MOTAHAR HUSSAIN Vs. HARATOSH CHAKRABARTY

JUDGEMENT

(1.) THESE applications, under Article 226 of the Constitution, have been taken up for consideration together and are disposed of by a common judgment. The petitioner, D. Motahar Hussain, in the first petition, was the Minister of State, Home Department, Government of West Bengal, during the period from 31st January, 1975 to 30th April, 1977. The petitioner, in the second petition, was the Chief Minister of the Government of West Bengal during the period from 30th March, 1972 to 30th April, 1977. They both have challenged, in these two applications, notices issued under Sec. 8b of the Commissions of Inquiry Act, 1952 issued by the respondent no. 2, who is the Secretary of the Commission of Inquiry, respondent no. 1. As notices were in identical terms and based on identical grounds, it would be appropriate to set out the relevant portion of the impugned notices which read as follows : "whereas a complaint has been made before the Authority vide Copy of Statement/affidavit and documents mentioned below : and WHEREAS the authority is of the opinion that your reputation is likely to be prejudicially affected by the inquiry you are hereby called upon to file a Statement ( With three extra copies ) in the form of an affidavit ( duty payable under the Stamp Act exempted ) duty sworn before an Authority empowered to administer oath, along with such documents on which you may propose to rely and a list of witnesses whom you may like to be examined if and when called upon by the Authority to give oral testimony at any stage of the proceedings, within two weeks from the date of receipt of this notice to the office of the Authority.

(2.) ALONG with the notice, a copy of the statement on affidavit sworn by Sm Abha Chakraborty on 30th September, 1978 and copies of certain detention orders under MISA being the Maintenance of Internal Security Act, 1971 were annexed. These orders were issued by the District Magistrate, Malda. An identical affidavit and identical copies of orders were also served on the second, petitioner. On receipt of the said notices, the petitioners wrote letters to the respondent no. 1, the Inquiry Commission to inform the petitioners the grounds upon which the alleged opinion of the Authority had been formed, that the reputation of the petitioners were likely to be prejudicially affected by the enquiry upon which the show Cause notices had been issued. The petitioners were informed by subsequent letters that they were given two weeks time to file their statements on affidavits but no ground or opinion upon which such opinion had been formed by the Authority had been served on the petitioners. The petitioners thereupon moved these applications under Article 226 of the Constitution and thereafter I issued the rule nisi and granted certain interim orders.

(3.) THE respondents in these petitions are : Sri Haratosh Chakrabarty, Presiding Officer, Emergency Excesses Inquiry commission, West Bengal, respondent no. 1, Secretary, Emergency Excesses Inquiry Commission, West Bengal is the respondent no. 2, Secretary, Home Department, Government of West Bengal is the respondent no. 3 and Union of India is the respondent no. 4. The petitioners in this application challenge the notification dated 30th December, 1978 whereby the Commission of Inquiry consisting of Sri Haratosh Chakrabarty, as Presiding Officer was set up to enquire into certain offences. The said notification recited that. "whereas under clause (ii)of paragraph 3 of the Ministry of Home Affairs notification dated 28th May, 1977 the enquiry by the Commission of Inquiry commonly known as the Shah Commission of Inquiry appointed in exercise of the power conferred by Section 3 of the Commission of Inquiry Act, 1952 was to be in regard to such instances relating to paragraphs 2 (a) (i) to (v) of the said notification brought to its notice by the Central government or a State Government or a Union Territory for enquiry and whereas the Governor being of the opinion that it was necessary to appoint an authority, (a)to ascertain the fact and circumstances relating to specific instances of serious nature presenting important or unique features relatable to any of the terms of reference of the Shah Commission of Inquiry which should be brought to the notice of the said Commission ; (b)to generally inquire into all other Instances as are relatable to one or other of the terms of reference of the said Commission which the authority might deem fit to enquire into ; (c)to inquire into such complaints or allegations as might be referred to the authority or to the State Government by the Shah Commission, set up, on approval of the Central Government as required by section 11 read with clause (a) of the proviso to sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952, an Authority designated as "the Emergency excesses Inquiry Authority, West Bengal" consisting of Shri Haratosh Chakraborty, a member of the West Bengal Higher Judicial Service, with the following as the terms of reference ; (a) to ascertain the facts and circumstances relating to specific instances of serious nature presenting important or unique features relatable to any of the terms of reference of the shah Commission of Inquiry which should be brought to the notice of the said Commission (b) to generally inquire into all other instances as are relatable to one or other of the terms of reference of the Commission which the Authority may deem fit to inquire and (c) to enquire into such complaints or allegations as may be referred to the Authority or the State Government by the said Commission and the Authority was to :