Jharkhand High Court
Shiv Shankar Sharma vs The Jharkhand Vidhan Sabha Through Its ... on 23 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (PIL) No. 1811 of 2022
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Shiv Shankar Sharma, aged about 43 years, Son of Sri Gautam Sharma, resident of Village-Tikara Toli, Nagri, Piska, P.O. & P.S.-Nagri, District-Ranchi, Jharkhand.
... ... Petitioner
Versus
1.The Jharkhand Vidhan Sabha through its Secretary General, P.O. & P.S.- Dhurwa, District-Ranchi, Jharkhand.
2.The Secretary General, Jharkhand Vidhan Sabha, P.O. & P.S. - Dhurwa, District - Ranchi, Jharkhand.
3.The Director, Central Bureau of Investigation, Plot No. - 5/B, 6th Floor, CGO Complex, Lodhi Road, Jawaharlal Nehru Stadium Marg, P.O. & P.S. - Lodhi Road, New Delhi, Delhi 110003.
4.Alamgir Alam, the then Speaker cum Cabinet Minister, Department of Rural Development, Government of Jharkhand, Project Building, P.O. & P.S. - Dhurwa, District- Ranchi, Jharkhand.
5.The Speaker, Jharkhand Vidhan Sabha, Jharkhand, P.O. & P.S.- Dhurwa, District-Ranchi, Jharkhand.
6.The Principal Secretary to Governor, The Governor‟s Secretariat, P.O. Ranchi College, P.S. Kotwali, District- Ranchi, Jharkhand.
... ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Petitioner : Mr. Rajeev Kumar, Advocate Ms. Niteshwari Kumari, Advocate For the State : Mr. Rajiv Ranjan, Advocate General Mr. Piyush Chitresh, AC to AG For the Vidhan Sabha: Mr. Indrajit Sinha, Advocate Mr. Anil Kumar, SC Mr. A.K. Jha, AC to SC For the Governor : Mr. Prashant Pallav, Advocate Mr. Parth Jalan, Advocate
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-1- W.P. (PIL) No. 1811 of 2022 CAV on 20/06/2024 Pronounced on 23/09/2024 Per Sujit Narayan Prasad, A.C.J:
Prayer:
1. The instant writ petition has been filed, in the form of „pro bono publico‟, under Article 226 of the Constitution of India, for the following reliefs:
A. For direction upon the respondent no.1 and 5 to implement the directive of the then Hon'ble Governor, Jharkhand Rajbhawan issued vide letter no. 2098 dated 10.09.2018 to the then Speaker to implement 30 reference points of Enquiry Commission regarding the illegal appointments in Vidhan Sabha and to enquire into the matter by the Central Bureau of Investigation.
B. For direction upon the respondents specially respondent no. 3 to investigate 30 reference points of the Commission constituted by the State Government, but the same has not been implemented due to connivance of the officials of Vidhan Sabha including the then speaker and the present Speaker, the action has not been initiated and as it has been observed by the Hon'ble Governor vide letter no. 2098 dated 10.09.2018.
C. For the direction upon the respondent no. 3 to investigate the property earned by respondent no. 4 earned from illegally appointed 360 employees in -2- W.P. (PIL) No. 1811 of 2022 Vidhan Sabha without following the due process and as a result of enquiry commission's report everything is clear that the money has travelled from 300 employees to respondent no. 4 and specially paid to the Cabinet Minister of the present Government, properties earned by respondent no. 4 requires to be attached after adopting procedure law under the of Prevention of Money Laundering Act, 2005.
D. For the direction upon the respondent no. 1 and 5, to look into the gravity of the letter of the Hon'ble Governor dated 10.09.2018 which has not been implemented in connivance of the 150 members illegally appointed in Vidhan Sabha.
E. For the direction upon the respondents to submit the status report before this Hon'ble Court." Brief facts of the case, as per writ petition:
2. The brief facts of the case, as per the pleading made in the writ petition, read as under:
3. The writ petitioner, who claims to be a social worker, and has filed number of „Public Interest Litigations, approached this Court by filing the instant writ petition on the backdrop of the fact that on the issue of irregularities in the matter of public employment in Jharkhand Vidhan Sabha, he submitted an application before the Office of -3- W.P. (PIL) No. 1811 of 2022 Hon‟ble Governor under the Right to Information Act, 2005 seeking the copy of file/report which was given to the Governor with respect to „Vidhan Sabha Appointment Scam‟ in the period of former speaker. Upon this, the Secretariat of the Governor responded vide letter no. 1260 dated 20.07.2020 annexing therewith the copy of letter dated 2098 dated 10.09.2018 sent by the then Governor to the then Speaker, wherein certain recommendations/directives including recommendation for investigation of the matter by the „Central Investigation Agency‟ in the matter of irregularity committed in public appointment in Vidhan Sabha and concerned CD was made.
4. It has been stated that in the said CD [compact disc] the corrupt practices adopted by respondent no. 4 is there, which the Governor has directed to be investigated by the Central Bureau of Investigation but the Speaker neither bothered to implement the 30 points reference, as mentioned in letter dated 10.09.2018 nor took any action on the additional four points as directed by the Governor.
5. The concern of the petitioner is that even the direction/order of the Governor, who is the executive head of the State, has not been implemented by the then Speaker of the Vidhan Sabha, which shows the connivance of the Speaker in said illegal appointment.-4- W.P. (PIL) No. 1811 of 2022
6. In the aforesaid backdrop, the instant writ petition has been filed under Article 226 of the Constitution of India seeking reliefs, as quoted hereinabove.
7. After filing of the present PIL, the matter was placed before the Co-ordinate Bench of this Court on 10th June, 2022, wherein order was passed to file counter affidavit giving para-wise reply and time was granted to remove the defects, as pointed out by the office. For ready reference, the said order is quoted as under:
"Mr. Anil Kumar, learned counsel for respondent Nos.1, 2 & 5(4), appears and submits that he has to file counter affidavit.
Let him do so within four weeks.
Besides para-wise reply, the counter affidavit must explain what action has been taken with respect to the report of One Man Commission, appointee-wise details and action taken against them as well as the action taken against the concerned persons who are involved in giving such type of illegal appointments.
As prayed, put up this case on 15.07.2022. In the meantime, the defects pointed out by the Office must be removed by the petitioner."
8. Thereafter, the matter was taken up on 28.03.2023, whereby direction was passed by the Co-ordinate Bench to the Jharkhand Vidhan Sabha to take appropriate instruction and submit the status report. The order is quoted as under:
Let the learned counsel appearing for the Secretary General of the Jharkhand Vidhan Sabha take appropriate instruction and submit the status report within four weeks.
List this case on 02.05.2023 under the same category.-5- W.P. (PIL) No. 1811 of 2022
9. Again the matter was taken up by the Co-ordinate Bench on 02.05.2023, but the status report was not submitted as such observation was made that though the last order has not been complied with by the Secretary General of Jharkhand Vidhan Sabha, however, the matter is adjourned to be listed on 13.06.2023. Order dated 02.05.2023 reads as under:
The last order has not been complied by the Secretary General of the Jharkhand Vidhan Sabha.
Let it be complied within three weeks.
List this case on 13.06.2023.
10. The matter was taken up by the Co-ordinate Bench on 13.06.2023. The Co-ordinate Bench again directed the Secretary General, Jharkhand Vidhan Sabha to file report prepared by first one-man judicial commission and the matter was adjourned to 18.07.2023, wherein the Co- ordinate Bench was constrained to observe that let the previous order be complied within three weeks, failing which this Court would be constrained to direct for personal appearance of the Secretary, Jharkhand Vidhan Sabha. For ready reference, order dated 18.07.2023 passed by Co- ordinate Bench of this Court is quoted as under:
"The previous order has not been complied with. Learned Senior Counsel would submit that three weeks‟ time may be granted for compliance of the previous order dated 13.06.2023.-6- W.P. (PIL) No. 1811 of 2022
As prayed, let it be complied within three weeks, failing which this Court would be constrained to direct for personal appearance of the Secretary, Jharkhand Vidhan Sabha.
Matter be listed on 16.08.2023.
Let a free copy of this order as well as the previous order dated 13.06.2023 be handed over to Mr. Jai Prakash, learned Senior Counsel appearing for the Legislative Assembly for early compliance."
11. The matter was listed on 16.08.2023 but the previous order was not complied with, however, Co-ordinate Bench, on the request made by Mr. Jai Prakash, learned senior counsel for the Vidhan Sabha, adjourned the matter to be listed on 04.10.2023.
12. On 04.10.2023, the Co-ordinate Bench of this Court taking serious view of the matter observed that in spite of several directions/adjournments granted to the respondent- Jharkhand Vidhan Sabha to file the report of first one man judicial commission, the same is not being produced by the Secretary of the Jharkhand Vidhan Sabha and constrained to observe that the report is deliberately not produced before the Co-ordinate Bench even though her Excellency, the then Governor of the State, has directed the Speaker of Vidhan Sabha to carry out the proposals given in the report. Therefore, the Co-ordinate Bench consider it to be an obstruction to justice and directed the Secretary of Jharkhand Vidhan Sabha to produce the aforesaid report -7- W.P. (PIL) No. 1811 of 2022 within seven days, failing which the Court would be constrained to initiate a criminal contempt for obstruction to justice. For ready reference, order dated 13.06.2023 is quoted as under:
"Vide our order dated 13.06.2023, we had directed the Secretary, Jharkhand Vidhan Sabha to file the report prepared by xxxx. However, the report has not been produced by the Secretary of the Jharkhand Vidhan Sabha inspite of three adjournments.
Mr. Jai Prakash, learned senior counsel appearing for the Jharkhand Vidhan Sabha, would submit that some time may be granted for production of the report. We see that the report is deliberately not produced before us even though her Excellency the then Governor of the State has directed the Speaker of Vidhan Sabha to carry out the proposals given in the report. So we consider it to be an obstruction to justice and direct the Secretary of Jharkhand Vidhan Sabha to produce the aforesaid report of xxxx Commission within seven days, hence, failing which we would be constrained to initiate a criminal contempt for obstruction to justice.
List this case on 12.10.2023.
Let a free copy of the order be handed over to Mr. Jai Prakash, learned senior counsel appearing for the Jharkhand Vidhan Sabha, for early compliance."
13. On the next date fixed also no report was produced and adjournment was sought for on the ground that the In-charge Secretary of the Jharkhand Vidhan Sabha has already written a letter to the Chairman of the Single Judge Committee for returning the copy of the report of first one man judicial commission filing in this case. The Co-ordinate Bench, however, granted one more chance to the -8- W.P. (PIL) No. 1811 of 2022 respondents to file the report with the observation that if the order is not complied with, we will pass appropriate order and try to dispose of the Public Interest Litigation without perusing the report, basing on the recommendations made by Her Excellency The Then Governor of Jharkhand. For ready reference, the order dated 12.10.2023 passed by the Co- ordinate Bench is quoted as under:
Mr. Jai Prakash, learned State Counsel, would bring to our Court that on 10.10.2023 the Incharge Secretary of the Jharkhand Vidhan Sabha has already written a letter to the Chairman of the Single Judge Committee for returning the copy of the report of xxxx for filing in this case.
So, we given one more chance to the respondents to file the same at least 48 hours prior to the next date of listing.
List this matter on 09.11.2023.
If the order is not complied with, we will pass appropriate order and try to dispose of the Public Interest Litigation without perusing the report, basing on the recommendations made by Her Excellency The Then Governor of Jharkhand.
Let a free copy be handed over to Senior Advocate Mr. Jai Prakash for early compliance.
14. Thus, it is evident from perusal of the various orders passed by the Co-ordinate Bench of this Court that in spite of the consistent orders passed by the Co-ordinate Bench, the respondents did not produce the report before the Court for about two years for one pretext or the other, which was already submitted four years ago in the year 2018 and the present „Public Interest Litigation‟ was filed in the year 2022. -9- W.P. (PIL) No. 1811 of 2022 However, after the stringent orders having been passed by the Co-ordinate Bench, when the matter came before this Court, the report(s) submitted by the One-man Judicial Commission was produced before this Court, apprehending the fact that if the report will not be submitted then based upon the recommendations given by then Governor, wherein recommendation has been made to refer the matter to the CBI, the report as also the counter affidavits have also been filed by the respondents.
15. Further, from the orders so passed by the Co-ordinate Bench as quoted hereinabove, it is apparent that neither the State nor the Jharkhand Vidhan Sabha has taken the ground of maintainability of the writ petition before the Co-ordinate Bench and also not taken the ground of credibility of the writ petitioner.
Pleadings made in the counter affidavit/Supplementary counter affidavits:
16. In the counter dated 22.11.2022 filed on behalf of respondent nos. 1, 2 and 4 [Vidhan Sabha], it has been stated that, taking initiative regarding the implementation of the report of the enquiry commission, the then Speaker gave approval on the compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019.
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17. It has further been contended in the counter affidavit that letter dated 10.09.2018 of the then Governor contains 04 points out of which 03 points relate to the personnel of the Assembly Secretariat, who were working with the commission of enquiry at the time of investigation by the Commission. So far recommendation on „30 points of reference‟ is concerned it has been stated that recommendation on „30 points of reference‟ was sent to the Assembly Secretariat, in which some actions were suggested by the Commission. After going through the reports on 30 points of reference, it was found by the Assembly Secretariat that in some of the reference points some actions have been suggested against the persons named in those references whereas some of the reference points have been left inconclusive. Further, many of reference points, which have though been answered but involve complicated questions of law and facts.
18. In the counter affidavit, raising the legal issue, it has been contended that the first one-man judicial Commission, submitted its report before the Governor and not before the State Government but under the Commissions of Inquiry Act, 1952 in particular Section 3(4) thereof, the report was required to be tabled and laid before the legislature of the State within a period of six months from the date the report was submitted before the appropriate government.
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19. It has further been contended in the counter affidavit that the validity of the rule and the action taken thereon and continuance of the employees for pretty long period, Rule 2(ka) of Jharkhand Vidhan Sabha Sachivalaya (Recruitment and Condition of Services Niyamavali, 2003) and the power of the Speaker vis-à-vis his discretion in the rule are all critical issues involving interpretation of complicated question of law and facts. Keeping all points of facts into consideration, the Speaker has given his approval to take initiative regarding the constitution of another one-man judicial commission under the provisions of Commissions of Inquiry Act, 1952 so that the report given by the first commission could be scrutinized and examined.
20. In pursuance to the recommendation of Speaker, the Department of Cabinet Secretariat and Co-ordination (Parliamentary Affairs) has issued Notification No. 1130 dated 21.09.2022 regarding constitution of another one man judicial commission to scrutinize and examine the complicated question of law and fact involved arising out of the report given by the first one man judicial commission.
21. It has further been contended that from perusal of report, it is quite clear that in the process of appointment/promotion there is no allegation of money transaction.
- 12 - W.P. (PIL) No. 1811 of 2022
22. Thereafter, on the query put forth by this Court to the Legislative Assembly and the State, a supplementary counter affidavit was filed by the respondents-Cabinet Secretariat and Vigilance Department (Co-ordination) Jharkhand, Ranchi. For ready reference, the query put forth by the Court is quoted as under:
"(A) This Court wants to know from the State that if any irregularity in the matter of public employment has been said to have been committed in the Legislative Assembly, where is the jurisdiction of the State to interfere with the affairs of the Legislative Assembly?
(B) This Court also wants to know from the State why the report of the One-Man Commission has been placed before the Cabinet?"
23. Pursuant thereto, affidavits have been filed by the respondents-Cabinet Secretariat and Vigilance Department (Co-ordination) Jharkhand, Ranchi replying the query made by this Court.
24. At paragraph 13 and 14 of the counter affidavit dated 19.03.2024, it has been stated inter alia that Action Taken Report (ATR) was prepared by the Jharkhand Legislative Assembly and vide its letter dated 16.01.2024 directed to the Cabinet Secretariat and Vigilance Department (Parliamentary Affairs) for the report along with Action Taken Report (ATR) to be tabled on the next Session of the Legislative Assembly.
- 13 - W.P. (PIL) No. 1811 of 2022 Further, the Cabinet Secretariat and Vigilance Department (Parliamentary Affairs), upon getting approval from the Council of Ministers (Cabinet) meeting dated 24.01.2024 the Minister, Parliamentary Affairs Department, the then Speaker, vide letter dated 05.02.2024, requested Secretary, Jharkhand Legislative Assembly for the report along with Action Taken Report (ATR) to be tabled in Jharkhand Legislative Assembly on 06.02.2024, as per Section 3(4) of the Commissions of Inquiry Act, 1952.
25. It has further been averred that the State Government is bound by the provisions of the Act, 1952 and as such there is no interference in the affairs of the Legislative Assembly and further the State Government has placed the report as per the provisions of the Commissions of Inquiry Act, 1952.
26. In this regard, a supplementary counter affidavit has been filed on 20.03.2024, supplementing the statement made in earlier counter affidavit dated 19.03.2024, stating inter alia that the report along Action Taken Report (ATR) provided to the State Government by Jharkhand Legislative Assembly was decided to be tabled before the Jharkhand Legislative Assembly by the council of Ministers (Cabinet) in its meeting dated 24.01.2024 and the matter was closed interim by the State Government as per Section 3(4) of the Commission of
- 14 - W.P. (PIL) No. 1811 of 2022 Inquiry Act, 1952. For ready reference, the relevant part of the supplementary affidavit is quoted as under:
"....... The report along with Action Taken Report (ATR) provided to the State Government by Jharkhand Legislative Assembly was decided to be tabled before the Jharkhand Legislative Assembly by the Council of Ministers (Cabinet) meeting dated 24.01.2024 and the matter was closed interim by the State Govt. as per Section 3(4) of the Commission of Inquiry Act, 1952".
Submissions advanced on behalf of the petitioner:
27. Learned counsel for the petitioner has submitted that it is a fit case where the matter is required to be investigated by the central agency, i.e., by the Central Bureau of Investigation, as the matter involves illegal appointment made in the Jharkhand Legislative Assembly, with connivance of the high ups of the State including the then Speaker.
28. It has been submitted that on the initiative taken by the Governor Secretariat finally a committee was constituted, for making inquiry into the matter of irregularities in appointment and promotion of employees in Jharkhand Assembly, Ranchi, under the Chairmanship of one retired Judge, High Court of Jharkhand vide notification dated 07.07.2014 issued by the Cabinet Secretariat & Co-
ordination Department, Govt. of Jharkhand, who was
- 15 - W.P. (PIL) No. 1811 of 2022
directed to submit its report before the Governor.
Accordingly, after completion of enquiry the one-man
commission submitted its report before the Governor. But when no action was taken, the petitioner on the basis of information received under Right to Information Act, 2005 has came to know from the Secretariat of the Governor that the report of the one man commission along with letter dated 10.09.2018 by then Governor has already been sent to the then Speaker making recommendation therein for investigation of the matter by the „Central Investigation Agency‟ in the matter of irregularities committed in public appointment in Vidhan Sabha and concerned CD as also to implement the 30 points reference as mentioned in the report of one man commission. But no action was taken on the recommendation of the said one man judicial commission, therefore, the petitioner has filed the present Public Interest Litigation.
29. It has further been submitted that in the present PIL counter affidavit has been filed by the respondents-Vidhan Sabha, wherein it has been submitted that implementing the report of enquiry commission the then Speaker gave approval of compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019.
- 16 - W.P. (PIL) No. 1811 of 2022
30. Learned counsel for the petitioner vehemently argued that even the direction/order of the Governor, who is the executive head of the State, has not been implemented by the Speaker of the Vidhan Sabha, who had clearly directed that the matter is to be investigated by the CBI and further the said CD (compact disc), which contains the corrupt practice of the then Speaker, which the Governor has directed to investigate by the Central Bureau of Investigation has not been examined even by the expert body and for eye wash only two of the officers has been compulsorily retired from service.
31. It has further been submitted that for a long period of time even the report submitted by one man commission was knowingly not produced before this Court and only when the Co-ordinate Bench of this Court took note of the fact in order dated 04.10.2023 that the report is deliberately not being produced before it and found the same to be obstruction to justice ordered that if the report would not be submitted on the next date of hearing criminal contempt for obstruction of justice would be initiated and further vide order dated 12.10.2023 it has been directed that "...If the order is not complied with, we will pass appropriate order and try to dispose of the Public Interest Litigation without perusing the report, basing on the recommendations made by Her Excellency The Then Governor of Jharkhand...." . Only then,
- 17 - W.P. (PIL) No. 1811 of 2022 after a long period of time, the report has been submitted in sealed cover.
32. Learned counsel for the petitioner has submitted that this conduct of the respondents itself shows the mala fide conduct of the State Legislative Assembly and the State Government in placing the report before this Court.
33. Learned counsel for the petitioner has further submitted that during pendency of the instant petition, vide notification dated 21.09.2022 another one man judicial commission was constituted to scrutinize and examine the complicated question of law and fact involves arising out of the report given by the Hon‟ble one commission constituted under the chairmanship one retired Judge, High Court of Jharkhand.
34. Learned counsel for the petitioner has questioned the very constitution of another judicial commission and submitted that it is only constituted to clean-up the irregularities in the matter of public employment done in Jharkhand Vidhan Sabha and to save the high ups of the State who are involved in the matter.
35. The petitioner further questioning the appointment of second one-man judicial commission, has submitted that it is nothing but to cover up the issue of illegality which has been found to be there in the matter of appointment in the report of first one-man judicial commission.
- 18 - W.P. (PIL) No. 1811 of 2022
36. It has further been contended that by no stretch of imagination the second one man judicial commission can be said to be permitted to be constituted or even for the purpose of scrutinizing the report of the earlier one man judicial commission, which would be evident from the provision of Commissions of Inquiry Act, 1952 as no provision is there for constitution of another commission to scrutinize the report of earlier one man judicial commission As a matter of fact, purposely another one-man judicial commission has been constituted only in order to protect the appointees and other high ups of the State and as such there is legally no justification in appointing another one-man judicial commission.
37. It has been submitted that it is very surprising that the State Legislative Assembly and the State, in order to show their bona fide, has taken the ground that action has been taken on the report of earlier one man commission by taking action against two of the officers of the Legislative Assembly by issuing the order of compulsory retirement and as such has virtually accepted the said report but on the other hand when the matter came up before this Court by way of filing of instant Public Interest Litigation, the respondents constituted the second one man commission on the ground that since the first one man judicial Commission submitted its report
- 19 - W.P. (PIL) No. 1811 of 2022 directly before the Governor and not before the State Government and under the Commission of Inquiry Act, 1952 in particular Rule 3(4), the report was required to be tabled and laid before the legislature of the State.
38. Furthermore, the second one-man judicial commission was constituted only for the purpose to scrutinize and examine the complicated question of law and fact involved arising out of the report given by the first one man commission. Therefore, in either of the cases, the report of first one man judicial commission is to be implemented.
39. Learned counsel for the petitioner has submitted that recommendation given by the then Governor, who is the executive head of the State vide its letter dated 10.09.2018 to the then speaker, is required to be implemented.
40. It is further contended that so many appointments have been found to be illegal and high ups of the State of Jharkhand including the then Speaker is deeply involved in the issue and that is the reason the new one-man judicial Commission has been constituted.
41. Learned counsel for the petitioner further drawn attention of the Court that earlier the State while appointing One Man Judicial Commission has made it in consultation with the High Court so far proposal of name of the Hon‟ble Judge for conducting enquiry in such a grave matter is
- 20 - W.P. (PIL) No. 1811 of 2022 concerned. But, while constituting the later one-man commission, there was no consultation from the High Court rather on the recommendation/opinion made by the learned Advocate General, one-man judicial commission was constituted. For that there is no justification either in the counter affidavits or any pleading has been made before this Court to that effect, which seriously casts a doubt upon the credibility of the appointment of second one man judicial commission.
42. Learned counsel for the petitioner has further submitted that when the present writ petition (PIL) has been filed only after that the respondent-Vidhan Sabha took steps for constitution of second one-man commission as correspondence in this regard has been made by the Secretary, I/C of the Vidhan Sabha, namely, Syed Jawed Haider, for the first time on 03.08.2022 whereas the present writ petition has been filed on 18.04.2022 that is much before writing of letter by the Secretary I/C who himself is one of the beneficiaries in illegal appointment/promotion in the State Legislative Assembly.
43. It has been submitted that not only that the affidavit(s) has been sworn by said Syed Jawed Haider before this Court, who is also one of the beneficiaries of the unfairness committed in the matter of fulfilling the public post in the
- 21 - W.P. (PIL) No. 1811 of 2022 State Legislative Assembly and he is who has assisted the later one-man commission.
44. Learned counsel for the petitioner has further submitted that purposely the report submitted by first one man judicial commission was not placed before this Court even after some stringent orders having been passed by the Co-ordinate Bench of this Court and after a long period of time, the report was submitted in the year 2024, which was received by the State Legislative Assembly way back in the year 2018 and only after report having been submitted by another committee where the matter has been tried to be closed, the same has been produced before this Court on 18.04.2024.
45. The learned counsel for the petitioner based upon the aforesaid grounds has submitted that since the high ups of the State of Jharkhand is involved in fulfilling the various posts in Jharkhand Legislative Assembly which has come in the report, hence it is not feasible to have proper investigation if the matter would be investigated by the State Police/State agency.
46. On the backdrop of aforesaid facts, learned counsel for the petitioner has submitted that considering the conduct of the respondents in the matter of dealing with the issue of irregularities in the matter of public employment under Jharkhand Vidhan Sabha in order to save the illegal
- 22 - W.P. (PIL) No. 1811 of 2022 appointees and the high ups of the State, the matter of irregularities/illegalities in appointment/promotion as also the concerned CD, in which the corrupt practice adopted by respondent no. 4, who was the then speaker is there, is required to be investigated by the central agencies like Central Investigation Bureau.
Submission on behalf of respondent-State of Jharkhand and Jharkhand Legislative Assembly:
47. Written submissions on behalf of respondent-State of Jharkhand and Jharkhand Legislative Assembly have been filed on 22.06.2024. Let it be kept with the record.
48. Learned counsel for the respondents-State and State Legislative Assembly have jointly placed their argument and have submitted that it is the State which constituted the first one-man judicial commission under the Chairmanship of one retired Judge, High Court of Jharkhand, now deceased vide notification dated 07.07.2014 to inquire into the irregularities/illegalities committed with respect to appointment/promotions in the Jharkhand Legislative Assembly Secretariat. The one-man judicial commission submitted its report before the Governor. The Governor vide letter dated 10.09.2018 requested the then Speaker to take appropriate action in the light of recommendations of the report.
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49. It has been submitted that since in the report some complicated question of facts and law were involved and in the meantime, Hon‟ble Chairman of One Man Commission, has died, as such for interpretation of such complicated question of facts and law, the opinion of learned Advocate General was sought for, who opined that since the first report was not placed before the State Government and laid before the State Legislature, an appropriate another Commission is required to be constituted and accordingly, another one man commission was constituted to scrutinize and examine the complicated question of law and fact involved arising out of the report given by the first Hon‟ble one man commission.
50. Mr. Rajiv Ranjan, learned Advocate General has submitted that the reason for constituting the another one man judicial commission is that in view of provision of Section 3 of Commissions of Inquiry Act, 1952 the commission is required to submit report before the State Government but herein the report has been submitted before the Governor of the State, which would be evident from letter 10.09.2018 issued by the then Governor addressed to the Speaker, as such the same is vitiated as per law.
51. It has further been contended that since the report was to be submitted before the State Government in view of provision 3(4) of the Commission of Inquiry Act, 1952 hence
- 24 - W.P. (PIL) No. 1811 of 2022 the opinion was sought for from the Advocate General and taking into consideration the non-observance and statutory provision as contained under Section 3(4) of the Commission of Inquiry Act, 1952, the opinion was given and thereafter, another commission has been constituted.
52. It has further been submitted that the second one-man commission has submitted its report to the Cabinet Secretariat and Vigilance Department (Parliamentary Affairs), which from approval of Cabinet has been placed before the Jharkhand Legislative Assembly.
53. It has further been submitted that „Action Taken Report‟ [ATR] was prepared by the Jharkhand Legislative Assembly and was decided to be tabled before the Jharkhand Legislative Assembly by the Council of Ministers (Cabinet) in its meeting dated 24.01.2024 and accordingly the matter was closed by the State Government as per Section 3(4) of the Commission of Inquiry Act, 1952.
54. In support of their argument, learned counsel for the respondent-State as also the respondent-Legislative Assembly has relied upon the judgment rendered in the case of Ram Krishna Dalmia Vs. S.R. Tendolkar & Ors [AIR 1958 SC 538]; Ghanshyam Upadhyay Vs. State of U.P. & Ors. [(2020) 16 SCC 811]; Shakeel Ahmed V. Union of India [2022 SCC OnLine 1519]; State of W.B. Vs. Committee for
- 25 - W.P. (PIL) No. 1811 of 2022 Protection of Democratic Rights [(2010) 3 SCC 571]; Shree Shree Janki Ji Asthan Tapovan Mandir vs. State of Jharkhand [(2019) 6 SCC 777].
55. Learned counsel for the respondents, on the aforesaid premise, has submitted that the present „Public Interest Litigation‟ is not sustainable in the eyes of law and is liable to be dismissed in limine.
Analysis:
56. We have heard learned counsel for the parties, perused the documents available on record as also the pleadings available on record.
Issue of Maintainability
57. Though the issue of maintainability and the issue of credential of the petitioner were not raised before the Co- ordinate Bench fairly for a long period of about two years, as discussed above, and as would be evident from the orders passed by the Co-ordinate Bench, which is quoted above, but, for the first time, in the written note of argument after conclusion of final hearing submitted by the respondent- Jharkhand Vidhan Sabha, issue of maintainability and credential has been raised. Even though there is no specific plea raising the issue of maintainability so that the petitioner may have a chance to response even then, this Court before entering into the merit of the case, deems it fit and proper to
- 26 - W.P. (PIL) No. 1811 of 2022 decide the issue of maintainability of the writ petition as well as credential of the writ petitioner first.
58. However, before entering into the aforesaid issue, it is necessary to deal with the meaning of expression 'public interest litigation'.
59. In Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus: "Public Interest - a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
60. In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
"Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
61. In the case of Janata Dal vs. H.S. Chowdhary and Others, [(1992) 4 SCC 305], the Hon‟ble Apex Court has considered the scope of „Public Interest Litigation‟ and at paragraph 52 of the said judgment, it has laid down as under: :-
- 27 - W.P. (PIL) No. 1811 of 2022 "52. In Black's Law Dictionary (6th edn.), ‗public interest„ is defined as follows: ―Public Interest -- Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government ....‖"
62. At paragraph 53 the Hon„ble Apex Court in the case of Janata Dal vs. H.S. Chowdhary and Others (supra) has defined the expression „litigation‟ which is quoted hereunder as:-
"53. The expression litigation means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression PIL„ means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. There is a host of decisions explaining the expression PIL„ in its wider connotation in the present day context in modern society, a few of which we will refer to in the appropriate part of this judgment."
63. At paragraph 62 of the said judgment, it was pointed out that "be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold."
- 28 - W.P. (PIL) No. 1811 of 2022
64. At paragraph 96 of the said judgment, it has further been observed that "while this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly-developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."
65. In subsequent paragraphs of the said judgment, it has been held that "it is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold"
66. It has further been propounded in the aforesaid judgment that the Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind
- 29 - W.P. (PIL) No. 1811 of 2022 the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity oriented or founded on personal vendetta.
67. In view of law laid down by Hon‟ble Apex Court, it is required that the Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the past time of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
- 30 - W.P. (PIL) No. 1811 of 2022
68. Therefore, the Court has to be satisfied about the credentials of the applicant; the prima facie correctness or nature of information given by him; and the information being not vague and indefinite.
69. Herein, this Court after going through the pleading available on record and after hearing learned counsel for the parties at length, has found from the statement made under paragraph 3 of the writ petition that description about the credential of the petitioner has been given, as per "Jharkhand High Court (Public Interest Litigation) Rules, 2010". Further though counter affidavit has been filed but no reply in rebuttal has been filed regarding the credential of the petitioner.
70. However, at belated stage, when hearing concluded one statement has been made in the written note of argument raising the issue of maintainability. But the written notes of argument cannot be said to be part of the pleading rather it is gist of argument advanced by the party concerned based upon the pleading made in the affidavit (s) and if any substantial question is being raised, even with respect to the credential of the petitioner, the respondent ought to have come out with the specific denial on the issue of credential by filing affidavit.
- 31 - W.P. (PIL) No. 1811 of 2022
71. But, in the instant case, although the affidavits have been filed both on behalf of State of Jharkhand and the Jharkhand Vidhan Sabha but there is no denial of the issue of credential, as would be evident from the affidavits filed on their behalf.
72. The question, therefore, is that merely on the basis of statement made in the written notes of argument by which the respondents has raised fingers upon the credential of the petitioner, can the issue credential of the petitioner as also the maintainability be raised, after conclusion of final argument in the matter. The answer of this Court is in Negative.
73. Further, from the orders passed by the Co-ordinate Bench, as quoted and referred above, it is evident that the issue of maintainability of the writ petition and credential of the petitioner has never been raised.
74. This Court, as such, is satisfied that the present writ petition is to be heard on merit.
Analysis on Merit of the case:
75. This Court, on the basis of facts and pleadings available on record considers that for coming to a logical conclusion, following issues are required to be answered:
Issues framed by the Court:
- 32 - W.P. (PIL) No. 1811 of 2022 I. Whether the report, if submitted by the chairman of first one-man judicial commission, before the Governor directly, even though the same is in compliance of Government Notification dated 07.07.2014 wherein one-man judicial commission was requested to submit the report before the Governor directly, can it be said to be contrary to the mandate of Section 3(4) of the Commissions of Inquiry Act, 1952?
II. Whether in facts and circumstances of the case, if the Governor has forwarded the report of the first one-man judicial commission before the Speaker directly can it be said to suffer from error where the State itself has taken decision vide notification dated 07.07.2014 to submit the report before the Governor based upon the order passed in the name of Governor?
III. Whether even accepting the argument advanced on behalf of the State that the Governor was having no power to forward the report before the speaker of the Assembly directly and in place thereof the report was required to be sent before the State can the fact finding given by earlier one-man judicial commission be said to suffer from irregularity or illegality; or if irregularity was there, was it curable?
IV. Whether the action of the Governor, being Executive Head of the State, can be questioned and said to be in the teeth of Section 3 of Commissions of Inquiry Act, 1952 when the
- 33 - W.P. (PIL) No. 1811 of 2022 aforesaid mandate provides that the State Government is to appoint judicial commission and to send the report before the Assembly?
V. Whether the constitution of later one-man judicial commission can be said to be proper that too for the purpose of scrutinizing and examining the complicated question of law and fact involved arising out of the report given by the first one man judicial commission constituted under the chairmanship of one retired judge, High Court of Jharkhand, which is allegedly stated by the State bad in law as per Section 3(4) of the Act, 1952?
VI. Whether the conduct of the State Government and State Legislative Assembly be said to be proper as on the one hand accepting the report of first one man judicial commission, the then Speaker gave approval of compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019 while on the other hand the State is questioning the said report of one man judicial commission to be violative of Section 3 of the Act, 1952 that too after filing of the instant Public Interest Litigation?
VII. Whether considering the conduct of the respondents-
State/Legislative Assembly and the issues involved therein requires thorough investigation by the agency like CBI, as directed by the then Governor vide letter dated 10.09.2018?
- 34 - W.P. (PIL) No. 1811 of 2022
76. Since issues nos. I to VI are inter-linked, as such they are taken up together. Outcome of these issues shall govern the fate of issue no. VII, therefore it will be answered later on.
77. As such, this Court is now proceeding to appreciate the pleadings as also the documents available on record to answer the questions framed by this Court, as above, on the merit of the matter.
78. Since in the instant case the contention has been raised about the implication of Section 3 sub-clause 4 of the "Commissions of Inquiry Act, 1952" [hereinafter referred to as „Act, 1952‟], therefore, before adverting to prayer made in the writ petition and appreciating the arguments advanced on behalf of the parties, reference of object and purport of enactment in the nature of the Commissions of Inquiry Act, 1952 would be worthwhile to mention herein to the extent it is relevant in the instant case.
79. The Hon‟ble Apex Court in the case of State of M.P. v.
Ajay Singh, [(1993) 1 SCC 302] has elaborately dealt with the object and purpose of enactment of Act, 1952 and has observed as under:
"In all countries, certainly in those which enjoy freedom of speech and a free Press, moments occur when allegations and rumours circulate causing a nation-wide crisis of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public
- 35 - W.P. (PIL) No. 1811 of 2022 confidence should be restored, for without it no ∼democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be rooted out, or that there is no foundation in the rumours and allegations by which the public has been disturbed. In either case, confidence is restored. How, in such circumstances, can the truth best be established?"
It is for the purpose of ascertaining the truth in such circumstances that the Commissions of Inquiry Act, 1952 has been enacted. While construing the provisions of the enactment, it would be useful to bear in mind its object if occasion arises for illumination of any grey areas with reference to the object of the enactment as a permissible aid to construction."
[Emphasis supplied]
80. Thus, it is evident that for the purpose of ascertaining the truth as well as to restore the faith of general public in the existing democratic set up of our country and to enquire in the matter of public importance, the Act, 1952 has been enacted.
81. This Court would also like to refer herein Section 3 of the Commissions of Inquiry Act, 1952, which reads as under:
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 [each House of Parliament or, as the case may be, the Legislature 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
- 36 - W.P. (PIL) No. 1811 of 2022 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:
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 a 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 [each House of Parliament or, as the case may be, the Legislature 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.]
82. The object of appointing the Commission of Inquiry is to enable the Government to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evils found or to implement the beneficial
- 37 - W.P. (PIL) No. 1811 of 2022 objects it has in view.
83. In other words, the Commission of Inquiry is only a fact finding body for the benefit of the Government when there is a definite matter of public importance.
84. Section 3 provides for appointment of a Commission of Inquiry. Sub-section (1) of Section 3 lays down that a Commission of Inquiry, for the purpose of making an inquiry into any "definite matter of public importance", may be appointed by the appropriate Government if it is of opinion that it is necessary so to do and shall make such an appointment if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the official Gazette.
85. Sub-section (2) of Section 3 says that the Commission may consist of one or more members appointed by the appropriate Government, and where the number is more than one, one of them may be appointed as the Chairman.
86. Sub-section (3) of Section 3 enables the appropriate Government to fill any vacancy which may arise in the office of a member of the Commission whether consisting of one or more than one member, at any stage of an inquiry.
87. Sub-section (4) of Section 3 requires the appropriate Government to cause to be laid before each House of Parliament or, as the case may be, the legislature of the
- 38 - W.P. (PIL) No. 1811 of 2022 State, the report, if any, of the Commission of Inquiry together with a memorandum of the action taken thereon, within a period of six months from the submission of the report by the Commission to the appropriate Government.
88. At this juncture, it will be profitable to discuss the other allied provisions of Act, 1952 also.
89. Section 4 prescribes that the Commission shall have the power of a civil court while trying a suit under the Code of Civil Procedure in respect of the matters mentioned therein.
90. Section 5 deals with the additional powers of the Commission. Section 5-A relates to the power of the Commission for conducting investigation pertaining to inquiry. Section 5-B deals with the power of the Commission to appoint assessors.
91. Section 6 provides for the manner of use of the statements made by persons to the Commission. Section 6-A provides that some persons are not obliged to disclose certain facts.
92. Section 7 deals with the manner in which a Commission of Inquiry appointed under Section 3 ceases to exist in case its continuance is unnecessary. It provides for a notification in the official Gazette by the appropriate Government specifying the date from which the Commission shall cease to exist if it is of the opinion that the continued existence of the
- 39 - W.P. (PIL) No. 1811 of 2022 Commission is unnecessary. Where a Commission is appointed in pursuance of a resolution passed by the Parliament or, as the case may be, the Legislature of the State, then a resolution for the discontinuance of the Commission is also to be passed by it.
93. Section 8-A provides that the inquiry is not to be interrupted by reason of vacancy or change in the constitution of the Commission and 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. Section 8-B prescribes that persons likely to be prejudicially affected by the inquiry must be heard. Section 8- C deals with the right of cross-examination and representation by legal practitioner of the appropriate Government, every person referred to in Section 8-B and, with the permission of the Commission, any other person whose evidence is recorded by the Commission.
94. Sections 9, 10 and 10-A relate to ancillary matters while Section 12 contains the rule-making power of the appropriate Government. Section 11 provides that the Act is to apply to other inquiring authorities in certain cases and where the Government directs that the said provisions of this Act shall apply to that authority and issues such a notification, that
- 40 - W.P. (PIL) No. 1811 of 2022 authority shall be deemed to be a Commission appointed under Section 3 for the purposes of this Act.
95. Further, it is required to refer herein that Sub-section (4) of section 3 was introduced by Amending Act 79 of 1971.
96. Sub-section (4) was introduced in the light of the experience gained indicating that many Governments do not place the Commission's report before the Assembly at all though they relate to important issues of national interest and public importance.
97. It was thought necessary to compel the Government to place the Report before the Parliament or the appropriate Legislative Assembly together with a memorandum of action taken thereon, within a period of six months from the date of submission of the Report, the amendment was introduced.
98. The Hon‟ble Apex Court in the case of Fazalur Rehman v. State of U.P., (1999) 7 SCC 683 while expressing the anguish over manner in which reports of the Commissions of Inquiry are being treated by the State Governments has observed that when in a matter of "definite public importance", a Commission of Inquiry is appointed under the Commissions of Inquiry Act, 1952, the State Government should examine the report expeditiously and decide what action, if any, is required to be taken on that report promptly.
- 41 - W.P. (PIL) No. 1811 of 2022 For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under:
4. However, before parting with this case, we would like to express our anguish at the manner in which reports of the Commissions of Inquiry are being treated by the States. In this case, it has taken more than a decade for the State Government to take notice of the Report of the Commission of Inquiry headed by a former Judge of the High Court. On account of such inaction for a long period of time, the very purpose of the constitution of a Commission of Inquiry under the Commissions of Inquiry Act, 1952 gets frustrated and the argument that such Commissions are appointed under the Act only as an eyewash acquires credibility.
5. It is appropriate that when in a matter of "definite public importance", a Commission of Inquiry is appointed under the Commissions of Inquiry Act, 1952, the State Government should examine the report expeditiously and decide what action, if any, is required to be taken on that report promptly. To keep a report pending for years together and, as in this case, for a decade, does no credit to anybody. Reports of Commissions of Inquiry should not be allowed to gather dust for years together as it reflects adversely on the utility of such Commissions and would affect the credibility of the entire exercise.
[Emphasis supplied]
99. Now this Court, before answering these issues as mentioned above, deems it fit and proper to refer the constitutional frame-work of the country which provides the democratic set up wherein the decision is required to be initiated by the concerned department and through a routine channel i.e. through Cabinet Secretary. Such decision or
- 42 - W.P. (PIL) No. 1811 of 2022 agenda will be produced before the Cabinet and once the Cabinet will approve it the same will be sent before Governor of the State for its assent and thereafter the file will again be returned through the same channel i.e., before the concerned department for its notification and publication in official gazette, meaning thereby merely because the Cabinet has approved the agenda it will not take the shape of an order so long as the notification in this regard is issued by way of publication in official gazette and duly assented by the Governor of the State.
100. Nobody has got any authority to make any addition or alteration in the decision taken by the Cabinet under the democratic set up of the Government which is prevailing in our country.
101. Reference in this regard be made to the judgment rendered in the case of Samsher Singh Vs. State of Punjab & Anr. reported in AIR 1974 SC 2192, in particular paragraphs 27 and 28, which reads hereunder as:
"27. Our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under this system the President is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. Article 103 is an exception to the aid and advice of the Council of Ministers because it specifically provides that the President acts only according to the opinion of the
- 43 - W.P. (PIL) No. 1811 of 2022 Election Commission. This is when any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102.
28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion."
102. Role of the Governor as executive head in the democratic set-up is fully defined and all executive actions of the government of a State are formally taken in name of Governor and Governor can make rules specifying the manner in which the orders and other instruments made and executed in his/her name shall be authenticated. Further, the Governor can make rules for more convenient transactions of the business of a state government and for the allocation among the ministers of the said business.
103. The Hon‟ble Apex Court in the case of M. Karunanidhi v. Union of India, (1979) 3 SCC 431 has observed that ".....under Article 166(3) of the Constitution the Governor can allocate this business to any Minister he likes. Moreover, there can be no doubt that a Minister is subordinate to the Governor. The Governor is the executive head of the State and this position he does not share with the Chief Minister or any other Minister."
- 44 - W.P. (PIL) No. 1811 of 2022
104. Further, the Hon‟ble Apex Court in the case of Samatha v. State of A.P., (1997) 8 SCC 191 has categorically held that the Governor of each State is its executive head and the executive power of the State shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution as envisaged under Article 154 of the Constitution of India. The executive power of the State, subject to the provisions of the Constitution, by operation of Section 162, shall extend to the matters with respect to which the legislature of the State has power to make laws. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under:
62. Under Part VI of the Constitution titled "The States", Article 152 defines "State". For the interpretation of the Constitution, by operation of Article 367, unless the context otherwise requires or modifies, the General Clauses Act shall apply. Section 3(23) thereof defines Government to include both the Central Government and State Government. Section 3(8) defines "Central Government" and Section 3(60) defines "State Government" as regards anything done and or to be done, shall mean the Governor. The Governor of each State is its executive head and the executive power of the State shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution as envisaged under Article 154. The executive power of the State, subject to the provisions of the Constitution, by operation of Section 162, shall extend to the matters with respect to which the legislature of the State has
- 45 - W.P. (PIL) No. 1811 of 2022 power to make laws. The proviso thereto is not relevant for the purpose of this case.
63. The executive power, therefore, of the State is coextensive with that of the legislative power of the State.
The Governor shall appoint the Chief Minister and on his advice, he appoints the Council of Ministers, who shall aid and advise the Governor in the exercise of his function except, insofar as he is, by or under the Constitution, required to exercise his functions or any of them, in his discretion. The Council of Ministers, headed by the Chief Minister, shall be collectively and individually responsible to the legislature and the people in the matter of the governance of the State. All executive actions of the Government of a State, shall be expressed to be taken in the name of the Governor and the business of the Government is conducted in accordance with Article 166 and the Business Rules made, by the Governor, by clause (3) thereof."
105. Thus, from the above case laws, it is evident that the Governor of each State is its executive head and the executive power of the State shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution as envisaged under Article 154 of the Constitution of India. Furthermore, it is also evident that under Article 166(3) of the Constitution the Governor can allocate this business to any Minister he likes. Moreover, there can be no doubt that a Minister is subordinate to the Governor. The Governor is the executive head of the State and this position he does not share with the Chief Minister or any other Ministers.
- 46 - W.P. (PIL) No. 1811 of 2022
106. So far as interpretation of the Inquiry of Commissions Act, 1952, in the context of present case, is as to whether the subsequent Commission is to be appointed, the consideration is required to be made of Section 3 read with Section 8-A of the Act, 1952. Section 8-A provides that the inquiry is not to be interrupted by reason of vacancy or change in the constitution of the Commission and 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. It is, thus, evident by going through the provision of Section 8-A of the Act, 1952 that even in case of, the inquiry is not to be initiated afresh. But, herein on conclusion of the first inquiry and after submission of its report, the second commission has been instituted.
Analysis of facts & pleadings:
107. In the backdrop of aforesaid facts, case laws and power of Governor, this Court is now proceeding to examine the factual aspects of the present case.
108. The petitioner has prayed for direction to implement the directive of the then Hon'ble Governor, Jharkhand issued vide letter no. 2098 dated 10.09.2018 to the then Speaker to implement 30 reference points of Enquiry Commission regarding the illegal appointments in Vidhan Sabha where it
- 47 - W.P. (PIL) No. 1811 of 2022 has categorically been directed that the matter must be enquired by the Central Bureau of Investigation.
109. After filing of writ petition, the matter was taken up on 10.06.2022 and the Co-ordinate Bench of this Court directed the respondent nos. 1, 2 and 4 to file counter affidavit giving para-wise reply and also to explain what action has been taken with respect to the report of first one man judicial commission constituted under the chairmanship of retired judge, High Court of Jharkhand, appointee-wise details and action taken against them, as well as action taken against the concerned persons, who are involved in giving such type of illegal appointment.
110. But instead of filing counter affidavit, an Interlocutory Application being I.A. No. 6158 of 2022 was filed seeking extension of further eight weeks‟ time for filing counter affidavit and lastly on 22.11.2022 counter affidavit was filed by the respondent no. 1, 2 and 4.
111. In the Counter affidavit, which was filed on behalf of respondent nos. 1, 2 and 4 [Vidhan Sabha] on 22.11.2022, it has been stated that taking initiative regarding the implementation of the report of the enquiry commission, the then Speaker gave approval on the compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019.
- 48 - W.P. (PIL) No. 1811 of 2022
112. It has further been stated in the counter affidavit that after going through the reports on 30 points of reference, it was found by the Assembly Secretariat that in some of the reference points some actions have been suggested against the persons named in those references whereas some of the reference points have been left inconclusive. Further, many of reference points, which have been answered also involve complicated questions of law and facts.
113. Further, on the law point, in the counter affidavit it has been alleged that the one man judicial Commission submitted its report before the Governor and not before the State Government as under the Commission of Inquiry Act, 1952 in particular Section 3(4), but the report was required to be tabled and laid before the legislature of the State.
114. In the counter affidavit, it has further been stated that since critical issues are involved in the report for interpretation of complicated question of law and facts and keeping all points of facts into consideration, the Speaker has given his approval to take initiative regarding the constitution of another one man inquiry commission under the provisions of Commissions of Inquiry Act, 1952 so that the report given by the first one man judicial commission could be scrutinized and examined.
- 49 - W.P. (PIL) No. 1811 of 2022
115. In continuance of the recommendation of Speaker, the Department of Cabinet Secretariat and Co-ordination (Parliamentary Affairs) has issued Notification No. 1130 dated 21.09.2022 regarding constitution of another one man commission to scrutinize and examine the complicated question of law and fact involved arising out of the report given by the first one commission.
116. From the orders passed by this Court, it appears that continuously, this Court asked for the report submitted by the one man judicial commission, but for the one pretext or the other the original report was not submitted before this Court and lastly on 18.04.2024 it was placed before this Court in sealed cover.
117. But at this stage, it would be apt to mention here the circumstances after which, the report was placed before this Court showing the conduct of the respondents.
118. For the first time, the Co-ordinate Bench of this Court vide order dated 10th June, 2022 directed to file counter affidavit stating what action has been taken on the report of one man commission appointee-wise details and action taken against them as well as the action taken the concerned persons who are involved in giving such type of illegal appointments but no counter affidavit was filed. Thereafter continuously orders were passed by the Co-ordinate Bench,
- 50 - W.P. (PIL) No. 1811 of 2022 all orders have been quoted above, but neither the report was filed nor the action taken report was filed by the respondents. The Co-ordinate Bench vide order dated 13.06.2023 directed to comply with previous order but again it was not complied with however on the request of respondents-Vidhan Sabha the matter was time and again adjourned i.e., on 18.07.2023, 16.08.2023, 04.10.2023 but the first report was not produced before this Court, therefore, the Co-ordinate Bench of this Court, considering the conduct of the respondents, has constrained to pass order on 04.10.2023 that the report is deliberately not produced before this Court and consider this to be obstruction to justice. At the risk of repetition, the relevant part of order dated 04.10.2023 is quoted as under:
„...We see that the report is deliberately not produced before us even though her Excellency the then Governor of the State has directed the Speaker of Vidhan Sabha to carry out the proposals given in the report. So we consider it to be an obstruction to justice and direct the Secretary of the Jharkhand Vidhan Sabha to produce the aforesaid report .......... within seven day, hence, failing which we would be constrained to initiate a criminal contempt for obstruction to justice."
[Emphasis supplied]
119. Thereafter, the matter was placed before the Co-ordinate Bench of this Court on 12.10.2023 and by way of last
- 51 - W.P. (PIL) No. 1811 of 2022 indulgence time was granted to produce the report. Relevant part of order is quoted as under:
".....If the order is not complied with, we will pass appropriate order and try to dispose of the Public Interest Litigation without perusing the report, basing on the recommendations made by Her Excellency The Then Governor of Jharkhand...."
120. After such stringent order having been passed, the order passed by the Co-ordinate Bench was not complied with rather an Interlocutory Application being I.A. No. 10249 of 2023 was filed on behalf of respondent-Jharkhand Vidhan Sabha taking the ground for delay in submission of report that the original copy of the first report since has been handed over to second one man commission and unfortunately the copy of the first report could not be retained by the office of Vidhan Sabha, hence it could not be produced before this Court.
121. Thereafter, when the matter was taken up on 18.04.2024 i.e., after about one year, the reports of One-Man Commission was placed before this Court in sealed cover.
122. For the sake of clarity, it is worthwhile to mention herein that initially there was nomination of one man judicial commission, the retired judge of High Court of Jharkhand, who refused to conduct inquiry. Thereafter, another one man commission was constituted vide notification dated 07.07.2014 who conducted inquiry and submitted the report
- 52 - W.P. (PIL) No. 1811 of 2022 as such for the sake of convenience we have mentioned it as „first one man judicial commission‟, who factually is the first who conducted enquiry and submitted first report, as such, report submitted by it is mentioned as „first one man judicial commission report‟. Thereafter, vide notification dated 21.09.2022 with modification vide notification dated 21.10.2023, another one man commission was constituted which is mentioned as „second one man judicial commission‟ and report submitted by the said Commission is mentioned herewith as „second one man judicial commission report‟.
123. In the backdrop of aforesaid factual aspects and submissions made on behalf of parties, it is evident that to enquire into the irregularities in the appointment and promotion in Jharkhand Legislative Assembly Secretariat, one retired Judge of High Court of Jharkhand was appointed as Chairman vide notification no. 802 dated 07.07.2014 by the order of Governor with the condition that the report shall be placed before the Governor. For ready reference, the relevant portion of notification dated 07.07.2014 is quoted as under:
>kj[k.M ljdkj eaf=eaMy lfpoky; ,oa leUo; foHkkx &&& v f/k lw p uk jk¡ph] fnukad 07 tqykbZ 2014
- 53 - W.P. (PIL) No. 1811 of 2022 bZ0A la0la0& 5@e0e0l0&¼la0 dk;Z0½ 06@2013 802@ekuuh; >kj[k.M mPp U;k;ky; ds i=kad 6748&49@Appt., fnukad 17-06-2014 ds vkyksd esa >kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ksa ,oa izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa dh tkap djus gsrq tkap vk;ksx ds v/;{k ds in ij >kj[k.M mPp U;k;ky; ds lsokfuo`r U;k;ewfrZ xxxxxx dks fu;qDr fd;k tkrk gSA 2- bl tkap vk;ksx }kjk lEiw.kZ ?kfVr ?kVukØe ,oa ?kVuk ds fy, ftEesokj O;fDr;ksa ds laca/k esa tkap dj tkap izfrosnu egkefge jkT;iky] >kj[k.M ds le{k izLrqr fd;k tk,xkA 3- bl vk;ksx dks os lkjh 'kfDr;k¡ iznku dh tkrh gSa] tks tk¡p vk;ksx vf/kfu;e] 1952 dh fofHkUu /kkjkvksa ds }kjk xfBr ,d tk¡p vk;ksx dks iznÙk gSA 4- bl tkap vk;ksx dks vko';d lfpoky;h; lgk;rk ¼Secretarial Support½ >kj[k.M fo/kku lHkk] jkaph }kjk iznku fd;k tk;sxkA 5- mDr tkap vk;ksx ds v/;{k dks vafre osru ?kVko isa'ku ds lerqY; osru@ekuns; fn;k tk,xkA >kj[k.M jkT;iky ds vkns'k ls ¼ts0 ch0 rqfcn½ ljdkj ds iz/kku lfpo
124. Pursuant thereto, the commission enquired into the matter and submitted its report before the Governor as per the stipulation made in notification no. 802 dated 07.07.2014 which was issued by the State Government in the name of order of Governor, whereby it was stated that the report is to be submitted before the Governor.
125. After receipt of said report, the then Governor vide letter no. 2098 dated 10.09.2018 requested the then Speaker to implement the recommendation of the report of the
- 54 - W.P. (PIL) No. 1811 of 2022 commission and requested to enquire the matter as also the concerned CD (Compact Disc) by Central Bureau of Investigation. Relevant portion of said letter is quoted as under:
Jherh xxxxxx jkT;iky] >kj[k.M v0l0 i= la[;k&2098 fnukad 10@09@18 fiz; xxxxxx] >kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ksa ,oa izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa dh tk¡p gsrq jkT; ljdkj }kjk U;k;k/kh'k xxxxxx ¼lsokfuo`r½ dh v/;{krk esa tk¡p vk;ksx xfBr fd;k x;k FkkA mDr tk¡p vk;ksx }kjk viuk izfrosnu jktHkou dks izLrqr fd;k x;k gSA tk¡p vk;ksx }kjk dqy&30 Reference Points ij viuk foLr`r izfrosnu izsf"kr fd;k x;k gSA izR;sd Reference Points ij foLr`r tk¡p djrs gq, leh{kk ds i'pkr~ visf{kr dkjZokbZ Li"V :i ls izfrosnu esa mfYyf[kr gSA Reference fcUnq 30 esa cjrh xbZ vfu;ferrkvksa ds fy, tokcnsg inkf/kdkjh@dfeZ;ksa dk mYys[k gS rFkk izLrkfor dkjZokbZ dk Hkh mYys[k fd;k x;k gSA ¼izfrfyfi layXu½ U;kf;d tk¡p vk;ksx }kjk fuEukafdr&04 fcUnqvksa ij Hkh vyx ls vuq'kalk dh xbZ gSA 1- vk;ksx ds lkFk izfrfu;qDr fo/kku lHkk dfeZ;ksa dks fdlh izdkj ls izrkM+uk ugha gksA 2- Jh ohjsUnz dqekj dks rRdkyhu v/;{k }kjk fn, x, ltk ij iqu% fopkj fd;k tk;A 3- bl fu;qfDr izdj.k ls lacaf/kr lhMh dh tkap lh0ch0vkbZ0 ds }kjk djk;h tk;A 4- vk;ksx ds lkFk izfrfu;qDr dfeZ;ksa dks muds dBksj ifjJe ds vkyksd esa ,d vfrfjDr osruo`f) Lohd`r dh tk;A
- 55 - W.P. (PIL) No. 1811 of 2022 jkT; dh fo/kku lHkk yksd ra= dh jkT; esa loksZPp laLFkk gSA vr% ;g vko';d gS fd fo/kku lHkk ds lHkh dk;ksZa dks laiw.kZ ikjn'khZ rjhds ls laiUu fd, tk;A U;kf;d tk¡p vk;ksx }kjk lq&O;ofLFkr rjhds ls fo/kku lHkk esa iwoZ esa fd, x, fu;qfDr;ksa rFkk izksUufr;ksa dh tk¡p dh xbZ gSA ;g visf{kr gS fd tk¡p vk;ksx }kjk fd, x, vuq'kalk ds vkyksd esa fo/kku lHkk ds }kjk le;c) rjhds ls dkjokbZ lqfuf'pr dh tk; ftlls fd bl laLFkk ij ukxfjdksa dk fo'okl cjdjkj jgsA vkils vuqjks/k gS fd tk¡p vk;ksx ds izfrosnu esa fpfUgr nks"kh O;fDr;ksa ds fo:) vk;ksx }kjk dh xbZ vuq'kalk ds vkyksd esa fof/klEer dkjZokbZ lqfuf'pr djsaxs rFkk d`r dkjZokbZ ls v/kksgLrk{kjh dks Hkh voxr djkus dk d"V djsaxsA vuq0%;FkksifjA 'kqHksPNk lgA Hkonh;] ¼ xxxxxx ½
126. Taking initiative on the report of the enquiry commission as also the directives of the Governor as contained in letter dated 10.09.2018, the then Speaker gave approval on the compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019.
127. However, after four years of submission of report to the Governor and during pendency of the instant case vide letter dated 03.08.2022 issued by the Jharkhand Legislative Assembly Secretariat under the Signature of Syed Javed Haider, Secretary In-charge, Jharkhand Legislative Assembly to the Chief Secretary, Government of Jharkhand stating therein that as per letter dated 25.01.2022 of the Speaker, Jharkhand Legislative Assembly on the report of first one
- 56 - W.P. (PIL) No. 1811 of 2022 man judicial commission, legal advice is required to be taken. For ready reference the letter dated 03.08.2022 is being quoted as under:
>kj[k.M fo/kku&lHkk lfpoky;
i= la0&01LFkk0&08@2019 1701 @fo0 l0
izs"kd]
lS;n tkosn gSnj
izHkkjh lfpo]
>kj[k.M fo/kku lHkk] jk¡phA
lsok es]a
eq[; lfpo]
>kj[k.M ljdkj] jk¡phA
jk¡ph] fnukad&03@08@22
fo"k;%& Commission of Inquiry Act-1952 ds varxZr One Man Judicial
Commission ds xBu ds laca/k esAa
egksn;]
mi;qZDr fo"k; ds laca/k esa funs'kkuqlkj lwfpr djuk gS fd ekuuh; v/;{k] >kj[k.M fo/kku&lHkk }kjk fnukad&25-01-2022 dks >kj[k.M fo/kku&lHkk esa fu;qfDr;ksa ,oa izksUufr;ksa esa gqbZ vfu;ferrkvksa dh tk¡p gsrq eaf=eaMy lfpoky; ,oa leUo; foHkkx] >kj[k.M ljdkj ds ladYi la0&1164] fnukad&26-06-2015 }kjk Commission of Inquiry Act-1952 ds varxZr xfBr ekuuh; U;k;ewfrZ ¼lsokfuo`Ùk½ xxxxxx iwoZ U;k;k/kh'k >kj[k.M mPp U;k;ky; dh v/;{krk esa One Man Judicial Commission ds izfrosnu ds fo"k; esa fof/kd ijke'kZ izkIr djus dk funs'k izkIr Fkk] mDr vkns'k ds vkyksd esa egkf/koDrk >kj[k.M ls fof/kd ijke'kZ dh ekax dh xbZ] ftlesa egkf/koDrk >kj[k.M }kjk mDr izfrosnu ij lkjr% fuEufyf[kr ijke'kZ fn;k x;k %& "Seen from the above perspective that the report has not been
- 57 - W.P. (PIL) No. 1811 of 2022 placed before the State Government and laid before the State Legislature, I opine that an appropriate Commission be constituted under the Commission of Inquiry Act with specific terms of the reference of scrutinizing the report of the Hon'ble Mr. Justice xxxxxx and for examination of the various recommendations made vis a vis complicated question of Law and fact involved and thereafter propose specific actions required to be taken in the matter.
Thus a Judicial Commission under the chairmanship of former distinguished Supreme court Judge who is well conversant with the service jurisprudence can be appointed under the Commission of Inquiry Act-1952.
I have already spoken and taken the consent of Hon'ble Mr. Justice (Retd.) xxxxxx, Former Supreme Court Judge Who is well acknowledged authority in the Service Jurisprudence to act as a one Man Judicial Commission.
I, therefore, opine accordingly and appropriate action may be taken."
ekuuh; v/;{k] >kj[k.M fo/kku&lHkk }kjk egkf/koDrk >kj[k.M ds mi;qZDr fof/kd ijke'kZ ds vkyksd esa dkjZokbZ ysus dk vkns'k fn;k x;k gSA vr% mDr ds vkyksd esa Commission of Inquiry Act-1952 ds varxZr xfBr ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ xxxxxx iwoZ U;k;k/kh'k >kj[k.M mPp U;k;ky; dh v/;{krk esa One Man Judicial Commission ds izfrosnu dh vuq'kalkvksa esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa ds lek/kku gsrq Commission of Inquiry Act-1952 ds varxZr ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ xxxxxx iwoZ U;k;k/kh'k loksZPp U;k;ky; dh v/;{krk esa One Man Judicial Commission dh fu;qfDr ds laca/k esa vko';d dkjZokbZ fy;s tkus dh d`ik dh tk;A vuqyXud %& ;FkksDrA fo'oklHkktu ¼lS;n tkosn gSnj½ izHkkjh lfpo] >kj[k.M fo/kku&lHkk] jk¡phA
- 58 - W.P. (PIL) No. 1811 of 2022
128. On the basis of the opinion as given by learned Advocate General of the State and on the recommendation of the then Speaker, the Cabinet Secretariat and Co-ordination (Parliamentary Affairs) has issued a notification No. 1130 dated 21.09.2022 with modification vide notification dated 21.10.2023 regarding constitution of another one man commission to scrutinize and examine the complicated question of law and fact involves arising out of the report given by the first one man judicial commission. For ready reference, notification dated 21.09.2022 and its modification issued vide notification dated 21.10.2023 are quoted as under:
>kj[k.M ljdkj] eaf=e.My lfpoky; ,oa leUo; foHkkx ¼lalnh; dk;Z½ v f/k lw p uk jk¡ph] fnukad&21-9-2022 bZ0A la0la0&5@ea0ea0l ¼la0 dk;Z0½&06@2013 1130 @>kj[k.M fo/kku lHkk lfpoky; ds i=kad&1701 fnukad 03-08-2022 }kjk fo/kkulHkk lfpoky;
esa fu;qfDr;ksa@izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa dh tk¡p gsrq xxxxxx ekuuh; U;k;ewfrZ ¼lsokfuo`Ùk½ dh v/;{krk esa tk¡p vk;ksx }kjk lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa ds lek/kku gsrq fu/kkZfjr 'kÙkksZa ¼Terms of Reference½ ds v/khu ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ Jh xxxxxx iwoZ U;k;k/kh'k] loksZPp U;k;ky; dh v/;{krk esa ,d lnL;h; U;kf;d
- 59 - W.P. (PIL) No. 1811 of 2022 vk;ksx ¼One Man Judicial Commission½ dk xBu fd;k tkrk gSA 2- bl U;kf;d vk;ksx }kjk Jh foØekfnR; izlkn] ekuuh; U;k;ewfrZ ¼lsokfuoÙ`k½ dh v/;{krk esa xfBr ,d lnL;h; tk¡p vk;ksx }kjk >kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ksa@izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa ds vkyksd esa lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa dk lek/kku dj izfrosnu v/;{k] >kj[k.M fo/kku lHkk ds le{k izL rqr fd;k tk;sxkA 3- bl U;kf;d vk;ksx }kjk 03 ¼rhu½ ekg esa viuk tk¡p izfrosnu lefiZr fd;k tk;sxkA 4- bl U;kf;d vk;ksx dks os lkjh 'kfDr;k¡ iznku dh tkrh gS] tks tk¡p vk;ksx vf/kfu;e] 1952 dh fofHkUu /kkjkvksa ds }kjk xfBr ,d tk¡p vk;ksx dks iznÙk gSaA 5- bl U;kf;d vk;ksx dks vko';d lfpoky;h; lgk;rk ¼Secretarial Support½ ;Fkk dfeZ;ksa dk inLFkkiu] dk;kZy; d{k bR;kfn >kj[k.M fo/kkulHkk lfpoky; }kjk miyC/k djk;k tk;sxkA 6- bl U;kf;d vk;ksx ds v/;{k dks vafre osru ?kVko isa'ku ds lerqY; osru@ekuns; fn;k tk;sxkA vk;ksx ds v/;{k ds fy, ,d ljdkjh okgu ¼pkyd] bZa/ku vkfn½ eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼leUo;½ }kjk miyC/k djk;k tk;sxkA bl ij gksus okys O;; dk ogu eaf=e.My lfpoky; ,oa fuxjkuh foHkkx] >kj[k.M] jkaph ds LFkkiuk en ls fd;k tk;sxkA >kj[k.M jkT;iky ds vkns'k ls] ¼oanuk nknsy½ ljdkj ds iz/kku lfpoA Kkikad&5@ea0ea0l ¼la0 dk;Z0½ &06@2013 1130@jk¡ph] fnukad 21-9-2022
- 60 - W.P. (PIL) No. 1811 of 2022 bZ0A Letter Dated 20.10.2023 >kj[k.M ljdkj] eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½ vf/klwpuk jk¡ph] fnukad 20-10-2023 bZ0 la0la0&5@ea0ea0l ¼la0 dk;Z0½&06@2013¼va'k 1½ 1393@eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½ ds vf/klwpuk la[;k&1130 fnukad 21-09- 2022 ds dafMdk&2 esa vafdr ^^bl U;kf;d vk;ksx }kjk xxxxxx] ekuuh; U;k;ewfrZ ¼lsokfuo`r½ dh v/;{krk esa xfBr ,d lnL;h; tk¡p vk;ksx }kjk >kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ks@ a izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa ds vkyksd esa lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa dk lek/kku dj izfrosnu v/;{k] >kj[k.M fo/kku lHkk ds le{k izLrqr fd;k tk;sxkA** dks fuEu ls izfrLFkkfir fd;k tkrk gS %& ^^bl U;kf;d vk;ksx }kjk xxxxxx] ekuuh; U;k;ewfrZ ¼lsokfuo`r½ dh v/;{krk esa xfBr ,d lnL;h; tk¡p vk;ksx }kjk >kj[k.M fo/kku lHkk lfpoky; esa fu;qfDr;ksa@izksUufr;ksa esa cjrh xbZ vfu;ferrkvksa ds vkyksd esa lefiZr tk¡p izfrosnu esa lekfgr tfVy fof/k ,oa rF;ksa ds iz'uksa dk lek/kku dj tk¡p izfrosnu jkT; ljdkj ¼>kj[k.M½ ds le{k izLrqr fd;k tk;sxkA** 2- foHkkxh; vf/klwpuk la[;k&1130 fnukad 21-09-2022 dks bl gn rd la'kksf/kr le>k tk;A >kj[k.M jkT;iky ds vkns'k ls] xxxxxx ljdkj ds iz/kku lfpo
129. Thereafter vide letter no. 66 dated 16.01.2024 the In-
charge Secretary, namely, Syed Jawed Haider, Jharkhand Legislative Assembly addressed to the Principal Secretary, Cabinet Secretariat and Co-ordination (Parliamentary Affairs)
- 61 - W.P. (PIL) No. 1811 of 2022 submitted the copy of report submitted by the commission along with original copy of action taken report and sought for necessary action so that it be placed before the legislative assembly. For ready reference, the said letter dated 16.01.2024 is quoted as under:
>kj[k.M fo/kku&lHkk lfpoky;
i= la[;k&01LFkk0&207@2022 66 @fo0 l0A
izs"kd]
lS;n tkosn gSnj
izHkkjh lfpo]
>kj[k.M fo/kku lHkk] jk¡phA
lsok es]a
iz/kku lfpo]
eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½] >kj[k.M ljdkj] jk¡phA jk¡ph] fnukad&16@01@24 fo"k;%& xxxxxx iwoZ U;k;k/kh'k loksZPp U;k;ky;] v/;{k] ,d lnL;h; U;kf;d vk;ksx ¼One Man Judicial Commission½ ds fjiksVZ ds laca/k esaA izlax%& eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½] >kj[k.M ljdkj dk i=kad&5@ea0ea0l ¼la0 dk;Z0½&06@2013 ¼va'k&1½ 1627] fnukad&18-12-2023 egksn;@egksn;k] mi;qZDr fo"k;d izklafxd i= ds laca/k esa funs'kkuqlkj lwfpr djuk gS fd eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½] >kj[k.M ljdkj dh vf/klwpuk la[;k&1130] fnukad&21-09-2022 }kjk xfBr xxxxxx] iwoZ U;k;k/kh'k loksZPp U;k;ky;] v/;{k] ,d lnL;h; U;kf;d vk;ksx ¼One Man Judicial Commission½ ds fjiksVZ ¼Nk;kizfr layXu½ ,oa mDr fjiksVZ dk A.T.R. ¼ewy izfr layXu½ izsf"kr dh tk jgh gSA vr% ekuuh; U;k;ewfr ¼lsokfuoÙ`k½ Jh xxxxxx] iwoZ U;k;k/kh'k loksZPp U;k;ky;] v/;{k] ,d lnL;h; U;kf;d vk;ksx ¼One Man Judicial Commission½ ds fjiksVZ ,oa mDr fjiksVZ dk A.T.R. iape~ >kj[k.M fo/kku lHkk ds vkxkeh l= esa lnu iVy ij miLFkkfir djus ds laca/k esa vko';d dkjZokbZ djus dh d`ik dh tk;A vuqyXud %& ;FkksDr ¼lhy can½A fo'oklHkktu ¼lS;n tkosn gSnj½
- 62 - W.P. (PIL) No. 1811 of 2022 izHkkjh lfpo] >kj[k.M fo/kku lHkk] jk¡phA
130. Pursuant thereto, it appears from letter pad of the then parliamentary affairs minister in the State Jharkhand, that he issued instruction to place the copy of report [250 copies] submitted by second one man commission before the legislative assembly. For ready reference, letter dated 05.02.2024 is quoted as under:
xxxxxx >kj[k.M ea=ky;
ea=h
lalnh; dk;Z foHkkx] >kj[k.M ljdkj
--------------------------------------------------------------------------------------------------------------------------------------------------------
i=kad % 191 fnukad % 05@02@2024
lHkk lfpo]
>kj[k.M fo/kkulHkk] jk¡phA
Commission of Inquiry act 1952 dh /kkjk &3 ¼mi/kkjk&4½ ds izko/kkuksa ds vkyksd esa eaf=e.My lfpoky; ,oa fuxjkuh foHkkx ¼lalnh; dk;Z½] >kj[k.M ljdkj ds vf/klwpuk la[;k& 1130] fnukad&21-09-2022 }kjk xfBr ,d lnL;h; U;kf;d vk;ksx dk izfrosnu ,oa bl ij lHkk lfpoky; dk d`r dkjZokbZ izfrosnu dh izekf.kd`Ùk ,d&,d izfr layXu djrs gq, pyrs l= fnukad 06-02-2024 dks lHkk iVy ij j[kus dh bZPNk dh lwpuk nsrk gw¡A fnukad&06-02-
2024 dh dk;Zlwph esa vafdr djus dh dkjZokbZ Hkh djuk pkgsx a sA vuq0%&;FkksDr~ ¼250 izfr;ksa es½a A Hkonh;] ¼ xxxxxx ½
131. Thereafter, a supplementary counter affidavit has been filed on 19.03.2024 stating therein that "....That the report of
- 63 - W.P. (PIL) No. 1811 of 2022 Hon‟ble Justice (Retd.) xxxxxx, former Judge, was submitted before the State Government. The report along with Action Taken Report (ATR) provided to the State Government by Jharkhand Legislative Assembly was decided to be tabled before the Jharkhand Legislative Assembly by the Council of Ministers (Cabinet) meeting dated 24.01.2024 and the matter was closed interim by the State Govt. as per Section 3(4) of the Commission of Inquiry Act, 1952".
132. In pursuance to order dated 20.03.2024, the copy of both the one man commission report along with „Action Taken Report‟ in sealed cover was placed before the Court, which was kept in the safe custody of learned Registrar General. Accordingly, the matter was adjourned to be listed on 13.05.2024.
133. It appears that only after report [second one man judicial commission report] having been placed before the legislative assembly, the report of both one man commission has been placed before this Court and before that for a year for one reason or the other the report was not placed before this Court the reason best known to the respondents.
134. On 13.05.2024, on the query made by this Court to learned counsel appearing for the State and the Legislative Assembly as to whether the said documents as also the reports of the enquiry commission can be said to be
- 64 - W.P. (PIL) No. 1811 of 2022 confidential documents, learned State counsel as also Mr. Indrajit Sinha, learned counsel appearing for the Jharkhand Legislative Assembly, has submitted at Bar that since the documents, in view of the provision of Section 3 of the Commission of Inquiry Act, 1952, have been placed before the Assembly, therefore, it cannot be said to be confidential documents which is also evident from the letter dated 05.02.2024 of Department of Parliamentary Affairs, Government of Jharkhand which has been appended as Annexure-L Series to the Counter affidavit filed on behalf of Cabinet Secretariat and Vigilance Department (Coordination) Jharkhand, Ranchi.
135. In view of such specific submission advanced by learned counsel for the respondents-State and State Legislative Assembly, the State was directed to bring on record the said copy of reports on affidavit.
136. Pursuant thereto, the State filed affidavit annexing therewith the second one man commission report. However, when this Court took note of the fact that only copy of report of second one man commission has been submitted whereas the report of first one judicial commission is the base of second one-man judicial commission has not been submitted, this Court directed to bring on record the copy of first one judicial commission on record by filing affidavit.
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137. Accordingly, the first one judicial commission report was brought on record by way filing supplementary affidavit. Observation of the Court:
138. Learned counsel for the petitioner has vehemently argued that the direction/order of the then Governor, who was the executive head of the State, ought to have been implemented by the Speaker of the Vidhan Sabha, who clearly directed that the matter is to be investigated by the CBI as also the said CD (compact disc), which contains the corrupt practice by the then Speaker. The letter containing the direction of the then Governor has already been quoted and referred above.
139. On the other hand, learned counsel for the respondents has submitted that since the report was to be submitted before the State Government in view of provision 3(4) of the Commission of Inquiry Act, 1952 hence the opinion was sought for from the learned Advocate General and taking into consideration the non-observance and statutory provision as contained under Section 3(4) of the Commission of Inquiry Act, 1952, the opinion was given and thereafter, the fresh commission has been appointed.
140. This Court from the statement so made in the counter affidavit has found that showing implementation of report of first one-man judicial commission, it has been stated that
- 66 - W.P. (PIL) No. 1811 of 2022 taking action on „recommendation on 30 points of reference‟, as mentioned in the first report of one-man judicial commission, the report was sent to the Assembly Secretariat, and accordingly, the then Speaker gave approval of the compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019.
141. This action of the respondents-Vidhan Sabha itself suggests that the respondents also accepted that there is something wrong in the appointment/promotion so made in the Legislative Assembly.
142. Even accepting the contention of the respondents that the some wrongs are there that the reason the follow up action was taken with respect to the employees who have been appointed, has been taken and if that was the stand that only two illegalities have been found out then for what purpose, the second one man judicial commission has been appointed that too contrary to the mandate has contained under Section 8-A of the Act, 1952 and the purpose of the said statutory provision is that there cannot be any subsequent enquiry for the purpose of conducting the fresh one rather in view of the judgment passed by Hon‟ble Apex Court in the case of Fazalur Rehman v. State of U.P., (supra) immediately after submission of the report the follow up action is to be taken [paragraph 4 and 5 quoted and
- 67 - W.P. (PIL) No. 1811 of 2022 referred above]. But the decision has been taken to have a second report and second commission has found no illegality that is the issue herein having been highlighted in the writ petition.
143. This Court has perused both the reports i.e., first man judicial commission report and second one man judicial commission report.
144. In the first one man commission report, the commission has answered all the references with respect to appointment and promotion in the Jharkhand State Legislative Assembly finding therein several illegality/irregularity whereas in the second one man judicial commission report on the same reference has proposed that „No Action‟ is required to be taken.
145. Here, it needs to refer herein the first commission has submitted its report that action ought to have been taken as per the judgment passed by Hon‟ble Apex Court in the case of Fazalur Rehman v. State of U.P., (supra) wherein it has been laid down that the Commission of Inquiry is appointed under the Commissions of Inquiry Act, 1952, the State Government should examine the report expeditiously and decide what action, if any, is required to be taken on that report promptly. To keep a report pending for years together and, as in this case, for a decade, does no credit to anybody.
- 68 - W.P. (PIL) No. 1811 of 2022 Reports of Commissions of Inquiry should not be allowed to gather dust for years together as it reflects adversely on the utility of such Commissions and would affect the credibility of the entire exercise.
146. Here, exactly the same situation that the first report has been submitted in the year 2018 but the State has taken no action and thereafter, after lapse of about 4 years, a new commission has been decided to be constituted. The aforesaid conduct of the State is found to be not proper.
147. It is pertinent to mention here that by the Governor the report was placed in the year 2018 and for the four years the respondents sat over the matter and all of a sudden wake up from a deep slumber only when the matter came before this Court they took stand that the first report so submitted by one-man judicial commission suffers from error as it was not placed before the State as per the mandate of Section 3(4) of the Act, 1952, which action of the respondents cannot be said to be a bona fide action.
148. The conduct of the State is also found to be doubtful that the reports have not been submitted immediately after passing of the direction rather on repeated directions, the reports have been submitted that too initially only the second enquiry commission report and thereafter when the Court again directed the first commission report was submitted.
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149. The Court has also considered the conduct of the State as to what necessitated for constituting the second one man judicial commission since it has been argued that after filing of the writ petition that on 18.04.2022, the second one man judicial commission was constituted vide notification dated 21.09.2022 on the recommendation made by the then Speaker, as would be evident from letter dated 03.08.2022 sent by Syed Jawed Haider, the Secretary, I/C of the Vidhan Sabha, based upon the legal advice of learned Advocate General.
150. Therefore, this Court is scrutinizing the submission made on behalf of parties for constitution of second one man judicial commission on the strength of letter dated 03.08.2022 sent by Syed Jawed Haider, the Secretary, I/C of the Vidhan Sabha and opinion of learned Advocate General.
151. Learned counsel for the petitioner also questioned the opinion so given by the learned Advocate General for constitution of further one man judicial commission that too only for the purpose of scrutinizing and examining the complicated question of law and fact involved arising out of the first report given by the one-man judicial commission. It has been submitted that in the Act, 1952 there is no provision for constitution of commission for scrutinizing the
- 70 - W.P. (PIL) No. 1811 of 2022 report of another one man commission, so the report of second one man judicial commission is perverse in law.
152. Questioning the second one man commission, submission has been made that for nomination of Hon‟ble Judge to conduct such inquiry and constitute the Commission, the consultation of the High Court was being made but while constituting the second one man commission solely on the basis of opinion of learned Advocate General second one man judicial commission was constituted.
153. Whereas, learned counsel for the respondents has submitted the when it came to the knowledge of the State that first man judicial commission report has been submitted de hors the rule and further in the report of first man judicial commission there are certain complicated question of fact and law, as such second one man judicial commission was constituted as per Section 3(4) of the Act, 1952.
154. The instant writ petition was filed on 18.04.2022 and the Bench of this Court, after hearing the matter on merit, has called for the respondents-Legislative Assembly and directed the respondent to place the report submitted by the first one-man judicial commission vide order dated 13.06.2023 but for the one pretext or the other the first report was not submitted before this Court and lastly after one year in sealed cover the second report was submitted.
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155. It is pertinent to mention here that the first report was placed before this Court only after submission of second one man commission report.
156. It further appears that the second report was only placed before the Council of Ministers (Cabinet) in meeting dated 24.01.2024 and thereafter the matter was closed by the State Govt.
157. From the discussions made herein above it is evident that the respondents has failed to explain as to why they did not constitute second one man judicial commission immediately after submission of report before the Speaker, if the first one man judicial commission was de hors the rule, and waited for four years and only when the matter came before this Court they constituted another one man commission.
158. Furthermore, the Speaker, if he has no power to take action on report submitted by the Commission then under what capacity he opened the sealed report and take action thereupon.
159. Now, in the established background of the fact that only after filing of the present PIL, there was initiation of constitution of second one man judicial commission, this Court proceeds to examine the pleadings available on records.
- 72 - W.P. (PIL) No. 1811 of 2022 160. It is well established from the conduct of the
respondents that even though after passing repeated orders by the Co-ordinate Bench of this Court, which was stringent in nature, the reports have not been placed before this Court, fairly for a long period of two years.
161. The notification for constitution of second one man judicial commission was issued on the basis of letter dated 03.08.2022 issued by the Jharkhand Legislative Assembly Secretariat under the Signature, Secretary In-charge, Jharkhand Legislative Assembly stating therein on the report of first one-man judicial commission, legal advice is required to be taken. As such, opinion of the learned Advocate General was taken, extract of his opinion as mentioned in letter dated 03.08.2022, at the cost of repetition is made herein, as it has bearing in the case.
"........., I opine that an appropriate Commission be constituted under the Commission of Inquiry Act with specific terms of the reference of scrutinizing the report of the Hon'ble Mr. Justice (Retd.) xxxxxx and for examination of the various recommendations made vis a vis complicated question of Law and fact involved and thereafter propose specific actions required to be taken in the matter.
Thus a Judicial Commission under the chairmanship of former distinguished Supreme court Judge who is well conversant with the service jurisprudence can be appointed under the Commission of Inquiry Act-1952.
I have already spoken and taken the consent of Hon'ble Mr. Justice (Retd.) xxxxxx, Former Supreme Court Judge Who is well acknowledged authority in the Service
- 73 - W.P. (PIL) No. 1811 of 2022 Jurisprudence to act as a one Man Judicial Commission."
162. The State, acting on the said legal advice of learned Advocate General, constituted second one-man judicial commission only to scrutinize and examine the complicated question of law and fact involved arising out of the report given by the first one-man judicial commission.
163. For the opinion so given by learned Advocate General, it is evident that he opined to constitute commission with specific terms of reference of scrutinizing the report of the first one-man judicial commission and learned Advocate General has stated that he on his own spoken and taken the consent of Hon‟ble Judge, who is well acknowledged authority in the service jurisprudence to act as a one Man Judicial Commission. Therefore, herein two folds question arises:
(i).Whether the opinion for constitution of second one man judicial commission only to scrutinize the report of first one-
man judicial commission is as per mandate of Section 3 of the Commission of Enquiry Act, 1952; and
(ii).Whether the learned Advocate General, as per constitutional mandate is competent enough to take decision so far finalization of name of one man judicial commission giving the State no other choice.
164. To answer these questions, it would be apt to mention that for the issue involved three one man judicial commission was constituted and admittedly for the constitution of first
- 74 - W.P. (PIL) No. 1811 of 2022 two judicial commissions the opinion was sought for from the High Court and accordingly judicial commission was constituted.
165. But for constitution of last one man judicial commission, the respondents in a very dubious manner did not think proper to take advice of High Court for constitution of judicial commission.
166. It is also admitted fact that in the law there is no specific provision to consult the Hon‟ble Court before constitution of judicial commission but since the High Court is a constitutional body having all records and set up to have all information regarding retired/working Hon‟ble Judges, so the State used to take consultation for nomination of judicial commission. But certainly, on the sole advice of the learned Advocate General it ought not to have been done in the circumstances of the case.
167. Furthermore, since learned Advocate General has opined to constitute the second one man commission to scrutinize the report of first one man judicial commission report, therefore, this Court again perused the provisions of Section 3 of the Act, 1952 and other provisions therein but in the Act there is no provision to constitute another commission to scrutinize and examine the complicated
- 75 - W.P. (PIL) No. 1811 of 2022 question of law and fact involved arising out of the first report.
168. Therefore, the opinion so given by the learned Advocate General does not appear to be in consonance with the provisions of Commission of Inquiry Act, 1952, since Section 3 does not confer any power to look into the propriety of the report given by the first commission rather the power under Section 3 read with Section 8-A of the Act, 1952 to the Commission of Inquiry Act, 1952 is for the purpose of making an inquiry into any definite matter of public importance as stipulated under Section 3(1) of the Act, 1952, but in the instant case, the second one-man judicial commission was appointed on the recommendation of learned Advocate General to scrutinize and examine the complicated question of law and fact involved arising out of the first report, which is contrary to the provisions of law laid down in the Commission of inquiry Act, 1952.
169. The second one man judicial commission was constituted only to scrutinize and examine the complicated question of law and fact involved arising out of the first report, therefore, in either of the cases the first report would not have been brushed aside. Even otherwise also, if appropriate action would have been taken immediately after submission of first report, no occasion would have arisen for
- 76 - W.P. (PIL) No. 1811 of 2022 constitution of second one judicial commission but it appears that only to cover up the findings arrived at in the first one- man judicial commission report, the second one man commission was constituted who proposed no action is required.
170. However, from the pleadings available on record, it appears that first report was never placed before the Assembly, as per mandate of Section 3(2) of the Act, 1952. Even if argument of learned counsel for the respondents is accepted then also, the second report was to be placed and read in conjunctive and not disjunctive with the first report.
171. Learned Advocate General while arguing the matter has taken the ground that after submission of the first one-man judicial commission report due to the death of the Hon‟ble Chairman, the necessity was there for constitution of second one-man judicial commission in order to consider the legal issues, which has been crept up.
172. But, this Court is not in agreement with such submission/ground reason being that after submission of said report the speaker has opened the sealed cover of the first one man judicial commission report and taken follow up action by giving approval of compulsory retirement of two of the officers of the Jharkhand Legislative Assembly then where
- 77 - W.P. (PIL) No. 1811 of 2022 is the question of constitution of second one man judicial commission for having consultation on the legal issue.
173. Now coming to letter dated 03.08.2022 issued by the Jharkhand Legislative Assembly Secretariat under the Signature of Secretary In-charge, Jharkhand Legislative Assembly to the Chief Secretary, Government of Jharkhand wherein it has been stated that as per letter dated 25.01.2022 of the Speaker, Jharkhand Legislative Assembly on the first report of one-man judicial commission, legal advice is required to be taken. However, letter dated 25.01.2022 issued by then Speaker is not placed on record.
174. Herein, the question arises if the first report was submitted in the year 2018 itself, then under what circumstance the State Legislative Assembly slept over for a long period of time of four years that too where the allegation is of illegal appointment/promotion in the State Legislative Assembly Secretariat and directly against the then Speaker and high-ups of the State and after four years they wake up from the deep slumber and sought for opinion from the learned Advocate General that too only after filing of the present Public Interest Litigation.
175. From the opinion so quoted and discussed hereinabove, it is clear that that the learned Advocate General has opined that there is procedural error in submitting the report by one-
- 78 - W.P. (PIL) No. 1811 of 2022 man judicial commission as the report directly has been sent by the Governor to the Assembly and not before the State to be laid before the State Assembly, as such opined to constitute appropriate Commission under the Commissions of Inquiry Act for scrutinizing the report of the first one-man judicial commission. Further, there was no consultation of the High Court while constituting third commission whereas in earlier two occasions, there was prior consultation of the Court.
176. The aforesaid conduct of the respondents has not been explained rather time to time stand has been changed by the respondents. Such conduct of the respondents creates doubt in the mind of the Court.
177. Be that as it may, herein two-folds question arises, that if the report has been sent before the Governor directly and being the Executive head of the State and if the Governor in compliance to the mandate of Section 3 has sent the said report to the Assembly then how the State can come forward questioning the decision of the Governor; will it not be contrary to the constitutional mandate and the very structure of Constitution of India wherein under our democratic set up as per Constitutional mandate the Governor in the State and the President in the Centre are the Executive head.
- 79 - W.P. (PIL) No. 1811 of 2022
178. It is settled principle of law that it is the constitutional spirit that any decision taken by the State either will be in the name of Governor so far it relates to the State affairs are concerned and in the name of President so far it relates to affairs of Union is concerned.
179. In the aforesaid pretext the question arises herein that if the Governor has directly sent the report to the speaker and even accepting the said to the irregularity in the process even then where is the jurisdiction lies with the speaker to open the sealed-cover report and to take follow up action based upon the enquiry report.
180. At this juncture, it will be apt to mention the submission of Mr. Prashant Pallav, learned counsel appearing for the office of the Governor who has submitted that even accepting the fact that there is some procedural error by the office of the Governor in sending the report to the speaker directly instead of sending the same to the State it cannot be said that the entire enquiry report suffers from impropriety rather the same will be said to be procedural irregularity and for the reason of any procedural irregularity, the propriety of the report cannot be said to suffer from any error.
181. This Court on appreciation of aforesaid submission is of the view that Section 3 (4) provides that the State is to furnish the report before the assembly. However, the report
- 80 - W.P. (PIL) No. 1811 of 2022 was submitted before the Governor of the State as per the mandate of letter 07.07.2014 and the Governor has sent the said report before the Speaker. The speaker in turn has opened and taken follow up action by giving approval on the compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019.
182. The then speaker, thus, according to considered view of this Court has exceeded his jurisdiction in opening the sealed cover of the report and going through the same and instead of placing the same before the Assembly so as to follow the mandate of Section 3 of the Act, 1952, took action against two of the officers and sat over the report.
183. It is evident from the provision of Section 3 of Act, 1952 wherein statutory provision has been made that when the report submitted by the Commission appointed under Section 3 of the Act, 1952, the State will take endeavor to place it before or Parliament or the State Legislature, as the case may be.
184. But it is evident from the factual aspect that when the report was submitted directly by the then Governor to the then Speaker the same has been opened by him and thereafter follow up action has also been taken by giving approval on compulsory retirement of two of the officers of the State Legislative Assembly, which action is nothing but
- 81 - W.P. (PIL) No. 1811 of 2022 contrary to the mandate as contained under Section 3(4) of the Act, 1952. Otherwise also, if it is accepted that the report ought to have been sent by the State and not by the Governor, then also the Speaker not ought to have opened the sealed covered of the report rather he ought to have sent the report to the State for the purpose of taking follow up action in pursuance of provision of section 3(4) of the Act, 1952 so that the report be placed before the floor of the Assembly.
185. The conduct of the then speaker as such is in conflict with the statutory mandate rather the Court is of the view that he has exceeded his jurisdiction reason being that the placing the report in the floor of the assembly cannot be said to be power to exercise the Speaker, since the speaker is only to preside the Session.
186. In the aforesaid backdrop this Court has considered view that sending the first commission report directly to speaker by the Governor it can best be said to be irregularity and not illegality.
187. Irregularity could have been rectified without opening the sealed covered and sending it before the Government by the then Speaker, but that was not done, so that the procedure laid down in 3(4) could have been complied with.
- 82 - W.P. (PIL) No. 1811 of 2022
188. Thus, even accepting that the Governor has send the report directly before the then speaker, it cannot be said to be illegal rather it can be said that some irregularity was committed which was curable.
189. In that circumstance if the then Speaker would have sent the report before the State the irregularity could have been regularized.
190. The Hon‟ble Apex Court in the case of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75, has held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Hon‟ble Apex Court observed as under:-
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-
compliance or violation is proved to be deliberate or mischievous;
- 83 - W.P. (PIL) No. 1811 of 2022
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.
191. Further, In the case of M/S Ramnath Exports Pvt. Ltd. versus Vinita Mehta & Anr, the Hon‟ble Apex Court has observed that it is a trite of law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity.
192. Further, it is the constitutional spirit that any decision taken by the State will be in the name of Governor so far it relates to the State affairs are concerned and in the name of President so far it relates to the affairs of Union is concerned.
193. In the instant case the State has raised the question against the Governor itself, therefore, the question arises will it not be said to be contrary to the constitutional spirit.
194. According to the considered view of this Court it will be said to be contrary to the constitutional spirit since even the Governor who has sent the earlier report is in pursuance to the decision taken by the State Government, as would evident from letter dated 10.09.2018 and furthermore, in the democratic set-up, the Governor is the constitutional head.
- 84 - W.P. (PIL) No. 1811 of 2022
195. From the discussions made hereinabove, it can safely be said that report, so submitted by the chairman of first one man judicial commission, before the Governor directly, was in compliance of Government Notification dated 07.07.2014 wherein one man commission was requested to submit the report before the Governor directly.
196. Furthermore, even accepting the argument made on behalf of the State that the Governor was having no power to forward the report before the speaker of the Assembly directly and in place thereof was required to send it before the State, the fact finding given by earlier one man judicial commission cannot be said to suffer from impropriety and even the State has appointed another one man commission only to scrutinize the said report, therefore, the State has also accepted the first one man judicial commission report.
197. Further, this Court on the basis of discussions made hereinabove, is of the view that the appointment of second one-man judicial commission cannot be said to be proper for the purpose of scrutinizing and examining the complicated question of law and fact involved arising out of the report given by the Hon‟ble first one-man judicial.
198. This Court is further of the view that the constitution of second one-man commission, during pendency of the instant case, prima facie indicates that it is the cover-up exercise by
- 85 - W.P. (PIL) No. 1811 of 2022 the authority concern to defeat the purpose for which the earlier commission was constituted and also to frustrate the very object and intent for which the Commissions of Inquiry Act, 1952 was made.
Conclusion:
199. This Court has perused the report submitted by the second one man judicial commission wherein by dealing with the report given by the first one man judicial commission, remark has been „no action proposed‟.
200. This Court, on consideration of Section 3 read with Section 8-A of the Act, 1952, is of the view that no such consideration is to be given by the subsequent commission once the first commission has submitted its report rather it is the authority of the State to deliberate upon the issue as per the judgment rendered by Hon‟ble Apex Court in the case of Fazalur Rehman v. State of U.P., (supra). This Court in view of the above is not hesitant in coming to the conclusion that the second one man judicial commission report has acted as an appellate forum upon the report submitted first one man judicial commission, which is not the mandate of the Commissions of Inquiry Act, 1952.
201. From the discussions so made hereinabove and the finding arrived at by this Court on the subject matter, this Court has come to the conclusion that for the irregularity
- 86 - W.P. (PIL) No. 1811 of 2022 done in the matter of appointment/promotion in the Jharkhand Legislative Assembly, the Government vide notification dated 07.07.2014 constituted one man judicial Commission under the chairmanship of retired judge of High Court of Jharkhand, who submitted its report to the then Governor, as per directives given in the notification dated 07.07.2014.
202. The Governor in turn forwarded the same before the Speaker vide letter dated 16.09.2018 and requested to implement ‟30 points reference‟ as mentioned in the report of the commission and also requested that let an enquiry be conducted by the CBI of the Compact Disc (CD) containing matter of illegal appointment.
203. But thereupon, no action was taken neither the said CD was ever examined by any agency or in Forensic Science Laboratory nor any action was taken against the concerned officers/employees or any high ups of the State rather the then Speaker, in order to cover-up the matter, gave approval on the compulsory retirement of two officers, namely, Ramsagar and Ravindra Kumar Singh vide notification dated 26.08.2019 so as to close the matter.
204. But when the matter came before this Court in the year 2022 by way of filing the instant „Public Interest Litigation‟ on 18.04.2022, after four years of submission of first report, the
- 87 - W.P. (PIL) No. 1811 of 2022 Secretary In-Charge, Jharkhand State Asseembly, who is allegedly one of the beneficiary, issued letter dated 03.08.2022 requesting the Government to constitute another commission.
205. Thereafter, another one man commission was constituted, which submitted its report whereafter the matter was closed taking NO ACTION against anybody.
206. This Court has already discussed in the preceding paragraphs and thereafter has come to the conclusion that the report submitted by the first one-man judicial commission is as per law and virtually no action has been taken thereon and only for eye-wash two of the officers have been compulsorily retired accepting the report of first man judicial commission.
207. This Court has further come to the conclusion that since the opinion so given by the learned Advocate General, basis upon which the second one man commission was constituted does not appear to be in consonance with the provisions of Commission of Inquiry Act, 1952. As such pursuant decision i.e., notification dated 21.09.2022 taken on such opinion has also no base to stand.
208. Thus, it is evident from the discussions made hereinabove that the State being aggrieved with the issue of commission of illegality in the matter of fulfilling the public
- 88 - W.P. (PIL) No. 1811 of 2022 post in the Jharkhand Legislative Assembly constituted a one man judicial commission in terms of Section 3 of the Commission of Inquiry Act, 1952, who has submitted a report answering the 30 reference points, which was referred but no substantial action was taken, save and except, two officers of the Jharkhand Legislative Assembly have been compulsory retirement of vide notification dated 26.08.2019 on the approval given by the then Speaker. Thereafter, the matter was kept pending for about four years and when present public interest litigation was filed and orders were passed by the Co-ordinate Bench of this Court to produce the report of first one man judicial commission as also the action taken report thereon, for a long period of time of about two years purposely the report of one-man judicial commission was not produced and during pendency of the present „Public Interest Litigation‟, second one man judicial commission was appointed based upon the opinion of the learned Advocate General that too allegedly for scrutinizing the complicated question of law and fact involved in the first one man commission.
209. This Court has gathered from the pleading made, as has been taken note of hereinabove, that the second one man judicial commission appears to be constituted in order to hush-up the matter. It also appears that when the first one
- 89 - W.P. (PIL) No. 1811 of 2022 man judicial commission report was submitted the then speaker has opened the sealed cover and taken follow up action, by giving approval of compulsory retirement of two of the officers of the Jharkhand Legislative Assembly, without deliberation having been made upon the report by the State and thereafter when the matter came up before this Court after a long period of four years of submission of such first one man judicial commission report, by way of filing present Public Interest Litigation, on the basis of opinion of learned Advocate General, the second one man judicial commission was constituted for scrutinizing and examine the complicated question of law and fact involves arising out of the report given by the first one man judicial commission.
210. We have already come to the finding hereinabove that under the provision of Section 3 and 8-A of the Commission of Inquiry Act, 1952 there is no provision to scrutinize and examine the or see propriety of the first one man judicial commission, which was duly constituted under the provision of the Act, 1952, rather, it is the power of the State Government to look into this aspect of the matter.
211. So far the issue of handing over the inquiry/investigation to the CBI, which is one of the prayers in the present writ petition, is of the view that before delving
- 90 - W.P. (PIL) No. 1811 of 2022 upon the issue the judicial pronouncements in this regard needs to refer herein
212. This Court in order to come to the logical conclusion has considered the ratio laid down in the case of State of West Bengal v. Committee for Protection of Democratic Rights, reported in (2010) 3 SCC 571.
213. In the said judgment, the issue has been referred for the opinion of the Hon‟ble Constitution Bench of the Apex Court that whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short "CBI"), established under the Delhi Special Police Establishment Act, 1946 (for short "the Special Police Act") to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State.
214. Factual matrix of the case that one Abdul Rahaman Mondal ("the complainant") along with a large number of workers of a political party who had been staying in several camps of that party at Garbeta, District Midnapore, in the State of West Bengal has decided to return to their homes from one such camp. When they reached the Mondal's house, some miscreants, numbering 50-60, attacked them with firearms and other explosives, which resulted in a number of casualties. The complainant managed to escape from the
- 91 - W.P. (PIL) No. 1811 of 2022 place of occurrence and lodged a written complaint with respective Police Station itself and the first information report (FIR) for offences under was registered.
215. Thereafter, the Director General of Police, West Bengal directed CID to take over the investigations in the case.
216. A writ petition under Article 226 of the Constitution was filed in the High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal in public interest, inter alia, alleging that although in the said incident 11 persons had died on 4-1-2001 and more than three months had elapsed since the incident had taken place yet except two persons, no other person named in the FIR had been arrested and the police had not been able to come to a definite conclusion whether the missing persons were dead or alive. It was alleged that the police administration in the State was under the influence of the ruling party as such the incident may be handed over to CBI, an independent agency
217. The High Court in the aforesaid background and taking into consideration about the impartiality and fairness in the investigation by the State police because of the political fallout, hand over the investigation into the said incident to CBI.
- 92 - W.P. (PIL) No. 1811 of 2022
218. Aggrieved by the order passed by the High Court, the State of West Bengal filed a petition for special leave to appeal before the Hon‟ble Supreme Court. When the matter came up for hearing before a two-Judge Bench taking note of the contentions urged by the learned counsel for the parties and the orders passed by the Hon‟ble Court in Advance Insurance Co. Ltd. v. Gurudasmal [(1970) 1 SCC 633] and Kazi Lhendup Dorji v. CBI [1994 Supp (2) SCC 116] , the Bench was of the opinion that the question of law involved in the appeals was of great public importance, it was necessary that the issue be settled by a larger Bench and accordingly, matter was referred before a before a Constitution Bench.
219. The Hon‟ble Apex Court while taken into consideration, the doctrine of distribution of legislative powers and purport of Section 3, 4, 5 and section 6 of the Special Police Act has observed that the power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts.
- 93 - W.P. (PIL) No. 1811 of 2022
220. Thus, it is evident that he Hon‟ble Apex Court in the facts of the aforesaid premise has laid down that even if the FIR has been instituted and the matter is being investigated by the State Police, but since the high ups of the State is involved and as such the Hon‟ble Apex Court has been pleased to come to the conclusion that matter must be investigated by the CBI. The relevant paragraph is being referred hereunder as:
"69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has
- 94 - W.P. (PIL) No. 1811 of 2022 levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
221. In State of Bihar v. Ranchi Zila Samta Party, reported in (1996) 3 SCC 682 : AIR 1996 SC 1515, the Supreme Court has observed that the power under Article 226 of the Constitution in a public interest litigation, to order an inquiry and investigation to be taken over from the State Police and entrusting it to the CBI, can be exercised when it was to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds by an independent agency that would command public confidence.
222. In the backdrop of aforesaid facts, discussions and judicial pronouncement, this Court is now proceeding to examine as to whether the matter can be investigated by the State Agency or it is to be handed over to the independent agency like that of CBI.
223. Thus, it is well settled that the High Court under Article 226 of the Constitution and the Supreme Court under
- 95 - W.P. (PIL) No. 1811 of 2022 Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry/investigation. Certainly, such an inquiry/investigation cannot be ordered as a matter of routine or merely because a party makes an allegation. If after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order.
224. In the case of NOIDA Entrepreneurs Association v. Noida, reported in (2011) 6 SCC 508, the Supreme Court, while directing the CBI to have a further inquiry, observed that the public trust doctrine is part of the law of the land. It was observed that the power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. It was observed that the public authorities cannot play fast and loose with the powers vested in them. The Court also observed that functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination.
- 96 - W.P. (PIL) No. 1811 of 2022
225. As discussed in the preceding paragraphs, in the case of State of West Bengal (supra), the Hon‟ble Supreme Court observed that the very plenitude to the power under Article 226 of the Constitution requires great caution in its exercise. Such extraordinary power is required to be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.
226. Further, the Hon‟ble Apex Court in the case of K.V. Rajendran v. CBCID, [(2013) 12 SCC 480] wherein, the Hon‟ble Supreme Court has observed that when it is imperative to retain public confidence in the impartial working of the State agencies, in such circumstances, investigation can be vested by the Court with the CBI.
227. Thus, from the aforesaid logical deduction it is amply clear that when high officials are likely to be involved and a question of public confidence in the impartial working of the State agencies arises, the writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India is certainly not powerless to order such inquiry and investigation by the CBI.
- 97 - W.P. (PIL) No. 1811 of 2022
228. We are conscious of the proposition that extra ordinary power in handing over the inquiry/investigation to the CBI is to be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.
229. Since learned counsel for the respondents has relied upon judgments, as referred above, as such, it is the bounden duty of the Court to deal with the judgments upon which reliance have been placed by learned counsel for the respondents.
230. In the case of Ghanshyam Upadhyay v. State of U.P (supra) the petitioner of criminal miscellaneous petition/application before the Hon‟ble Apex Court was the petitioner in WP (Crl.) No. 177 of 2020 and the said writ petition was filed under Article 32 of the Constitution of India, in the nature of public interest seeking for issuance of writ of mandamus with regard to the destruction of residential building and other properties of accused Vikas Dubey and to safeguard the life of the accused. Before the petition was taken up for consideration, the said Vikas Dubey was killed by the police in an alleged encounter. Along with
- 98 - W.P. (PIL) No. 1811 of 2022 the said writ petition, certain other writ petitions which were also filed in public interest seeking for an appropriate enquiry.
231. A Commission of Inquiry was constituted under the Commission of Inquiries Act, 1951, headed by a former Judge of the Allahabad High Court. Before the Apex Court the State Government had undertaken the exercise to expand the composition of the Commission. The Hon‟ble Apex Court having considered it appropriate had vide order dated 22-7- 2020 accepted the constitution of the Commission of Inquiry in the said manner and the writ petition was directed to be listed along with the report of the Commission. The petitioner filed interlocutory application wherein allegation of biasness was alleged against one of the member of the commission.
232. In the above backdrop, the Hon‟ble Apex Court while taking into consideration that the Chairman and a Member of the Commission had held high constitutional positions and while making allegations the petitioner has based his claim only on the newspaper report and the manner in which the averments are made in the application is unacceptable.
233. So far fact of the case in the case of Shakeel Ahmed V. Union of India (supra) is concerned in the backdrop the communal rites and violence, the Government of Maharashtra by a notification dated 25th January 1993
- 99 - W.P. (PIL) No. 1811 of 2022 constituted a Commission under the Commissions of Inquiry Act, 1952 (for short, „the 1952 Act‟) headed by Hon'ble Shri Justice B.N. Srikrishna.
234. By another notification dated 23rd January 1996, the State Government disbanded the Commission on a very strange ground that there was an inordinate delay on the part of the Commission in submitting its report but later on it was revived by the notification dated 28th May 1996.
235. In background of the aforesaid, a petition was filed before the Hon‟ble Apex Court for the implementation of the recommendations of the said Commission. However, the State Government did not agree with some of the conclusions drawn by the Commission especially its findings on the causes of the riots/violence but the Government agreed to act upon majority of recommendations.
236. The Hon‟ble Apex Court has observed that the recommendations of a Commission appointed under the 1952 Act cannot bind the Government. The Courts cannot compel the Government to act upon the report, but, once the Government accepts the recommendations, a Writ Court can issue a mandamus for the implementation of the recommendations as it becomes an obligation of the Government to implement the recommendations.
- 100 - W.P. (PIL) No. 1811 of 2022
237. Further, in the case of Shree Shree Ram Janki Ji Asthan Tapovan Mandir v. State of Jharkhand, [supra], wherein an appeal was filed before the Hon‟ble Apex Court against an order passed by the High Court of Jharkhand at Ranchi in Atish Kumar Singh v. State of Jharkhand, 2017 SCC OnLine Jhar 1287 in which direction was passed upon the Central Bureau of Investigation to investigate and to take appropriate action at the earliest and conclude the investigations preferably within six months.
238. The said directions were issued by the High Court finding that the property of deity Shree Shree Ram Janki Ji Asthan Tapowan (Mandir) at Ranchi has been transferred against the mandate of the trust deed created by the author of the trust to establish Shree Ram Janki Tapowan Mandir (Trust) on 25-2-1948.
239. The directions issued by the High Court was subject- matter before the Hon‟ble Apex Court wherein the Hon‟ble Apex Court had observed that the public order (Entry 1) and the police (Entry 2) is a State subject falling in List II of Schedule VII of the Constitution and it is a primary responsibility of the investigating agency of the State Police to investigate all offences which are committed within its jurisdiction. The investigations can be entrusted to Central Bureau of Investigation on satisfaction of the conditions as
- 101 - W.P. (PIL) No. 1811 of 2022 specified therein only in exceptional circumstances as laid down in State of W.B. [State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571] case. Such power cannot and should not be exercised in a routine manner without examining the complexities, nature of offence and sometimes the tardy progress in the investigations involving high officials of the State investigating agency itself.
240. This Court, after going through the said judgments, has found therefrom that the said judgments are based upon different facts, as herein after appointment of the first commission the report has been acted upon and thereafter contrary to the mandate of Section 8-A of the Act, 1952, the second one man commission has been appointed in the matter of filling up of the public post.
241. It appears from the first one man commission enquiry report that serious irregularities have been committed. However, in the second one man commission report no action has been proposed to be taken.
242. This Court, in the aforesaid distinguishable fact is of the view that the judgment upon which reliance has been placed is not applicable.
243. Further, it needs to refer herein that if there is any illegality in appointment in order to filling up of public post and it has been pointed out that the illegality has been said
- 102 - W.P. (PIL) No. 1811 of 2022 to be rectified to maintain the public faith upon the system with all fairness and transparency.
244. The law is well settled that the applicability of the judgment is to be tested on the basis of facts governing the case individually as per the ratio laid down by Hon‟ble Apex Court in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu &Ors reported in (2014) 5 SCC 75. For ready reference the relevant of the aforesaid judgment is being quoted as under:
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
245. This Court, in order to consider as to whether the case is coming under the fold of the ratio as laid down by the Hon‟ble Apex Court, as mentioned hereinabove, and further in order to maintain the confidence in the mind of public the matter is required to be handed over to the CBI or not, deems it fit and proper to consider the following factual aspects, which has been gathered by this Court based upon the discussions made hereinabove:
I.The matter involves illegal appointment made in the Jharkhand Legislative Assembly, allegedly with
- 103 - W.P. (PIL) No. 1811 of 2022 connivance of the high ups of the State including the then Speaker, who is stated to be holding the post of Cabinet Minister, therefore, it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the then speaker of legislative assembly may feel assured that an independent agency is looking into the matter.
II.Further, since the allegation is against the senior politician and in past holding a very high public post like speaker of the legislative assembly of state of Jharkhand and the allegations made by the petitioner against him have cast a cloud on his integrity, therefore, it is of utmost importance that the truth of these allegations is determined by a competent forum.
III.It would be evident from letter dated 10.09.2018 issued by the then Governor of the State that view has been expressed to hand over the matter to the CBI but no action has been taken rather after lapse of four years, the second one man judicial commission has been constituted, which is contrary to the provision of section 8-A of the Act, 1952. The said second one man judicial commission has proposed no action be taken, however, the constitution of the second commission is
- 104 - W.P. (PIL) No. 1811 of 2022 without jurisdiction in view of the judgment rendered in the case of of Fazalur Rehman v. State of U.P., (supra).
IV.The first one man commission report was knowingly not produced before this Court and took note of the fact in order dated 04.10.2023 and 12.10.2023 that the report is deliberately not being produced before it and found the same to be obstruction to justice and ordered that if the order is not complied with, the Court will pass appropriate order and try to dispose of the Public Interest Litigation without perusing the report, basing on the recommendations made by Her Excellency The Then Governor of Jharkhand, then only, after a long period of time of one year, the report has been submitted in sealed cover.
V.Further, the State after submission of the first one man judicial commission in the year 2018 slept in deep slumber for a long period of four years and only when this „Public Interest Litigation‟ was filed in the year 2022 bringing notice of this Court to the alleged irregularities committed in the appointment in Vidhan Sabha in which high ups of the State are allegedly involved, during pendency of the instant petition, vide notification dated 21.09.2022 another one man judicial commission
- 105 - W.P. (PIL) No. 1811 of 2022 was constituted that too for scrutinizing and examine the complicated question of law and fact involves arising out of the report given by the first one commission, which is not permissible in the eye of law since in the Inquiry Act, 1952, there is nowhere any provision to constitute another commission to scrutinize and examine the complicated question of law and fact involved arising out of the first report.
VI.It is admitted that affidavits filed on behalf of respondents and on consideration of the purport of Section 3 of Act, 1952, the Speaker ought not to have opened the sealed cover. But he has opened the sealed cover and gone through the contents of the first one man judicial commission based upon that action was taken against two of the officers of the Legislative Assembly by giving approval on their compulsory retirement but thereafter when the present case was filed and for a long period of about of two years inspite of stringent orders having been passed by the Co- ordinate Bench of this Court, the report of first one man judicial commission was not produced rather based upon the opinion of the learned Advocate General second one man judicial commission was constituted that too for scrutinizing the report of the earlier one
- 106 - W.P. (PIL) No. 1811 of 2022 man judicial commission, which casts doubt as Speaker ought not to have open the sealed cover of first one man judicial commission rather it was to be placed before the Assembly after deliberations being made by the State. But the then Speaker, after going through the said report sought for opinion, as such the same casts doubt. If in such circumstances, again the State police will be directed to conduct the investigation then there is no likelihood to have proper investigation/enquiry. VII.Further, there is direct allegation against the Secretary, I/C of the Legislative Assembly who has sworn affidavit(s) before this Court, and is allegedly one of the beneficiaries of the unfairness committed in the matter of fulfilling the public post in the State Legislative Assembly and he is who has assisted the second one-man commission.
VIII.Since the high ups of the State of Jharkhand is involved in fulfilling the various posts in Jharkhand Legislative Assembly which has come in the report, hence it is not feasible to have proper investigation if the matter would be investigated by the State Police/State agency, therefore, for fair, honest and complete investigation, and particularly, when it is imperative to retain public confidence.
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246. This Court, on consideration of the reasons as aforesaid is of the view that the factual aspects, as discussed hereinabove, is having the exceptional situations since the matter relates to the filling up of the public post of Jharkhand State Legislative Assembly as such it became necessary to provide credibility and still confidence in the mind of public at large about the inquiry/investigation.
247. Further, from the logical deductions drawn from the judicial pronouncements, as enunciated by Hon‟ble Apex Court, the Constitutional power to hand over the investigation to the CBI is in the following circumstances:
I. Where high officials of the State Authorities are involved, or II. Where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or III. Where investigation prima facie is found to be tainted/biased.
248. Thus, on the basis of the discussion made hereinabove, and judicial pronouncements by Hon‟ble Apex Court as referred herein above, and the ratio laid down in the case of State of West Bengal v. Committee for Protection of Democratic Rights (supra) wherein also there was involvement of high-ups of the State, as such the matter was
- 108 - W.P. (PIL) No. 1811 of 2022 handed over to the CBI to inquire/investigate into the matter and herein also there is alleged involvement of high-ups of the State including the then Speaker, and later holding the post of Cabinet Minister in the Government, is of the view that the instant matter to be Central Bureau of Investigation for conducting preliminary inquiry.
249. In view of aforesaid discussions, the matter is handed over to the Central Bureau of Investigation to conduct preliminary enquiry in the matter pertaining to appointment made in the Jharkhand Legislative Assembly.
250. No need to refer that in case any cognizable offence is crept up in the said preliminary enquiry the follow up action by instituting regular case in view of Para 9.1 of the CBI Manual be taken.
251. The issue of conducting preliminary enquiry has been dealt with by the Hon‟ble Supreme Court in the case of Central Bureau of Investigation (CBI) and Another v.
Thommandru Hannah Vijayalakshmi @ T. H. Vijayalakshmi and Another reported in 2021 SCC OnLine SC 923, wherein at paragraph 37 and 39, it has been held as under:
"37. If a preliminary enquiry is necessary, it is covered by Chapter 9 of the CBI Manual. Para 9.1 notes:
"9.1.When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a
- 109 - W.P. (PIL) No. 1811 of 2022 public servant but is not adequate to justify registration of a regular case under the provisions of Section 154CrPC, a preliminary enquiry may be registered after obtaining approval of the competent authority...When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a regular case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a regular case must be registered instead of a preliminary enquiry. It is, therefore, necessary that the SP must carefully analyse material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where a regular case can be registered..."
(emphasis supplied) Hence, two distinct principles emerge from the above :
(i) a preliminary enquiry is registered when information (received from a complaint or "source information") after verification indicates serious misconduct on part of a public servant but is not enough to justify the registration of a regular case; and (ii) when the information available or after its secret verification reveals the commission of a cognizable offence, a regular case has to be registered instead of a preliminary enquiry being resorted to necessarily.
39. The precedents of this Court and the provisions of the CBI Manual make it abundantly clear that a preliminary enquiry is not mandatory in all cases which involve allegations of corruption. The decision of the Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] holds that if the information received discloses
- 110 - W.P. (PIL) No. 1811 of 2022 the commission of a cognizable offence at the outset, no preliminary enquiry would be required. It also clarified that the scope of a preliminary enquiry is not to check the veracity of the information received, but only to scrutinise whether it discloses the commission of a cognizable offence. Similarly, Para 9.1 of the CBI Manual notes that a preliminary enquiry is required only if the information (whether verified or unverified) does not disclose the commission of a cognizable offence. Even when a preliminary enquiry is initiated, it has to stop as soon as the officer ascertains that enough material has been collected which discloses the commission of a cognizable offence. A similar conclusion has been reached by a two-Judge Bench in Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] as well. Hence, the proposition that a preliminary enquiry is mandatory is plainly contrary to law, for it is not only contrary to the decision of the Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] but would also tear apart the framework created by the CBI Manual."
252. It is evident from the paragraph 37 of the aforesaid judgment that (i) a preliminary enquiry is registered when information (received from a complaint or "source information") after verification indicates serious misconduct on part of a public servant but is not enough to justify the registration of a regular case; and (ii) when the information available or after its secret verification reveals the commission of a cognizable offence, a regular case has to be registered instead of a preliminary enquiry being resorted to necessarily.
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253. The Hon‟ble Apex Court in Manohar Lal Sharma v. Principal Secretary, [(2014) 2 SCC 532] a three-judge Bench of the Court, had elaborated on the duty of the CBI to convert a preliminary enquiry into a regular case, once a prima facie case involving the commission of a cognizable offence is evinced. For ready reference, paragraph 29 of the judgment is quoted as under:
"29. Once jurisdiction is conferred on CBI to investigate the offence by virtue of notification under Section 3 of the DSPE Act or CBI takes up investigation in relation to the crime which is otherwise within the jurisdiction of the State police on the direction of the constitutional court, the exercise of the power of investigation by CBI is regulated by the Code and the guidelines are provided in the CBI (Crime) Manual. Para 9.1 of the Manual says that when, a complaint is received or information is available which may, after verification, as enjoined in the Manual, indicates serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 of the Code, a preliminary enquiry (PE) may be registered after obtaining approval of the competent authority. It also says that where the High Courts and the Supreme Court entrust matters to CBI for inquiry and submission of report, a PE may be registered after obtaining orders from the head office. When the complaint and source information reveal commission of a prima facie cognizable offence, a regular case (RC) is to be registered as enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar
- 112 - W.P. (PIL) No. 1811 of 2022 conclusion, a regular case must be registered instead of a PE.
254. The Hon‟ble Supreme Court in the case of National Confederation of Officers Association of Central Public Sector Enterprises and Others v. Union of India and Others reported in (2022) 4 SCC 764 while taking note of ratio of the judgment laid down in the case of Lalita Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1] the issue of preliminary enquiry and CBI Crime Manual have been taken note of, meaning thereby, the CBI Crime Manual has also been found to be in consideration by the Hon‟ble Supreme Court for the purpose of deciding the issue as to what steps is to be taken if any cognizable offence has been surfaced in course of preliminary enquiry since Para 9.1 of the CBI Crime Manual states that a preliminary enquiry may be converted into regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. For ready reference, paragraph 61 of the said judgment is quoted as under:
61. Chapter 9 of CBI Crime Manual details the process of conducting preliminary enquiries. Para 9.1 states that "a P[reliminary] E[nquiry] may be converted into R[egular] C[ase] as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence".
In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] , a Constitution Bench of this Court had underscored the duty of the police to register an FIR when the information received prima facie discloses the commission of a
- 113 - W.P. (PIL) No. 1811 of 2022 cognizable offence. However, the decision recognises that in certain cases, a preliminary enquiry may be held. With specific reference to CBI Manual, this Court noted that "the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. [Lalita Kumari v. State of U.P., (2014) 2 SCC 1, para 119 : (2014) 1 SCC (Cri) 524] " This Court issued inter alia, the following directions : (Lalita Kumari case [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , SCC p. 61, para 120) "120. In view of the aforesaid discussion, we hold:
*** 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5.The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence."
255. For the discussions and conclusions arrived at this Court, following directions are being passed:
(i) The matter pertaining to irregularity committed in the matter of illegal appointment/promotion in the legislative assembly of State of Jharkhand, allegedly with the aid of high-ups of the State, as also of the
- 114 - W.P. (PIL) No. 1811 of 2022 concerned Compact Disc (CD), is directed to be enquired by the Central Bureau of Investigation.
(ii) The State of Jharkhand, through different departments in the helms of affairs of the instant matter, is directed to coordinate with the Central Bureau of Investigation by handing over the documents pertaining to appointment in the legislative assembly of State of Jharkhand, as and when required by the CBI.
(iii).It is made clear that the Central Bureau of Investigation would be at liberty to move an application before this Court in case of non-cooperation from the State Government or State Legislative Assembly on any count.
(iv).The Central Bureau of Investigation may take the assistance of documents and annexures available on record and proceed with the investigation and enquire in the matter with an open mind.
256. It is made clear that the investigating agency will neither be prejudiced by any of the observations made by this Court nor any of the reports so submitted by the one-man judicial commission(s). However, if require the investigating agency may take copy of the report so submitted by the one-man commission constituted vide Government Notification dated 07.07.2014.
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257. Let the original report(s) be sent back to the concerned.
258. With the aforesaid observations and directions, the present Writ Petition (Public Interest Litigation) is consigned.
I Agree (Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
(Arun Kumar Rai, J.)
Alankar/-
A.F.R
- 116 - W.P. (PIL) No. 1811 of 2022