Indian Kanoon - Search engine for Indian Law

With very kind regards, Yours sincerely, Sd/-

(R.P. Kapoor)"

`This letter of the Chief Secretary apart from promising to give an early reply also requested Justice Ramalingam to continue with the inquiry so that the same could be completed early. While the promised reply from the State Government Justice Ramalingam was awaited, the State Government, without further reference to Justice Ramalingam, issued a notification dated 10.7.1991 as under:-

"Bhopal, the 10th July, 1991 No. F.1-6-91-I-(8-Ka). - Whereas, an independent high power agency comprising of a single member namely Justice S.T. Ramalingam, Judge of the Madras High Court was appointed under this Department Notification No. F.1-3-89-I(i) E.C., dated the 24th February 1989; And whereas Justice S.T. Ramalingam has retired as Judge of the Madras High Court, on 30th of June 1991;

Accordingly this department Notification Nos. (1) F.1 3-89- l(i)-E.C., dated 24th February, 1989, (2) F.1-3-89-I (i) E.C., dated 24th February, 1989, and (3) F.1-3-89-I (i) E.C., dated the 24th February, 1989, shall stand amended to this extent.

By order and in the make of the Governor of Madhya Pradesh In this manner, the State Government after replacing Justice S.T. Ramalingam first by Justice G.G. Sohani, thereafter replaced him by Justice Kamlakar Choubey, a retired Judge of the Allahabad High Court, as the sole member of the Commission. It is unnecessary to refer to the terms and conditions of appointment of Justice Kamlakar Choubey which were detailed in the General Administration Department Memo. dated 23.3.1991 and are referred in the High Court judgment, which include the facility of a Camp Office for him at Varanasi and other facilities of vehicle, telephone and staff etc. The appointment of Justice Kamlakar Choubey as the sole member constituting the Commission of Inquiry in this manner resulting in the replacement of Justice S.T. Ramalingam initially appointed for the purpose and to writ petitions - M.P. Nos. 481 of 1992 and 533 of 1992 - for quashing the notification dated 9.1.1992 appointing Justice Kamlakar Choubey. Challenge to the notification dated 10.7.1991 issued earlier appointing, Justice G.G. Sohani is academic in view of Justice Sohani having resigned as indicated earlier. The remaining significance of the validity of the notification dated 10.7.1991 appointing Justice G.G. Sohani relates only to the State Government's power to appoint another person in place of Justice S.T. Ramalingam in the above circumstances.

The challenge of the writ petitioners before the High Court was that during the continuance as the single member of the Commission of Inquiry of Justice S.T. Ramalingam, there was no power in the State Government to replace him as the member of the Commission and, therefore, the appointment first of Justice G.G. Sohani and on his refusal, of Justice Kamlakar Choubey, being without any authority, was invalid. On this basis, the relief of quashing the notification dated 9.1.1992 appointing Justice Kamlakar Choubey was sought. In substance, the argument was that there being no vacancy in the office, the power under Section 3(3) of the Commissions of Inquiry Act, 1952, which is available only to fill any vacancy could not be invoked and there was no other source of power available to the State Government for this purpose. The argument of the learned Advocate General on behalf of the State Government was that a vacancy had arisen in the membership of the Commission on account of Justice Ramalinga's retirement from Madras High Court on 30.6.91, and there being his implied resignation indicated by his inclination to continue on the terms and conditions suggested by him, which the State (Government did not consider feasible, the power of the State Government under Section 3(3) of the Commissions of Inquiry Act to fill the implied vacancy was available. It was also urged by the learned Advocate General that vacancy in the office of the single member of the Commission was also implied from the fact that the appointment of Justice S.T. Ramalingam as the Commission of Inquiry was also his status as a sitting Judge of the Madras High Court and, therefore, his retirement as a Judge resulted in creation of the vacancy. The learned Advocate General also placed reliance on Section 16 of the General Clauses Act, 1897, in aid of the State Government's power under Section 3(3) of the Commissions of Inquiry Act. Another submission of the learned Advocate General was that the State Government was the sole judge in this matter and was, therefore, competent to choose the person for making or continuing the inquiry in view of the power available under Section 3 of the Commissions of Inquiry Act lead with Section 16 of the General Clauses Act. The learned counsel appearing on behalf of Kailash Joshi placed reliance on Section 3(2) of the Commission of Inquiry Act read with Section 14 of the General Clauses Act to support the State Government's action appointing Justice Kamlakar Choubey contending that the State Government had power to reconstitute the Commission replacing Justice S.T. Ramalingam by another person. An argument challenging the locus standi of the writ petitioner was also faintly urged by counsel for Kailash Joshi.

Hence, these petitions for grant of special leave. Leave granted.

Shri Shanti Bhushan, learned senior counsel for the State of Madhya Pradesh, expressly gave up the argument advanced before the High Court of the implied resignation of Justice S.T. Ramalingam giving rise to a vacancy or any implied vacancy on retirement of Justice Ramalingam as a Judge of the Madras High Court to enable exercise of power under Section 3(3) of the Commissions of Inquiry Act for first appointing Justice G.G. Sohani and then Justice Kamlakar Choubey in place of Justice S.T. Ramalingam The case of the State of Madhya Pradesh in this Court was confined by Shri Shanti Bhushan to only one point. The only contention of Shri Shanti Bhushan is that the aid of Section 21 of the General Clauses Act is available to the State Government for exercising its powers under the Commissions of Inquiry Act `to add to, amend or vary' the notification issued initially appointing Justice S.T. Ramalingam as the sole member of the Commission which enables the State Government to reconstitute the Commission by replacing Justice S.T. Ramalingam with any other person in the circumstances of the case. He argued that it is in exercise of this power that the period fixed initially for completion of the inquiry could be amended since, to the extent the provisions in the Commissions of Inquiry Act are silent, recourse can be had to Section 21 of the General Clauses Act for making a suitable addition, amendment or variation of the initial notification. According to learned counsel, the power to rescind any notification being provided in Section 7 of the Commissions of Inquiry Act, such a power in Section 21 of the General Clauses Act was not available, but not so the power given by Section 21 of the General Clauses Act to add to, amend or vary any notification. Shri Shanti Bhushan also referred to Section 8-A of the Commissions of Inquiry Act as an indication to support his submission of the Government's power to reconstitute the Commission even during the availability of the person so appointed even though, he stated, Section 8-A is not the source of power for reconstitution of the Commission.