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S.V. Purushothaman Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. No. 7576 of 1982
Judge
Reported inAIR1983Ker118
ActsCommissions of Inquiry Act, 1952 - Sections 3; Constitution of India - Article 226
AppellantS.V. Purushothaman
RespondentState of Kerala and ors.
Advocates: M.M. Cheriyan,; Ashok M. Cherivan and; Poly Mathai,
DispositionPetition dismissed
Cases ReferredQueen v. Collins
Excerpt:
.....electricity minister - contended that prima facie case can be made out by referring case to inquiry commission - expressed apprehension on part of commission to hold inquiry in conference hall of electricity board - apprehension of petitioner unfounded - alleged that presence of additional advocate general might adversely affect inquiry - presence of additional advocate general was to facilitate easy and expeditious handling of government records and cannot in any way subvert objective of inquiry - held, petitioner cannot invoke jurisdiction of high court under article 226. (ii) writ - whether writ of certiorari can be issued if commission departs from ideal conduct or prescribed form - writ of certiorari can be issued if there is non-compliance of rules of procedure prescribed..........bungalow of the electricity board will not in any way adversely affect a fair and proper inquiry by a commission of the stature of the 3rd respondent. there is no reasonable basis for the petitioner to be apprehensive about that venue. merely because the commission holds its inquiry in the conference hall of the inspection bungalow of the electricity board, the place does not become insecure or unsafe either for the petitioner or for his witnesses. the allegation that the minister and his men could have control over the place or intimidate the witnesses for the petitioner if the commission holds the inquiry in that conference hall cannot be accepted without sufficient materials or evidence justifying such an apprehension. the petitioner would have it that the government fixed.....
Judgment:

Sukumaran, J.

1. A former Judge of the Supreme Court, referred, about hree years back, in a manner characteristic of him, to the 'public inquiries iurisprudence' and the 'harvest, of Commission litigation' developing in this country. The jurisprudence indeed seems to develop and 'the commission litigation' appears to be on the increase. This writ petition deals with some face s, some unique facets, of such a litigation.

2. The Government of Kerala have been taking steps for enacting the Kerala Public Men (Inquiries) Bill. It is so stated in the order of the Government, G. O. Ms. No. 386 dated 20-12-1969. Pending the enactment of such a Bill the Government considered it necessary to set up a machinery to inquire into allegations of misconduct against public men. The Government Order G.O.M.S. No. 386 was issued to provide for a machinery for such inquiry. That order is produced as Ext. P-1 in this writ petition. 'Public men' included among others a Minister of State including the Chief Minister. A person seeking an inquiry had to address a petition to the Chief Secretary to Government requesting for such an enquiry into the allegations of misconduct. 'Misconduct' is given a fairly wide definition in Clause 1 of that Order. Perhaps to checkmate indiscriminate and irresponsible applications seeking inquiry, it was provided that the petition should be accompanied by an affidavit in support of the allegation and also a treasury receipt evidencing the deposit of a sum of Rs. 500/-. Though the costs of a Commission may be enormous judged by the indication in the various orders constituting such Commissions, only a sum of Rs. 500/- was required as a deposit from the person seeking the inquiry -- one had to pay the piper, albeit nominally to have the tune. The procedure to be followed after the receipt of a petition is indicated in Clauses 3 to 5 of that Order.

3. The petitioner herein claims to be a public worker engaged in social activities in and around the Trivandrum City. Complying with the formalities contemplated under Ext. P-1 he sent a request Ext. P-2 to the Chief Secretary to Government on 16-3-1982. Various acts and omissions had been mentioned in that petition which, according to the petitioner, represented 'only a few instances of corruption practices by Sri R. Balakrishna Pillai when he was acting as Minister for Electricity'. He staled that he was prepared to substantiate the allegations contained in the petition. He was 'confident that on a perusal of the records a prima facie case could be made out justifying the reference of the case to a commission of inquiry'. He reserved the right to add 'a few more allegations of corruption against Sri R. Balakrishna Pillai at the time when the matter is enquired into by a Commission appointed under the Commissions of Inquiry Act'.

4. On 5-8-1982, the Government passed an order Ext. P-3 whereunder Justice P. Narayana Pillai, a former Judge of this court was appointed as Commissioner. The terms and conditions of reference were indicated in that Order. The details of that Order, except two clauses -- clauses 4 and 5 --are not relevant for the purpose of the original petition. It may be necessary to refer to Clause 6 also in the course of the judgment while evaluating the contentions raised in the original petition. These clauses are, therefore, extracted below:

'4. X X X XVenue of Sittings:

The sittings of the Commission would be at the conference hall of the Inspection Bungalow of the Kerala State Electricity Board near Bharath Tourist Home, Eranakulam.

x x x x5. The Additional Advocate General is directed to be present at all the sittings of the commission with the connected Government records of enquiry considered by the Conmmission to be relevant.

6. The Secretary, Kerala State Electricity Board is directed to be present at all the sittings of the commission with the records of the Kerala State Electricity Board connected with the inquiry and considered to be relevant.'

5. In about a week of the issue of Ext. P-3 order, the Commission started functioning. The notice dated 13-8-1982 was issued to the petitioner directing him to appear for the hearing fixed on 6-9-1982, at the Conference Hall of the Inspection Bungalow of the Kerala State Electricity Board.

6. On that day the petitioner appeared along with his counsel. He filed a petition Ext- P-5 supported by an affidavit Ext. P-6. He took objection to the venue of the sitting of the Commission and the presence of the Additional -Advocate General at the sittings of the Commission. The objection to the venue was that it was absolutely under the control of the counter-petitioner Sri R. Balakrishna Pillai (Minister for Electricity) and that he was afraid to attend the sittings of the Commission. According to him, it was unfair to so fix the venue, 'when other suitable accommodations in Government buildings are available in plenty'. He demurred to the presence of the Additional Advocate-General for the reason that it was an unprecedented conduct on the part of the Government viewed in the light of the 'several commissions' appointed in the past 'for making enquiries into similar allegations of misconduct and corruption against Ministers and for other purposes'.

7. Some serious allegations are made in paragraph 6 of the original petition. It is alleged that the Commission was not even prepared to receive the petition and insisted that the petition should be withdrawn. According to the petitioner, the Commission did not call upon the 2nd respondent Minister to file his written statement nor did he call for the production of the document referred to in the complaint. According to the petitioner, he was not given an opportunity to adduce evidence. In the words of the petitioner : 'But he (Commission) straightway asked the petitioner's advocate to argue the case on merits'. According to the petitioner, when the advocate pleaded his inability to argue the case the Commission insisted on having it on the very next day but ultimately posted it to 13-9-1982. The petitioner contends: 'In view of the aforesaid attitude taken by the 3rd respondent the petitioner felt apprehensive about the impartiality of the Commissioner and the petitioner was forced not to participate in the proceedings of the Commission.' He filed a petition Ext. P-7 before the Commission on 8-9-1982 which after narrating some of the facts alluded to above, expressed his decision not to participate in the proceedings of the Commission,

8. The Commission appears to have proceeded with the enquiry, though the petitioner and his Advocate had withdrawn from it. This is indicated by the news item in Indian Express dated 2-10-1982, a copy of the said news item beingproduced as Ext. P-8. It would appear that the Additional Advocate General had addressed arguments before the Commission. The second para in Ext. P-8 reads:

'On Friday it heard the AdditionalAdvocate General T.C.N. Menon who is assisting it in its work.'

A summary of the arguments so addressed is contained in Ext. P-8.

9. The present writ petition was filed on 4-10-1982 and came up for preliminary hearing before my learned brother Justice Narendran. The petition was directed to be posted before another Judge on the next day. Accordingly, it came up before my learned brother U.L. Bhat, J. on 6-10-1982. The petition was directed to be posted before another court by the learned Judge, Pursuant to a motion made in that behalf by the petitioner on 7-10-1982, the petition came up before me on 8-10-1982. -Some preliminary arguments were heard on that day, when, counsel appearing for the petitioner requested that the writ petition may be posted to 11-10-1982. That request was granted. On 11-10-1982 it was submitted that the original petition was being amended and that the hearing may be adjourned to 13-10-1982. This was also granted. C. M. P. No. 22382 of 1982 was filed by the petitioner seeking an amendment of the writ petition by the incorporation of two additional prayers. That was allowed by the order passed on the same day Arguments on the original petition as amended were heard on that day.

10. The prayers in the original petition before the amendment were the following:--

'(i) to quash Ext. P-3 reference order by the issue of a writ in the nature of certiorari or other appropriate writs.

(ii) to issue a writ in the nature of prohibition restraining the 3rd respondent from proceeding with the enquiry on the basis of Exts. p-3 and P-4.

(iii) to issue a writ in the nature of mandamus directing respondent No. 1 --State -- to withdraw the appointment of 3rd respondent as Commissioner and to make a fresh appointment preferably of a sitting Judge of the High Court to examine the prima facie case of the allegations contained in Ext. P-2 petition and/or refer the allegations contained in Ext. P-2 to a Commission of Inquiry under the Commission of Inquiries Act without delay.

(iv) to issue any other writ, declaration, order or direction appropriate in the circumstances of the case.'

The additional prayers added under the amendment allowed are:

'(ii) (A). To declare that the procedure followed in allowing the Additional Advocate General to appear and argue the case and not giving time to the petitioner for production of documents in support of the petition is illegal and violative of the principles of natural justice and contrary to the limited jurisdiction enjoined on the Commissioner under Ext. p-3 reference order; and to declare that the resultant finding on the prima facie nature of the case that may be recorded by the 3rd respondent Commissioner as unsustainable in law.

(ii) (B). To issue a writ in the nature of prohibition restraining the 1st respondent Government from accepting any finding that may be recorded and submitted by the 3rd respondent Commissioner and acting upon it.'

11. I am not satisfied that the petitioner is entitled to any relief on the basis of the allegations contained in the original petition, and his conduct before the Commission,

12. The reasons in support of the prayer for quashing Ext. P.3 order by which the Commission has been appointed are shadowed in Ground A. Clauses 4 and 5 relating to the venue and the presence of the Additional Advocate General, according to the petitioner, vitiate Ext. P-3 order. There is no substance in the grievances founded on those clauses. Fixing of the venue of the Commission in the Conference Hall of the Inspection Bungalow of the Electricity Board will not in any way adversely affect a fair and proper inquiry by a Commission of the stature of the 3rd respondent. There is no reasonable basis for the petitioner to be apprehensive about that venue. Merely because the Commission holds its inquiry in the Conference Hall of the Inspection Bungalow of the Electricity Board, the place does not become insecure or unsafe either for the petitioner or for his witnesses. The allegation that the Minister and his men could have control over the place or intimidate the witnesses for the petitioner if the Commission holds the inquiry in that Conference Hall cannot be accepted without sufficient materials or evidence justifying such an apprehension. The petitioner would have it that the Government fixed the venue, without leaving it to the Commission to decide such venue after ascertaining the convenience of parties. I may point out in this connection that the order Ext. X-1 passed by the Commission (and produced along with a memo by the Government Pleader on 13-10-1982) would indicate that the venue was so fixed on the basis of the desire expressed in that behalf by the Commission. The Commission has pointed out the reasons which impelled it to fix such a venue having regard to the convenience of the parties participating in the inquiry. The reasons so given by the Commission are indeed weighty. Even otherwise, the unfounded apprehension on the part of the petitioner regarding the safety and security of himself and his witnesses is no ground whatever to quash the Government order.

13. The other reason put forward for quashing the Government order is the provision in Clause 5 of Ext. P-3. It may be noted that under that clause the Additional Advocate General was only directed to be present at the sitting of the Commission with the connected records or the inquiry considered by the Commission to be relevant. 'This stands in contradistinction to Clause 6 of that order whereunder the Secretary of the Board is to be present at the sitting of the Commission with the records of the Board connected with the inquiry and considered to be relevant. Under Clause 5 it is entirely for the Commission to consider the relevance of connected Government records for the inquiry. The Additional Advocate-General is only to be present, with the Government records so considered by the Commission 1o be relevant. Such mere presence of the Additional Advocate-General for the purpose of facilitating an easy and expeditious handing over of the Government records cannot in any way subvert the objective of the inquiry. If such a senior law officer is directed to ho present at the inquiry for the purpose of passing over to the Commission such records as the Commission considered as relevant for the inquiry that would only aid the inquiry and expedite it. That can hardly be a reason for quashing the Government order.

14. Ext. P-4 notice is only one giving intimation regarding the sitting of the inquiry on 6-9-1982 at the Conference Hall. Inasmuch as I have found that there is absolutely no basis for any complaint regarding the venue of the Commission and the presence of the Additional Advocate General at the inquiry, the notice Ext. P-4 issued by the Commission does not in any way offend any known legal principle to be observed in the conduct of a Commission of inquiry. The prayer to quash Exts. P-3 and P-4, is therefore totally devoid of merit.

15. It is not necessary for the purpose of the writ petition to go into the details of what had happened on 6-9-1982 before the Commission of Inquiry. It is admitted by the petitioner himself that the Commissioner had adjourned the further hearing to 13-9-1982. The petitioner did not participate in the hearing on that day- He withdrew from the Commission by submitting Ext. P-7 petition on 8-9-1982. There was no basis, on that day, for the petitioner to be reasonably apprehensive about the impartiality of the Commission or to withdraw from the inquiry. The only two reasons put forward in purported justification of his doubting the impartiality of the Commission and the propriety of the inquiry, as indicated in Exts. P-5 and P-6, have been found to be untenable and invalid. A person who conducts in such a casual and in such a lighthearted manner before a high-powered commission like the 3rd respondent, who, on his own, withdrew from the further inquiry cannot justifiably seek for a cancellation of the order Ext. P-3 by the Government. It may also be noted that he had not made any representation before the Government for the cancellation of Ext. P-3 before approaching this court with a prayer for a writ of mandamus seeking that relief. There not having been a preceding demand for relief, a prayer for mandamus may not be available at all. Even otherwise, the circumstances of the case are such that the petitioner does not deserve such a relief in these proceedings.

16. Equally devoid of merit is the prayer for the appointment of a fresh Commission by the very same petitioner and in respect of the very same allegations. It has to be borne in mind that the procedure to be followed in connection with an inquiry entrusted with a Commission is essentially to be laid down by the Commission itself. Normally, the procedure evolved by the Commission would be fair in form, and just in its working. Merely because one of the parties in the inquiry is unjustifiably apprehensive about the impartiality of the Commission, it is not obligatory for the Government to cancel the appointment of one Commission and proceed to appoint another in its stead. These grave matters have to be dealt with by all concerned with the great seriousness they require. I do not think any ground exists (for) directing the Government to issue yet another Commission in the place of the 3rd respondent to inquire into the self-same allegations as are contained in Ext. P-2. The petitioner claimed the appointment of another Commission, automatically as it were, and even in disregard of the requirements of Ext. P-1.

17. The additional prayer (ii) (A) seeks a declaration about the illegal character of the procedure followed by the Commission in allowing the Additional Advocate General to appear and argue the case and in not giving time to the petitioner for production of documents in support of the petition. The factual foundation for this prayer is contained in Ground D. It is alleged therein that the Additional Advocate General is also the standing counsel for the Kerala State Electricity Board, under the Minister concerned'. A deviation on the part of the Commission from the procedure contemplated under Ext p-3 reference order is also alleged. I do not think that these complaints should be inquired into in this writ petition having regard to the conduct of the petitioner. I have already held that his withdrawing from the inquiry was without justification. Neither he nor his counsel was present at the hearing held on 1st October, 1982. There was no complaint before the Commission about any deviation on its part from the terms of Ext. P-3 or about the infraction of the rules of natural justice in permitting the Additional Advocate General either to argue the case or to undertake the examination of the riles of both the Government and the Electricity Board. After withdrawing from the Commission by his petition dated 8-9-1982, the petitioner did not take any diligent or vigilant action in the matter and he has chosen to move this court only on 4-10-1982. The discretionary and extraordinary jurisdictionof this court is not to be exercised at the instance of a person who is not vigilant in the vindication of his rights. This court had denied relief in similar petitions to petitioners who have not acted promptly or properly even when a legal cause of action was discernible. When the agent of a candidate sought to stultify the election proceedings virtually on the eve of the election, I declined to investigate his grievance having regard to such conduct which disentitles relief to a party in proceedings under Article 226 of the Constitution -- vide Mathew v. Election Commr. of India, 1982 Ker LT 479: (AIR 1982 Ker 265). In this view of the matter, even assuming that what is reported in Exl. P-8 is fair and accurate, I am not inclined to entertain his complaint and adjudicate the same in proceedings under Article 226 of the Constitution when he had not brought to the notice of the Commission such alleged departure from the provisions of the reference order or the violation of the principles of natural justice. It follows that the petitioner (is) equally disentitled to a declaration about the finding of the Commissioner being unsustainable in law. It is certainly for the Government to consider the report and take a decision thereon. As observed by Justice Das.

'While the Commission must necessarily accept the responsibility for the correctness and (of?) its findings on the evidence laid before it and for the probity of its report, it must stoutly and emphatically disclaim all responsibility for the consequences that may ensue in the wake of this enquiry. The Commission has been charged only with the duty of finding the true facts as they emerge from the evidence admitted and assessed according to well established principles of law, and to make its report to the Central Government setting forth its findings and conclusions. Our Constitution has, on the other hand, trusted the legislature and the Government with all matters of policy and reasons of State in relation to the governance of the country- The Commission has no doubt that those authorities will be readily willing to derive assistance from this Report in Informing their minds about true state of affairs as they appear from the evidence laid before the Commission. But what action they will take, in the discharge of theirown responsibilities, is no concern of the Commission.'

18. This court cannot issue a writ of prohibition restraining the Government from accepting any finding recorded by the 3rd respondent-Commission in this case in the light of the legal position relating to the role of the Commission, and the duty and authority of the Government in such matters.

19. The participation of the law officer of the Slate in an inquiry against a Minister is not a new phenomenon. In the inquiry conducted by Justice Lynskey against Mr. Belcher, the then Parliamentary Secretary, the Attorney-General Sir Hartley Shawcross and forty other lawyers were actively engaged. The Attorney General himself cross-examined most of the key witnesses including Mr. Belcher. Mr. Justice Lynskey's conduct of this inquiry was notable for its firmness and fairness and his report received an acceptance which was strikingly free from criticism. (See Keeton Trial by Tribunal and the Commissions of Inquiry Act, 1952 by K.A. Ramasubramaniam. 1980, Edition, page 47). Whether in permitting the Additional Advocate-General who had only a limited role under Ext. P3, order, (to present the records considered by the Commission to be relevant), to examine the files of the Government and of the Board and to address arguments before the Commission (as is indicated in Ext P8) there has been any deflection from the known norms of fairness in the conduct of the inquiry, is a fundamental and important question which would have merited consideration, if, despite the petitioner's participation in the inquiry and his bringing such matters to the notice of the Commission, the Commission had overruled those objections and unjustly proceeded with the inquiry. In as much as no such objection had been raised before the Commission by the petitioner, and the Commissioner not having had any opportunity of applying his mind on those aspects, it is not necessary to review the action of the Commission in the present circumstances.

20. There cannot be any doubt that proceedings before such a Commission have to be reviewed in the white light of highest moral standards. The necessity to preserve the purity of the proceedings before a Commission cannot be overemphasised. It would be desirable that situations of possible conflict between public duty and professional involvement are avoided. The observations of the Supreme Court of India in decisions dealing with such Commissions of Inquiry have emphasised the necessity for such guarded action in the matter of the appointment of and functioning by Commissions; for otherwise, as has been pointed out by the Supreme Court 'the public is not likely to repose its confidence in such a Tribunal ......' - vide AIR 1967 SC 122. It is not without significance that many of the Commissions have referred to in the fore of their reports the words of Lord Scarman regarding the objectives of such Commissions of Inquiry. The words are worthy of recapitulation in this context:

'In all countries, certainly in those which enjoy freedom of speech and a free press, moments occur when allegations and rumours circulate causing a nation-wide crisis of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public confidence should be restored, for without it no democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be rooted out, or that there is no foundation in the rumours and allegations by which the public has been disturbed. In either case, confidence is restored.'

21. A question may arise whether a writ of certiorari will issue even if the Commission departs from an ideal conduct or a prescribed norm. The observations of the Australian High Court in Queen v. Collins, 50 ALJR 471 indicates that curial intervention is not justified in such circumstances. It observed;

'......it will not legally affect the rights of the applicant; with or without such a report, and even, no doubt, in direct opposition to any recommendations in it, the Minister might, in his absolute discretion take action............ or might decide to take no action at all.........andit is only the degree of likelihood of that intervention occurring in a sense adverse to the applicant's interests which is increased by the actual nature of the Commission's recommendation. That cannot, in my view, suffice to justifycurial intervention, by means of certiorari, in the case of Royal Commission whose sole function is to inquire and report to the Executive the result of its inquiries, whose mode of conducting its inquiry is entirely unfettered, either by statute or by executive direction, and whose report neither directly affects rights nor is a condition precedent to the affecting of them. It accordingly becomes unnecessary to examine the particular grounds upon which the applicant relies or to determine whether, if there be errors of law disclosed, there exists anything in the nature of a record upon the face of which they appear.'

Whether the observations contained therein are distinguishable from the facts of the case, or whether the view still holds good, regard being had to the winds of change in the adminislrative law, is also a matter which does not arise for determination now, in view of my declining to consider such issues having regard to the conduct of the petitioner. The Royal Commission on Tribunals of Inquiry, 1966 (United Kingdom) considered whether there should be any statutory rules of procedure for Commission. It observed:

'Any alleged failure to comply with the rules might be brought up for review by prerogative writ to the High Court and the inquiry thereby delayed or frustrated.'

See the Commissions of Inquiry Act, 1952 by K.A. Ramasubramaniam, page 82. The above observations may indicate that review by prerogative writ by High Court would be available when there has been non-compliance with the rules of procedure prescribed for the Commission. Whether that is equally applicable if there is a departure from the terms of reference order is yet another question which might arise for adjudication in appropriate cases. It is not necessary to deal with these aspects in this writ petition in the light of the conclusion reached by me earlier.

22. In the circumstances alluded to above, I am of the view that the petitioner cannot invoke the jurisdiction of this court under Article 226 of the Constitution. I dismiss the writ petition.


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