had
gone out of office including the present appellants. It
appears that the Council of Ministers then constituted a
Cabinet Sub-Committce on July 22, 1967 to make a preliminary
examination of the allegations and the materials relating to
them. The upshot was a notification issued by the Governor
of Bihar under s. 3 of the Commission of Inquiry Act on
October 1, 1967 by which inquiry was ordered against the
appellants and two others (Mr. Baghavendra Narain Singh and
Mr. Ambika Saran Singh). The Commission was directed to
inquire into and report on the following matters, namely :
"(a) What was the extent of the assets and
pecuniary resources owned and possessed by
each of the persons above-named, his family,
relatives and other persons in whom he was
interested, (i) at the beginning and (ii) at
the end of the tenure of office or each of the
offices held by him as aforesaid;
(b) Whether each of the persons above named,
during the tenure of office or offices held by
him, obtained any assets, pecuniary
resources
or advantages or other benefits by abusing and
exploiting his official position or positions
and whether during the said period or periods
his family, relatives and other persons in
whom he was interested obtained, with his
knowledge, consent or connivance, any assets,
pecuniary resources, advantages or other
benefits;
(c) Whether, and if so to what extent, each
of the persons abovenamed otherwise indulged
in corruption, favoritism, abuse of power and
other malpractice; and
(d) Whether, besides the persons abovenamed,
any other person or persons holding official
position either as a member of the Council of
Ministers or otherwise, during the aforesaid
period, made illegal gains or indulged in
corruption
390
favoritism, abuse of power or other
malpractice in like manner as aforesaid."
Later the Government of Bihar decided on
October 31, 1967 that clause (d) should be
deleted and it was so deleted. The
notification went on to state further :
"Without prejudice to the scope of the
inquiry,
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Commission shall, in particular, inquire into
and report on the mala fide and corrupt
conduct of the persons abovenamed in relation
to the following matters, viz.-
(a) Contracts for works;
(b) Grant of mineral concessions and issue
and renewal of leases, licenses, and permits,
particularly with respect to mines, minerals,
forests, forest-products, nonferrous metals,
mills, generation and distribution of
electricity, ferries, transport, etc.
(e) Purchase and supplies of stores and
materials.
(d) Appointments, transfers, promotions,
etc. of officers.
(e) Institution and withdrawal of cases;
(f) Protection to criminals and corrupt
officers;
(g) Remissions of Government dues, loans and
taxes;
(h) misuse of Government money and property;
(i) Acquisition, reacquisition, settlement
and lease of lands;
(j) Collection of money through check-posts;
and
(k) any other matter which may be brought to
the notice of the Commission in course of the
inquiry.
The inquiry was entrusted to Mr. T. L. Venkatarama Aiyar, a
retired Judge of this Court. The Commission was to enter
upon its duties from November 6, 1967. On October 31, 1967
a petition was filed in the High Court at Patna. The High
Court summarily dismissed the petition on November 4, 1967.
This appeal arises from the order.
Since no rule was issued by the High Court the allegations
in the petition were not controverted or admitted by the
opposite parties. When the present appeal was filed
reliance was placed upon the affidavits filed with the
petition and fresh affidavits were
391
also filed. Opportunity was afforded to the respondents to
file affidavits in reply. An affidavit in reply was filed
by Abraham, -Vigilance Commissioner, on behalf of Government
and respondent No. 5 on behalf of respondents 3-6. Separate
affidavits were also filed by appellant 1 on April 4, and
May 2, 1968. We have considered all the affidavits which
find place on the record of the appeal.
The arguments of the appellants in this Court were substan-
tially the same as were urged in the High Court. They are
really two in number. Shortly stated, they are: firstly,
that the appointment of the Commissioner is a campaign of
vilification for political gain by a party in opposition and
is based on personal animus against those who kept the
members of that party out of office. The argument thus
attributes malice and mala fides to the Govern’s
notification and abuse of the powers under the Commission of
Inquiry Act for an illegitimate purpose. Side by side there
is the argument that a succeeding Ministry cannot inquire
into the conduct of public and governmental affairs of the
Ministry that goes out. The second argument is that the
Governor’s term having come to an end under the
Constitution, he was functus officio and could not order the
inquiry contemplated by the Government then in power.
The second argument goes to the root of the matter and may,
therefore, be considered first. It was rejected by the High
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Court. Mr. M. A. Ayyangar, the Governor in whose regime the
notification was issued, was sworn in as Governor of Bihar
on May 6, 1962. Under Art. 156(3) he, could hold office for
a term of five years from the date on which he entered upon
the office, that is to say, till May 5, 1967. Therefore,
the contention is that his continuance in office was
illegal. The respondents rely upon the proviso to Art.
156(3), which says
Provided that Governor shall, notwithstanding
the expiration of his term, continue to hold
office until his successor enters upon
office,"
and point out that there cannot be an
interregnums in view of the provision of Art.
153 that there shall be a Governor for each
State. In reply Mr. A. K. Sen refers to the
provisions of Art. 160 which makes provision
for contingencies by laying down :
"160. Discharge of the functions of the
Governor in certain contingencies.
The President may make such provision as he
thinks fit for the discharge of the functions
of the Governor of a State in any contingency
not provided for in this Chapter."
392
His contention is that under the third clause of Art. 155
the Governor’s term is a closed term and if the term comes
to an end without the successor being named, the provisions
of Art. 160 must be used. The proviso, according to him,
covers only the time lag before the successor enters office
and not a case where no successor is appointed before the
term of the holder is over. To hold otherwise, he submits,
might enable the appointing authority to set at naught the
provisions of the main clause through the proviso. By way
of analogy he refers to Arts. 56 and 62(1) in respect of the
President and Arts. 67 and 68(1) about the Vice-President
which enjoin that the election to fill the vacancies has to
be completed in each case before the term ceases. He
contends, that the same result is implicit in the scheme of
things in relation to the Governor because of the
distinction between ’appointment’ and ’entering an office’.
We are unable to accept the contention. There is no provi-
sion such as Art. 62(1) or 68(1) in the scheme of the
Govern’s appointment. On the other hand, the proviso to
Art. 156(3) contemplates that the Governor :is to continue
to hold office ’notwithstanding the expiration of his term’.
The effect of these words is to exclude all questions of the
legality of the holding of office by a Governor after the
expiry of his term. There must always be a Governor under
Art. 153 and the interregnum is avoided by the proviso. It
is, of course, to be expected that a new Governor will be
nominated betimes but circumstances may come into being
which may take the holder beyond his five years’ term
without a successor being named. It may not always be
possible to appoint a Governor within the term of the incum-
bent. Suppose, for instance, a person is designated within
the five years and he intends joining after a few days. Mr.
Sen concedes that the former Governor may continue to hold
office till the new Governor assumes charge and this may
take the former Governor beyond his term of five years.
Suppose after that term is over the Governor designate
declines the office. There will immediately be an
interregnums. No doubt the provisions of Art. 160 may be
resorted to but even that may not be sufficient to prevent
an interregnums. Therefore, it is legitimate to hold that a
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person once appointed a Governor continue to hold that
office till his successor enters upon his office. This
successor may be appointed under Art. 155 or an order may be
made under Art. 160. Whatever the position the former
Governor continues to hold office till the new Governor
enters his office. For these reasons we hold that Mr. M. A.
Ayyangar acted validly as Governor on October 1, 1967. We
may, however, say that there may be cases in which neglect
to appoint a Governor soon may lead to an inference of
failure to act under the Constitution and it may require
further examination as to the remedy in such cases. As we
do not view this case as satisfying the need for such exami-
393
nation we say nothing about it. No facts bearing upon the
failure to designate a successor have been pleaded here.
This brings us to the main question. As we pointed out
above, the first argument consists of two limbs. We shall
examine them separately. The contention that the power
cannot be exercised by the succeeding ministry has been
answered already by this Court in two cases. The earlier of
the two has been referred to by the High Court already. The
more recent case is Shri P. V. Jagannath Rao & Ors v. State
of Orissa(1). It hardly needs any authority to state that
the inquiry will be ordered not by the Minister against
himself but by some one else. When a Ministry goes out of
office, its successor may consider any glaring charges and
may, if justified, order an inquiry. Otherwise, each
Ministry will become a law unto itself and the corrupt
conduct of its Ministers will remain beyond scrutiny. The
High Court has adequately dealt with this point and we see
no error.
The next limb of the argument is that the inquiry is the
result of malice and political vendetta and the grounds are
false and scurrilous. In the affidavit of Abraham reference
is made to the charges which have been drawn up against the
appellants and 2 others (who were also heard by us). These
charges number 74 against the ex-Chief Minister (Mr. K. B.
Sahay) and 36, 19, 42, 10 and 11 against the others. Some
of the charges are interconnected. Mr. Sahay in his
affidavit of May 2, 1968 has attempted to establish that
Abraham himself had given a different version in his reports
and had found nothing wrong where he now finds fault. A few
of the charges are attempted to be’ controverted also.
Request is made that the relevant files be summoned so that
the falsity of the charges may be established.
We find ourselves unable to accede to the request for
summoning the relevant files. The reason is fairly obvious.
Once we have held that the inquiry is legal, it is manifest
that the truth or otherwise of the allegations is for the
Commission’s consideration. If the disproof of the
allegations is so simple, there should be no difficulty in
bringing the facts to the notice of the Commission. We have
no doubt that our former colleague, who heads the, Com-
mission, will be able to decide the issue as we are invited
to do.
We have read the charges which are to be investigated. We
do not wish to say anything about the merits of these
charges since what we say is likely to have a bearing one
way or another upon their truth. This matter is not in our
hands, nor are we in possession of all the materials on
which these charges will hereafter be attempted to be proved
or disproved. We can only say that (as we see them) each
charge refers in detail to events with
(1) [1968] 3 S.C.R. 789.
394
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dates, names of persons concerned, particulars of the action
taken and the conduct which is to be considered. The
charges are such that we think an inquiry can be ordered.
Whether they are true or false is another matter.
It cannot be stated sufficiently strongly that the public
life of persons in authority must never admit of such
charges being even framed against them. If they can be made
then an inquiry whether to establish them or to clear the
name of the person charged is called for. If the charges
were vague or speculative suggesting a fishing expedition we
would have paused to consider whether such an inquiry should
be allowed to proceed. A perusal of the grounds assures us
that the charges are specific, and that records rather than
oral testimony will be used to establish them. We agree
with the High Court that the affidavits in opposition make
out a sufficient case for inquiry.
It is contended that clause (d) was excluded from the
notification so that the inquiry might not recoil upon those
who had started it. Reference is made to the notification
of March 12, has been 1968 to show that in the notification
ordering inquiry against Mr. Mahamaya Prasad Sinha and his
colleagues that clause is included. That should be a matter
of satisfaction to the present appellants. It is unlikely
that the Commission will overlook evidence which points to
corruption or malpractice in others. Even if no direct
finding is given there will be ample reference to these
matters in the report.
Finally it is argued that the action is mala fide. This can
only be decided if it can be held that the allegations were
false. The Commission will first find the facts. Whether
they lead to the conclusion that the inquiry was justified
or it was malicious, cannot be said just now, when there are
only allegations and recriminations but no evidence. If the
charges have been made maliciously or falsely, we are sure
the Commission will say so, where necessary. We cannot
anticipate the inquiry and hold one ourselves.
These reasons impelled us to order the dismissal of the
appeal which order we formally pronounced earlier.
Y.P. Appeal dismissed.
395