RAMASWAMI, J.: - (1.) THE following Judgment of the court was delivered by
(2.) THESE appeals were heard on April 15 and April 16, 1968 and at the close of the hearing we ordered that the appeals should be dismissed with costs and indicated that our reasons would be pronounced later. Accordingly our present judgment gives our reasons for the order which has already been passed. These appeals are brought against the common judgment of the orissa High court dated 22/02/1968 in O.J.C. Nos. 396, 408 and 418 of 1967. By these applications the petitioners therein prayed for an appropriate direction or order under Art. 226 of the Constitution for quashing and setting aside notification No. 813-EC dated 26/10/1967, issued by the government of orissa in exercise of the powers conferred on it by S. 3 of the Commissions of Enquiry Act (LX of 1952) and for other reliefs. The Schedule to the Notification gives the names of 15 persons against whom inquiry is to be made. The petitioners in the three O.J.C.s have respectively been referred to in Items 6, 2 and 12 of the Schedule. In O.J.C. 418, Shri Harekrishna Mahtab, Shri Nabakrushna Choudhury, Shri Pabitra Mohan Pradhan, Shri Santanu Kumar Das and Shri Surendranath Patnaik were originally impleaded as opposite parties Nos. 5 to 9. Shri Biju Patnaik filed an application in this case to be impleaded as an opposite party. As the other parties had no objection he was also impleaded as opposite party No. 10. Rules were issued and except opposite parties Nos. 3 and 6 the other opposite parties showed cause. By its judgment dated 22/02/1968 the High court dismissed the applications, holding that the notification of the State government dated 26/10/1967 appointing the Commission of inquiry was legal and valid. Against this judgment the petitioners in all the three O.J.C.s have preferred the present appeals by certificate of the orissa High court. Shri Harekrushna Mahtab was the. Chief Minister of orissa from 1947 to 1949. Shri Nabakrushna Choudhury was the Chief Minister from 1950 to 1956. In the 1957 General Election to the orissa Legislative Assembly (hereinafter referred to as the 'Assembly'), out of 140 seats the Congress Party got only 56 seats. Sri Harekrushna Mahtab formed the Ministry with the support of other members but he had to resign in 1959 due to withdrawal of support by some of the groups in the Assembly. In May, 1959, he formed a coalition ministry with the help of Ganatantra Parishad of which Sri R. N. Singh Deo was the leader. Sri Singh Deo became the Finance Minister and the Deputy Leader in the Coalition government. During the coalition Minis-' try there developed acute difference of opinion in the orissa Congress Legislative party over the conduct and programme of the coalition Ministry. The Congress Legislative party was divided into two groups, one under the leadership of Sri Harekrushna Mahtab and the other under the leadership of Sri Biju Patnaik. Sri Harekrushna Mahtab had to resign in February, 1961 as he lost the support of the majority of the Congress Legislative party. The Assembly was dissolved and there was President's rule for sometime. During the President's rule, a mid-term election was held in May, 1961. The Congress Party succeeded in capturing 80 seats out of 140 under the leadership of Sri Biju Patnaik. At that time the Ganatantra Parishad had joined the Swatantra Party of India. The dissident group of members under the leadership of Sri Harekrushna Mahtab defected from the Congress Party and formed a separate 'political party under the name of `Jana Congress`. The case of the appellants is that from 1961 till the end of 1966 this group had its secret alliance with the Swatantra Party and went on creating obstruction from within to the smooth administration by the Congress Party which had a superior numerical strength. Sri Biju Patnaik was-the Chief Minister, Shri Biren Mitra was the Deputy Chief Minister. There was a firm called `orissa Agents` in the name of Mrs. Mitra which made supplies to some of the departments of the orissa government. A campaign was carried on by Sri Mahtab and Sri Pabitra Mohan Pradhan attacking the honesty of Sri Biren Mitra. There was a debate in the Assembly in which a direct attack was made on the honesty and integrity of Sri Mitra and there was a demand for appointment of a Commission of Inquiry. The government of orissa did not agree to the appointment of a Commission of Inquiry but Sri Biju Patnaik referred the matter to Sri Singh Deo, leader of the Opposition and Chairman of the Public Accounts Committee. Sri Sineh Deo initially accepted the responsibility, but later on expressed his unwillingness. The Orrisa government had a special audit of the allegations and sent the report to the Public Accounts Committee in the year 1964. While the matter was pending with the Public Accounts Committee, Sri Biju Patnaik resigned the Chief Minister-ship of orissa on 1/10/1963. He, however, continued to be the chairman of the State Planning Board till 29/01/1965 When Sri Biren Mitra was the Chief Minister. Sri Mitra dropped out Sri Pabitra Mohan Pradhan from the cabinet. During the tenure of the office of Sri Mitra as the Chief Minister of orissa, some members of the Opposition in the Assembly, which included all the members of the Swatantra Party, filed a memorandum before the President of India alleging misappropriation, misconduct and fraud against Sri Patnaik, Sri Mitra and certain, other Ministers and requested the President of India to appoint a Commission of Inquiry to inquire into these allegations. The. President referred the Memorandum to his council of Ministers. It is said the central government did not favour the appointment of a Commission of Inquiry but decided to have the allegations enquired into by the central Bureau of Intelligence (hereinafter referred to as the C.B.I.). After receiving the preliminary report of the C.B.I. the central government rejected the demand for appointment of a Commission of Inquiry. A statement was made in Parliament that certain improprieties were committed but the examination did not reveal any misconduct, misappropriation or fraud or abuse of power for personal gain. As a result of the statement in the Parliament Sri Biren Mitra who was then the Chief Minister submitted his resignation and Sri Sadasiv Tripathy was elected as the leader of the Congress Legislative Party and carried on administration as the Chief Minister of orissa till the last General Election. Soon after the formation of the present Ministry, the governor of the State announced in his address to the Legislature the decision to set up a Commission of Inquiry to enquire into the charges of corruption and improprieties alleged to have been committed by the Ministers who were in office from 1961 to 1967. The present Commission was appointed in pursuance of the policy laid down in the address of the governor. The main ground of attack on behalf of the appellants was that the notification was illegal because the government exercised the statutory power mala fide and for collateral purpose and that the object of appointing the Commission of Inquiry was to get rid of Sri Biju Patnaik and Sri Biren Mitra and to drive them out of the political life of orissa. The High court held that the allegation of the appellants was not made out and upheld the legal validity of the notification dated 26/10/1967 issued by the Orrisa government.
(3.) SUB-s. (1) of s. 3 of the Commissions of Inquiry Act, 1952 (No. LX of 1952), hereinafter referred to as the 'Ace, provides as follows : `3. Appointment of Commission--(1) the appropriate government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by 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 Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly Section 4 vests in the Commission the powers of a civil court while trying a suit under the Code of Civil Procedure and reads as follows : `4. Powers of Commission.-The Commission shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908). in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed.` Section 5 empowers the appropriate government, by a notification in the Official Gazette, to confer on the Commission additional powers as provided 'in all or any of the sub-ss. (2), (3), (4) and (5) of that section. Section 6 states : `6. Statements made by persons to the Commission.--No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement : Provided that the statement(a) is made in reply to a question which he is required by the Commission to answer, or (b) is relevant to the subject matter of the inquiry.` By s. 8 the Commission is empowered to regulate its own procedure including the time and place of its sittings and may act notwithstanding the temporary absence of any member or the existence of any vacancy among its members. The notification of the orissa government dated 26/10/1967 is to the following effect: `HOME DEPARTMENT NOTIFICATION The 26/10/1967. No. 813--E.C.--WHEREAS pursuant to the midterm general election of the State Legislative Assembly in 1961, councils of Ministers headed by shri Biju Patnaik, Shri Biren Mitra and Shri Sadasiva Tripathy were formed in the State during different times during the period from the 23/06/1961 till the 8/03/1967 and Shri Biju Patnaik, after laying down his office as Chief Minister, declared himself to be the Chairman, Planning Board and continued to function as Chairman, Planning Board during the period from the 4/10/1963 to the 29/01/1965, during the Chief Ministership of Shri Biren Mitra; AND WHEREAS during the tenure of office of the aforesaid persons as Chief Ministers there were various allegations against the conduct of the aforesaid persons and some of the Ministers and Deputy Ministers of the State of orissa, as specified in the Schedule hereto, by politicians, the general public and others, and the allegations apart frombeing put forward from public platforms by private persons and otherwise, have been the subjectmatter of active agitation all through in the State Legislature and in the Parliament and some of such allegations were of such a nature that an enquiry was conducted thereon by the central Bureau of Investigation and the central Cabinet also held deliberations over the same; AND WHEREAS on an active and careful consideration of all such allegations by the government of orissa, it appears to them:THAT DURING THE AFORESAID PERIOD, i.e., FROM THE 23/06/1961 TO THE 8/03/1967, THE SAID PERSON AS NAMED IN THE SCHEDULE: (1) committed various acts of misconduct, misappropriation, fraud, negligence, favouritism, nepotism, illegalities, irregularities, improprieties and abuse of their power in the matters of administration of the State (2) abused their official positions for securing pecuniary and other benefits for themselves, members of their families, their relations, their friends, their party-men (Congressmen) and others in whom they were interested, from out of the funds of the State exchequer and otherwise to the detriment of the interests of% the State; (3) committed breach of trust and acts of impropriety with respect to the properties and assets of the State with a view to further the interests of their Organisation, i.e., the Congress; (4) entered into contracts and other monetary transactions for the supply of machinery, tools, equipments and execution of Works, themselves, or permitted their family members, relations, friends, partymen and others to enter into such contracts and transactions with the government of orissa, with different Departments of the government of orissa, with Corporations, Local Bodies, Statutory Bodies and with other Bodies with which government of orissa have or had interest, control or concern in utter disregard of the interests of the State in breach of the trust imposed on them by virtue of their Constitutional positions; (5) resorted to misuse of power, interfered in the processes of elections and administration of Local Bodies not only to help their friends, favourites and partymen but also at times for their own personal benefits; (6) acquired directly properties of the State either for themselves or for the benefit of the members of their families or relations or others in whom they were interested; (7) advanced money and loans by way of favouritism out of the State exchequer in favour of themselves, members of their families, their relations and other persons in whom they were interested; (8) permitted wastage, misuse, misutilisation and misappropriation of the funds of the State in several ways to the detriment of the interests of the State in utter disregard of the canons of financial propriety and established rules and procedure from which a presumption of personal gains for themselves or for persons as aforesaid directly or indirectly arises; (9) caused wastage, misuse, misutilisation, misappropriation, illegal or irregular use of the funds of the State through contracts or other monetary transactions entered into by the government without following the rules of law or the established procedure; (10) by way of favouritism and nepotism caused maladministration in matters of public services, namely, in the matter of appointments, transfers, promotions and dealing with corrupt officers; (11) interfered with the administration of law and tried to pervert the course of justice by helping offenders to escape law; (12) caused to the State government huge financial loss which has given rise to a great economic crisis, serious retardation in the progress of trade, industry and commerce, agricultural output, serious problems of unemployment and has also vitiated the moral and general character of the people; (13) acted in several cases against constitutional proprieties, public policies and proper social and political conduct; (14) amassed wealth themselves, through members of their family, relations and other persons or permitted the members of their family, relations and other persons to amass wealth and their assets during the before, said period have increased disproportionate to the known sources of their income, by abuse of their constitutional positions. Under such circumstances the people in general and the government have expressed a desire that the matters aforesaid regard ing the aforesaid persons should be enquired into through a Commission of Inquiry so that facts may be found which alone will facilitate rectification and prevention of recurrence of such lapses and securing the ends of justice and establishing a moral public order in future. Under such circumstances, the government of the State of orissa are of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making a full inquiry into the aforesaid matters which are of definite public importance. NOW, THEREFORE, the State government, in exercise of the powers conferred by section 3 of the Commission of Inquiries Act, 1952 (Act 60 of 1952), hereby appoint a Commission of Inquiry consisting of Shri Justice H. R. Khanna of the Delhi High court to inquire into and report on and in respect of WHETHER THE PERSONS MENTIONED IN THE SCHEDULE, DURING THE AFORESAID PERIOD: (1) committed various acts of malfeasance, misfeasance, misappropriation, fraud, negligence, favouritism, .nepotism, illegalities, irregularities, improprieties and abuse of their power in matters of administration of the State in different cases ? (2) abused their official positions for securing pecuniary and other benefits for themselves, the members of their families, their relations, their friends and their partymen (Congressmen) and others in whom they were interested, from out of the funds of the State exchequer and otherwise to the detriment of the interests of the State ? (3) committed breach of trust and acts of impropriety with respect to the properties and assets of the State with a view to further the interests of their party Organisation, i.e. the Congress ? (4) entered into contracts and other monetary transactions for the supply of machinery, stores, equipment and execution of works or permitted their family members, relations, friends and others in whom they were interested, with the government of orissa,. in utter disregard of the law, rules and administrative procedure relating thereto and in breach of the confidence reposed on them, by virtue of their constitutional position ? (5) resorted to misuse of power, interfered in the process of election and administration of local bodies not only to help their friends, favourites and partymen, but also at times for their own personal benefit ? (6) acquired directly properties of the State either for themselves or for the benefit of members of their families, relations or other persons in whom and organisations in which they were interested ? (7) advanced money and loans in favour of themselves, members of their families, their relations and other persons in whom they were interested, out of the State Exchequer ? (8) permitted wastage, misuse and expenditure in various ways to the detriment of the interests of the State without following the established rules of procedure from which the presumption of personal gains for themselves directly or indirectly would arise ? (9) by way of favouritism and nepotism have caused maladministration in matters of public services, namely, appointments, transfers, promotions and dealing with corrupt officers ? (10) interfered in the administration of law and tried to pervert the course of justice by helping offenders to escape law ? (11) by their aforesaid conduct have put the State, government to huge financial loss which has resulted in a financial crisis for the State? (12) by their aforesaid conduct have hampered the entire industrial development in the State? (13) by their aforesaid conduct have given rise to, serious problems of unemployment ? (14) by their aforesaid conduct have spread corruption in the government machinery and have polluted the general public morale in the State and have also, brought about a general demoralisation of the political, social, economic and moral aspects of the Society ? (15) by their aforesaid conduct have put the State to, financial loss which has developed into a great economic crisis and has resulted in rapid retardation of the progress of trade, industry and commerce, a deplorable fall in the agricultural output, spread of corruption in all wings of administration and a general breakdown in the morale and character of the people of the State ? The Commission of Inquiry may also perform such other functions as are necessary or incidental to the inquiry. The Commission shall inquire into the detailed particulars pertaining to the aforesaid matters along with such other incidental and ancillary matters thereto that shall be placed before them by the State government. The Commission shall inquire into the financial implications of the aforesaid matters. The Commission shall make its report to the State government on or before 30/04/1968. AND WHEREAS the State government are of opinion that having regard to the nature of the inquiry to be made and other circumstances of the case, all the provisions of subsections (2), subsection (3), Ss. (4), subsection (5) and Ss. (6) of section 5 of' the Commission of Inquiry Act, 1952 shall be made applicable to the said Commission, the State government hereby directs that all the said provisions shall apply to the said Commission. The Commission shall have its headquarters at Bhubaneswar and may also visit such places as may be necessary in furtherance of the inquiry. By order of the governor B. B. Rath Additional secretary to Govt. SCHEDULE From To JUDGEMENT_215_AIR(SC)_1969Html1.htm ;