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P.K. Kunju Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 3882 of 1969
Reported inAIR1970Ker252
ActsConstitution of India - Article 166(2); Commissions of Inquiry Act, 1952 - Sections 3; Government of Kerala Rules - Rule 12
AppellantP.K. Kunju
RespondentState of Kerala and ors.
Appellant Advocate S. Easwara Iyer,; L.G. Potti,; P. Sankarankutty Nair
Respondent Advocate S. Narayanan Potti, Advs.
Cases ReferredKrishna Ballabh Sahay v. Commission of Enquiry
constitution - disciplinary action - article 166 (2) of constitution of india, section 3 of commissions of inquiry act, 1952 and rule 12 of government of kerala rules - petitioner finance minister of state - certain allegations made against petitioner on floor of assembly - incident led to constitution of commission of enquiry - petition to quash findings of commission - order constituting commission of enquiry not in accordance with law - no order drawn up and signed by governor - commission was mere device to drop petitioner from ministry - dominant object of ordering enquiry against petitioner was not to maintain purity and integrity of administration - findings of commission set aside and petition allowed. - - the one complained that the charges were vague that ext. p6.....1. after the general elections in march 1967, what was popularly known as the united front ministry took office in this state on 6-3-1967, headed by the 3rd respondent (sri e.m.s. namboodiripad) as the chief minister. the personnel of the ministry was drawn from seven different political parties, viz., the marxist-communists (c.p.i.m.), the communist party of india (rightists or right communists --c.p.i.), the revolutionary socialist party (r.s.p.), the muslim league, the samyuktha socialist party (s.s.p.), the karshaka thozhilali party (k.t.p.) and the kerala socialist party (k.s.p.). the chief minister belonged to the marxist communist group, and the petitioner, who was the finance minister, to the s.s.p. it is of some relevance to mention that the speaker of the assembly was a member.....

1. After the general elections in March 1967, what was popularly known as the United Front Ministry took office in this State on 6-3-1967, headed by the 3rd Respondent (Sri E.M.S. Namboodiripad) as the Chief Minister. The personnel of the Ministry was drawn from seven different political parties, viz., the Marxist-Communists (C.P.I.M.), the Communist Party of India (Rightists or Right Communists --C.P.I.), the Revolutionary Socialist Party (R.S.P.), the Muslim League, the Samyuktha Socialist Party (S.S.P.), the Karshaka Thozhilali Party (K.T.P.) and the Kerala Socialist Party (K.S.P.). The Chief Minister belonged to the Marxist Communist Group, and the petitioner, who was the Finance Minister, to the S.S.P. It is of some relevance to mention that the Speaker of the Assembly was a Member of the S.S.P., and that Sri. Willington, the Health Minister, belonged to the K.T.P. There was a Co-ordination Committee drawn from the ranks of all the coalition parties, and of which all the Ministers were members, to evolve the greatest common measure of agreement amongst the parties, and to serve, according to the petitioner, as a balance-wheel in running the administration. On 13-2-1969 two members of the Legislative Assembly Sri. Wilson of the S.S.P. and Sri. K.T. George of the Congress Party (not within the fold of the United Front), made certain allegations against the petitioner on the floor of the Assembly. This eventually led to the constitution of a Commission of Enquiry under the Commissions of Inquiry Act 1952, under Ext. P6 notification, and to the petitioner vacating office as the Finance Minister, pending clearance of his conduct at the enquiry. Ext. P6 notification was published in the Gazette as ordered in Ext. P5 of the same date. A retired Judge of this Court was appointed as the Commission of Enquiry to go into the allegations against the petitioner, and to submit his report on or before 30th September 1969. Two different applications were moved before the Commission by the petitioner. The one complained that the charges were vague that Ext. P6 notification was without jurisdiction.

The other was to restrain proceedings on the ground that the same would constitute a breach of privilege of the Assembly. Both these were rejected by the Commission by Exts. P9 and P10 orders. This writ petition was moved lo quash Exts. P5, P6, P9 and P10 on various grounds. ' At the admission stage, one of us (Eradi, J.), by an order dated 17-9-1969 found that there was no ground for interference with Exts. P9 and P10 orders, and overruled the petitioner's objections, (1) as to the Government's jurisdiction to issue Ext. P6 notification, (2) as to the authority of the 'Special' Secretary who had purported to authenticate Exts. P5 and P6 to exercise such power under Article 166(2) of the Constitution, and (3) as to the correctness of the action taken by the 3rd Respondent in passing Ext. P6 order, without consulting, and placing the matter before, the Council of Ministers. The orders Exts. P9 and P10, passed by the Commission of Enquiry (2nd Respondent) were hence found to be not open to challenge. On the ground of mala fides, which had been raised in the writ petition, it was felt that investigation was necessary and called for, and therefore notice was issued to Respondents 1 to 3. Against this order of the learned Judge, Writ Appeal No. 893/1969 was filed by the petitioner and was dismissed in limine as incompetent and not maintainable. It was held that the writ petition was still pending, and the rejection by the learned Judge of some of the grounds urged in support of the really main relief to quash Ext. P6 notification, was, at best, only a finding regarding those grounds, and not a 'judgment' or 'order' within the meaning of Section 5 of the Kerala High Court Act, so as to attract a right of appeal conferred by that section. The writ petition was then ordered to be placed before a Division Bench and has come before us.

2. Counsel for the petitioner contended that the grounds of attack against Ext. P6 notification, even if they be common to the attack against Exts. P9 and P10 orders, and regarded as foreclosed by the order passed at the admission stage by one of us, are still at large. He further maintained that this writ petition having now been placed before a Division Bench, any expression of opinion --'findings', as they were characterised in W.A. No. 893/1969 --made by one of us, at the admission stage, regarding the tenability of some of the grounds would not bind this Division Bench. Assuming that all the matters covered by the writ petition are still res integra, Counsel for the petitioner fairly stated that the only point found against at the admission stage by one of us, which he could usefully press before us, was that Exts. P5 and P6, had not been properly and validly issued.

3. The case as to mala fides, broadly stated, was developed by the petitioner thus: That the petitioner had from time to time been seething with discontent and protest against the 3rd Respondent's Ministry, that is outbursts against the 3rd Respondent and his Ministry had caused resentment and annoyance to the 3rd Respondent and to his party, both of whom had come to regard him as a thorn by their side; and that the impugned action, ostensibly taken for the purpose of ordering an enquiry against him, was only a sinister device to weed him out of office. The 3rd Respondent was also accused of partiality and favouritism and even of double standards, in the course of action pursued against his other colleagues in the Ministry, against some of whom similar allegations had been voiced at or about the same time. It was also said that the 3rd Respondent had acted under political pressure from his party.

4. The 3rd Respondent has not appeared before us. A counter-affidavit was filed by him, but this, obviously, was on behalf of the 1st Respondent and in his capacity as the then Chief Minister of the State, although the superscription to the counter-affidavit is somewhat misleading. A counter-affidavit has also been filed on behalf of the 1st respondent by the Home Secretary of the State Government. The petitioner filed a lengthy rejoinder-affidavit on 18-11-1969, supported by nearly 25 exhibits, which has remained unanswered either by the 1st or by the 3rd respondent. After the conclusion of the hearing on 24-12-1969, to which date the matter was posted only for the production of certain files and records, Counsel for the 1st respondent made a request that the 3rd respondent be granted sometime to enter appearance and to put in his defence. He made it clear that he had no locus standi to represent the 3rd respondent. As the hearing of the case had started on 8-12-1969 and continued from day-to-day till 12-12-1969, when the hearing was concluded, and the matter was posted successively to 19-12-1969 and 24-12-1969 to enable Counsel for the 1st respondent to produce certain records, and as the 3rd respondent had sufficient time, if so minded, to appear before us, we declined the request of counsel for the 1st respondent and closed the case on 24-12-1969.

5. That the exercise of a statutory power for an unauthorised purpose, or even professedly for an authorised purpose, but in fact for a different one with an ulterior object, would vitiate the exercise of power, is clear and well settled. The proposition as such was not disputed, and could not be disputed. In Earl Fitz-William's Wentworth Estates Co. Ltd., v. Minister of Town and Country Planning, (1951) 2 KB 284 Lord Denning observed:

'So also the validity of Government action often depends on the purpose with which it is done. There, too, the same principle applies. If Parliament grants a power to a Government Department to be used for an authorised purpose, then the power is only validly exercised when it is used by the department genuinely for that purpose as its dominant purpose. If that purpose is not the main purpose, but is subordinated to some other purpose which is not authorised by law, then the Department exceeds its powers and the action is invalid. The department cannot escape from this re suit by saying that its motive is immaterial. Just as its real purpose is crucial, so also is its true motive, because they are one and the same thing: see Crofter Hand Woven Harris Tweed Co. v. Veitch, (1942) 1 All ER 142, per Lord Maugham and per Lord Wright.'

Reference was made to the observations of Lord Denning in the above case, and the same principle was stated by the Supreme Court in Pratap Singh v. State of Punjab, AIR 1964 SC 72. At p. 82 the Court observed:

'Sometimes Courts are confronted with cases where the purposes sought to be achieved are mixed, --some relevant and some alien to the purpose. The courts have, on occasions, resolved the difficulty by finding out the dominant purpose which impelled the action and where the power itself is conditioned by a purpose, have proceeded to invalidate the exercise of the power when any irrelevant purpose is proved to have entered the mind of the authority.

X X X X X X X (7) As we said earlier, the two grounds of ultra vires and mala fide are thus most often inextricably mixed. Treating it as a question of ultra vires, the question is what is the nature of the power which has been granted to achieve a definite object in which case, it would be conditioned by the purpose for which it is vested. Taking the present case of the power vested in Government to pass the impugned orders, it could not be doubted that it is vested in Government for accomplishing a defined public purpose viz. to ensure probity and purity in the public service by enabling disciplinary penal action against the members of the service suspected to be guilty of misconduct. The nature of the power thus discloses its purpose. In that context the use of that power for achieviing an alien purpose --wreaking the minister's vengeance on the officer would be mala fide and a colourable exercise of that power, and would therefore be struck down by the Courts.' Again in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 it was observed:

'Although this Court has already stated that allegations of bad faith can be considered, it may be added that where statutory powers are conferred to take drastic action against the life and liberty of a citizen, those who exercise it may not depart from the purpose. Vast powers in the public interest are granted but under strict conditions. If a person, under colour of exercising the statutory power, acts from some improper or ulterior motive, he acts in bad faith. The action of the authority is capable of being viewed in two ways. Where power is misused but there is good faith the act is only ultra vires but where the misuse of power is in bad faith there is added to the ultra vires character of act, another vitiating circustance. Courts have always acted to restrain a misuse of statutory power and the more readily when improper motives underlie it. The misuse may arise from a breach of the law conferring the power or from an abuse of the power in bad faith.' In the light of the above principles, let us examine the case of mala fides put forward by the petitioner.

6. The purpose and the object of ordering an enquiry under the Commissions of Inquiry Act, 1952, is to preserve the purity and integrity of public administration. Section 3 of the Act in so far as it effectuates this purpose, reads:--

'3. (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 the House of the People, or as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Enquiry 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.'

The scope of the similar section in the State of Jammu and Kashmir Act fell to be considered in Bhakshi Gulam Mohammed's case, AIR 1967 SC 122. It was ruled that the extent and nature of the assets possessed by the former Prime Minister of the Kashmir State and others and the question whether they had obtained such assets by abusing official positions or by exploitation by others with their consent, are definite matters of public importance, in respect of which an enquiry can be ordered under the Act, no less so, because on the date of ordering enquiry the persons sought to be proceeded against had ceased to hold a public office. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 was a case where, on analysis, the court held that the dominant purpose of setting up the Commission of Enquiry was to promote the need for maintaining purity and integrity of the administration in the political life of the State and not the 'character assassination' of the Chief Minister and the Deputy Chief Minister. Of particular relevance to the scope and the purpose of taking action under the provision of the Act, appear the following observations of Hidayatullah, C.J. in Krishna Ballabh Sahay v. Commission of Enquiry, AIR 1969 SC 258.

'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.'

It is clear therefore that if the Government were of opinion that a definite matter of public importance had to be investigated, a commission of enquiry could be set up under the provisions of the Act. But what has been alleged for the petitioner is that his protests against the actions of the 3rd Respondent and the Ministry had so very much incensed the 3rd Respondent and his party busses, that they bided their time, and allowed these smouldering embers to be stirred into a blaze by the impugned proceedings, constituting a Commission of Inquiry. This was sought to be made out in two ways: (1) that the proceedings leading to Exts. P5 and P6 have not been taken in the strictly legal manner; and (2) that the dominant object was not the statutory purpose sanctioned by the Act, but to get rid of an inconvenient and troublesome colleague like the petitioner.

7. We may first scan the legality of the proceedings evidenced by Exts. P5 and P6. Under Section 3 of the Commissions of Inquiry Act, action has to be taken by the 'Government'. Articles 154 and 166 of the Constitution become relevant in this connection. Under Article 154 of the Constitution, the Executive power of the State is vested in the Governor and shall be exercised by him either directly or through his subordinates in accordance with the Constitution. Article 166 of the Constitution provides:

'166. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor, and

(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which' the Governor is by or under this Constitution required to act in his discretion.'

Under Rule 12 of the Rules of Business, framed under Clauses (2) and (3) of the above Article, every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant Secretary or by such other Officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order, or instrument It has been ruled that the provisions of Article 166(2) are only directory and not mandatory, and that even in the absence of proper authentication as contemplated therein, it is permissible to prove by evidence de hors, that the action in question had been taken in the name of the Governor. In the present case, Exts. P5 and P6 notifications purport to be signed by the Special Secretary to the Government, under the superscription: 'By Order of the Governor'. The contention of the petitioner's counsel, that a Special Secretary is not a Secretary to the Government and does not fit in with any of the labels specifically mentioned in Rule 12 of the Rules of Business, does not appeal to us. We are clear that by reason of his 'specialty' he does not lose his general brand as a Secretary to Government. Had the matter rested here, -- and the petitioner's complaint in the petition and argument went no further --we would have had no hesitation to sustain Exts. P5 and P6 as validly and properly authenticated. But the hearing disclosed a fundamental defect against Ext. P6 proceedings. We asked Counsel appearing for the 1st Respondent, to satisfy us by production of the files, that Ext. P6 order had been validly and properly issued. After the hearing closed on 12-12-1969, the matter was adjourned successively 1o 19-12-1969 and 24-12-1969 for production of the original of Ext. P6 and of certain other records, about which we shall, in due course, make mention. The original of Ext. P6 was not made available, and on 24-12-1969 Counsel for the 1st Respondent clearly and unequivocally stated to us that we may proceed on the basis that there was no original order signed by the Special Secretary to the Government, as Ext. P6 would purport to disclose. We are not inclined to blame the petitioner for not having made an impossible averment in his petition that the original of Ext. P6 had not in fact been signed by the Special Secretary, as it purports to be. On 24-12-1969, Counsel appearing for the 1st Respondent submitted, that although original of Ext. P6 had not in fact been signed by the Special Secretary, it had nevertheless been properly and validly issued by the Chief Minister within whose allotted sphere the matter stood, according to the Rules of Business framed under Article 166 (2) and (3) of the Constitution, and consistent with Article 154. We shall assume with counsel for the 1st Respondent that a Minister is an Officer 'subordinate to the Governor* within the meaning of Article 254(1) of the Constitution, and that he is empowered to duly authenticate orders and other instruments under Rules made under Article 166(2) thereof. (The matter was claimed to be in the Chief Minister's portfolio as the subject of 'anti-corruption' had been allotted to him under the business Rules, and also on the ground that 'subjects not mentioned elsewhere' had been allotted to the Chief Minister in pursuance of Rule 5 of the Rules of Business. By way of contrast we were referred to item 25 of the Second Schedule to the Rules by which only Reports of Enquiry had to be placed before Council of Ministers. The petitioner's Counsel would have it that under Rule 84 (2) (x) of the Rules., cases of such administrative importance as the Chief Minister might consider necessary, or as the Governor may wish to see, had to be submitted to the Governor; and under item 32 of Second Schedule all cases of administrative importance not already covered, are to be brought before the Council of Ministers). Even on the case of the 1st Respondent, the fact remains that the proceedings must be validly signed and authenticated by the Chief Minister. In the instant case. Counsel for the 1st Respondent was not able to produce the original of Ext. P6 which could be said to have been authenticated and signed by the Chief Minister by order of the Governor. All that he could produce from the files was the draft of a notification which eventually resulted in Ext. P6 having been drawn up without any one's signature, but only with some unidentified and undated initials. It does not purport to be 'By Order of the Governor.' At the top of the first page of the draft, and on its left-hand corner, we see an endorsement 'This order may issue.' The same has been initialled and dated by the 3rd Respondent on 5-6-1969. There are one or two other initials also in the margin of the first page of the said draft. We are clearly of the view that this cannot amount to a signature or authentication of the original of Ext. P6 notification by the Chief Minister. At best, it can only amount to an order of the Chief Minister, approving the draft put up before him and directing its issue. There is nothing to show that a notification or order, was accordingly drawn up or that it had been duly issued, signed and authenticated. The result is that we have to hold that there is no valid notification appointing the Commission of Enquiry. Ext, P5 which merely directs the publication of Ext. P6, is an inconsequential order which cannot stand apart from Ext. P6, and must stand or fall with it.

8. Assuming Ext. P6 to have been property issued and authenticated, we may next turn to certain features in regard to its contents. It sets out in paragraph (1) that the Commission was constituted to enquire into the allegations made on the floor of the Assembly on 13-2-1969 by Sri. P.P. Wilson, M.L.A., and Sri. K.T. George, M.L. A. and supported by letters of Sri. Wilson dated nil to Speaker, and dated 26-3-1969 to the Chief Minister. We should have expected the allegations made and the letters referred to --or at least the substance thereof --to be put down as an annexure or appendix to the notification, which in fact, had a place for an Appendix, to which we shall presently refer. But strangely enough, this was not done. Paragraph 2 directs an enquiry 'with particular reference to the points' stressed therein as (a) to (f). There is nothing to correlate the 'points' emphasized by paragraph 2 to the allocations made on the floor of the Assembly or to the letters, referred to in Paragraph 1. The petitioner did ask the 3rd Respondent on 10-6-1969 for a copy of Sri P.P. Wilson's letter dated 26-3-1969 referred (o in Ext. P6 (vide Ext. P31); but was not favoured either with any reply or with a copy of the said letter. It appeared again strange to us that neither side produced, or summoned production of, copies of the statements made on the floor of the Assembly by the two M.L. As. which were the foundation of Ext. P6 proceedings. Both sides were optimistic of getting copies of these proceedings, and in the hope and expectation that they would be made available, the matter was adjourned after conclusion of arguments on 12-12-1969 to 19-12-1969, and again to 24-12-1969. The copies of the statements made on the floor of the Assembly, or at least the substance thereof, were not made available even on that day The original of the letter dated 20-3-1909 by Mr. Wilson, to the Chief Minister was produced along with the liles and marked as Ext. R-2 on 24-12-1969. A true copy of the undated letter of Sri Wilson referred to in Ext. P6 was also produced that day, and marked as Ext. R. 1.

9. We have referred to the attempt made in paragraph 2 of Ex.1. P6 to highlight certain 'points' for the enquiry. As if that were not sufficient, the Commission has been supplied with 'certain facts' about one of the points by an Appendix to Ext. P6. We do not in the least expect a high-power Commission such as the 2nd Respondent to be deflected from its path, by the route sought to be mapped out for it by 'points' (b) to (f) in paragraph 2, and the bait offered to it with 'certain facts' in the Appendix to Ext. P6. But we cannot but condemn the extreme impropriety of presenting to a fact-finding hotly only 'certain facts', implying, if not admitting, that there were other facts to complete the picture, which the Government would, at that stage, choose not to disclose or prefer to ignore. It is not an improper inference that this was an attempt to lead the dice against the petitioner and to foul the mind of the Commission against him.

10. All these again, assume importance when combined with the ease of mala fides developed by the petitioner. The purpose for which the Commissions of Enquiry Act authorises action, is, that in the opinion of the Government, there is a 'definite matter of public importance', which calls for investigation. In the light of the principle siated by the Supreme Court in Krishna Ballabh Sahay's case, AIR 1969 SC 258 which we have extracted earlier, and on the allegations against the petitioner stated to have been made by two Members of the Legislative Assembly from the floor of the House and in two letters, it appears to us that it should have been easy enough to decide whether action for the purpose authorised by the statute was called for or not. But in the case of the petitioner, instead of invoking the provisions of the statute in a plain and straightforward manner we find that the 3rd Respondent actually adopted a somewhat devious course. Ext. P15 (b) is a _copy of the extract from the 'Deshabhimani' dated 10-2-1969 (the official organ of the Marxist Communist Parly) in which the 3rd Respondent, in answer to questions in the Assembly relating to the allegations made against the petitioner, is reported to have stated that, as staled (or directed) by the Speaker, (he records (documents), will be examined. (The statement or direction by the Speaker might have thrown some light as to how, and by whom, the records were to be examined, (Original in Malyalani omitted.) Proceedings of the Assembly on the relevant date, were not made available, although the case was adjourned to 19-12-1969 and 24-12-1969 for its production along with other-records). The third respondent further stated that the petitioner was then away from the country (he had gone to Mecca), and after awaiting his return, (he question of a prima facie case will be examined and steps decided upon. By this time, as will appear from Ext. P16 (a) dated 10-2-1969, an extract from the 'Mathrubhumi' --a vernacular paper with very wide circulation in this State --allegations had been made in the Assembly against Sri B. Willinglon, the Health Minister of bribery, corruption etc., and this had raised an uproar in the Assembly. Ext. P17 has been produced by the petitioner as a copy of the statement made by the third Respondent on the floor of the House on 24-3-1969 admitting that there were allegations against the Finance Minister (the petitioner), the Health Minister, and against the Minister for Forests. Ext. P16 dated 23-2-1969 is a copy of the resolution of the Co-ordination Commit fee approving the statement made in the Assembly on 79-2-1909 by the 3rd Respondent regarding the allegations against the petitioner. Ext. P30 is a copy of the letter of the Secretary of the State Council of the Communist Party of India (Rightists), and a Member of the Co-ordinal ion Committee, that the 3rd Respondent had sought the latter Committee's direction as to the answer to be given in the Assembly about allegations against the petitioner, and [hat he has been authorised to reply in terms as agreed to by all parties. It stated that it was the first lime That the 3rd Respondent sought the advice of the Co-ordination Committee on an answer to be given in the Assembly. Ext. P16 (b) is an extract from (he 'Malayala Najyam' dated 13th March 1969. According to this the 3rd Respondent is reported to have stated at New Delhi on 22-3-1969, that he had received certain 'documentary clarifications' (Original in Malayalam omitted) from the petitioner about the allegations made, and after meeting the petitioner, he would be examining the same. Ext. P22 is an extract from the 'Malayala Manorama* again another daily having vast circulation in this State --dated 11th April, 1969. The 3rd Respondent is reported to have stated at Trivandnim on the 10th April that the allegations made against the petitioner in the Assembly and the petitioner's explanations would be examined by him and a decision taken. (Factually, the reference in the statements attributed to the 3rd Respondent in these reports, about the clarifications, especially in writing, offered by the petitioner in regard to the allegations against him, seems to be incorrect. Our attention was not called to any explanations or clarifications in writing, or otherwise, made by the petitioner, before' 10-4-1909). Ex. P23 is again, an extract from tin: 'Malayala Manorama' dated 28th April 1969. The 3rd Respondent is reported to have stated at Trivandrum on the 27th April that even if a prima facie case is made out in respect of allegations against any Minister, if the Minister or his party still insisted on the former continuing in office, the question of sending out the Minister, and even the party itself from the United Front would have to be considered, and that the action to be taken will not be by the Chief Minister, but by each of the competent parties in the United Front. According to the report, the 3rd Respondent further stated that the mode of enquiry adopted by him was to be followed in regard to all Ministers, including those belonging to his party. A report of the 3rd Respondent's statement to the same effect is also contained in the 'Kerala Bhushanam' dated 30th April, 1969 (copy Ext. P24).

11. The petitioner's Counsel contended that the insistence on a prima facie case after examination of the records by the 3rd Respondent, in respect of allegations made against a Minister as the proclaimed policy of the 3rd Respondent (as disclosed by the above exhibits) was only a device to get rid of inconvenient 'Ministers and to retain the favoured ones. It is pointed out that, in particular, this was meant only as a shaft against the petitioner and for retaining in the saddle, the Health Minister Sri Willington, against whom also serious allegations of bribery and corruption had been made in the Assembly, and against whom eventually a resolution for enquiry into these allegations happened to be passed by the Assembly The striking contrast between the attitude adopted by the 3rd Respondent and his party towards the allegations against the petitioner, and towards these against some of the other . Ministers was pointed out. Thus, in regard to the petitioner, the Marxist Communist Party of the 3rd Respondent was firm that if a prima facie case was established, he should be sent out of the Ministry and steps taken against him, that the question of a prima facie case in regard to allegations made against the Ministers should be decided by the Chief Minister, that there could be no compromise on this matter, and that the party would not allow this matter to be raised in the meeting of the Co-ordination Committee to be held on 11th May 1969. (vide Ext. P25, extract from the 'Mathrubhumi' dated 9-5-1969). Ext. P-26 is a report in the 'Deshabhimani' dated 12-5-1969 of a Press Conference on the 11th May 1969 at Trivaudrum by Sri P. Sundarayya, the General Secretary of the Marxist Communist Party after attending the meeting of the State Committee of the Party which had been in session for the past four days. He is reported to have said that as a prima facie case had been established against the petitioner, on no reason was it proper that he should continue in office, and the proper thing for him was to resign. He further stated that in accordance with the authorisation of the Co-ordination Committee, the 3rd Respondent had conducted a preliminary enquiry and found a prima facie case. In answer to a question why the petitioner alone was singled out for enquiry, when there were allegations against other Ministers, Sri Sundarayya is reported to have replied . that clear allegations had been made in the Assembly and connected papers placed on the table of the House, only in the case of the petitioner. A specific question was put to him as to how justice can be expected by the other parties from a Chief Minister who acts according to the dictates of his own party. The reply was, if so, (the parties ?) could part company. A totally different stand is reflected, in the attitude of the same parly after the shaft had descended on the petitioner. This is sought to be established y Ext. P-33, an extract from the 'Kerala Kaumudi' dated 18-6-1969, containing the resolutions brought forward before the Coordination Committee by the Marxist Communist Party. These resolutions were, inter alia, to the effect that till the Bill pending before the Assembly for eradication of corruption was passed into law, no enquiry would be ordered against the Ministers in respect of allegations made against them, and that to find out a prima facie case, a judicially minded person may be approached after a two-third majority in the Assembly. To complete this picture as to a 'prima facie case, we may refer to Ext. P-19, which is an extract from the 'Kerala Bhushanam' dated 23-8-1968 --long before the action against the petitioner, containing statements made in the Assembly by the 3rd Respondent. He is reported to have said in answer to a question as to whether he had confidence in the Industries Minister (who was a Right Communist), that the Chief Minister's individual opinion was not what mattered in a coalition Ministry, that the question of removal of Ministers had to be decided by the parties, and the Chief Minister alone could not take a decision in this matter.

12. We are unable to fit any requirement of a prima facie case into the frame work of the provisions of Section 3 of the Commissions of Enquiry Act. Even if we are able to do so, we are unable to understand why a different standard of procedure seems to have been advocated openly after [he petitioner had been got rid of (See Ext. P-33). The stand taken by Counsel for the 1st Respondent before us has throughout been that the 3rd Respondent by himself was competent to take the action complained of, against the petitioner, and that he need not, and did not, consult his colleagues in the Cabinet, before the said action was taken. But it is the admitted case that the 3rd Respondent did consult the Co-ordination Committee --an unparalleled case of consultation, according to Ext. P-30, as to the answer to be given by him in the Assembly, regarding the action proposed to be taken against the petitioner on the allegations made by the 'two M.L. As. The petitioner's Counsel produced Exts. P-27 to P-29 which are copies of the letters to the petitioner from three of his erstwhile Cabinet Colleagues, belonging respectively to the P.S.P., the Right Communist Party, and the Muslim League. These letters are to the effect that the Cabinet had never been consulted on the action taken against the petitioner. Exts. P-30 (a) and P-30 (b) are extracts from two papers, of statements of two other Ministers, who also deny having been consulted in regard to the action. Ext. P-30 (c) is a copy of the letter from a Member of the Assembly and of the Co-ordination Committee to the petitioners, to the ellect that the Co-ordination Committee was never consulted in regard to the action taken against the petitioner. Then there is Ext. P-30 dated 14-10-1969, to one part of which we have already referred, which states that alter ratification of the statement made by the 3rd Respondent in the Assembly in answer to the question as to the steps to be taken against the petitioner, the matter never came up before the Co-ordination Committee. Ext. P-28 dated 19-10-1969 refers to the writer (one of the then Ministers) having been with the 3rd Respondent from 8-30 A.M. till 1 P.M. on the day Ext. P-6 was issued, and yet not being told anything about It, and receiving a copy of the order on reaching home. It further states that the Co-ordination Committee which was to meet the next day after the issue of the impugned order had no prior knowledge of the proposed action. This picture of complete darkness and ignorance betrayed by the Cabinet colleagues and the Co-ordination Committee in regard to this matter may be contrasted with the brisk activity and the position of command, adopted by the Marxist Communist Party, preceding the impugned action, (See Exts. P-25 and P-26) already referred to and the peremptory language of the party's resolution as reported therein). According to Ext. P-26, the General Secretary of the Marxist Communist Party proclaimed at 11.30 A. M. on 11-5-1969 at a Press Conference, what the State Committee of the Parly hull decided at its four-day session lasting upto that day. We cannot but view with a dismay the action of the General Secretary of the Party, blaring out at a Press Conference at It-30 A.M. on 11-5-1969, what was communicated by the 3rd Respondent as the Chief Minister, to his colleague, the Finance Minister, by Ext. P-2 marked 'Personal/Confidential', only the previous day, and which the Chief Minister according to Ext. P-28, would not even share with his colleague, closetted with him for over four hours the previous day. When coupled with the uncontroverted allegations of the petitioner in paragraphs 22 and 23 of the re-joinder affidavit to the effect that the 3rd Respondent's Party had already taken a decision to expel the petitioner from the Ministry and that the 3rd Respondent in Ext. P-2 communication merely registered the fiat of his political caucus, the matter assumes a different complexion. The sequence of events, and the uncontroverted averments, make the petitioner's case of mala fides, the more readily acceptable.

13. The above circumstances, viewed against the background of the further facts supplied by the petitioner, show that there was enough for the 3rd Respondent and the Marxist Communist Party to bear resentment against him. Our attention was called to a statement made by the petitioner in Kottayam on 12th September, 1967, as reported in the 'Indian Express' of the 13th, (Vide Ext, P-13) expressing great dissatisfaction over the working of the United Front Government. This had stirred up a hornet's nest of opposition in the Marxist Communist Party and evoked quite a flutter in the dovecotes of the Party B bosses. Ext. P-10 (a) is a press-report from the 'Kerala Dhwani' which reproduced the comments made by Sri A.K. Gopalan, a prominent leader of the Marxist Communist Party, and himself a Member of Parliament, regarding the petitioner's Kottayam statement. Ext. P-10 (a) would have it that Sri Gopalan fumed over the petitioner's statement, and when confronted with certain questions lapsed into silence. Thereafter, circles close to him are reported to have indicated that the day was not far off for the exit of the petitioner from the Ministry and that if the 3rd Respondent's attempt to send out the petitioner from the Ministry was being opposed by the S.S.P., that party itself, would be sent out. Following this, came the statement issued by the Marxist Communist Party, marked 'for publication, and communicated also to the S.S.P. State Committee to which the petitioner belonged.Ext. P-14 Is a copy of the said statement. It recalled the petitioner's efforts to disrupt the harmony and understanding between the parties both before and after the elections, and viewed his Kottayam statement as a continuation of that line of action. It recalled again, that even at the time of the petitioner's inclusion as a Minister, the Party had voiced its own opinion (reservation ?), in view of what was described as, the petitioner's 'past traditions' (original in Malyalum omitted) but had hoped that at least after the formation of the Ministry, the petitioner would turn a new leaf. It wound up by pointing out that the Kottayam statement was the latest example of the petitioner's action to shatter such expectation. Ex. P-11 is a copy of the letter from the Marxist Communist Party Secretariat to the Chairman of the S.S.P. stating . that the former Party viewed the petitioner's Kottayam statement and the dereliction involved therein as a grave one, and requesting avoidance o Such lapses in future.

14. The next incident related to a question in the Assembly directed to the petitioner as Finance Minister, but sent to, or taken over by, the Chief Minister, and answered by the Transport Minister. This provoked the petitioner's protests, and the counter-protests of the Marxist Communist Party. (Ext. P-14), Exts. P-15 and P-15 (a) have been produced in elucidation of this episode. According to the 'Deshabhimani's report (Ext. P-15) of the proceedings of the State Committee of the Marxist Communist Party, certain hidden things underlay the petitioner's protests against what he regarded as a trespass into his sphere of action.

15. The third incident to which our attention was drawn relates to the petitioner's statement on the reinstatement of Sri Anandan Pillai, the former Director of State Lotteries, (against whom disciplinary action seems to have been recommended after enquiry) as Special Officer of the Revenue Department. Ext. P-18 is an extract from the 'Hindu' dated 4-4-1969, which contains the petitioner's statement. The petitioner is reported to have said: 'The prestige of the whole Government is involved- It is an insult to the Government, and more especially to the Chief Minister, and to the Finance Minister'. According to Ext. P-18, the petitioner said that he would take up the matter Strongly at the next meeting of the Cabinet.

16. We are not prepared to dismiss these three, incidents as too trivial to afford a foundation for the plea of mala fides. Viewed in the light of the other circumstances, of party pressure, and infirmities in the action taken, we feel that they do make out the case of mala fides pleaded by the petitioner.

17. Counsel for the 1st Respondent took the objection in his arguments that several of the Exhibits produced by the petitioner are hearsay statements, and statements contained in newspapers, the accuracy of which cannot be vouched for, and which cannot be accepted as evidence of the facts stated. We are unable to agree. The production of these exhibits have been accompanied by supporting averments in the petitioner's rejoinder affidavit, and there has been no traversal of these averments from any of the Respondents that the press reports did not truly set out the matters contained in any of them.

18. To sum up the position: we find that the order constituting the Commission of Enquiry was not in accordance with law as there was no order drawn up and signed by order of the Governor, whether by the Secretary as required by Article 166(2) of the Constitution and the Rules of Business, or by the 3rd Respondent, --if he could do so --in accordance with Article 154. On this one ground, the proceedings (Exts. P-5 is only consequential to Ext. P-6) are liable to be quashed. Assuming that there was a valid and proper order constituting the Commission, we find that Ext. P-6 attempts to load the dice against the petitioner and to foul the mind of the Commission against him by presenting only 'certain facts' in regard to one aspect of the matter on which enquiry was directed, and by attempting to propel the commission along routes marked out for it by illumining 'points' with particular reference to which enquiry was directed. It is impossible for us to understand why the basic foundation of the allegations, namely, the statements made on the floor of the Assembly by the two M.L. As., and the relevant letters, were not appended to Ext. P-6. We find that the theory of a prima facie case has little, if not no relevance to the statutory object of appointing a Commission under the Commissions of Enquiry Act. On all the facts and circumstances, placed before us, to which we have fully referred earlier, we feel that this was a mere ruse to drop the petitioner from the Ministry, and that the dominant object of ordering enquiry against him was not to maintain the purity and integrity of administration. We cannot but be struck by a seemingly different attitude followed in the matter of Sri Willington the Health Minister, who also appears to have been facing similar allegations as the petitioner, at or about the same time. Nor can we help being struck by the sudden stiffening of the attitude against a prima facie case, and the insistence on a two-thirds majority in the assembly and a judicial mind for enquiry against a Minister, immediately after the arrow had shot its bolt against the petitioner. There is also enough to infer, as we have noticed already, that the 3rd Respondent was forestalled in his decision as. to a prima facie case by the Marxist Communist Party to which he belonged (See Ext. P-26), that he acted under the- dictates of the party, and merely registered its fiat in making the ineffective order of enquiry against the petitioner. The secrecy with which the action was taken, keeping the Cabinet Colleaguesand the Co-ordination Committee (the latter was to meet the next day after the action was taken) in darkness and ignorance, and, in contrast, the brisk activity and the dominating role displayed by the Marxist Communist Party at me time, (it was in session for four days on 11-5-69) and the dictatorial tone of its resolutions and statements of its leaders seems to us to afford sufficient proof to this effect. AR of which, clearly establish the case of mala fides pleaded by the petitioner.

19. We allow this petition and quash Exts. P-5 and P-6 orders. Respondents 1 and 3 will pay (he petitioner's costs --Advocate's fee Rs. 250/-.

20. Before we part with this case, we wish to advert to one serious matter. In the counter-affidavit filed by the Homo Secretary to the Government, on behalf of the 1st Respondent, in two places in paragraph 10, he has stated that Ext. P-6 notification was issued by the Governor and has been signed by the Special Secretary to the Government. In the face of the non-production of the original of Ext. P-6, notwithstanding more than one adjournment for the purpose, and the 'unequivocal statement made by Counsel for the 1st Respondent that there is no original of Ext. P-6 signed or issued by the Special Secretary to the Government, it appears that the statement made in the affidavit by the Home Secretary is false and that an offence under Section 193 of the I.P.C. has been committed. Notice will issue in the first instance to Sri S. Ananthaknshnan, I.A.S., the then Home Secretary to the Government, to show cause why it is not expedient in the interests of justice to file a criminal complaint against him for the said offence under Section 193 of the Indian Penal Code in respect of the averments made in paragraph 10 of his counter affidavit that Ext. P-6 notification was issued by Order of the Governor and signed by the Special Secretary to the Government. Let the notice be returnable in two weeks.

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