--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 1376 / 2011 KAILASH VIJAYVARGIYA S/O SHANKARDAYAL VIJAYVARGIYA AND ANOTHER Vs. SURESH SETH S/O KISHANLAL SETH AND ANOTHER * * * * * O R D E R ( 9/2/2011) The petitioners before this Court have filed this present writ petition being aggrieved by order dt. 31/7/10 and order dt. 26/11/10 passed by the Commissioner, The Social Security Pension and National Old Age Pension Schemes Irregularities, Enquiry Commission, Bhopal. 2. The contention of the petitioners is that the State of MP in exercise of powers conferred u/S. 3 of the Commissions of Inquiry Act, 1952, has issued a Notification on 8/2/2008 constituting a Commission to be presided over by a Single Member, namely; Hon'ble Shri Justice N. K. Jain (Retd.). The aforesaid Commission has been constituted for the purpose of holding an enquiry in the matter of distribution of pension and alleged irregularities --- 2 --- committed by various local bodies in the matter of distribution of pension as well as to enquire in other matters connected with the distribution of pension. The petitioners have further stated that respondent No.1 filed a complaint on 16/3/09 against the petitioners alleging misuse of office by them and also alleging corrupt practices by the petitioners in the matter of grant and distribution of old age pension and the Commission has issued notices u/S. 8 (b) of the Commissions of Inquiry Act, 1952. The petitioners have stated that they have denied the allegations by submitting a reply on 29/1/10 and thereafter a rejoinder was filed by respondent No.1 on 11/3/10. The petitioners have further stated that the Commission has not framed the issues nor has called the parties to lead their evidence and the petitioners submitted an application u/S. 8(c) of the Commissions of Inquiry Act, 1952 seeking cross examination of the complainant (respondent No.1). The aforesaid application has been allowed. However, the grievance of the petitioners is that without conducting examination-in-chief of the respondent No.1 (complainant), the question of cross --- 3 --- examination does not arise and therefore the order passed by the Commission dt. 31/7/10 is bad in law and deserves to be quashed. It has also been stated that a Review Petition was also preferred in the matter before the Commission and the Commission has rejected the Review Petition by passing an order on 26/11/10. The petitioners have prayed for quashing of the order dt. 31/7/10 and 26/11/10 and has also prayed for issuance of an appropriate writ, order or direction directing the respondent No.1 to file his Affidavit of Examination-in- Chief or to give statement before the Commission, enabling the petitioners to cross – examine the respondent No.1. 3. Learned counsel for the petitioner has relied upon a judgment delivered by the apex court in the case of Sukhwant Singh Vs. State of Punjab (1995) 3 SCC 367 and his contention is that without there being any Examination -in-Chief, Cross – examination of a witness is not possible in the light of the judgment delivered by the apex court in the aforesaid case. Learned counsel for the petitioner has also placed reliance upon a judgment of the apex court delivered in the case of Tej Prakash Vs. State of Haryana --- 4 --- (1996) 7 SCC 322 and once again the contention of the learned Sr. counsel is that without tendering a witness for Examination-in-Chief, cross examination is not warranted by law as held by the apex court in the aforesaid case. 4. Heard learned sr. counsel for the petitioners and respondent No.1 at length and perused the record. The matter is being disposed of at motion hearing stage with the consent of the parties 5. In the present case, the State of MP in exercise of powers conferred u/S. 3 of the Commissions of Inquiry Act, 1952, has appointed a Commission with Hon'ble Shri Justice N.K.Jain, a Sole Member of the Commission ie., The Social Security Pension and National Old Age Pension Schemes Irregularities, Enquiry Commission. The Commission was appointed for enquiring into alleged irregularities in the matter of distribution of pension and other related matters and a complaint was filed on 10/3/09 by respondent No.1 alleging misuse of office and involvement in corrupt practises in the matter of distribution of pension against the present petitioners. A notice was issued on the basis of the --- 5 --- complaint submitted by respondent No.1 on 8/5/09 and the petitioners did submit a reply on 29/1/10. A rejoinder was also filed in the matter by the complainant (respondent No.1) and thereafter an application was preferred on 24/6/10 with a prayer to the Commission to direct the complainant to offer his evidence and a liberty was also sought to cross examine the complainant. The Commissioner after hearing the parties, has passed the following order on 31/7/10 : 31/7/2010 Heard on application – prayer is in two folds : - Firstly that Shri Seth be asked to appear in witness box and depose in support of his allegation and secondly to permit the respondent to cross – examine him. First part of the prayer, it is seen that Shri Seth has already filed affidavit in support of complaint with documents. Commission cannot compel a person to give evidence. It is open for the complainant to give evidence in the manner he chooses. Certainly, the respondents has right to cross – examine the complainant on the basis of his affidavit and other documents on record. Accordingly, the application --- 6 --- is allowed in part and respondents are permitted to cross – examine Shri Seth on the next date. In the meantime, Shri Seth may file application if he so chooses for for cross – examination of respondents on their affidavit. List on 25.09.2010 at Indore. The aforesaid order was passed on 31/7/2010. However, an application was preferred on 26/11/10 for recalling / review / modification of the order dt. 31/7/10. The matter was heard by the Commission and on 26/11/10 and the following order was passed in respect of the application preferred by the petitioners : As regards complaint of Shri Suresh Seth Complainant Shri Suresh Seth appears in person. Shri Shekhar Bhargav, Sr. Counsel with Shri Vivek Patwa, Advocate for respondents – Shri Kailash Vijayvargiya, Shri Ramesh Mendola. Shri Bhargav made an application seeking modification of the Commission's order dated 31.07.2010 and it is submitted that before he can cross examine Shri Suresh Seth, he be directed to make statement on oath in respect of his allegations or file fresh elaborate affidavit containing all these --- 7 --- allegations in terms of Order XVIII Rule 4 CPC. Shri Suresh Seth has vehemently opposed the prayer and it is submitted by him that he has already filed his affidavit and documents in support of his allegations and that he has nothing more to say in the matter. I have considered the rival contentions. In fact the prayer of Shri Bhargav has already been considered by this Commission in its order dated 31.07.2010. Shri Suresh Seth has already filed his affidavit in support of his allegations. Under the circumstances, this Commission is of the considered view that Shri Seth cannot be now compelled either to examine himself in evidence or file any additional affidavit in the matter. The application of Shri Bhargava is rejected. Shri Bhargav now prays for adjournment for cross – examination of Shri Suresh Seth. Shri Seth has opposed the prayer and in alternative prays for costs. Adjournment granted subject to payment of cost Rs.5000/- to be paid by or on the next date 05/02/2011. 6. The order passed by the Commission reflects that the respondent No.1 has already filed an affidavit in support of his allegations and therefore opportunity has been granted to the petitioners to cross examine the respondent No.1. --- 8 --- 7. Section 3 of the Commissions of Inquiry Act 1952, empowers the Central or a State Government to appoint a Commission of Inquiry, if it is of the opinion that it is necessary to do, for the purpose of making an inquiry into any “definite matter of public importance” and performing such function as may be specified. The Commission so constituted has the power of a civil court while trying a suit under the Code of Civil Procedure in respect of summoning and enforcing attendance of any person and examining him on oath, requiring discovery and production of any document, receiving evidence on affidavits, requisitioning any public record from any court or office, issuing commissions for examining witnesses or documents and any matter which may be prescribed in the rule. Section 4 of the Act of 1952 reads as under :- “S.4. Powers of Commission. - The Commission shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, --- 9 --- namely :- (a) [summoning and enforcing the attendance of any person from any part of India] and examining him on oath; (b) requiring the discovery and production of any document, (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed.” The Apex Court in the case of State of Jammu and Kashmir vs. Bakshi Gulam Mohammad (AIR 1967 SC 122) has accepted the proposition that when a commission is inquiring into the conduct of an individual, and allegations are made against him, the Commission has to observe principles of natural justice subject to the provisions contained in the Act and the rules. Also, the Court has emphasized that in determining what norms of natural --- 10 --- justice are reasonably applicable in the Commission's proceedings, two aspects have to be kept in mind - (i) it is a fact finding body, (ii) its report has no force proprio vigore. In the present case, the Commission has rightly permitted the petitioners to cross-examine respondent no.1, who has filed an affidavit before the Commission, and therefore, this Court does not find any reason to interfere with the orders passed by the Commission dated 31.07.2010 and 26.11.2010. 8. Rule 5 of the Commissions of Inquiry Rules, 1972 reads as under : 5. Procedure of inquiry.- (1) A Commission may sit in public or in private as it thinks fit : Provided that a Commission shall sit in private on a request being made by the Central Government in that behalf. (2) A Commission shall, as soon as may be after its appointment - (a) issue a notice to every person, who in its opinion should be given an opportunity of being heard in the inquiry, to furnish to the Commission a statement relating to such matters as may be specified in the notice; --- 11 --- (b) issue a notification, to be published in such manner as it may deem fit, inviting all persons acquainted with the subject matter of the inquiry to furnish to the Commission a statement relating to such matters as may be specified in the notification. (3) Every statement furnished under clause (a) of sub-rule (2) shall be accompanied by an affidavit in support of the facts set out in the statement sworn by the person furnishing the statement. 1. Every person furnishing a statement under clause (a) of sub- rule (2) shall also furnish to the Commission along with the statement a list of the documents, if any, on which he proposes to rely and forward to the Commission, wherever practicable the originals or true copies of such of the documents as may be in his possession or control and shall state the name and address of the person from whom the remaining documents may be obtained. 9. This court has carefully gone through the order sheet dt. 31/7/10 and 26/11/10 and is of the considered opinion that the Commission was justified in passing the aforesaid orders as the complainant has filed an affidavit in support of his allegations and the Commission has rightly granted an --- 12 --- opportunity of cross examination of respondent No.1 (complainant). The apex court in the case of Sukhwant Singh (supra) was dealing with a criminal case and in a criminal case the apex court, as there was no such affidavit, as an affidavit is available in the present case before the Commission, has held that a witness has to be examined first and there cannot be a cross – examination without there being any Examination – in – Chief and therefore the judgment relied upon by the learned sr. counsel is of no help to the petitioners as in the present case evidence has already been tendered by the complainant and there is already an affidavit in support of his allegations available with the Commission on record. Learned sr. counsel has also relied upon a judgment delivered in the case of Tej Prakash (supra) and in the aforesaid case, again, the apex court while dealing with the provisions of the Evidence Act, 1872, has held that tendering of a witness for cross examination without Examination – in – chief is not warranted by law. In the present case, the Commission is proceeding ahead in the matter under the provisions of the Commissions of Inquiry --- 13 --- Act, 1952 read with The Commissions of Inquiry Rules, 1972 and as observed by the Commission, the complainant has already filed his affidavit in support of his allegations, the petitioners, if they so desire, are free to cross examine the complainant as observed by the Commission vide order sheet dt. 26/11/2010. 10. Resultantly, this court does not find any reason to interfere with the orders passed by the Commission. 10. Admission is declined. (S. C. SHARMA) JUDGE KR