Document Fragment View

Matching Fragments

(g) to examine the adequacy of the fire retardant features of railway coaches and fire fighting measures with a view to inducting a superior technology and to suggest safeguards for prevention of fire on trains and at railway stations;

(h) To examine the preparedness and actual response with respect to rescue and relief operations in S-6 coach and recommend measures for improving the quality of response in such situations;

4.2 Vide notification dated 2.12.2005, the Government of India in exercise of the powers conferred by Section 11 of the CoI Act directed that all the provisions of Sub-sections (2) to (5) of Section 5 of the CoI Act shall apply to the Committee.

(i) in view of the appointment of the Commission of Inquiry by the State Government, the Central Government had no power to appoint any new Commission or Committee in view of the express bar contained in Section 3 of the CoI Act, and much less after a lapse of more than two years and six months from the date of the incident.
(ii) in view of Section 119 of the Railways Act barring the appointment of any Inquiry Committee after the appointment of a Commission under the CoI Act, the Central Government had no power to appoint any Committee in exercise of the powers under Sections 114 and 115 or any other provisions of the Railways Act.

There is also no dispute about the fact that the Central Government has not appointed any Commission under Section 3 of the CoI Act. The learned Single Judge has recorded in para 6 of the order under appeal that the learned counsel for the Railway Administration had fairly conceded that the High Level Committee cannot be said to be a Commission appointed under Section 3 of the CoI Act. The same position was reiterated before this Court. The learned counsel for the first respondent herein (original petitioner) is, therefore, on strong ground in submitting that what cannot be done directly by the Central Government under Section 3 of the CoI Act, cannot be done indirectly by one of its departments (Railway Administration) by invoking the executive power under Article 73 of the Constitution. As per the settled legal position, while the executive power of the Central Government under Article 73 of the Constitution would be available to the Central Government for any subject for which the Parliament can make legislation i.e. any subject falling in List I (Union list) or in list III (Concurrent list), such executive power is always circumscribed by any existing legislation on the relevant subject. Since the Parliament has specifically mandated in the proviso to Sub-section (1) of Section 3 that the Central Government shall not appoint another Commission to inquire into the same matter for so long as the State Commission is functioning, the Central Government could not have appointed a Commission to inquire into the cause of fire in some coaches of Sabarmati Express near Railway Station at Godhra which is admittedly Page 0787 within the State of Gujarat. Of course, the legislation has provided that the Central Government can appoint another Commission if it is of the opinion that the scope of the inquiry should be extended to two or more States. Clause (b) in the terms of reference of the High Level Committee did require the Committee to ascertain the events, developments and circumstances that took place after the train left Muzaffarpur on 25.2.2002 and before it reached Godhra and beyond (including the States of Bihar, Uttar Pradesh and Madhya Pradesh) and if those causes individually or conjointly, contributed to the fire. However, admittedly the fire took place near the Godhra Railway Station and any Sevents, developments or circumstances that took place in the States of Bihar, Uttar Pradesh and Madhya Pradesh before Sabarmati Express entered into the State of Gujarat cannot confer on the Central Government the power to appoint another Commission to inquire into precise cause of fire in Sabarmati Express near Godhra Railway Station. The Court, therefore, finds considerable substance in the submission made by Mr Nageshwara Rao for the original petitioner that as per the settled legal position what cannot be done directly by the Central Government by appointing a Commission cannot be permitted to be done indirectly by appointing a High Level Committee.

In the first place, the above provisions are applicable to the report of the Commission appointed under Section 3(1) of the CoI Act and not to the report of a Committee. Admittedly, what the Railway Administration of the Central Government had appointed on 4.9.2004 was a Committee and not a Commission under Section 3(1) of the CoI Act. Assuming that the Committee by whatever name called was an authority contemplated by Section 11 of the CoI Act, the proviso to Sub-section (1) of Section 3 applies in either case whether what is appointed is a Commission under Section 3(1) of the CoI Act or is an authority (by whatever name called) referred to in Section 11 of the Act. We have already indicated earlier (para 11 IV) that the embargo that when the Commission appointed by the State Government to inquire into the same matter is functioning, the Central Government cannot appoint another Commission or Committee to inquire in the same matter - this embargo applies irrespective of the fact whether the appointment of the Commission/Committee by the Central Government is on the formation of the necessary opinion by the Central Government itself or even under a resolution in that behalf passed by the Parliament. Once the appointment of the Committee made on 4.9.2004 is found to be illegal and void ab initio, the question of laying the report of the Committee before the Parliament cannot arise nor can the Railway Administration be permitted to go ahead with giving publicity to the report of such Committee. Once the strong prima facie case is made regarding not merely illegality in appointment of the Committee, but also total lack of jurisdiction to make such appointment, the question of making the report available to Parliament for discussion would not arise even if the Committee were appointed pursuant to a resolution of the Parliament.