Delhi High Court
Kiran Bedi And Ors. vs Delhi Administration And Ors. on 4 May, 1989
Equivalent citations: 38(1989)DLT270
JUDGMENT S.B. Wad, J.
(1) In this writ petition the petitioners have sought a mandamus to Delhi Administration to fill up the second vacancy (in the Committee of Inquiry) in accordance with Government of India notification No. F.10(9)/98, dated February 22, 1988. They have also sought direction to the Committee of Inquiry to change the venue of the proceedings to a place outside Delhi. In the stay application a blanket stay of further proceedings before the Committee of Inquiry (till the final disposal of the writ petition) is sought. We have heard this writ petition for five days. On 27th April 1989 when hri K.T.S. Tulsi, Senior Advocate for the petitioners concluded his arguments by way of reply to the arguments on behalf of the respondents, he wanted to move an application for amending the writ petition. Since the petition had come at a very late stage and since we had heard the counsel for the petitioners at length, we refused the permission. At the time of the arguments, counsel for the respondents pointed out to us certain deviations made by the counsel for the petitioners from the original writ petition, and the earlier orders of this Court; but considering the fact that at those stages the petitioners had appeared in person we over-ruled those objections and permitted advocate Mr. Tulsi to make all the legal submissions arising out of the facts stated in the Writ petition. Since the starting of the actual proceedings before the Committee on 30 March 1988 and till the filing of the present writ petition four more writ petitions were filed, three in the Supreme Court and one in this Court, apart from the present writ petition. It is, therefore, pertinent to know the last order of the Committee, for appreciating the prayer for/stay of proceedings.
(2) On 14th March 1989, the Committee while rejecting the pleas of the petitioners that a Committee cannot function in the absence of a second judge and that the venue should be shifted outside Delhi reiterated the position that it could continue its proceedings by virtue of Section 8A of the Commission of Inquiry Act. The petitioners Police Officers were then directed to be present before the Committee on 27th March 1989 for recording the statements. The writ petition was filed on 28th March 1989 and no stay was granted by this Court. The Committee heard the matter on April 3, 1989. On Mrs. Kiran Bedi's refusal to take witness stand and to take oath of affirmation, notice was directed to be issued to her to show cause as to why a complaint be not filed against her for an offence committed under Section 178 of the Indian Penal Code. The Committee thereafter adjourned the hearing from time to time as the writ petition was being beard before us.
(3) As regards the first plea of appointment of a second judge for filling the vacancy, counsel for the petitioners argued that although the Committee was appointed in exercise of the executive power, the petitioners have a right and Delhi Administration has a duty to appoint the the second judge, particularly in view of the notifications of Delhi Administration dated 23rd February 1988 and 27th February 1989. The counsel submits that in the first notification dated 23rd February 1988 is was clearly propounded by the Delhi Administration that there shall be a Committee of two judges. He submits that the names of two judges were mentioned in the same notification. The notification was issued in consultation with the Chief Justice of the Delhi High Court. The notification was also Gazetted. The counsel further submits that in the notification dated February 27, 1989, the second para of the notification reads : "IT is also proposed to fill the vacancy caused in the Committee by the resignation of Justice N.N. Goswamy. A separate notification will issue in this regard."
In support of this submission that an executive order can be a basis for a writ of mandamus the counsel has cited some decisions. He has also relied upon the decision of the Supreme Court in United Commercial Bank Limited v Their Workmen, 1971 S.C.R. 380. Relying on the same decision the counsel submits that the Delhi Administration was bound to fill the vacancy by appointing a second judge and in the absence of the second judge, the Committee consisting of a single judge cannot act as a lawful Committee.
(4) While replying to counsel for the respondent, the counsel for the petitioners modified his original submission and urged that the word 'may' in Section 3(3) of the Act should be interpreted as 'shall', creating an obligation on the Administration to fill. the second vacancy. On this interpretation Section 8-A of the Act will not entitle a single judge to act as a Committee if the vacancy is a permanent vacancy and is not merely a temporary absence. According to the counsel, although the Committee was not originally appointed under Section 3 of the Act, by virtue of the subsequent notification under Section 11 of the Act the Committee was deemed to be a Commission under Section 2 of the Act, Thus according to the counsel the duty of the Administration to appoint the second judge is a statutory duty under Section 3(3) of the Act and Committee proceedings by a single judge were incompetent and void.
(5) On behalf of the Delhi Administration it is submitted that a proposal for appointment of a second judge was being processed at different levels and will take some time. It is also submitted that Delhi Administration had no legal obligation or compulsions to appoint another judge on the Committee. By virtue of Section 8-A, a single judge can legally act as a Committee as the section provides for continuation of the proceedings in the event of absence on any member or any vacancy having been created. The counsel for the respondent lawyers submitted that only if the Commission is constituted under Section 3 of the Commissions of Inquiry Act. there might ensue an obligation to fill in the vacancy under Section 3(3) of the Act. But in its absence a single judge can validly act as a Committee and continue the proceedings. He also submitted that since the resignation of Justice Goswamy in August 1988, the proceedings had been held by Justice D.P. Wadhwa as the Committee and various orders have been passed from time to time. These proceedings and orders are valid by virtue of Section 8A of the Act. As regards the decision of the Supreme Court in United Commercial Banck, the counsel submits that the Court in that case was concerned with statutory powers under the Industrial Disputes Act and Rules. The submission is that the Tribunal under the Industrial. Disputes Act was a quasi-judicial body, which the Committee of Inquiry in the present case was not.
(6) For proper appreciation of these submissions it may be useful to note the provisions of Sections 3 and Section 8A of the Commissions of Inquiry Act. They read:
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 specifier in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly: Provided that where any such Commission has been appointed to inquire into any matter-
(A)by the Central Government no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning :
(B)by the state Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States.
(2)The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof.
(3)The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member).
(4)The appropriate Government shall cause to be laid before the House of the People or, as the case may be, the Legislative Assembly of the State, the report if any, of the Commission on the inquiry made by the Commission under sub-section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government.
8A.Inquiry not to be interrupted by reason of vacancy or change in the constitution of the Commission.-
(1)Where the Commission consists of two or more members it may act notwithstanding the absence of the Chairman or any other member, or any vacancy among its members.
(2)Where during the course of an inquiry before a Commission, a change has taken place in the constitution of the Commission by reason of any vacancy having been filled or by any other reason, it shall not be necessary for the Commission to commence the inquiry afresh and the Inquiry may be continued from the stage at which the change took place.
(7) On the reading of Section (2) it is clear that the Act does not lay down the minimum number or presence of any member obligatory. The sub-section only suggests that a Commission may consist of one or more members. Since the Section does not lay down that there shall be a minimum of two members, the concept of joint responsibility and decision cannot be read in Section 3(2) of the Act. Sub-section (3) read with Sub-Section (2) makes it clear that the Appropriate Government may fill any vacancy which may have arisen. The word 'may' in the Act occurring in Section 3 cannot be read as 'shall' because it will mean the re-writing of Sub-section (2 so as to read-'that a Commission shall consist of not less than two members'. Apart from this the word 'may' cannot be read as "shall' for the reason that there is no legal obligation on the Government to appoint a Commission of Inquiry at all. The opinion of the Government regarding the necessity of appointing a Commission is subjective opinion It does not create a legal obligation for the Government nor a legal right in a citizen. Therefore, no mandamus can be issued for directing the Government to appoint a Commission So also the Government cannot be directed to disband of not a Commission under Section 7 of the Act. The Government cannot also be compelled either to accept or not to accept the report. This being the scheme of the Act, no legally enforceable duty can be read in Sub-section (3) of Section 3 by construing the word may is shall Nor Section 8A can be construed to mean that the vacancy shall be filled in by the government and in the absence of the filling of such a vacancy, the proceedings would be void. The positive wording of Section 8A the contrary even to such a faint suggestion. Irrespective of a vacancy the Commission may act, and act legally. This is made clear by the non-obstante clause viz. "notwithstanding the absence............". Section 8A(1) and (3) are not meant for the temporary absence such as short term leave as suggested by the counsel for the petitioner. The language is consistent with Section 3 of the Act where the Act does not oblige the Government to appoint two members as the minimum strength of a Commission. It may also be noted that an inquiry by the Committee in this case is not quasi judicial in nature, (8) The decision of the Supreme Court in United Commercial Bank (supra) is of no help to the petitioners. In that case a Tribunal was established under Sections 7 and 8 of the Industrial Disputes Act consisting of three members. One of them went away as he was assigned some other work. Two of them continued to work and rendered awards. After about three months, the third member returned and joined the Commission again. The Supreme Court held that the awards rendered by the two members and thereafter by the members were without jurisdiction as the Tribunals were not legally constituted under Sections 7 and 8 of the Act. Reading Sections 7, 8, 15 and 16 the majority of the Supreme Court held that the functions of the Tribunal were quasi judicial functions which enjoins joint responsibility. As there was no notification regarding absence of a member and no notification constituting the remaining two members as the Tribunal was published, it was not a legally constituted Tribunal when the awards were given. The position is clearly distinguishable, as admittedly, in the present case the Committee is not a quasi judicial body. Therefore, the principle of joint responsibility and collective work cannot be read in the present Committee. The position of the present Committee in law is similar to the establishment of a Conciliation Board and a Court of Inquiry appointed under Sections 5 & 6 of the Indl. Disputes Act. Section 5(2) prescribes the minimum number, i.e. three including the Chairman in the Board of Conciliation, where Section 6(2) speaks of two or more members of the Court of Inquiry. Provisos to Section 5(4) and Section (6) make it clear that the Board or the Court shall not act until a new Chairman has been appointed the case of vacancy. The Board of Conciliation and the Court of Inquiry under the Industrial Disputes Act also did not perform a quasi Judicial function .Contrary to Section 8A of the Commission of Inquiry Act, there was a legal prohibition in the Industrial Disputes Act, mentioned above for the Commission to act without a Chairman. The decision in United Commercial Bank Ltd's. case is thus clearly distinguishable.
(9) Thus even if it is assumed that by virtue of notification under Section 11, the Committee is deemed to be a Commission under Section 3 of the Act, the submission of the petitioners is devoid of any merition the contrary, if the Commission is only a creature of executive discretion and not of a statutory obligaiion),the notifications in question being non-statutory, cannot over-ride Section 3 and Section 8A of the Act.
(10) The use of the words' 'proposed to fill the vacancy" in a notification dated 27th February 1989 is not a statutory expression of any decision of the Government that it shall fill the vacancy. The word "proposed" clearly shows that the Delhi Administration did not intend to communicate any firm or final decision in this regard. The mention of two judges in the initial notification or the consultation with the Chief Justice does not improve the position in favor of the petitioners. The Chief Justice of the High Court cannot obviously participate in the formation of the opinion regarding the necessity of the Committee of Inquiry. The Chief Justice also cannot be a party to decision to appoint two judges of the Committee of Inquiry. The reference to the Chief Justice was necessary only because without his consent (and also the consent of the respective judges) the Lt. Governor could not have legally assigned the non-judicial duties of Commission of Inquiry. The mention of the two judges by name does not take away the power of Delhi Administration under the Act either to change the judges or to appoint or not to appoint a judge by filling the vacancy.
(11) Neither the petitioners have a right of having two judges Committee nor the respondents have any right to have only one judge on the Committee. There is no legal obligation for Delhi Administration to fill the vacancy (or not to fill the vacancy) at the instance of the parties. No mandamus therefore, can be directed against the Delhi Administration to appoint a second judge to fill the vacancy caused by the resignation of Justice N.N. Goswamy.
(12) The second submission of the petitioners is to Shift the venue outside Delhi. The reason is the alleged harassment of Shri P.P. Grover, Advocate. The counsel for the petitioners submits that the petitioners would not be able to exercise their right to be represented by a counsel although their right to reputation is in danger. Rights under Articles 14 and 21 of the Constitution it is submitted, are thus, directly threatened.
(13) Since Shri Tulsi' Advocate, is now representing the petitioners, the main apprehension of the petitioners would not arise. The counsel for the lawyers Sbri Venugopal has assured has Supreme Court and this Court that there would be no obstruction or difficulty created by lawyers for the petitioners, counsel in representing the petitioners. We. therefore, need not go into the history of alleged harassment of Shri P.P. Grover, Advocate.
(14) However, there are other difficulties in the change of venue out side Delhi. The Lt. Governor's executive power docs not extend beyond the territorial limits of Delhi. He is also not competent to direct a sitting judge of this Court to go to some place outside Delhi and hold the Committee sessions there. So is the case with lawyers and other witnesses. This Court, even otherwise cannot issue mandamus to shift the venue outside Delhi. So far as venue in Delhi is concerned, it is the statutory power of the Committee under Section 8 to do so.
(15) We do not think that rights under Articles 14 and 21 of the Constitution are even remotely threatened by the present place or venue Neither petitioners nor lawyers can demand a venue of their choice on the ground of Articles 14 and 21. This is clearly impermissible in law. The venue cannot be shifted outside Delhi or even inside Delhi, by a writ of mandamus at the instance of the parties.
(16) In regard to the proper, peaceful and orderly conduct of the proceedings, the Committee has all the powers to ensure the same. With the appearance of experienced and suave counsel on both sides-Shri Tulsi and Shri Venugopal, we have no doubt that there will be no scope for apprehension for any party on this count. Depending on the ex-agencies of the situation, the Committee may regulate the .number of persons to be admitted in the Court room where proceedings are held. The Committee may also consider, on a proper motion, the submission of Shri Tuisi, Advocate, to shift the venue to some other place in Delhi itself, if need be. So far, the only plea made before the Committee was to order its sittings outside Delhi Of course, the Committee has no such competence and the plea was rightly rejected. Even the Supreme Court is quite slow in directing transfer of criminal cases under Section 406 Cr.P.C. In Maneka Gandhi v. Rani Jethmalani (A.l.R. 1979 S.C. 468), where there was serious allegation of disturbance of court proceedings (para 6) the Supreme Court refused transfer of proceedings but made only cautionary observations, for the guidance of the magistrate and for orderly conduct of proceedings in the Court. We commend them to the Committee.
(17) We may now deal with another submission of Shri Tuisi, Advocate, regarding validity of the proceedings Committee between the date' when Shri P.P. Grover, Advocate stopped appearing and the date when Shri Tuisi had entered appearance on behalf of the petitioners. According to the counsel, the petitioners were denied the statutory right under Section 8(c) of being represented (where their reputation was threatened) by the lawyers, during this period. This plea is not made in the writ petition but was submitted orally at the time of arguments. Since the necessary facts were already on record, we did not object to the raising of it.
(18) We find no merit in the submission. No lawyer, on behalf of the petitioners' was prevented from appearance by the Committee. As a matter of fact a number of opportunities were given and even the proceedings were adjourned from time to time. for this purpose. We do not know why Shri G. Ramaswamy, Advocate, who was appearing for the petitioners and Delhi Administration initially could not appear before the Committee after sometime. He was appearing for the petitioners in the Supreme Court. So also, Shri V. Shankar Dass, who appeared for the petitioners for some hearings could have continued appearing. The Delhi Administration has a big panel of Advocates in High Court. They could have directed anyone of of them to appear for the petitioners, who are their own officers. If the petitioners would have sought the legal aid (since their right to reputation was threatened) in the peculiar facts of the case, the Administration would have been bound under Article 39-A to do so. In these circumstances the Committee proceedings cannot be faulted. We have already held that by virtue of Section 8-A, the proceedings of the Committee held by the learned Single Judge were valid and proper.
(19) The parameters and the scope of Inquiry under the Commissions of Inquiry Act leave little room for the parties to get over-agitated. The findings of the Commission do not propria vigore punish anyone or impose any penalty having judicial consequence for a person. The Govero ment which establishes a Commission is completely at liberty either to accept or not to accept the recommendations. Although the Commissions have powers of a Civil Court to record the evidence, the evidence so recorded. cannot be used against the person in any civil or criminal proceedings Where the Commission consists of a Judge of a Superior Court in India, it is implicit that his training and expertise in fair trial in judicial proceedings would inform and permeate the proceedings before the Commission. The Commission is bound by statute as well as by notification to order ' its report within a time frame although the hearing can be extended by short extensions. The enactment makes a judge constituting a Commission the mister of his own procedure. To make him more effective powers of civil court are conferred on him. Can a witness be permitted unilaterally, to deviate from that procedure? For example, if the witnesses appearing before the Commission refuse to take oath on the plea that they will speak the truth even without oath, would it not be contrary to the provisions of the Act? Nay, it would be contrary to the very concept of judicial trial in any civilised society. Lawyers and police officers need not be reminded that the submission to legal process is in their own interest and also in the interest of the Society. There is something ennobling in surrender to the process of law as demonstrated by Lokmanya Tilak or Mahatma Gandhi before the Courts of an alien power, (20) Frequent interruptions by applications or judicial proceedings in High Court or Supreme Court has serious effect of eroding the said parameters. If the proceedings and orders passed each day by the Commission are to be challenged on the ground of the alleged violation of fair trial, principles of natural justice or right to reputation under Article 21, the proceedings will never terminate. It could also have an unwitting effect of substituting the discretion of the Judge constituting the Commission by the Judge hearing the petitions on the judicial side. Expeditious disposal of Inquiry by the Commisson is a legislative mandate and is in the public interest and in consonance with public policy. Public memory is short and, therefore, the life of the Commission should not be long.
(21) During the last one year's tenure of the Committee, the proceedings have got delayed by two petitions in the High Court and three petitions in the Supreme Court. Frequent protests and strikes by lawyers too indirectly cause delays. Expeditious finishing of the Inquiry is both in the interest of police officers and lawyers. Earlier they clear the cloud on their reputation the better.
(22) The writ petition is dismissed in liming. There shall be no order as to costs.