Judgment
As delivered
PETITIONER:STATE OF MADHYA PRADESH
Vs.
RESPONDENT:AJAY SINGH AND ORS. ETC.
DATE OF JUDGMENT02/11/1992
BENCH:[J.S. VERMA AND S.P. BHARUCHA, JJ.]
ACT:COMMISSIONS OF INQUIRY ACT, 1952:Sections 3, 7 and 8-A One-man commission- Replacement of theinitial appointee with another person-Whether permissibleunder the scheme of the Act-Whether Permissible under thescheme of the Act-whether Section 21 of the General ClausesAct, 1897 could be invoked to read such power into the Act.
HEADNOTE:General Clauses Act, 1897:Section 21-Power to add to amend or vary or rescind anynotification-Whether could be invoked to reconstitute theCommission of Inquiry by replacement of substitution of theexisting members, though not provided in the scheme of theAct.Pursuant to the direction given by the State HighCourt, the appellant-State by a Notification dated24.2.1989, constituted a Commission of Inquiry under the(Commission of Inquiry) Act, 1952, to investigate into theaffairs of the children's Welfare Society, of whichRespondent No.1 was an office bearer and appointed a sittingJudge of the High Court of another State as the sole memberof the Commission. The inquiry was to be completed within aperiod of six months, but the period was extended from timeto time. Meanwhile, the sole member became due to retire asa Judge of the High Court on attaining the age ofsuperannuation and, therefore, he wrote a letter dated 193.1991 to the Chief Secretary of the appellant-State drawingattention to this fact and requesting that the necessarymodalities be worked out well in time for his continuance asCommission of Inquiry, in the light of the guidelines issuedby the Government of India for the benefits and emolumentspayable to a Judge on his retirement in such a situation.The Judge also mentioned some of the facilities he expected,to which be would not be entitled from the State Governmenton his retirement. The Chief Secretary sent a reply dated9.4.1991 to the Judge promising to give an early reply andrequesting him to continue with the inquiry so that the samecould be completed early. However, without further referenceto the Judge, the State Government issued a notificationdated 10.7.1991, replacing him by a retired Chief Justice ofanother High Court. This appointment was challenged beforethe High Court, which, by an interim order dated 30.7.1991stayed the operation of the notification. During thependency of the writ petition, the new member tendered hisresignation. Consequently, the High Court dismissed the writpetition as infructuous on 5.9.1991. Thereafter, the ChiefSecretary to the Government sent a letter dated 12.9.1991 tothe original appointee expressing the State Government'sinability to accept the terms and conditions of the Judge,and informing him of the appointment of retired ChiefJustice of another High Court, who had since resigned.Thereafter the State Government issued anothernotification dated 9.1.1992 appointing a retired Judge ofanother High Court as a single member of the Commission.This was challenged before the High Court on the ground thatduring the continuance as the single member of theCommission of Inquiry of the original appointee, there wasno power in the State Government to replace him, and therebeing no vacancy in the office, the power under Section 3(3)of the Commissions of Inquiry Act, 1952, which was availableonly to fill any vacancy, could not be invoked and there wasno other source of power available to the State for thepurpose and, therefore, the appointment first of the retiredChief Justice and then, on his refusal, of another retiredJudge, being without any authority, was invalid.The High Court allowed the writ petitions and quashedthe notification dated 9.1.1992. It held that there was novacancy in the office of the single member of the Commissionto empower the State Government to fill the vacancy underSection 3(3) of the Commissions of Inquiry Act. It also heldthere was neither any valid reason or ground nor any poweravailable in the State Government to replace the originalmember by another person as was purported to be done byfirst appointing one member and then another member, both ofwhom were also retired Judges .In the appeals, by special leave, on behalf of theState Government, it was contended that aid of Section 21 ofthe General Clauses Act was available to the StateGovernment for exercising its powers under the Commissionsof Inquiry Act 'to add, to amend or vary' the notificationissued initially appointing the sitting Judge as the solemember of the Commission which enabled the State Governmentto reconstitute the Commission by replacing that Judge withany other person in the circumstances of the case, thoughthe power to rescind any notification was not available,since this was provided in Section 7 of the Commissions ofInquiry Act. Reference was also made to Section 8-A of theCommissions of Inquiry Act to support the Contention thatGovernment's power to reconstitute the Commission evenduring the availability of the person so appointed eventhough it was submitted that Section 8-A was not the sourceof power for reconstitution of the Commission. It was alsocontended that the Government's power to extend the timespecified in the initial notification for Completing thework of the Commission was not to be found in any expressprovision in the Commissions of Inquiry Act. but wasexercised by amendment of the initial notification onlyunder Section 21 of the General Clauses Act. and that thoughthere was no express provision in the Commissions of InquiryAct empowering the Government to replace or substitute thesole member of a Commission with another person during thecontinuance of the Commission. this was implicit in thepower to appoint a Commission and designate its personnelunder Sub sections (1) and (2) of Section 3 of theCommissions of Inquiry Act read the power to amend or Varyany notification available under Section 21 of the GeneralClauses Act.It Was submitted on behalf of the petitioner in thePublic Interest Petition that Sections 14 and 16 of theGeneral Clauses Act were also available to support thenotifications under challenge issued by the StateGovernment.On behalf of respondent No.1 it was submitted that thescheme of the Commissions of Inquiry Act did not permitinvoking Section 21 of the General Clauses Act except forenlargement of the period for completion of the inquiry byamendment of the notification only to that extent since theonly situations in which reconstitution of the Commissionscould be made were provided in the Commissions of InquiryAct itself, that Section 8-A of the Commissions of InquiryAct was enacted for an entirely different purpose namely toensure continuity of the Commission's work and had nothingto do with its reconstitutions that the scheme of theenactment showed that the appropriate Government could notinterfere provide expressly in the statute for theGovernment's power to fill any vacancy after the initialconstitution After its insertion the scheme of the enactmentexcludes the power of reconstitution of the Commission in amanner not expressly provided therein. In view of sub-section (3), it is not permissible to construe sub-sections(1) and (2) of Section 3 in any other manner. If the schemeof the enactment gave such wide power to reconstitute aCommission after its initial constitution and permittedreplacement or substitution of the existing member of aCommission with another person sans sub-section (3) ofSection 3 the power to fill any vacancy was not required tobe provided separately and expressly. It is also significantthat in the amendment so made the power is limited only tofilling any vacancy without conferring any power toreconstitute the Commission by replacement or substitutionof the existing member which indicates that no such power ofreplacement or substitution of the existing member wascontemplated in the scheme of the Act or intended to beconferred on the Government even after the amendment.[298-H: 299-A-C; 300-A]2 7. Section 8-A was simultaneously inserted byamendment to provide that the procedure does not requireinterruption of the inquiry by reason of change in theconstitution of the Commission due to filling any vacancy ordecrease in the number of members. The expression 'or by anyother reason' in sub-section (2) of Section 8-A cannot bewidened to include the reason of reconstitution of theCommission by replacement or substitution of the existingmember since that power is not available to the Governmentin the scheme of the Act and, therefore. this expression inSection 8-A(2) cannot be read as conferring any additionalpower or giving any such indication. The expression or byany other reason following `vacancy having been filled' inSection 8-A(2) must therefore. mean any other reason such asdecrease in the number of members when the initial number ismore than one and the vacancy remains unfilled. It cannotmean substitution of the existing member with anotherperson, since no such power exists. Section 8-A(2) is notthe source of an additional power, but merely an indicationof the power to reconstitute the Commission. The indicationis of the power of reconstitution being available only inthe manner indicated. The only situation in which theGovernment can rescind the notification issued under Section3 constituting the Commission is laid down in Section 7 theAct, which provides that the Commission would cease to existwhen the appropriate Government by notification with theworking of the Commission after its constitution except inthe manner expressly provided in the Act and Section 7 was aclear indication that interference with the functioning ofthe Commission was not permissible in any other manner, and,therefore, Section 21 of the General Clauses Act was notavailable to support the Government's action in the instantcase.Dismissing the appeal, this court,HELD: 1. The power under Section 3(3) of theCommissions of the Inquiry Act, 1952, was not available tothe State Government in the facts of the instant case toappoint any other person replacing the original member asthe sole member of the Commission of Inquiry. The powerunder sub-sections (1) of (2) of Section 3 read with Section21 of the General Clauses Act or even Section 14 or Section16 thereof was also not available for the purpose.Accordingly, the notifications dated 10.7.1991 and 9.1.1992issued by the State Government appointing the retired Chiefjustice and another retired Judge were both invalid. Thehigh Court was, therefore, right in quashing thenotifications dated 10.7.1991 and 9.1.1992. The appellant-state should, in view of the retirement of the originalmember as a judge of the High Court in the meanwhile, takenecessary action to finalise his terms and conditions inaccordance with the guidelines issued by the Government ofIndia in this behalf. Such action should be taken promptlyto avoid any undue delay in completion of the commission'stask. [304-C-F]2.1. The power of the Government to appoint aCommission of Inquiry and name the person or personsconstituting it is in sub-section (1) of Section 3. It isnot as if sub-section (1) deals with the mere appointment ofthe Commission of Inquiry without clothing it with itspersonnel and the power to appoint the member/membersthereof is to be found only in sub-section (20 That apart,there is nothing in any of these provisions to suggest thatthe Government has the power to reconstitute the commissionafter its appointment by replacing the existing sole memberwith another person. Sub-Section (3) of Section 3, insertedby the Amendment Act of 1971, deals expressly with theGovernment's power to fill any vacancy which may have arisensince the constitution of the Commission. The question ofreplacement of a member appointed initially is beyond itsscope. The insertion of sub-section (3) became necessary todeclares that 'the continued existence of' the Commission isunnecessary'.2.3. The scheme of the enactment is that theappropriate Government should have no control over theCommission after its constitution under Section 3 of the Actexcept for the purpose of filling any vacancy which may havearisen in the office of a member of the Commission apartfrom winding up the Commission by issuance of a notificationunder section 7 of the Act if the continued existence of theCommission is considered unnecessary. The vacancy in theoffice of a member of the Commission may arise for severalreasons, including resignation by the member, when theGovernment power to fill the vacancy under Section 3(3) ofthe Act can be exercised. [300-A-E & G]2.4. The context as well as the scheme of theCommissions of Inquiry Act 1952 clearly indicate thatSection 21 of the General clauses Act 1897 cannot beinvoked to enlarge the Government's. power to reconstitutethe Commission constituted under Section 3 of the Act in amanner other that that expressly provided in the Commissionsof Inquiry Act. There being no express power given by theCommissions of inquiry Act to the appropriate Government toreconstitute the Commission of Inquiry constituted underSection 3 of the Act by replacement or substitution of itssole member and the existence of any such power beingnegatived by clear implication, no such power can beexercised by the appropriate Government. [302-C-F]2.5. Section 21 of the General Clauses Act can beinvoked only if, and to the extent. if any the context andthe scheme of the Commissions of Inquiry Act so permits. Thegeneral power in Section 21 of the General Clauses Act is'to add, to amend vary or rescind any notifications' etc. Inthe context of reconstitution of the Commission the power tofill any vacancy in the office of a manner of the Commissionis expressly provided in sub-section (3) of Section 3 of theCommissions of Inquiry Act Similarly the power todiscontinue the existence of the Commission when it becomesunnecessary can be exercised by issue of a notification inaccordance with Section 7 of the Act which results inrescinding the notification issued under Section 3constituting the Commission. Thus the power to rescind anynotification conferred generally in Section 21 of theGeneral Clauses Act is Clearly inapplicable in the scheme ofthe Commissions of inquiry Act which expressly provides forthe exercise of his power in relation to Commissionconstituted under Section 3 of the Act. The only othermaterial general powers in Section 21 of the General ClausesAct are the power to 'amend' or vary any notification. Theextent to which the constitution of the Commission can beamended or varied by filling any vacancy in the office of amember as provided in the Commissions of Inquiry Act isalso obviously excluded from the purview of Section 21 ofthe General Clauses Act which cannot be invoked for thispurpose. In a case like the instant one where the scheme ofthe Commissions of Inquiry Act does provide for amendmentand variation of the notification issued under Section 3 forthe purpose of reconstitution of the Commission in themanner indicated even that power to amend or vary anynotification by virtue of Section 21 of the General ClausesAct must be taken as excluded by clear implication in thesphere of reconstitution of the Commission. Moreover, thepower to amend or vary cannot include the power to replaceor substitute the existing Composition of the Commissionwith an entirely new composition. The aid of Section 21 ofthe General Clauses Act for enlargement of time does notconflict with the context or scheme of the Commissions ofInquiry Act.[301-A-E]2.6. The rule of Construction embodied in Section 21 ofthe General Clauses Act cannot apply to the provisions ofthe Commissions of Inquiry Act 1952 relating toreconstitution of a Commission constituted there under sincethe Subject-matter. context and effect of such provisionsare inconsistent with such application. Moreover. thisconstruction best harmonises with the subject of theenactment and the object of the legislation. Restoringpublic Confidence by constituting a Commission of Inquiry toinvestigate into a 'definite matter of public importance' isthe purpose of such an exercise. It is therefore, the primeneed that the Commission functions as an independent agencyfree from any govern-mental control after its constitution.It follows that after appointment the tenure of members ofthe commission should not be dependent on the will of theGovernment to secure their independence. A body not soindependent is not likely to enjoy the requisite publicconfidence and may not attract men of quality and self-respect. In such a situation the object of the enactmentwould be frustrated. [302-H. 303-A-C]Minerva Mills Ltd. v, There Workers, [1954] S.C.R. 465distinguished.The State of Bihar v. D. N. Ganguly.,[1959] S.C.R. 1191,relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4734-35 of1992.
From the Judgment and Order dated 8.5.1992 of theMadhya Pradesh High Court in Misc. Petition Nos. 48] and 533of 1992.
Shanti Bhushan, N.C. Jain, S.K. Agnihotri and Ashok K.Singh for the Appellant.
Kapil Sibal, N.S. Kale, A.P. Dhamija, S.K. Jain,Manmohan, S. Atreya, Pradeep Agarwal, Basant Bhai Mehta,Ravindra Srivastava, R.N. Srivastava, B.V. Desai and S.V.Deshpande for the Respondents.
The Judgment of the Court was delivered byVERMA, J. The petitioner State of Madhya Pradesh inboth these petitions seeks leave to appeal under Article 136of the Constitution against the common judgment and orderdated 8.5.1992 of the High Court of Madhya Pradesh inMiscellaneous Petition Nos. 481 of 1992 and 533 of 1992under Article 226 of the Constitution. The High Court hasallowed both these writ petitions.
The material facts are these. In Miscellaneous PetitionNo. 3909 of 1987 tiled in public interest by Kailash Joshi,then Leader of the Opposition in Madhya Pradesh Vidhan Sabhaand now a Cabinet Minister in Madhya Pradesh, relating tothe affairs of the Churhat Children's Welfare Society andthe lottery conducted by it, the M.P. High Court by itsjudgment dated 20.1.1989 issued a direction for setting upan independent high power agency to bold an inquiry into theaffairs of the said Society of which respondent 1 Ajay Singhwas one of the office bearers. In compliance of thatdirection, the State Government passed a resolution on24.2.1989 and also issued notification of the same datehaving the effect of setting up a Commission of Inquiryconsisting of Justice S.T. Ramalingam, a Judge of the MadrasHigh Court to investigate into the affairs of the saidSociety and the lottery conducted by it. The resolution andnotification are as under :-
"Bhopal, the 24th February, 1989No. F. 1-3-89-l(i)-E.C. - Whereasthe High Court of Madhya Pradesh inits order dated the 20th January1989 in M.P. No. 3909/87 KailashJoshi versus State of MadhyaPradesh and others has directedthat an inquiry be made by anindependent high power agency intothe affairs of the ChurhatChildren's Welfare Society and howthe share of its profits derivedfrom all or any other draws havebeen utilized and to take suchaction as may be required under thelaw against the said Society andits organizing agent and that theState Government is of the viewthat the said order of the HighCourt should be implemented andcarried out and whereas the StateGovernment is also satisfied thatthis is a definite matter of publicimportance which calls for aninquiry to be made, the StateGovernment hereby appoints anindependent high power agencypresided over by Shri Justice S.T.Ramalingam, Judge of the MadrasHigh Court.
2. The Headquarters of the Agencyshall be at Jabalpur, MadhyaPradesh.
3. The terms of reference forinquiry by the aforesaid Agencyshall be as under:-
(1) How the affairs of the ChurhatChildren s Welfare Society areconducted and how the share of theprofit derived and the moneycollected through lottery has beenutilised ?
(2) What is the amount collecteddraw-wise, by the agent and theSociety and what is the taxliability as per the Madhya Pradeshlottery (Niyantran Tatha Kar)Adhiniyam, 1973 ?
(3) Whether any irregularities,illegalities and offences werecommitted in organizing thelottery, holding of draws oflottery, distribution of prizes,and in that event, the personresponsible for the same;
(4) Any other matter incidental orconnected with the above subject-matter of enquiry.
(4) The Agency may complete itsenquiry and submit its report tothe State Government within aperiod of six months from the dateof issue of this Notification.
By order and in the name of theGovernor of Madhya Pradesh,R.C. Shrivastava, Secy"
"Bhopal, the 24th February, 1989No. F.1-3-89-I(i) -E.C. - Whereasby Government of Madhya PradeshResolution dated the 24th February1989 and Notification No. F.1-3-89-
I(i) -E.C., dated the 24thFebruary1989 an independent High PowerAgency presided over by Shri S.T.Ramalingam, Judge of the MadrasHigh Court has been set up to holdan inquiry into the affairs of theChurhat Children's Welfare Society;
And whereas the State Governmenthaving regard to the nature of theinquiry to be made and othercircumstances of the case is of theopinion that provisions containedin sub-sections (2) to (5) ofSection 5 of the Commissions ofInquiry Act, 1952, should be madeapplicable to the aforesaid Agency;
Now,therefore, in exercise of thepowers conferred by sub-section (1)of Section 5 of the Commissions ofInquiry Act, 1952, the StateGovernment hereby directs that theprovisions of sub-sections (2) to(5) of Section 5 of the said Actshall apply to the above describedAgency.
By order and in the name of theGovernor of Madhya Pradesh,R.C. Shrivastava, Secy".
According to the terms of the above notification, theinquiry was to be completed within a period of six monthsfrom the date of issue of the notification. As the inquirycould not be completed within that period, by a notificationdated 1.8.1990 the period for completing the inquiry wasextended upto 22.8.1991; then by another notification dated16.8.1991 the period was extended upto 31.3.1992; and thenby another notification dated 27.3.1992 the period forcompleting the inquiry stands extended upto 31.3.1993.
In the meantime, Justice S.T. Ramalingam became due toretire as a Judge of the Madras High Court on 30.6.1991 onattaining the age of superannuation and, therefore, he wrotea letter dated 19.3.1991 to the Chief Secretary of the Statedrawing attention to this fact and requesting that necessarymodalities be worked out well in time for his continuance asCommission of Inquiry in the light of the guidelines issuedby the Government of India for the benefits and emolumentspayable to a Judge on his retirement in such a situation.Just Ramalingam mentioned in that letter some of thefacilities he expected, to which he would not be entitledfrom the Government of Tamil Nadu on his retirement. TheChief Secretary R.P. Kapoor sent a reply to JusticeRamalingam by DO No. 504/CS/91 dated 9.4.1991 as under:-
"My dear Hon'ble JusticeRamalingam,Thank your very much for yourletter No. 53 of 19th March, 1991.
The issues raised in your letterregarding the tenure of theCommission and the terms andconditions after yoursuperannuation are under activeconsideration of the Government andI will be in a position to informyour after a final view is taken inthis case. In the meanwhile may Irequest that the proceedings may becontinued so that the inquiry canbe completed at the earliestpossible.
With very kind regards,Yours sincerely,Sd/-
(R.P. Kapoor)"
`This letter of the Chief Secretary apart frompromising to give an early reply also requested JusticeRamalingam to continue with the inquiry so that the samecould be completed early. While the promised reply from theState Government Justice Ramalingam was awaited, the StateGovernment, without further reference to Justice Ramalingam,issued a notification dated 10.7.1991 as under:-
"Bhopal, the 10th July, 1991No. F.1-6-91-I-(8-Ka). - Whereas,an independent high power agencycomprising of a single membernamely Justice S.T. Ramalingam,Judge of the Madras High Court wasappointed under this DepartmentNotification No. F.1-3-89-I(i)E.C., dated the 24th February 1989;And whereas Justice S.T. Ramalingamhas retired as Judge of the MadrasHigh Court, on 30th of June 1991;
And whereas for continuing in thesaid agency after retirementJustice Shri S.T. Ramalingam hasplaced certain terms and conditionswhich have not been found possiblefor the Government to accept.
Now, therefore, in exercise of thepowers conferred by sub-section (3)of Section 3 of the Commissions ofInquiry Act, 1952 (No. LX of 1952),the State Government hereby appointJustice Shri G.G. Sohani, retiredChief Justice, High Court of Patna(Bihar) as single member of thesaid agency in place of JusticeShri S.T. Ramalingam.
Accordingly this DepartmentNotification Nos. (I)F.1-3- 89-I(i)
- E.C. dated the 24th February1989, (2) F.1-3 89-1(i) - E.C.,dated the 24th February 1989 and(3) F.1-3-89-I(i) - E.C. dated the24th February 1989, shall standamended to this extent.
By order and in the name of theGovernor of Madhya PradeshS.K. Misra, Secy.
Accordingly, by this notification, the State Governmentreplaced Justice S.T. Ramalingam with Justice G.G. Sohani,retired Chief Justice of Patna High Court as the sole memberof the Commission of Inquiry. The appointment of JusticeG.G. Sohani in place of Justice S.T. Ramalingam waschallenged in the M.P. High Court by a writ petition - M.P.No. 2359 of 1991- by respondent No. 1 Ajay Singh. By aninterim order dated 30.7.1991 passed by the High Court, theoperation of the above notification dated 10.7.1991 wasstayed. During the pendency of that writ petition, JusticeG.G. Sohani conveyed to the State Government hisdisinclination to continue with the assignment and tenderedhis resignation. Consequently, the High Court dismissed thatwrit petition as infructuous on 5.9.1991. It was onlythereafter that the Chief Secretary of the State Governmentsent a letter dated 12.9.1991 in continuation of his earlierletter dated 9.4.1991 to Justice Ramalingam which is asunder :
"This is in continuation to myearlier letter No. 504/CS/91 dated9th April, 1991 regarding thearrangement for the Commission ofEnquiry (Churhat Children WelfareSociety and Lottery), consequent toyour superannuation as a Judge ofthe Madras High Court.
2. The State Government haveconsidered your communicationsabout the inconveniences you werefacing in coming to Jabalpur forwant of Air-link between Madras andJabalpur. The State Government havealso considered the terms andconditions mentioned in your letterof 19th March, 1991. On carefulconsideration of all aspectsmentioned in your communications ithas not been possible for the StateGovernment to accept the terms andconditions set out in your letterof 19th March for taking up thework of the above mentioned EnquiryCommission after yoursuperannuation. The StateGovernment had accordinglyappointed Justice Mr. G.G. Sohani,retired Chief Justice of the PatnaHigh Court to be the single Memberof the Commission. I am, however,happy to convey the deepappreciation of the StateGovernment for the servicesrendered by you in the Commissionin spite of all the personalinconvenience it has caused. TheHon'ble Chief Minister had made ageneral mention of it in the VidhanSabha on the 4th July, 1991.
3. Delay in reply to your letter isregretted. It was caused because ofthe litigation arising out of theappointment of Justice Sohani whichwas since been decided.
Wishing you and your family a veryhappy life after yoursuperannuation.Yours sincerely,R.P. Kapoor"
The State Government thereafter issued anothernotification dated 9.1.1992 as under:-
"Bhopal, the 9th January 1992No. F.1-6-91-I (8 Ka). - Whereas inexercise of the powers conferred bysub-section (3) of Section 3 of theCommissions of Enquiry Act, 1952(No. LX of 1952) Justice Shri G.G.Sohani, retired Chief Justice, HighCourt of Patna (Bihar) wasappointed as single member of anindependent high power agencyconstituted under this departmentnotification No. F.1-3-89-I(i)-
E.C., dated 24th February 1998 inplace of Justice Shri S.T.Ramalingam vide this departmentNotification No. F.1-6-91-I(8 Ka),dated the 10th July 1991;
And whereas Justice Shri G.G.Sohani, retired Chief Justice, HighCourt of Patna (Bihar) has sincewithdrawn his consent to work assingle member of the said agency;Now, therefore, in exercise of thepowers conferred by sub-section (3)of Section 3 of the Commissions ofEnquiry Act, 1952 (No.LX of 1952),read with Section 21 of the GeneralClause Act, 1987 (No. 10 of 1897),the State Government hereby appointJustice Shri Kamlakar Choubey,retired Judge of the Allahabad HighCourt as a single member of thesaid agency in place of Shri G.G.Sohani.
Accordingly this departmentNotification 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 24thFebruary, 1989, shall stand amendedto this extent.
By order and in the make of theGovernor of Madhya PradeshIn this manner, the State Government after replacingJustice S.T. Ramalingam first by Justice G.G. Sohani,thereafter replaced him by Justice Kamlakar Choubey, aretired Judge of the Allahabad High Court, as the solemember of the Commission. It is unnecessary to refer to theterms and conditions of appointment of Justice KamlakarChoubey which were detailed in the General AdministrationDepartment Memo. dated 23.3.1991 and are referred in theHigh Court judgment, which include the facility of a CampOffice for him at Varanasi and other facilities of vehicle,telephone and staff etc.The appointment of Justice Kamlakar Choubey as the solemember constituting the Commission of Inquiry in this mannerresulting in the replacement of Justice S.T. Ramalingaminitially appointed for the purpose and to writ petitions -M.P. Nos. 481 of 1992 and 533 of 1992 - for quashing thenotification dated 9.1.1992 appointing Justice KamlakarChoubey. Challenge to the notification dated 10.7.1991issued earlier appointing, Justice G.G. Sohani is academicin view of Justice Sohani having resigned as indicatedearlier. The remaining significance of the validity of thenotification dated 10.7.1991 appointing Justice G.G. Sohanirelates only to the State Government's power to appointanother person in place of Justice S.T. Ramalingam in theabove circumstances.
The challenge of the writ petitioners before the HighCourt was that during the continuance as the single memberof the Commission of Inquiry of Justice S.T. Ramalingam,there was no power in the State Government to replace him asthe member of the Commission and, therefore, the appointmentfirst of Justice G.G. Sohani and on his refusal, of JusticeKamlakar Choubey, being without any authority, was invalid.On this basis, the relief of quashing the notification dated9.1.1992 appointing Justice Kamlakar Choubey was sought. Insubstance, the argument was that there being no vacancy inthe office, the power under Section 3(3) of the Commissionsof Inquiry Act, 1952, which is available only to fill anyvacancy could not be invoked and there was no other sourceof power available to the State Government for this purpose.The argument of the learned Advocate General on behalf ofthe State Government was that a vacancy had arisen in themembership of the Commission on account of JusticeRamalinga's retirement from Madras High Court on 30.6.91,and there being his implied resignation indicated by hisinclination to continue on the terms and conditionssuggested by him, which the State (Government did notconsider feasible, the power of the State Government underSection 3(3) of the Commissions of Inquiry Act to fill theimplied vacancy was available. It was also urged by thelearned Advocate General that vacancy in the office of thesingle member of the Commission was also implied from thefact that the appointment of Justice S.T. Ramalingam as theCommission of Inquiry was also his status as a sitting Judgeof the Madras High Court and, therefore, his retirement as aJudge resulted in creation of the vacancy. The learnedAdvocate General also placed reliance on Section 16 of theGeneral Clauses Act, 1897, in aid of the State Government'spower under Section 3(3) of the Commissions of Inquiry Act.Another submission of the learned Advocate General was thatthe State Government was the sole judge in this matter andwas, therefore, competent to choose the person for making orcontinuing the inquiry in view of the power available underSection 3 of the Commissions of Inquiry Act lead withSection 16 of the General Clauses Act. The learned counselappearing on behalf of Kailash Joshi placed reliance onSection 3(2) of the Commission of Inquiry Act read withSection 14 of the General Clauses Act to support the StateGovernment's action appointing Justice Kamlakar Choubeycontending that the State Government had power toreconstitute the Commission replacing Justice S.T.Ramalingam by another person. An argument challenging thelocus standi of the writ petitioner was also faintly urgedby counsel for Kailash Joshi.
The High Court allowed the writ petitions and quashedthe notification dated 9.1.1992 appointing Justice KamlakarChoubey. It held that there was no vacancy in the office ofthe single member of the Commission to empower the StateGovernment to fill the vacancy under Section 3(3) of theCommissions of Inquiry Act. On a construction of theprovisions of the Commissions of Inquiry Act and those ofthe General Clauses Act relied on in support of the rivalcontentions, the High Court came to the conclusion thatthere was neither any valid reason or ground nor any poweravailable in the State Government to replace Justice S.T.Ramalingam by another person as was purported to be done byFirst appointing Justice G.G. Sohani and then JusticeKamlakar Choubey, both of whom were also retired Judges. Theobjection to locus standi for the writ petitioners was alsorejected. The relevant part of the directions made by theHigh Court is as under:-
42. As a result of the aforesaiddiscussion, the petition succeedsand is hereby allowed. Thenotification dated 10.7.1991(Annexure-H) and the consequentnotification based thereon dated9.1.1992 (Annexure-M) are herebyquashed. It is open to the StateGovernment to propose to Hon'bleShri Justice S.T. Ramalingam theterms and conditions or hiscontinuance as a member of theCommission equivalent to, loss ormore favourable than those offeredand fixed for Hon'ble Shri JusticeKamlakar Choubey. Thereafterdepending on his reply the StateGovernment may continue ordiscontinue his appointment orsubstitute another member in hisplace. It is also made clear thatit would be open to JusticeRamalingam to accept the terms andconditions offered by the StateGovernment of Madhya Pradesh or toresign from the office, by taking adecision in that behalf early, sothat the work of the Commission isnot unduly hampered and it iscompleted well within the extendedperiod i.e. before 31st March, 1993....... "
Hence, these petitions for grant of special leave.Leave granted.
Shri Shanti Bhushan, learned senior counsel for theState of Madhya Pradesh, expressly gave up the argumentadvanced before the High Court of the implied resignation ofJustice S.T. Ramalingam giving rise to a vacancy or anyimplied vacancy on retirement of Justice Ramalingam as aJudge of the Madras High Court to enable exercise of powerunder Section 3(3) of the Commissions of Inquiry Act forfirst appointing Justice G.G. Sohani and then JusticeKamlakar Choubey in place of Justice S.T. Ramalingam Thecase of the State of Madhya Pradesh in this Court wasconfined by Shri Shanti Bhushan to only one point. The onlycontention of Shri Shanti Bhushan is that the aid of Section21 of the General Clauses Act is available to the StateGovernment for exercising its powers under the Commissionsof Inquiry Act `to add to, amend or vary' the notificationissued initially appointing Justice S.T. Ramalingam as thesole member of the Commission which enables the StateGovernment to reconstitute the Commission by replacingJustice S.T. Ramalingam with any other person in thecircumstances of the case. He argued that it is in exerciseof this power that the period fixed initially for completionof the inquiry could be amended since, to the extent theprovisions in the Commissions of Inquiry Act are silent,recourse can be had to Section 21 of the General Clauses Actfor making a suitable addition, amendment or variation ofthe initial notification. According to learned counsel, thepower to rescind any notification being provided in Section7 of the Commissions of Inquiry Act, such a power in Section21 of the General Clauses Act was not available, but not sothe power given by Section 21 of the General Clauses Act toadd to, amend or vary any notification. Shri Shanti Bhushanalso referred to Section 8-A of the Commissions of InquiryAct as an indication to support his submission of theGovernment's power to reconstitute the Commission evenduring the availability of the person so appointed eventhough, he stated, Section 8-A is not the source of powerfor reconstitution of the Commission.
In reply, Shri Kapil Sibal, learned senior counsel forrespondent No.1, submitted that the scheme of theCommissions of Inquiry Act does not permit invoking Section21 of the General Clauses Act except for enlarge ment of theperiod for completion of the inquiry by amendment of thenotification only to that extent since the only situationsin which reconstitution of the Commission can be made areprovided in the Commissions of Inquiry Act itself and,therefore, the context rules out the applicability ofSection 21 of the General Clauses Act for any such purpose.Shri Sibal also submitted that the construction suggested byShri Shanti Bhushan is alien to the scheme of theCommissions of Inquiry Act. Shri Sibal added that Section 8-A of the Commissions of Inquiry Act was enacted for anentirely different purpose, to ensure continuity of theCommission's work and has nothing to do with itsreconstitution. Shri N.S. Kale, learned counsel for KailashJoshi, while supporting the submission of Shri ShantiBhushan added that Sections 14 and 16 of the General ClausesAct are also available to support the impugned notificationsissued by the State Government.
In the ultimate analysis, the controversy survivingbefore us on the rival contentions is considerably narrowed.In substance, the only surviving controversy now is whetherin the scheme of the Commissions of Inquiry Act, the power`to add to, amend or vary' any notification given by Section21 of the General Clauses Act is available to reconstitute aCommission of Inquiry constituted under Section 3 of theCommissions of Inquiry Act by replacing the sole memberappointed initially with another person during theavailability of the sole member initially appointed. Thevalidity of the aforesaid impugned notifications dated10.7.1991 appointing Justice G.G. Sohani and dated 9.1.1992appointing Justice Kamlakar Choubey to replace Justice S.T.Ramalingam depends on the answer to this question whichalone now survives for decision.
A reference to the object and purpose of an enactmentin the nature of the Commissions of Inquiry Act, 1952 wouldbe worthwhile before proceeding to examine its scheme andthe provisions therein. The object of the enactment, to theextent it is relevant, while construing the meaning of itsprovisions may be of assistance.
The Commissions of Inquiry Act, 1955 is similar to andis modelled on the corresponding English statute andprovides this historical back ground for the Indian statute.The purpose of such an enactment is aptly summarised in thespeech of Lord Salmon on `Tribunals of Inquiry' as under :-
"In all countries, certainly inthose which enjoy freedom of speechand a free Press, moments occurwhen allegations and rumourscirculate causing a nation-widecrisis of confidence in theintegrity of public life or aboutother matters of vital publicimportance. No doubt this rarelyhappens, but when it does it isessential that public confidenceshould be restored, for without itno democracy can long survive. Thisconfidence can be effectivelyrestored only by thoroughlyinvestigating and probing therumours and allegations so as tosearch out and establish the truth.The truth may show that the evilexists, thus enabling it to herooted out, or that there is nofoundation is the rumours andallegations by which the public hasbeen disturbed. In either case,confidence is restored. How, insuch circumstances, can the truthbest be established ?"
It is for the purpose of ascertaining the truth in suchcircumstances that the Commissions of Inquiry Act, 1952 hasbeen enacted. While construing the provisions of theenactment, it would be useful to bear in mind its object ifoccasion arises for illumination of any grey areas withreference to the object of the enactment as a permissibleaid to construction. The Commissions of Inquiry Act, 1952was enacted to provide for the appointment of Commissions ofInquiry and for vesting such Commissions with certainpowers. Section 2 of the Act contains definitions. Section 3provides for appointment of a Commission of Inquiry. Sub-section (1) of Section 3 lays down that a Commission ofInquiry for the purpose of making an inquiry into anydefinite matter of public importance may be appointed by theappropriate Government it is of opinion that it isnecessary so to do and shall make such an appointment if aresolution in this behalf is passed by each House ofParliament or, as the case may be, the Legislature of theState, by notification in the Official Gazette. Sub-section(2) of Section 3 says that the Commission may consist of oneor more members appointed by the appropriate Government, andwhere the number is more than one, one of them may beappointed as the Chairman. Sub-section (3) of Section 3enables the appropriate Government to fill any vacancy whichmay arise in the office of a member of the Commissionwhether consisting of one or more than one member, at anystage of an inquiry. Sub-section (4) of Section 3 requiresthe appropriate Government to cause to be laid before eachHouse of Parliament or, as the case may be, the Legislatureof the State, the report, if any, of the Commission ofInquiry together with a memorandum of the action takenthereon, within a period of six months from the submissionof the report by the Commission to the appropriateGovernment. Section 4 prescribes that the Commission shallhave the powers or a civil court while trying a suit underthe Code of Civil Procedure in respect of the mattersmentioned therein. Section 5 deals with the additionalpowers of the Commission. Section 5-A relates to the powerof the Commission for conducting investigation pertaining toinquiry. Section 5-B deals with the power of the Commissionto appoint assessors. Section 6 provides for the manner ofuse of the statements made by persons to the Commission.Section 6-A provides that some persons are not obliged todisclose certain facts. Section 7 deals with the manner inwhich a Commission of Inquiry appointed Section 3 ceases toexist in case its continuance is unnecessary. It providesfor a notification in the Official Gazette by theappropriate Government specifying the date from which theCommission shall cease to exist if it is of the opinion thatthe continued existence of the Commission is unnecessary.Where a Commission is appointed in pursuance of a resolutionpassed by the Parliament or as the case may be, theLegislature of the State, then a resolution for thediscontinuance of the Commission is also to be passed by it.Section 8-A provides that the inquiry is not to beinterrupted by reason of vacancy or change in theconstitution of the Commission and it shall not be necessaryfor the Commission to commence the inquiry afresh and theinquiry may be continued from the stage at which the changetook place. Section 8-B prescribes that persons likely to beprejudicially affected by the inquiry must be heard. Section8-C deals with the right of cross-examination andrepresentation by legal practitioner of the appropriateGovernment, every person referred to in Section 8-B and,with the permission of the Commission, any other personwhose evidence is recorded by the Commission. Sections 9, 10and 10-A relate to ancillary matters while Section 12contains the rule making power of the appropriateGovernment. Section 11 provides that the Act is to apply toother inquirying authorities in certain cases and where theGovernment directs that the said provisions of this Actshall apply to that authority and issues such anotification, that authority shall be deemed to be aCommission appointed under Section 3 for the purposes ofthis Act. Admittedly, it is by virtue of Section 11 that theCommission of Inquiry appointed in the present case isdeemed to be a Commission appointed under Section 3 for thepurposes of this Act because the Commission was constitutedby a resolution of the Government pursuant to the directionof the M.P. High Court in the writ petition filed in publicinterest by Kailash Joshi as indicated earlier. For thepurposes of this case, the material provisions of theenactment are Sections 3, 7 and 8-A apart from Section 21 ofthe General Clauses Act, 1897 with reference to which therival contentions were made.
These provisions are as under :-
The Commissions of Inquiry Act, 1952"3. Appointment of Commission.- (1)The appropriate Government may, ifit is of opinion that it isnecessary so to do, and shall, ifa resolution in this behalf ispassed by each House of Parliamentor, as the case may be, theLegislature of the State, bynotification in the OfficialGazette, appoint a Commission ofInquiry for the purpose of makingan inquiry into any definitematter of public importance andperforming such functions andwithin such time as may hespecified in the notifications andthe commission so appointed shallmake the inquiry and perform thefunctions accordingly:
Provided that where any suchCommission has been appointed toinquire into any matter-
(a) by the Central Government, noState Government shall, except withthe approval of the CentralGovernment, appoint anotherCommission to inquire into the samematter for so long as theCommission appointed by the CentralGovernment is functioning;
(b) by a State Government, theCentral Government shall notappoint another Commission toinquire into the same matter for solong as the Commission appointed bythe State Government isfunctioning, unless the CentralGovernment is of opinion that thescope of the inquiry should beextended to two or more States.
(2) The Commission may consist ofone or more members appointed bythe appropriate Government, andwhere the Commission consists ofmore than one member one of themmay be appointed as the Chairmanthereof.
(3) The appropriate Government may,at any stage of an inquiry by theCommission fill any vacancy whichmay have arisen in the office of amember of the Commission (whetherconsisting of one or more than onemember).
(4) The appropriate Governmentshall cause to be laid before eachHouse of Parliament or, as the casemay be, the Legislature of theState, the report, if any, of theCommission on the inquiry made bythe Commission under sub-section(1) together with a memorandum ofthe action taken thereon, within aperiod of six months of thesubmission of the report by theCommission to the appropriateGovernment.'"7. Commission to cease to existwhen so notified.- (1) Theappropriate Government may, bynotification in the OfficialGazette, declare that-
(a)a Commission (other than aCommission appointed in pursuanceof a resolution passed by eachHouse of Parliament or, as the casemay be, the Legislature of theState) shall cease to exist, if itis of opinion that the continuedexistence of the Commission isunnecesary;
(b) a Commission appointed inpursuance of a resolution passedby each House of Parliament or asthe case may he, the Legislature ofthe State, shall cease to exist ifa resolution for the discontinuanceof the Commission is passed by eachHouse of Parliament or, as the casemay be, the Legislature of theState.
(2) Every notification issued undersub-section (1) shall specify thedate from which the Commissionshall cease to exist and on theissue of such notification, theCommission shall cease to existwith effect from the date specifiedtherein."
"8-A. Inquiry not to be interruptedby reason of vacancy or change inthe constitution of theCommission.- (1) Where theCommission consists of two or moremembers, it may act notwithstandingthe absence of the Chairman or anyother member or any vacancy amongits members.
(2) Where during the course of aninquiry before a Commission, achange has taken place in theconstitution of the Commission byreason of any vacancy having beenfiled or by any other reason, itshall not be necessary for theCommission to commence the inquiryafresh and the inquiry may becontinued from the stage at whichthe change took place."
The General Clauses Act, 1897"21. Power to issue, to includepower to add to, amend, vary orrescind, notifications, orders,rules or bye-laws. Where, by anyCentral Act or Regulation, a powerto issue notifications, orders,rules or bye-laws is conferred,then that power includes a power,exercisably in the like manner andsubject to the like sanction andconditions (if any) to and to,amend, vary or rescind anynotifications, orders, rule or bye-
laws so issued."
It may be mentioned that sub-sections (3) and (4) ofSection 3 and Section 8-A were inserted while Section 7 wassubstituted in the Commissions of Inquiry Act, 1952 by theCommissions of Inquiry (Amendment) Act, 1971 (No.79 of 1971)as a result of the recommendations of the Law Commission ofIndia made in paras 26 and 34 of its 24th Report. In para26, the recommendation made was to amend Section 3 of theAct `to provide expressly for the filling up of vacancy orfor an increase in the number of members whenever theGovernment thinks it necessary or expedient to do so'. Inpara 34 of the Report, the recommendation was to insert anew section 8-A in the light of the proposed amendment inSection 3 to clarify that `it is not necessary for theCommission to recommence its inquiry if a change takes placein the constitution of the Commission during the pendency ofan inquiry'. The legislative history of sub-section (3) ofSection 3 and Section 8-A inserted simultaneously byamendment of the Act shows their interrelation and theobject of enacting Section 8-A is to clarity that theinquiry is not required to recommence or be interrupted byreason of the filling of any vacancy or decrease in thenumber of members of the Commission. Section 8-A along withSections 8-B and 8-C inserted simultaneously by amendment inthe principal Act relate to the procedure of the Commissionand were inserted to provide for specific situations whileSection 8 contains the general power of the Commission toregulate its own procedure.
The real question for decision in the present case is:
Whether the appropriate Government after constituting theCommission under Section 3 of the Act is empowered toreconstitute the Commission substituting another person asthe sole member in place of the initial appointee? Insubstance, it is this power that the State Government claimsto have exercised in the present case and is attempted to bejustified by the argument advanced by Shri Shanti Bhushan tosupport the appointment first of Justice G.G. Sohani andthen of Justice Kamlakar Choubey in place of Justice S.T.Ramalingam. To recapitulate, the argument of Shri ShantiBhushan is that the power of reconstituting the Commissionin this manner is available to the State Government underSection 21 of the General Clauses Act which can be invokedin aid of the power of the Government under Section 3 of theCommissions of Inquiry Act. Section 8-A of the Commissionsof Inquiry Act is referred to by Shri Shanti Bhushan as anindication of the existence of this power in the StateGovernment even though he does not rely on it as a source ofthis power. Shri Kapil Sibal, on the other hand, contendsthat the scheme of the enactment shows that the appropriateGovernment cannot interfere with the working of theCommission after its constitution except in the mannerexpressly provided in the Act and Section 7 is a clearindication that interference with the functioning of theCommission is not permissible in any other manner. ShriSibal contends that Section 21 of the General Clauses Act isnot available to support the Government's action in thepresent case.
Shri Shanti Bhushan concedes that there is no expressprovision in the Commissions of Inquiry Act, 1952 empoweringthe Government to replace or substitute the sole member of aCommission with another person during the continuance of theCommission, but he submits that this is implicit in thepower to appoint a Commission and designate its personnelunder sub-sections (1) and (2) of Section 3 of theCommissions of Inquiry Act read with the power to amend orvary any notification available under Section 21 of theGeneral Clauses Act. Shri Shanti Bhushan also conceded thatthe aid of Section 21 of the General Clauses Act isavailable only if the context and the scheme of theCommissions of Inquiry Act so permits. He submitted that theGovernment's power to extend the time specified in theinitial notification for completing the work of theCommission is not to be found in any express provision inthe Commissions of Inquiry Act, but is exercised byamendment of the initial notification only under Section 21of the General Clauses Act. According to Shri ShantiBhushan, the appointment of a Commission is under sub-section (1) and it is under sub-section (2) of Section 3that the person constituting the Commission is appointedeven though it may be a simultaneous process. Thereplacement of the member initially appointed to constitutethe Commission, according to learned counsel, is by re-exercise of the power under sub-section (2) of Section 3.The submission is that the Commission appointed under sub-section (1) of Section 3 continues while it may bereconstituted by replacement of the member which is doneunder sub-section (2).
In our opinion, the power of the Government to appointa Commission of Inquiry and name the person or personsconstituting it is in sub-section (1) of Section 3 and isnot an exercise divided between subsections (1) and (2) ofSection 3 as suggested by Shri Shanti Bhushan. Sub-section(2) merely confers the power in the Government to appoint aCommission consisting of one or more members and providesthat if there be more than one member of the Commission,then one of them may be appointed Chairman of theCommission. lt is not as if sub-section (1) deals with mereappointment of a Commission of Inquiry without clothing itwith its personnel and the power to appoint themember/members thereof is to be found only in sub-section(2). That apart, there is nothing in any of these provisionsto suggest that the Government has the power to reconstitutethe Commission after its appointment by replacing theexisting sole member with another person, Sub-section (3)deals expressly with the Government's power to fill anyvacancy which may have arisen since the constitution of theCommission. The question of replacement of a memberappointed initially is obviously beyond its scope. Sub-
section (3) inserted by amendment in Section 3 of the Commissions of Inquiry Act, 1952 is a clear contra- indication to the construction suggested by Shri Shanti Bhushan of sub-sections (1) and (2) of Section 3 in the scheme of the Act. If the construction suggested by Shri Shanti Bhushan be correct, there was no need to make this amendment and insert sub-section (3) which is a clear indication of the limit and extent to which the power of reconstitution of the Commission can be exercised by the Government after the Commission has been constituted. As the Law Commission's Report itself indicates, this amendment became necessary to provide expressly in the statute for the Government's power to till any vacancy after the initial constitution Whatever may have been the position prior to insertion of sub-section (3) in Section 3, there can be no doubt that after its insertion, the scheme of the enactment excludes the power of reconstitution of the Commission in a manner not expressly provided therein. In view of sub- section (3), it is not permissible to construe sub-sections (1) and (2) of Section 3 in any other manner. If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial constitution and permitted replacement or substitution of the existing member of a Commission with another person sans sub-section (3) of Section 3, the power to fill any vacancy was not required to be provided separately ahat the Commission functions as an independent a gency free from any govern-mental control after its constitution. It follows that after appointment the tenure of members of the commission should not be dependent on the will of the Government to secure their independence. A body not so independent is not likely to enjoy the requisite public confidence and may not attract men of quality and self- respect. In such a situation the object of the enactment would be frustrated. [302-H. 303-A-C] Minerva Mills Ltd. v, There Workers, [1954] S.C.R. 465 distinguished.
The State of Bihar v. D. N. Ganguly.,[1959] S.C.R. 1191, relied on.
in Rangachari and Soshit Karamchari respectively reiterated in State of Punjab v. Hira Lal, [1971] 3 SCR 267, and Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan & Anr., [1986] 2 SCR 17. In Rangachari it was held, 'The condition precedent may refer either to numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation'.3 In the context the expression, 'adequately represented imports consideration of size as well as values, numbers as well as the nature of appointments'.4 But, inadequacy of representation is creative of jurisdiction only. It is not measure of backwardness. That is why less rigorous test or lesser marks and competition amongst the class of unequals at the point of entry has been approved both this Court and American courts. But a student admitted to a medical or engineering college is further not granted relaxation in passing the examinations. In fact this has been explained as valid basis in American decisions furnishing justification for racial admissions on lower percentage. Rationale appears to be that every-one irrespective of the source of entry being subjected to same test neither efficiency is effected nor the equality is disturbed. After entry in service the class is one that of employees. If the social scar of backwardness is carried even, thereafter the entire object of equalisation stands frustrated. No further classification amongst employees would be justified as is not done amongst students.
Constitutional, legal or moral basis for protective discrimination is redressing identifiable backward class for historical injustice. That is they are today, what they would not have been but for the victimisation. Remedytuting the Comm ission. The enactment, therefore, also provides in Section 7 the only situation in which the Government can rescind the notification issued under Section 3 constituting the Commission. To the extent to which express provision is made in the enactment, it is common ground, Section 21 of the General Clauses Act, 1897 cannot be invoked. These aspects have to be borne in mind while considering the tenability of the submission made by Shri Shanti Bhushan with the aid of Section 21 of the General Clauses Act.
It is common ground before us that Section 21 of the General Clauses Act can be invoked only if, and to the extent, if any, the context and the scheme of the Commissions of Inquiry Act so permits. The general power in Section 21 of the General Clauses Act is to add to, amend, vary or rescind any notification etc. In the context of reconstitution of the Commission, the power to fill any vacancy in the office of a member of the Commission is expressly provided in sub-section (3) of Section 3 of the Commission of Inquiry Act. Similarly, the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a notification in accordance with Section 7 of the Act which results in rescinding the notification issued under Section 3 constituting the Commission. Thus, the power to rescind any notification conferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme to the Commissions of Inquiry Act which expressly provides for the exercise of this power in relation to a Commission constituted under Section of the Act. The only material remaining general powers in Section 21 of the General Clauses Act are the power to `amend ' or `vary' any notification. The extent to which the constitution of the Commission can be amended or varied by filling any vacancy in the office of a member as provided in the Commissions of Inquiry Act is also obviously excluded from the purview of Section 21 of the General Clauses Act which cannot be invoked for this purpose.
The surviving question, therefore, is: Whether there is power to reconstitute the Commission by replacement or substitution of the existing member, though not provided in the Commissions of Inquiry Act by invoking the residuary power to amend or vary any notification under Section 21 of the General Clauses Act? In the first place, in a case like the present where the scheme of the Commissions of Inquiry Act does provide for amendment and variation of the notification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated, even that power to amend or vary any notification by virtue of Section 21 of the General Clauses Act must be taken as excluded by clear implication in the sphere of reconstitution of the Commission. Moreover, the power to amend or vary cannot include the power to replace or substitute the existing composition of the Commission with an entirely new composition. Shri Shanti Bhushan submitted that the time specified in the initial notification for completing the task of the Commission is enlarged by subsequent notification and this is done in exercise of the general power available under the General Clauses Act to extend time. This submission does not support the argumentof learned counsel that the general power under Section 21 of the General Clauses Act is also available to reconstitute the Commission by replacement or substitution of its sole member. The aid of Section 21 of the general Clauses Act for enlargement of time does not conflict with the context or scheme of the Commissions of Inquiry Act.
The context as well as the scheme of the Commissions of Inquiry Act, 1952 clearly indicate that Section 21 of the General Clauses Act, 1897 cannot be invoked to enlarge the Government's power to reconstitute the Commission constituted under Section 3 of the Act in a manner other than that expressly provided in the Commissions of Inquiry Act. There being no express power given by the Commissions of Inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, no such power can be exercised by the appropriate Government. The scheme of the enactment is that the appropriate Government should have no control over the Commission after its constitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a notification under Section 7 of the Act if the continued existence of the Commission is considered unnecessary. The vacancy in the office of a member of the Commission may arise for several reasons, including resignation by the member, when the Government's power to fill the vacancy under Section 3(3) of the Act can be exercised. Even though a case of implied resignation creating an implied vacancy was set up by the State of Madhya Pradesh before the High Court, that stand was rightly abandoned before us by Shri Shanti Bhushan.
We have no doubt that the rule of construction embodied in Section 21 of the General Clauses Act cannot apply to the provisions of the Commissions of Inquiry Act 1952 relating to reconstitution of a Commission constituted thereunder since the subject-matter, context and effect of such provisions are inconsistent with such application. Moreover, the construction made by us best harmonises with the subject of the enactment and the object of the legislation. Restoring public confidence by constituting a Commission of Inquiry to investigate into a 'definite matter of public importance' is the purpose of such an exercise. It is, therefore, the prime need that the Commission functions as an independent agency free from any governmental control after its constitution. It follows that after appointment, the tenure of members of the commission should not be dependent on the will of the Government, to secure their independence. A body not so independent is not likely to enjoy the requisite public confidence any may not attract men of quality and self-respect. In such a situation, the object of the enactment would be frustrated. This aspect suggests that the construction made by us, apart from harmonising the provisions of the statute, also promotes the object of the enactment while the construction suggested by the appellant frustrates both.
Shri Shanti Bhushan placed reliance on the decision in Minerva Mills Ltd. v. Their Workers, 1-19541 S.C.R. 465. In that decision, the power of the appropriate Government under Section 7 of the Industrial Disputes Act, 1947 to constitute an industrial tribunal for a fixed period of time and to constitute a new tribunal on the expiry of that period to hear and dispose of references made to the previous tribunal which had not been disposed of by that tribunal was upheld. Shri Shanti Bhushan contended that the observations made in that decision are not confined to the exercise of that power on the expiry of the tenure of the tribunal first constituted. It was clearly indicated in that decision that 'when the life of the first tribunal automatically came to end by efflux of time, no question of vacancy in the office really arose and, therefore, it was not a case falling under sub-clause (2) of Section 8 but the situation that arose fell within the ambit of Section 7'. The observations made in that decision have to be read in the context of the facts of that case. That decision is clearly distinguishable.
On the other hand, Shri Kapil Sibal placed reliance on The State of Bihar v. D.N. Ganguly & Others, [1959] S.C.R. 1191. This decision also related to the reference of a dispute under the Industrial Disputes Act, 1947. It was pointed out that 'it was well settled that the rule of construction embodied in Section 21 of the General Clauses Act can apply to the G provisions of a statute only where the subject-matter, context, and effect of such provisions are in no way inconsistent with such application . On this basis it was held that it did not apply to Section 10(1) of the Industrial Disputes Act. On a construction of Section 10(1 ) of the Industrial Disputes Act, 1947, it was held that it does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose. Reliance placed on Section 21 of the General Clauses Act on behalf of the Government to invoke such a power by necessary implication was clearly negatived. The decision of this Court in Minerva Mills Ltd. (supra) was distinguished as we have already indicated. In our opinion, the ratio in D.N. Ganguly (supra) supports the view taken by us in the present case that Section 21 of the General Clauses Act cannot be invoked to support the impugned action of the State of Madhya Pradesh as contended by Shri Shanti Bhushan. The construction suggested by Sri Shanti Bhushan is inconsistent with the provisions and the scheme of the Commissions of Inquiry Act, 1952 and must, therefore, be rejected.
Admittedly, the power under Section 3(3) of the Commissions of Inquiry Act, 1952 was not available to the State of Madhya Pradesh in the facts of the present case to appoint any other person replacing Justice S.T. Ramalingam as the sole member of the Commission of Inquiry. The power under sub-sections (1) and (2) of Section 3 read with Section 21 of the General Clauses Act or even Sections 14 or 16 thereof was also not available for this purpose, for the reasons given earlier. Accordingly, the notification dated 10.7.1991 appointing Justice G.G. Sohani and the notification dated 9.1.1992 appointing Justice Kamlakar Choubey were both invalid. It is not unlikely that Justice G.G. Sohani may have resigned forming the same opinion when his appointment was challenged. However, the State of Madhya Pradesh did not choose to reflect and reconsider the legality of its action in spite of the resignation of Justice G.G. Sohani and it continued to move in the wrong direction by making another invalid appointment of Justice Kamlakar Choubey.
Consequently, these appeals are dismissed and the impugned judgment of the High Court quashing the notifications dated 10.7.1991 and 9.1.1992 is sustained for the aforesaid reasons given by us. The State of Madhya Pradesh shall, in view of the retirement of Justice S.T. Ramalingam as a Judge of the Madras High Court in the meanwhile, take necessary action to finalise his terms and conditions in accordance with the guidelines issued by the Government of India in this behalf. Such action be taken promptly to avoid any undue delay in completion of the Commission's task. No costs.
