Orissa High Court
Prafulla Chandra Ratho And Etc. Etc. vs State Of Orissa And Ors. on 4 September, 1986
Equivalent citations: AIR1988ORI18, AIR 1988 ORISSA 18
JUDGMENT P.C. Misra, J.
1. In all these writ applications, the petitioners have prayed for issuance of appropriate writ quashing the report dt./- 20-12-84 of the Commission of Inquiry and for quashing the adverse comments/findings against them in the said report with a further prayer to issue an injunction against opposite parties Nos. 1, 3 and 4 from taking any action on the basis of the said report of the Commission of Inquiry. All these petitioners except M/s. E. C. Bose & Co. Pvt. Ltd. (petitioner in O.J.C No. 1884/85) and Shri Bhikari Charan Swain (petitioner in O.J.C. No. 1701/85) are senior members in the Orissa Cadre of Indian Police Service. The petitioner M/s. E. C. Bose & Co. Pvt. Ltd. carries on business of stevedoring in various Ports of India including in Paradip. Petitioner No. 2 in the said case is the Director of the Company (petitioner No. 1) Petitioner Bhikari Charan Swain is a member of the Orissa Police Service and was posted as Subdivisional Police Officer at Paradip.
2. There was an incident on 19-3-84 at Paradip in which there was severe destructions caused by fire covering large areas of Paradip and there were several casualties. The State Government on receipt of information about the said incident decided to appoint an Inquiring Authority consisting of the then Additional Chief Secretary to the Government of Orissa to enquire into the law and order incident including arson and their aftermath by a notification published in the Extraordinary Orissa Gazette No. 537 dated 6th April, 1984. The notification is reproduced below for ready reference :
"Whereas the Government have received information that on the 19th March, 1984, a serious law and order situation developed at Paradeep arising out of the labour conflict and leading to instant death of four Policemen including the Officer-in-charge of Paradeep Police Station, casualty amongst labourers, grievous injuries to police personnel and public and aftermath of arson, in which a large number of human dwellings were gutted to fire;
Whereas noticeable concerned has been expressed about the occurrence of this incident in various quarters raising several issues of definite public importance;
The Government have, therefore, decided to appoint an Enquiring Authority consisting of the Additional Chief Secretary to the Government of Orissa to enquire into the aforesaid law and order incident including arson and their aftermath, the terms of reference being : --
(i) The circumstances leading to the incident which occurred at Paradeep in Cuttack District on the 19th March, 1984; causes and the nature of the incidents.
(ii) The role, conduct and responsibility of organisations, associations, unions, similar other bodies and individuals in connection with the aforesaid incidents.
(iii) Whether the measures taken prior to and during and subsequent to the incidents and the quantum of force used in handling the situation were justified/adequate or in excess of the requirements and the responsibility for inappropriate use of force and failure of administrative measures, if any.
The enquiry may also cover such other matters as are connected to the above incident and which may be relevant or incidental to the terms of reference indicated above.
The Enquiring Authority may determine and regulate its own procedure for enquiry including the fixing of place and times of its sittings, and allow sufficient opportunity to all concerned to participate in the enquiry and give evidence while taking care to ensure that the principles of natural justice and legal requirements, if any, are to be complied with.
Government desire that the enquiry may be started at an early date and the report submitted to the Government within four months from the date of publication of this Notification.
By order of the Governor R. N. Das Secretary to Government."
Later on by different notification the Inquiring Authority was conferred with certain specific powers under Sections 5(1) and 11 of the Commissions of Inquiry Act, 1952 (Act 60 of 1952) (hereinafter called the 'Act') by virtue of which the provisions of Sections 4, 5, 6, 8, 9, 10 and 10A of the Act were made applicable. The Inquiring Authority issued public notices in different newspapers inviting affidavits and documents relating to the subject-matter of inquiry and also requested some officers whom the Inquiring Authority felt to be concerned with the circumstances of the incident, to file affidavits pertaining to the subject-matter of the inquiry within their knowledge. Some witnesses were examined and cross-examined. The Inquiring Authority submitted its report dated 20th December, 1984 to the Government which according to the petitioners contains findings/observations which cast stigma on the petitioners and prejudicially affect their reputation. The observations/findings of the Inquiring Authority against the five police officers as found from the report are extracted below : --
(i)....But, equally the higher echelon of the police must search out and punish those amongst their ranks who have endangered orderly society, caused untold suffering and misery to innocent people and brought dishonour and disgrace to the higher reputation of their service. I cannot believe that all of them were ignorant of the actions of the misguided lower ranks and can only presume that the violent political reaction and the initiation of an enquiry has persuaded them from taking the proper remedial actions and has caused them to subordinate their conscience to what they believed to be self preservation..... (Vide para 4.78 of the report).
(ii)....There is, in my opinion, a wide gulf between the actual performance of illegal acts and the failure to prevent such actions. The dangers of the actual performance of illegal and indisciplined actions being so disastrous, it is necessary that the elements who performed them are ruthlessly weeded out of a disciplined force so that they may serve as examples of the retribution that quickly awaits those law enforcers who themselves break the law. This is the least that a democratic and orderly society must demand and to that end, the Government may do well to indemnify the superior officers who were guilty not of illegal acts but only of administrative failure to prevent such acts and thereby enable obtaining of necessary evidence to perform the required weeding out.....(vide para 4.79 of the report).
(iii)....Once the Government is convinced, as the Inquiring Authority has been, that the lower ranks of Policemen were directly responsible for this act of widespread arson, it will have a duty to ensure swift corrective action, and because the instinct of self preservation has already persuaded at least some of the senior police authorities to attempt a cover up operation, it is obvious that they would no longer be able to give evidence in a conventional disciplinary proceeding against persons, who, they know, are guilty......(vide para 4.79 of the report).
(iv)....Apart, therefore, from, a failure to control errant members of the Police force, the Inquiring Authority feels that adequate steps were taken to meet the needs of the situation and to give relief to the affected persons.....(vide para 4.83 of the report).
(v).....I would not like to be misunderstood as advocating a judicial enquiry at the drop of a hat; in fact, I would advocate just the reverse because a political clamour for an enquiry automatically inhibits, as has been apparent in the present case, the higher supervisory echelons from taking, where required, necessary corrective disciplinary steps and ultimately induces them to gloss over or cover up, as a measure of self preservation, the misdeeds of lower ranking bureaucrats, to the detriment of their own collective conscience and proper public administration.....(vide para 4.84 of the report)".
So far as M/s. E. C. Bose & Co. Pvt. Ltd is concerned the Commission made the following observations :
"(i) In this matter the role of M/s. E. C. Bose & Co. is quite mischievous and immoral. After agreeing to join the other members of the Trade Committee he at once stabs them in the back and manages to persuade the Chairman of the Port Trust to issue passes to workers, who were not registered in the Pool W of which he was now a sponsor. By this action, he weakened the position of the Trade Committee and gave encouragement to the group led by Sri Pandab Swain. It is unfortunate that the Chairman, Paradeep Port Trust fell into the trap of this wily and unscrupulous operator and the Port Trust may do well to consider whether the licence of such an operator should at all be renewed....(vide para 4.15 of the report).
(ii)...His position got strengthened by the mala fide action of M/s. E. C. Bose & Co. and the unfortunate issue of 700 Passes on 14-3-1984 and 15-3-1984 by the Port Trust. Perhaps emboldened by what he felt was a tacit approval by the Paradeep Port Trust of his own Pool-R, he threatened Shri Bhima Jena with physical violence to prevent him from joining the Pool-W and as events later transpired, conspired to murder him with the help of many of his own supporters on the morning of 19-3-1984.....(vide para 4.18 of the report)."
3. The learned counsel appearing for the petitioners in all these cases challenges the aforesaid findings/observations of the Inquiring Authority and pray to quash them mainly on the following grounds:
(a) That the findings/observations are based on no materials;
(b) That the findings/observations are liable to be quashed for violation of rules of natural justice.
(c) That the findings/observations of the Inquiring Authority are unwarranted and beyond the terms of reference; and
(d) That the reception of 40 affidavits by the Commission at a later stage and non-consideration of the affidavits of the petitioners vitiates the report.
4. At the outset, it may be noted that the Inquiring Authority in this case was not appointed under the provisions of the Commissions of Inquiry Act, 1952. The notification reproduced earlier would show that since noticeable concern has. been expressed about the occurrence of this incident in various quarters raising several issues of definite public importance, the Government decided to appoint an Inquiring Authority to enquire into the incident arising out of the labour conflict and leading to instant death of four policemen including the officer-in-charge of Paradip Police Station, casualty amongst labourers, grievous injuries to police personnel and public and aftermath of arson in which a large number of human dwellings were gutted to fire. The Inquiring Authority appointed in this case being an Authority other than a Commission appointed under Section 3 of the Act, certain provisions of the Act were made applicable to that authority by different notifications in the Official Gazette. The terms of the reference have been enumerated in the notification itself which are very wide. The Inquiring Authority was required to find out the circumstances leading to the incident caused and the nature of the incident; the role, conduct and responsibility of organisations, associations, unions, similar other bodies and individuals in connection with the aforesaid incidents; and whether the measures taken prior to and during and subsequent to the incidents and the quantum of force use in handling the situation were justified/adequate or in excess of the requirements and the responsibility for inappropriate use of force and failure of administrative measures, if any. The inquiring Authority submitted its report to the State Government in which, according to the petitioners, strong adverse observations have been made, though not individually against any particular officer. The observations against the said police officers have been generalised which prejudicially affect their career and prospects in service and reputation. The petitioners (except the petitioner in O.J.C. No. 1884/85) have further alleged that the report of the Inquiring Authority having been accepted by the Government, they have been asked to offer their explanations by Annexure 2. Annexure-2 to each of the writ petitions (other than in O.J.C. No. 1884/85) is in identical terms except that the time of arrival with reference to the incident is differently stated therein. The Annexure-2 in O.J.C. No. 1884/85 is extracted below for ready reference :
"The Parija Enquiry Authority which enquired into Paradeep Incident of 19-3-84 has held that a number of policemen committed arson soon after the incident on that day. It has also been held that the superior officers are guilty of administrative failure to prevent such acts. You reached Paradeep on that day sometime after the incident occurred.
I am to state that Government want to report for action of omission and commission for your administrative failure to prevent arson committed by police personnel. Would you kindly let me know the circumstances under which the policemen are alleged to have set fire to the houses at Paradeep but you failed to exercise control over them which ended in the incident of arson referred to in the Commissioner's report. A report within 3 days should be sent to me as the Government want a report sent to them within 7 days."
It would show that the report has been interpreted to mean that the superior police officers are guilty of administrative failure to prevent the incident of 19-3-84 and each of them has, therefore, been called upon to submit a report for their acts of omission and commission, solely on the basis of the report of the Inquiring Authority. It has also been stated therein that the said petitioners failed to exercise control over the policemen who are alleged to have set fire to the dwelling houses. That apart, in paragraph 5 of the counter-affidavit filed on behalf of the opposite parties 1 and 3, it has been clearly admitted that the State Government have accepted the report of the Inquiring Authority and have issued directions to the Director General of Police to take immediate action for identification of the wrongdoers both in the higher and lower echelons of police for their acts of omissions and commissions and imposition of necessary penalties in accordance with the provisions of relevant rules and regulations. To the same effect is the counter-affidavit filed by Mr. B. K. Panigrahi the Director General of Police (as he then was at the time of filing of counter-affidavit). We would, therefore, proceed on the basis that the report of the Inquiring Authority has been accepted by the Government. A plain reading of the report further established that it contained observations/findings prejudicially affecting the petitioners. Some arguments have been advanced on the basis of the decision reported in AIR 1958 SC 538 (Ram Krishna Dalmia v. S. R. Tendolkar) that the comments of the Inquiring Authority cannot be taken to have prejudicially affected the petitioners as the Inquiring Authority has no power of adjudication and his findings in the report are more or less recommendations to the Government having no penal consequence by itself. Their Lordships in the aforesaid decision while considering the effect of a report of a Commission set up under Section 3 of the Commissions of Inquiry Act, 1952 have clearly explained the effect of such a report. Their Lordships have said that the Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action having taken. Therefore, as the Commission is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial enquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case and the elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by and under the American Constitution appears to be wholly inappropriate and unnecessary. Their Lordships have, however, observed that it is not necessary to consider whether, had the Act conferred on the appropriate Government power to set up a Commission of Inquiry with judicial powers, such law could not, subject, of course, to the other provisions of the Constitution, be supported as a law. In this particular case, the Inquiring Authority submitted its report on the points under reference whereafter the State Government accepted the same and issued notice to some of the petitioners alleging that they are guilty of administrative failure to prevent arson and in the counter-affidavit filed by the opposite parties it has been clearly stated that directions have already been issued by the Government to take immediate action for identification of the wrongdoers both in the higher and lower echelons of the police personnel for their acts of omission and commission and imposing of penalties in accordance with the provisions of the relevant rules, and regulations. It is, therefore, not a case where the petitioners did not suffer any injury by virtue of the findings and recommendations of the Commission though the report of the Commission by itself has no force of any penal effect. We would be dealing the case of M/s. E. C. Bose and Co. Pvt. Ltd. (petitioner in O.J.C. No. 1884/85) and the adverse findings regarding the petitioner in that case separately. But for the present, it is sufficient to note that the report also contained adverse findings against the said petitioner which, according to it, affects the reputation and business of the Company prejudicially. We have already enumerated the findings recorded by the Commission against the senior police officers though the Commission has not named any individual officer in respect of any acts of omission and commission and in fact has referred to all of them comprehensively and collectively as "higher echelons of police", "senior police authorities" and the like except at one place where they have been named by designation to record the timings of their arrival at the spot. The learned counsel for the petitioners has strenuously urged that there was no material whatsoever before the Inquiring Authority to warrant the adverse findings recorded by him. He further contends that the adverse findings are based on no material whatsoever as the affidavits and evidence placed before the Inquiring Authority did not implicate the petitioners in any manner whatsoever to justify a conclusion that there was administrative failure on their part. Our attention was invited to different portions of the report where it has been clearly found by the Inquiring Authority that the senior officers concerned with the law and order had reached the spot with extreme promptitude and had also organised adequate force to meet the situation arising out of the murder of the Officer-in-Charge of Paradip Police Station. At another place the Inquiring Authority records that apart from a failure to control errant members of the police force, adequate steps were taken to meet the needs of the situation and to give relief to the affected persons.
5. The Inquiring Authority answering the terms of reference has narrated the circumstances and cause leading to the incident and has come to a conclusion that Pandab Swain and his henchmen were solely and directly responsible for the murders of the Officer-in-Charge of Paradip Police Station three other policemen and some labourers including Bhima Jena. He has further put it on record that adequate police arrangements were made to meet the situation and that the role played by the Officer-in-Charge Sri A. K. Kanungo throughout the incident right up to his death, was one of leadership and heroism. The Inquiring Authority has dealt with the arson aspect of the incident which caused severe destruction to a very large area of Paradip Port. From the affidavit of the Collector, the report mentions that 451 houses with 943 hutments including 174 shop rooms were gutted by fire as a consequence of which 2748 persons including 985 children were affected. According to the Commission, there was no ragging, spreading or conflagration of fire initially except for some limited fire which burnt the police Trekker, the police tent and one or two other huts and then subsided and that the major incidents of arson took place much later. According to him, some fire did not occur at the time of murderous assaults on the officer-in-charge and others which took place between 9.30 a.m. and 10.00 a.m. and the fire subsided in a shortwhile. Further at about 1.30 p.m. or so a fresh wave of arson took place which went on increasing in intensity and this necessitated calls to different fire stations at different intervals of time. He has considered the affidavits and evidence adduced before him, more particularly the 40 affidavits which were filed on 4-8-84 in pursuance of the order dated 2-8-84 in O.J.C. 1709/84 passed by this Court and accepted by the Inquiring Authority on 10-8-84 and arrived at a conclusion that certain groups of policemen were actually setting fire to the hutments indiscriminately and that some of the lower ranks of the policemen were directly responsible for the acts of arson, thereby causing sufferings to hundreds of innocent people. Even though the learned counsel appearing for the petitioners urges that the said conclusion of the Inquiring Authority was without any foundation, we could not persuade ourselves to hold it relevant for consideration, firstly because the petitioners are not directly affected by the said findings and secondly because this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not make a review of the evidence before the Inquiring Authority to substitute its own conclusion. The contention of the learned counsel for the petitioners that the finding that the police personnel committed acts of arson is based on no evidence or is rather contrary to the materials on record does not, therefore, fell for consideration in these cases.
6. After reaching this conclusion, the Inquiring Authority has observed in paragraph 4.78 of his report as follows : --
"I cannot believe that all of them were ignorant of the actions of the misguided lower ranks and can only presume that the violent political reaction and the initiation of an enquiry has persuaded them from taking the proper remedial actions and has caused them to subordinate their conscience to what they believed to be self preservation."
In the next paragraph the Inquiring Authority has further observed that "the Government may do well to indemnify the superior officers who were guilty, not of illegal acts, but only of administrative failure to prevent such acts and thereby enable obtaining of necessary evidence to perform the required weeding out". Similar observations have also been repeated in the subsequent portion of the report. These findings which are directly against the senior police officers necessarily suggest that the Inquiring Authority is of the view that they did not take any action against the misguided lower ranks of the police personnel and subordinated their conscience to the instinct of self preservation. In other words, it would mean that the acts of arson were being committed either in the presence of the senior police officers by the lower ranks of police personnel or that the senior police officers were aware of those who were directly responsible for the acts of indiscriminate arson, but did not prevent the commission of those acts nor did take any disciplinary action against them and the latter was by an instinct of self preservation. Nowhere in the report there has been any discussion as to whether any of the acts, which according to the Inquiring Authority was the second phase of arson, at about 1.30 p.m., was committed in the presence of these petitioners except giving the timings of arrival of the senior police and administrative officers at the spot (which expression has been used in the sense that they reached Paradip and not at the place of arson). As has been observed in the report, the petitioners in O.J.Cs. Nos. 1348, 1349 and 1438 of 1985 reached at the spot at 2.50 p.m., 2.50 p.m., and 3.00 p.m. respectively which was much after the commencement of the second phase of the arson. Learned Additional Government Advocate in course of his argument fairly conceded that the Inquiring Authority has nowhere referred to any documents, affidavit or evidence whatsoever direct or indirect that the higher police officers were either eye-witnesses to the acts of arson being committed by the lower ranks of policemen or that they were aware of the activities of those policemen who were responsible for the disastrous action in justification of his comments. Had there been any evidence, however slight it might be, to the above effect, it would have been justified for the conclusion of administrative failure on their part. What the Inquiring Authority has expressed in its report is that its conclusion is more or less a presumption and in our opinion the senior police officer in particular the petitioners before us should not suffer any adverse remarks of the type mentioned earlier, merely on the basis of a presumption which lacks a reasonable foundation from the materials on record. We need not refer to catena of decisions of the well established proposition of law that the proceedings under Article 226 of the Constitution are not in the nature of appellate or revisional proceedings and that a question of fact which is unsupported by any evidence whatsoever can be questioned in a proceeding under Article 226 of the Constitution. If a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ issued under Article 226 of the Constitution. It would not be, therefore, a case of adequacy or sufficiency of evidence and an inference of fact can be drawn therefrom, but it would be a case of a finding of fact based on no evidence giving no scope for a possibility of different conclusion other than arrived at by the Inquiring Authority.
7. The next point urged by the learned counsel for the petitioners is that the adverse findings against the petitioners are liable to be quashed for failure of the principle of natural justice inasmuch as the petitioners were given no opportunity whatsoever to be heard before they were condemned in the report. Initially some arguments were advanced by virtue of Sections 8(b) and 8(c) of the Commissions of Inquiry Act, 1952 which provides that if the Commission is of opinion that any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. It was also contended that such persons should have also been allowed to address the Inquiring Authority in respect of matters which are likely to be utilised against them. The aforesaid argument was, however, not pursued because of the fact that the provisions of Sections 8(b) and 8(c) of the Act do not apply to the Authority in question as the appointment of Authority was not under Section 3 of the Act nor the said provisions were made applicable as was done in respect of some other provisions of the Act. The learned counsel for the petitioners then relied upon various decisions of the Supreme Court, particularly those reported in AIR 19.70 SC 150 (A. K. Kraipak v. Union of India) and AIR 1978 SC 597 (Maneka Gandhi v. Union of India) in support of his contention that even though Sections 8(b) and 8(c) of the Act were not made applicable to the inquiry in question, still the rules of natural justice would be applicable inasmuch as the inquiry involves civil consequences. Before we enter into a discussion as to whether the principles of natural justice are required to be applied to such an inquiry, it is relevant to note that the notification dated 4th April, 1984 appointing an Inquiry Authority to enquire into the incident contained a mandate that the principles of natural justice and legal requirements, if any, are to be complied with. The Authority has been appointed for making an inquiry and for submitting a report with regard to the incident of 19th March, 1984 raising several issues of definite public importance and its main purpose was to inform the Government as to the circumstances leading to the incident, its causes and responsibility of different organisations and individuals in connection with the said incident and as to whether the measures taken prior, during and subsequent to the incident and the forces used in handling the situation were justified, adequate or in excess of the requirement. Though it was a fact finding body and did not perform any judicial function and the findings arrived at by such Commission are not enforceable proprio vigore and it was to determine and regulate its own procedure of enquiry and there was no lis nor any determination of lis. it has a duty to act following the principles of natural justice and legal requirements which duty had been cast upon it by the notification itself. The aim of the rules of "natural justice", as has been explained in the decision reported in AIR 1970 SC 150 (supra) is to secure justice or to put it negatively, to prevent miscarriage of justice. Their Lordships have further observed that these rules can operate only in the areas not covered by any law validly made and they do not supplant the law of the land but supplement it. Their Lordships have noticed that the concept of "natural justice" has undergone a great deal of change in recent years. The following passage from the said decision would be profitable to quote in this connection.
"In the past it was thought that it included just two rules, namely, (1) no one shall be a judge in his own cause (Nemo debet esse judex in propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 15-7-1968, AIR 1969 SC 198 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
In a decision reported in AIR 1976 SC 143 : (1976) 2 SCR 38 (City Corner v. Personal Asst. to Collector and Addl. District Magistrate, Nellore) their Lordships have held that the principle of natural justice should be followed as a requirement of law even where the statute in question itself does not so I provide. In the inquiry in question in this case, even though it was administrative in character, the principle of natural justice as a requirement of law and as provided in the terms of the reference itself, should be made applicable, as in such inquiry the report was capable of and in fact has prejudicially affected the petitioners. The applicability of the principle of natural justice has been elaborately dealt with in the case of Maneka Gandhi v. Union of India (AIR 1978 SC 597) in which the passport of the petitioner of that case was impounded without giving opportunity to the petitioner to be heard. It was contended by the Attorney General in that case that giving such opportunity would have stultified and frustrated the provisions of the Passport Act. Their Lordships held that the principle of audi alteram partem which mandates that no one shall be condemned unheard is a part of the rules of the natural justice. Quoting the law as stated by eminent jurists their Lordships have gone to the extent of observing that natural justice is a principle which intends to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. In paragraph 59 their Lordships have held as follows : --
"Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both."
Their Lordships' conclusion is that the law must, therefore, now be taken to be well settled that even in an administrative proceeding which involves civil consequences, the doctrine of natural justice must be held to be applicable. This being the consistent view of the Supreme Court, we need not make specific reference to the other cases cited more or less reiterating the same rules.
8. We have already stated earlier that the Inquiring Authority was not vested with any authority to decide any dispute as there was no lis to be adjudicated nor there any party arrayed before it. The terms of reference required that the authority was to enquire into the law and order incident which took place on 19-3-84 and cover all other matters as were connected with it. Soon after the constitution of the Inquiring Authority, notice were issued inviting affidavits and documents relating to the subject-matter of inquiry and some of the petitioners who are responsible officers of the Government and were concerned with the situation of the incident were requested to file affidavits pertaining to the subject-matter of inquiry which was within their knowledge. While fixing the modalities of further progress of the inquiry it was agreed by all those who appeared before the Inquiring Authority that only the parties who would be or likely to be prejudicially affected by the evidence adduced during the oral examination, may cross-examine the witnesses and that the cross-examination would be limited to the oral deposition before the Inquiring Authority. It did not provide that the Inquiring Authority shall put the persons or bodies who would be or likely to be prejudicially affected to notice nor did it provide that the persons or parties who would be or likely to be prejudicially affected shall be given a reasonable opportunity of being heard in the inquiry. At no stage of the inquiry the Inquiring Authority appears to have given opportunity to the petitioners for explaining the materials if any found against them. The phrase "natural justice" is not capable of a static and precise definition and it is often said that it cannot be imprisoned in the straight jacket of a cast iron formula. The Supreme Court has on innumerable occasions stated that these rules are not embodied rules and the question whether the requirements of these principles have been (sic) not in a given case must depend to a great extent on the facts of each case. In the case reported in AIR 1970SC 150 (supra) their Lordships have said that the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide, whether the observance of that rule, was necessary for a just decision of that case. We have already referred to the observations of their Lordships in the cases discussed above that for applicability of the rule of natural justice the dividing line between the administrative power and quasi-judicial power of the State has become thin. The principle of natural justice should, therefore, be made applicable with the varying situations of each case so that it will serve the purpose of preventing miscarriage of justice and conform to the requirements of a fair play in action in the language of their Lordships in the decided cases. In the facts and circumstances of this case we would, therefore, conclude that so far as the petitioners are concerned, the principle of natural justice has been violated.
9. As narrated in the report of the Inquiring Authority it was decided to conclude the inquiry on completion of examination and cross-examination of the witnesses named therein, but in the meantime a writ petition was filed by some members of the public (O.J.C.No. 1709/84) praying for allowing them to file affidavits before the Inquiring Authority. In the ultimate order passed by this Court, affidavits of the petitioners in the said writ petition were allowed to be filed by a particular date and time in pursuance of which 40 further affidavits were filed before the Inquiring Authority on 4-8-84 which were accepted for consideration by the Inquiring Authority on 10-8-84. The Inquiring Authority further observed that all other parties who had filed affidavits earlier were given opportunity to file further counter-affidavits by 26-9-84 which was later on extended to 21-11-84. The present petitioners (except petitioner in O.J.C. No. 1884/85) were given opportunity to file counter-affidavits out of whom three of them filed counter-affidavits. There is nothing in the report to say that the said counter-affidavits were considered by the Inquiring Authority. The conclusion of the Inquiring Authority so far as M/s. E. C. Bose & Co. Pvt. Ltd. (petitioner in O.J.C. No. 1884/85) is concerned, is that the role of the said Company was quite mischievous and immoral. After agreeing to join the other members of the Trade Committee, it stabbed them in the back and managed to persuade the Chairman of the Port Trust to issue passes to workers, who were not registered in the Pool-W of which he was a sponsor. By this action, the Company weakened the position of the Trade Committee and gave encouragement to the group led by Pandab Swain. It has been further remarked that it was unfortunate that the Chairman, Paradip Port Trust fell into the trap of this wily and unscrupulous operator and the Port Trust may do well to consider whether the licence of such an operator should at all be renewed. This finding of the Inquiring Authority evidently affects the Company prejudicially. At no point of time the materials found against the said Company were brought to its notice nor the Inquiring Authority gave any opportunity whatsoever to the said Company for explaining the circumstances appearing in the affidavits or in the evidence tendered before him. This Company was not before the Inquiring Authority at any stage of the enquiry and had not filed any affidavit before it. Unless the Company is put to notice it cannot be conceived that it had any reason to apprehend that the Inquiring Authority would probe into its conduct or was likely to record a finding which would prejudicially affect it. We do not consider it proper to go into merits of the findings, but what has been done cannot be said to be the outcome of a fair play.
10. Having given our anxious consideration to all the submissions made by the learned counsel appearing for all the parties we are of the definite view that the adverse comments/observations made against each of the petitioners in all the writ petitions were unwarranted and were arrived at in violation of the principles of natural justice for which the same are liable to be quashed. As a necessary corollary it must also be held that any action taken against these petitioners on the basis of the said adverse findings/observations by the Inquiring Authority should also be quashed and no further, action against these petitioners can be maintained on the basis of the said report.
11. In the result, therefore, the writ applications are allowed to the extent indicated above. In the facts and circumstances of the case, we make no order as to costs.
Behera, J.
12. I agree with my learned brother that the writ applications shall succeed as mentioned in the judgment. I would record a few thoughts of mine in support of the same conclusion.
13. A perusal, of the report of inquiry submitted by Mr. L. I. Parija, then functioning as the Additional Chief Secretary to the State Government, would given an indication of the pains taken by him in conducting the inquiry and preparing the report keeping in mind the public importance on the questions involved about the most unfortunate incidents involving loss of livesofsome Police Officials including the Officer-in-Charge of the Paradip Police Station and alleged acts of arson by some Police Officials. The Inquiring Authority has recorded some observations regarding lack of supervision and administrative control by some superior officers in the Police service without particularising who of the petitioners were guilty of such laches. Having found that the petitioners had conducted themselves with promptitude and that adequate steps had been taken for prevention of the unfortunate incidents, some observations have been made in the body of the report which cast an indelible stigmaon the character and conduct of the petitioners and irreparably damage their reputation and as a matter of fact, after acceptance of the report of inquiry, the State Government has taken initial action against the petitioners who have been asked to submit reports as to why action shall not be taken against them on the basis of the findings recorded by the Inquiring Authority.
14. As it appears, the Inquiring Authority, without a sense of fear or favour and infused with a sense of fairness has made some adverse observations referred to by my learned brother which run counter to the findings recorded by the Inquiring Authority that prompt steps had been taken by the petitioners for preventing the incidents, with a hope that such incidents can be prevented in future by timely action taken by the Police Officers in the higher echelons, but the observations affecting the official conduct of the petitioner while performing their official duties are unfounded, having been based on no materials appearing in the affidavits and other documents produced before the Inquiring Authority.
15. It is important to bear in mind that no particular unjustifiable act or omission by any of the petitioners calling for such adverse observations has been mentioned in the report of inquiry. In such a case, the findings recorded by the Inquiring Authority would call for interference by this Court in its writ jurisdiction under Articles 226 and 227 of the Constitution of India. In this connection, one may refer to the principles laid down by this Courtin(1970) 1 Cut WR1 : (AIR 1971 Orissa 175), Dr. Harekrushna Mahtab v. Chief Minister of Orissa and (1971) 1 Cut WR 760, Banipada Saha v. Commission of Enquiry. In reaching this conclusion, we are not oblivious of the severe devastation caused to several houses at Paradip which caught fire or were set ablaze, a disputed proposition regarding which we are not called upon to record any finding as it is not necessary to do so. At the same time, in the absence of any materials indicating any illegalities committed by any of the petitioners or acts committed by them which encouraged and did not prevent any Police Officials from performance of alleged unlawful acts by them, any observation made against them which might visit them with civil consequences must be set at naught.
16. As recorded by my learned brother, it had been mentioned in the terms of reference that the Inquiring Authority was to follow the principles of natural justice. Although Section 8D of the Act had not, in terms, been included while conferring some powers provided in the Act on the Inquiring Authority, the principles of natural justice were to be followed in the instant case. It is a settled principle of law that alt actions against a person which invite penal or adverse consequences should be in accordance with the principles of natural justice, but whether these principles would be applicable to a particular situation has to be judged in the light of the facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons:
17. As observed by the Supreme Court in AIR 1983 SC 1235, Suman Gupta v. State of J. and K., the exercise of administrative power vested in a public authority must be structured within a system of controls informed by both relevance and reason -- relevancein relation to the subject which it seeks to serve and reason in regard to the manner in which it attempts to do so. Administrative power should be exercised within the defined limits in the reasonable discretion of the designated authority. The vesting of an absolute and uncontrolled power in such authority falls outside the Constitution.
18. Even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice, as held by the Supreme Court in AIR 1967 SC 1269, State of Orissa v. Dr. (Miss) Binapani Dei. I may usefully quote an extract from AIR 1967 SC 1427, S. G. Jaisinghani v. Union of India :
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey -- 'Law of the Constitution' -- Tenth Edn., Introduction ex) 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlich, (1951) 342 US 98 'when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1970) 4 Burr 2528 at p. 2539 'means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful.'"
In AIR 1970 SC 150 (supra), the Supreme Court has observed :
"The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power....."
Administrative action must adhere to procedural safeguards fixed by it to avoid arbitrariness, failing which the action would be rendered invalid (See (1983) 4 SCC 582 : (AIR 1984 SC 363), B. S Minhas v. Indian Statistical Institute).
19-20. In the instant case, the petitioners have not been heard before the adverse comments were recorded against them. One of the rules which would constitute a part of the principles of natural justice is the rule of audi alteram partem which requires that no man should be condemned unheard. It is a requirement of the duty to act fairly which lies on all quasi-judicial authorities and this duty has been extended also to the authorities holding administrative inquiries involving the civil consequences or affecting the rights of parties because the aim of the rule of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. This rule requires that an opportunity to be heard is to be given to a person likely to be affected by a decision. It has, no doubt, a variable content depending on the nature of the inquiry, the framework of the law under which it is held, the constitution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision.
21. Regard being had to the nature of the inquiry conducted by the Inquiring Authority in the instant cases, the petitioners should have been given a reasonable opportunity of being heard before recording any adverse remarks or observations against them. Unwarranted remarks against Police Officers, instead of reforming them, are likely to undermine the efficiency of the entire police force. If the Inquiring Authority had found any faults with any of the petitioners which he had kept in his mind and which, of course, have not, in terms, been expressed, he should have heard the Police Officers and then made observations, if any, which he felt were reasonable and proper. After all, who does not have faults. As put by Horace : "No one is born without faults; but he is the best who has the fewest". To appreciate the difficulty of another, one should place oneself in the same position and find out as to what could be done in the same circumstances. The Inquiring Authority has not recorded in clear and categorical terms as to what could be or should have been done by the senior Police Officers, but had not been done by them.
22. For the reasons recorded by my learned brother and in view of what has been stated by me in the foregoing paragraphs, it would be legal, reasonable and proper to hold that the remarks and observations made by the Inquiring Authority involving the petitioners were unfounded and had not been based on any clear and cogent materials appearing in the record of the Inquiring Authority. The petitioners are, therefore, entitled to have the remarks and observations made against them obliterated and for a direction in their favour that no action shall be taken against them on the basis of the report of inquiry.