Appeal Nos
4734 35 of 1992
From the Judgment and Order dated 851992 of the Madhya Pradesh High Court in Misc
Petition Nos
48 and 533 of 1992
Shanti Bhushan NC Jain SK Agnihotri and Ashok K Singh for the Appellant
Kapil Sibal NS Kale AP Dhamija SK Jain Manmohan section Atreya Pradeep Agarwal Basant Bhai Mehta Ravindra Srivastava RN Srivastava BV Desai and SV Deshpande for the Respondents
The Judgment of the Court was delivered by VERMA J
The petitioner State of Madhya Pradesh in both these petitions seeks leave to appeal under Article 136 of the Constitution against the common judgment and order dated 851992 of the High Court of Madhya Pradesh in Miscellaneous Petition Nos 481 of 1992 and 533 of 1992 under Article 226 of the Constitution
The High Court has allowed both these writ petitions
The material facts are these
In Miscellaneous Petition No 3909 of 1987 tiled in public interest by Kailash Joshi then Leader of the Opposition in Madhya Pradesh Vidhan Sabha and now a Cabinet Minister in Madhya Pradesh relating to the affairs of the Churhat Children s Welfare Society and the lottery conducted by it the MP High Court by its judgment dated 2011989 issued a direction for setting up an independent high power agency to bold an inquiry into the affairs of the said Society of which respondent 1 Ajay Singh was one of the office bearers
In compliance of that direction the State Government passed a resolution on 2421989 and also issued notification of the same date having the effect of setting up a Commission of Inquiry consisting of Justice ST Ramalingam a Judge of the Madras High Court to investigate into the affairs of the said Society and the lottery conducted by it
The resolution and notification are as under  Bhopal the 24th February 1989 No F 1 3 89 li EC
Whereas the High Court of Madhya Pradesh in its order dated the 20th January 1989 in MP No 390987 Kailash Joshi versus State of Madhya Pradesh and others has directed that an inquiry be made by an independent high power agency into the affairs of the Churhat Children s Welfare Society and how the share of its profits derived from all or any other draws have been utilized and to take such action as may be required under the law against the said Society and its organizing agent and that the State Government is of the view that the said order of the High Court should be implemented and carried out and whereas the State Government is also satisfied that this is a definite matter of public importance which calls for an inquiry to be made the State Government hereby appoints an independent high power agency presided over by Shri Justice ST Ramalingam Judge of the Madras High Court
The Headquarters of the Agency shall be at Jabalpur Madhya Pradesh
The terms of reference for inquiry by the aforesaid Agency shall be as under 1 How the affairs of the Churhat Children s Welfare Society are conducted and how the share of the profit derived and the money collected through lottery has been utilised  2 What is the amount collected draw wise by the agent and the Society and what is the tax liability as per the Madhya Pradesh lottery Niyantran Tatha Kar Adhiniyam 1973  3 Whether any irregularities illegalities and offences were committed in organizing the lottery holding of draws of lottery distribution of prizes and in that event the person responsible for the same 4 Any other matter incidental or connected with the above subject matter of enquiry
4 The Agency may complete its enquiry and submit its report to the State Government within a period of six months from the date of issue of this Notification
By order and in the name of the Governor of Madhya Pradesh RC Shrivastava Secy Bhopal the 24th February 1989 No F1 3 89 Ii EC Whereas by Government of Madhya Pradesh Resolution dated the 24th February 1989 and Notification No F1 3 89 Ii EC dated the 24thFebruary 1989 an independent High Power Agency presided over by Shri ST Ramalingam Judge of the Madras High Court has been set up to hold an inquiry into the affairs of the Churhat Children s Welfare Society And whereas the State Government having regard to the nature of the inquiry to be made and other circumstances of the case is of the opinion that provisions contained in sub sections 2 to 5 of Section 5 of the  should be made applicable to the aforesaid Agency Nowtherefore in exercise of the powers conferred by sub section 1 of Section 5 of the  the State Government hereby directs that the provisions of sub sections 2 to 5 of Section 5 of the said Act shall apply to the above described Agency
By order and in the name of the Governor of Madhya Pradesh RC Shrivastava Secy
According to the terms of the above notification the inquiry was to be completed within a period of six months from the date of issue of the notification
As the inquiry could not be completed within that period by a notification dated 181990 the period for completing the inquiry was extended upto 2281991 then by another notification dated 1681991 the period was extended upto 3131992 and then by another notification dated 2731992 the period for completing the inquiry stands extended upto 3131993
In the meantime Justice ST Ramalingam became due to retire as a Judge of the Madras High Court on 3061991 on attaining the age of superannuation and therefore he wrote a letter dated 1931991 to the Chief Secretary of the State drawing attention to this fact and requesting that necessary modalities be worked out well in time for his continuance as Commission of Inquiry in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his retirement in such a situation
Just Ramalingam mentioned in that letter some of the facilities he expected to which he would not be entitled from the Government of Tamil Nadu on his retirement
The Chief Secretary RP Kapoor sent a reply to Justice Ramalingam by DO No 504CS91 dated 941991 as under My dear Hon ble Justice Ramalingam Thank your very much for your letter No 53 of 19th March 1991
The issues raised in your letter regarding the tenure of the Commission and the terms and conditions after your superannuation are under active consideration of the Government and I will be in a position to inform your after a final view is taken in this case
In the meanwhile may I request that the proceedings may be continued so that the inquiry can be completed at the earliest possible
With very kind regards Yours sincerely Sd RP 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 1071991 as under Bhopal the 10th July 1991 No F1 6 91 I 8 Ka
Whereas an independent high power agency comprising of a single member namely Justice ST Ramalingam Judge of the Madras High Court was appointed under this Department Notification No F1 3 89 Ii EC dated the 24th February 1989 And whereas Justice ST Ramalingam has retired as Judge of the Madras High Court on 30th of June 1991 And whereas for continuing in the said agency after retirement Justice Shri ST Ramalingam has placed certain terms and conditions which have not been found possible for the Government to accept
Now therefore in exercise of the powers conferred by sub section 3 of Section 3 of the No LX of 1952 the State Government hereby appoint Justice Shri GG Sohani retired Chief Justice High Court of Patna Bihar as single member of the said agency in place of Justice Shri ST Ramalingam
Accordingly this Department Notification Nos
IF1 3 89 Ii EC dated the 24th February 1989 2 F1 3 89 1i EC dated the 24th February 1989 and 3 F1 3 89 Ii EC dated the 24th February 1989 shall stand amended to this extent
By order and in the name of the Governor of Madhya Pradesh SK Misra Secy
Accordingly by this notification the State Government replaced Justice ST Ramalingam with Justice GG Sohani retired Chief Justice of Patna High Court as the sole member of the Commission of Inquiry
The appointment of Justice GG Sohani in place of Justice ST Ramalingam was challenged in the MP High Court by a writ petition MP No 2359 of 1991 by respondent No 1 Ajay Singh
By an interim order dated 3071991 passed by the High Court the operation of the above notification dated 1071991 was stayed
During the pendency of that writ petition Justice GG Sohani conveyed to the State Government his disinclination to continue with the assignment and tendered his resignation
Consequently the High Court dismissed that writ petition as infructuous on 591991
It was only thereafter that the Chief Secretary of the State Government sent a letter dated 1291991 in continuation of his earlier letter dated 941991 to Justice Ramalingam which is as under  This is in continuation to my earlier letter No 504CS91 dated 9th April 1991 regarding the arrangement for the Commission of Enquiry Churhat Children Welfare Society and Lottery consequent to your superannuation as a Judge of the Madras High Court
The State Government have considered your communications about the inconveniences you were facing in coming to Jabalpur for want of Air link between Madras and Jabalpur
The State Government have also considered the terms and conditions mentioned in your letter of 19th March 1991
On careful consideration of all aspects mentioned in your communications it has not been possible for the State Government to accept the terms and conditions set out in your letter of 19th March for taking up the work of the above mentioned Enquiry Commission after your superannuation
The State Government had accordingly appointed Justice Mr GG Sohani retired Chief Justice of the Patna High Court to be the single Member of the Commission
I am however happy to convey the deep appreciation of the State Government for the services rendered by you in the Commission in spite of all the personal inconvenience it has caused
The Hon ble Chief Minister had made a general mention of it in the Vidhan Sabha on the 4th July 1991
Delay in reply to your letter is regretted
It was caused because of the litigation arising out of the appointment of Justice Sohani which was since been decided
Wishing you and your family a very happy life after your superannuation
Yours sincerely RP Kapoor The State Government thereafter issued another notification dated 911992 as under Bhopal the 9th January 1992 No F1 6 91 I 8 Ka
Whereas in exercise of the powers conferred by sub section 3 of Section 3 of the Commissions of Enquiry Act 1952 No LX of 1952 Justice Shri GG Sohani retired Chief Justice High Court of Patna Bihar was appointed as single member of an independent high power agency constituted under this department notification No F1 3 89 Ii EC dated 24th February 1998 in place of Justice Shri ST Ramalingam vide this department Notification No F1 6 91 I8 Ka dated the 10th July 1991 And whereas Justice Shri GG Sohani retired Chief Justice High Court of Patna Bihar has since withdrawn his consent to work as single member of the said agency Now therefore in exercise of the powers conferred by sub section 3 of Section 3 of the Commissions of Enquiry Act 1952 NoLX of 1952 read with Section 21 of the General Clause Act 1987 No 10 of 1897 the State Government hereby appoint Justice Shri Kamlakar Choubey retired Judge of the Allahabad High Court as a single member of the said agency in place of Shri GG Sohani
Accordingly this department Notification Nos
1 F1 3 89 li EC dated 24th February 1989 2 F1 3 89 I i EC dated 24th February 1989 and 3 F1 3 89 I i EC 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 ST Ramalingam first by Justice GG 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 2331991 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 ST Ramalingam initially appointed for the purpose and to writ petitions MP Nos 481 of 1992 and 533 of 1992 for quashing the notification dated 911992 appointing Justice Kamlakar Choubey
Challenge to the notification dated 1071991 issued earlier appointing Justice GG Sohani is academic in view of Justice Sohani having resigned as indicated earlier
The remaining significance of the validity of the notification dated 1071991 appointing Justice GG Sohani relates only to the State Government s power to appoint another person in place of Justice ST 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 ST 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 GG 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 911992 appointing Justice Kamlakar Choubey was sought
In substance the argument was that there being no vacancy in the office the power under Section 33 of the  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 30691 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 33 of the 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 ST 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  in aid of the State Government s power under Section 33 of the 
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 lead with Section 16 of the 
The learned counsel appearing on behalf of Kailash Joshi placed reliance on Section 32 of the Commission of Inquiry Act read with Section 14 of the to support the State Government s action appointing Justice Kamlakar Choubey contending that the State Government had power to reconstitute the Commission replacing Justice ST Ramalingam by another person
An argument challenging the locus standi of the writ petitioner was also faintly urged by counsel for Kailash Joshi
The High Court allowed the writ petitions and quashed the notification dated 911992 appointing Justice Kamlakar Choubey
It held that there was no vacancy in the office of the single member of the Commission to empower the State Government to fill the vacancy under Section 33 of the 
On a construction of the provisions of the and those of the relied on in support of the rival contentions the High Court came to the conclusion that there was neither any valid reason or ground nor any power available in the State Government to replace Justice ST Ramalingam by another person as was purported to be done by First appointing Justice GG Sohani and then Justice Kamlakar Choubey both of whom were also retired Judges
The objection to locus standi for the writ petitioners was also rejected
The relevant part of the directions made by the High Court is as under 42
As a result of the aforesaid discussion the petition succeeds and is hereby allowed
The notification dated 1071991 Annexure H and the consequent notification based thereon dated 911992 Annexure M are hereby quashed
It is open to the State Government to propose to Hon ble Shri Justice ST Ramalingam the terms and conditions or his continuance as a member of the Commission equivalent to loss or more favourable than those offered and fixed for Hon ble Shri Justice Kamlakar Choubey
Thereafter depending on his reply the State Government may continue or discontinue his appointment or substitute another member in his place
It is also made clear that it would be open to Justice Ramalingam to accept the terms and conditions offered by the State Government of Madhya Pradesh or to resign from the office by taking a decision in that behalf early so that the work of the Commission is not unduly hampered and it is completed well within the extended period ie before 31st March 1993    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 ST 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 33 of the for first appointing Justice GG Sohani and then Justice Kamlakar Choubey in place of Justice ST 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 is available to the State Government for exercising its powers under the to add to amend or vary  the notification issued initially appointing Justice ST Ramalingam as the sole member of the Commission which enables the State Government to reconstitute the Commission by replacing Justice ST 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 are silent recourse can be had to Section 21 of the 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  such a power in Section 21 of the was not available but not so the power given by Section 21 of the to add to amend or vary any notification
Shri Shanti Bhushan also referred to Section 8 A of the 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
In reply Shri Kapil Sibal learned senior counsel for respondent No1 submitted that the scheme of the does not permit invoking Section 21 of the except for enlarge ment of the period for completion of the inquiry by amendment of the notification only to that extent since the only situations in which reconstitution of the Commission can be made are provided in the itself and therefore the context rules out the applicability of Section 21 of the for any such purpose
Shri Sibal also submitted that the construction suggested by Shri Shanti Bhushan is alien to the scheme of the 
Shri Sibal added that Section 8 A of the was enacted for an entirely different purpose to ensure continuity of the Commission s work and has nothing to do with its reconstitution
Shri NS Kale learned counsel for Kailash Joshi while supporting the submission of Shri Shanti Bhushan added that Sections 14 and 16 of the are also available to support the impugned notifications issued by the State Government
In the ultimate analysis the controversy surviving before us on the rival contentions is considerably narrowed
In substance the only surviving controversy now is whether in the scheme of the  the power to add to amend or vary  any notification given by Section 21 of the is available to reconstitute a Commission of Inquiry constituted under Section 3 of the by replacing the sole member appointed initially with another person during the availability of the sole member initially appointed
The validity of the aforesaid impugned notifications dated 1071991 appointing Justice GG Sohani and dated 911992 appointing Justice Kamlakar Choubey to replace Justice ST Ramalingam depends on the answer to this question which alone now survives for decision
A reference to the object and purpose of an enactment in the nature of the would be worthwhile before proceeding to examine its scheme and the provisions therein
The object of the enactment to the extent it is relevant while construing the meaning of its provisions may be of assistance
The Commissions of Inquiry Act 1955 is similar to and is modelled on the corresponding English statute and provides this historical back ground for the Indian statute
The purpose of such an enactment is aptly summarised in the speech of Lord Salmon on Tribunals of Inquiry  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 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 he rooted out or that there is no foundation is 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 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
The was enacted to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers
Section 2 of the Act contains definitions
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 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
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
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
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 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
Section 4 prescribes that the Commission shall have the powers or a civil court while trying a suit under the Code of Civil Procedure in respect of the matters mentioned therein
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
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
Section 7 deals with the manner in which a Commission of Inquiry appointed 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 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
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
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 inquirying 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 authority shall be deemed to be a Commission appointed under Section 3 for the purposes of this Act
Admittedly it is by virtue of Section 11 that the Commission of Inquiry appointed in the present case is deemed to be a Commission appointed under Section 3 for the purposes of this Act because the Commission was constituted by a resolution of the Government pursuant to the direction of the MP High Court in the writ petition filed in public interest by Kailash Joshi as indicated earlier
For the purposes of this case the material provisions of the enactment are Sections 3 7 and 8 A apart from Section 21 of the with reference to which the rival contentions were made
These provisions are as under  The 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 such functions and within such time as may he specified in the notifications 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  7
Commission to cease to exist when so notified 1 The appropriate Government may by notification in the Official Gazette declare that aa Commission other than a Commission appointed in pursuance of a resolution passed by each House of Parliament or as the case may be the Legislature of the State shall cease to exist if it is of opinion that the continued existence of the Commission is unnecesary b a Commission appointed in pursuance of a resolution passed by each House of Parliament or as the case may he the Legislature of the State shall cease to exist if a resolution for the discontinuance of the Commission is passed by each House of Parliament or as the case may be the Legislature of the State
2 Every notification issued under sub section 1 shall specify the date from which the Commission shall cease to exist and on the issue of such notification the Commission shall cease to exist with effect from the date specified therein 8 A Inquiry not to be interrupted by reason of vacancy or change in the constitution of the Commission 1 Where the Commission consists of two or more members it may act notwithstanding the absence of the Chairman or any other member or any vacancy among its members
2 Where during the course of an inquiry before a Commission a change has taken place in the constitution of the Commission by reason of any vacancy having been filed or by any other reason 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
 The 21
Power to issue to include power to add to amend vary or rescind notifications orders rules or bye laws
Where by any Central Act or Regulation a power to issue notifications orders rules or bye laws is conferred then that power includes a power exercisably in the like manner and subject to the like sanction and conditions if any to and to amend vary or rescind any notifications orders rule or bye laws so issued
 It may be mentioned that sub sections 3 and 4 of Section 3 and Section 8 A were inserted while Section 7 was substituted in the by the Commissions of Inquiry Amendment Act 1971 No79 of 1971 as a result of the recommendations of the Law Commission of India made in paras 26 and 34 of its 24th Report
In para 26 the recommendation made was to amend Section 3 of the Act to provide expressly for the filling up of vacancy or for an increase in the number of members whenever the Government thinks it necessary or expedient to do so 
In para 34 of the Report the recommendation was to insert a new section 8 A in the light of the proposed amendment in Section 3 to clarify that it is not necessary for the Commission to recommence its inquiry if a change takes place in the constitution of the Commission during the pendency of an inquiry 
The legislative history of sub section 3 of Section 3 and Section 8 A inserted simultaneously by amendment of the Act shows their interrelation and the object of enacting Section 8 A is to clarity that the inquiry is not required to recommence or be interrupted by reason of the filling of any vacancy or decrease in the number of members of the Commission
Section 8 A along with Sections 8 B and 8 C inserted simultaneously by amendment in the principal Act relate to the procedure of the Commission and were inserted to provide for specific situations while Section 8 contains the general power of the Commission to regulate its own procedure
The real question for decision in the present case is Whether the appropriate Government after constituting the Commission under Section 3 of the Act is empowered to reconstitute the Commission substituting another person as the sole member in place of the initial appointee In substance it is this power that the State Government claims to have exercised in the present case and is attempted to be justified by the argument advanced by Shri Shanti Bhushan to support the appointment first of Justice GG Sohani and then of Justice Kamlakar Choubey in place of Justice ST Ramalingam
To recapitulate the argument of Shri Shanti Bhushan is that the power of reconstituting the Commission in this manner is available to the State Government under Section 21 of the which can be invoked in aid of the power of the Government under Section 3 of the 
Section 8 A of the is referred to by Shri Shanti Bhushan as an indication of the existence of this power in the State Government even though he does not rely on it as a source of this power
Shri Kapil Sibal on the other hand contends that the scheme of the enactment shows that the appropriate Government cannot interfere with the working of the Commission after its constitution except in the manner expressly provided in the Act and Section 7 is a clear indication that interference with the functioning of the Commission is not permissible in any other manner
Shri Sibal contends that Section 21 of the is not available to support the Government s action in the present case
Shri Shanti Bhushan concedes that there is no express provision in the empowering the Government to replace or substitute the sole member of a Commission with another person during the continuance of the Commission but he submits that this is implicit in the power to appoint a Commission and designate its personnel under sub sections 1 and 2 of Section 3 of the read with the power to amend or vary any notification available under Section 21 of the 
Shri Shanti Bhushan also conceded that the aid of Section 21 of the is available only if the context and the scheme of the so permits
He submitted that the Government s power to extend the time specified in the initial notification for completing the work of the Commission is not to be found in any express provision in the  but is exercised by amendment of the initial notification only under Section 21 of the 
According to Shri Shanti Bhushan the appointment of a Commission is under sub section 1 and it is under sub section 2 of Section 3 that the person constituting the Commission is appointed even though it may be a simultaneous process
The replacement of the member initially appointed to constitute the 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 be reconstituted by replacement of the member which is done under sub section 2
In our opinion the power of the Government to appoint a Commission of Inquiry and name the person or persons constituting it is in sub section 1 of Section 3 and is not an exercise divided between subsections 1 and 2 of Section 3 as suggested by Shri Shanti Bhushan
Sub section 2 merely confers the power in the Government to appoint a Commission consisting of one or more members and provides that if there be more than one member of the Commission then one of them may be appointed Chairman of the Commission
lt is not as if sub section 1 deals with mere appointment of a Commission of Inquiry without clothing it with its personnel and the power to appoint the membermembers thereof is to be found only in sub section 2
That apart there is nothing in any of these provisions to suggest that the Government has the power to reconstitute the Commission after its appointment by replacing the existing sole member with another person Sub section 3 deals expressly with the Government s power to fill any vacancy which may have arisen since the constitution of the Commission
The question of replacement of a member appointed initially is obviously beyond its scope
Sub section 3 inserted by amendment in Section 3 of the 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  distinguished
The State of Bihar vs D N Ganguly   relied on
in Rangachari and Soshit Karamchari respectively reiterated in State of Punjab vs Hira Lal   and Comptroller and Auditor General of India Gian Prakash vs KS Jagannathan  Anr  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 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 
It is common ground before us that Section 21 of the can be invoked only if and to the extent if any the context and the scheme of the so permits
The general power in Section 21 of the 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 is clearly inapplicable in the scheme to the 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 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 is also obviously excluded from the purview of Section 21 of the 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 by invoking the residuary power to amend or vary any notification under Section 21 of the  In the first place in a case like the present where the scheme of the 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 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 to extend time
This submission does not support the argumentof learned counsel that the general power under Section 21 of the 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 
The context as well as the scheme of the clearly indicate that Section 21 of the 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 
There being no express power given by the 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 33 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 cannot apply to the provisions of the 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 vs Their Workers 1 19541 SCR 465
In that decision the power of the appropriate Government under Section 7 of the 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 vs DN Ganguly  Others 1959 SCR 1191
This decision also related to the reference of a dispute under the 
It was pointed out that it was well settled that the rule of construction embodied in Section 21 of the 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 101 of the 
On a construction of Section 101  of the  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 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 DN Ganguly supra supports the view taken by us in the present case that Section 21 of the 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 and must therefore be rejected
Admittedly the power under Section 33 of the was not available to the State of Madhya Pradesh in the facts of the present case to appoint any other person replacing Justice ST 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 or even Sections 14 or 16 thereof was also not available for this purpose for the reasons given earlier
Accordingly the notification dated 1071991 appointing Justice GG Sohani and the notification dated 911992 appointing Justice Kamlakar Choubey were both invalid
It is not unlikely that Justice GG 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 GG 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 1071991 and 911992 is sustained for the aforesaid reasons given by us
The State of Madhya Pradesh shall in view of the retirement of Justice ST 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
NPV Appeal dismissed


Summary:
The appellant was convicted under Section 52 of the Prevention of Corruption Act and was sentenced to two years rigorous imprisonment and a fine of Rs 200
He filed an appeal under Section 374 of the Criminal Procedure Code before the Allahabad High Court which was dismissed for default of the appearance of the appellant and his counsel
An application for restoration of the appeal made thereafter was also dismissed
In appeal to this Court it was contended on behalf of the appellant that the appeal could not have been dismissed for default on the ground of absence of the appellant or his counsel to appear and press the appeal
Allowing the appeal and setting aside the orders of the High Court this Court HELD 1
The High Court was not right in dismissing the appeal on the ground of non appearance of the appellant or his counsel and it should have allowed the prayer of restoration of the criminal appeal under its inherent power
310 C 2
Under Section 384 of the Criminal Procedure Code it is the duty of the appellant court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily
The said duty is not dependent on the appellant or his counsel appearing before the Court to press the appeal
As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits even in the absence of the appellant and his counsel before dismissing the same summarily
Therefore the High Court should have either examined the appellant s petition of appeal and the judgment under challenge itself or appointed a counsel to assist the Court but could not have proceeded to dismiss the same on the ground that the advocate for the appellant was not present308 H 309 A C 3
The position of a criminal appeal is not be same as that of a civil appeal
A comparison of the provisions of Section 384 of Criminal Procedure Code with those of Order 41 Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference
Rule 17 Order 41 of Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non appearance
However in the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure
On the other hand the Code in express terms requires the matter to be considered on merits
Thus a criminal appeal cannot be dismissed for non prosecution
309 D E Ram Naresh Yadav  Ors vs State of Bihar AIR 1987 SC 1500 dissented form
Shyam Deo Pandey  Ors
vs state of Bihar 1971 Suppl
SCR 133 relied on
Emperor vs Balumal Hotchand and Ors and Ramesh Nanu vs State of Gujarat 17 Gujarat Law Reporter 350 referred to