Case: Krishna Ballabh Sahay And Ors Vs. Commission Of Enquiry &amp; Ors

2. This appeal is brought against an order of the High Court at Patna, November 4, 1967, dismissing a petition under Arts. 226 and 227 of the Constitution. By that petition the appellants sought a declaration that a notification of the Governor of Bihar appointing a Commission of Inquiry underthe Commissions of Inquiry Act, 1952, was ultra vires illegal and inoperative and for restraining the Commission from proceeding with the Inquiry. The High Court dismissed the petition without issuing a rule but gave detailed reasons in its orders. The appellants now appeal by special leave granted by this Court. After the hearing of the appeal concluded we ordered the dismissal of the appeal but reserved the reasons which we now proceed to give3. As is common knowledge there was for a time no stable Government in Bihar. The Congress Ministry continued in office for some time under Mr. Binodanand Jha and then under the first appellant, Mr. K. B. Sahay. When the Congress Ministry was voted out of office, a Ministry was formed by the United Front Party headed by Mr. Mahamaya Prasad Sinha. The United Front Ministry also resigned on 25th January, 1968 and another Ministry was formed by the Shoshit Dal headed by Mr. B. P. Mandal. This Ministry also went out of office on March 22, 1968 to be succeeded by another headed by Mr. Bhola Paswan Shastri. During the continuance of the Congress Ministry Mr. Mahamaya Prasad Sinha helped by Mr. Kamakhya Narain Singh and his brother Mr. Basant Narain Singh and others were in opposition. When the United Front Ministry emerged these opponents became Ministers. The Ministry began to function from March 5,1967. On March 17, 1967, the Governor announced in his speech that an inquiry would be made against the conduct of some of the Ministers who had gone out of office including the present appellants. It appears that the Council of Ministers then constituted a Cabinet Sub-Committee on July 22, 1967 to make a preliminary examination of the allegations and the materials relating to them. The upshot was a notification issued by the Governor of Bihar under S. 3 of the Commissions of Inquiry Act on October 1, 1967 by which inquiry was ordered against the appellants and two others (Mr. Raghavendra Narain Singh and Mr. Ambika Sharan Singh). The commission was directed to inquire into and report on the following matters, namely:"(a) What was the extent of the assets and pecuniary resources owned and possessed by each of the persons above-named, his family, relatives and other persons in whom he was interested, (i) at the beginning and (ii) at the end of the tenure of office or each of the offices held by him as aforesaid;(b) Whether each of the persons abovenamed, during the tenure of office or offices held by him, obtained any assets, pecuniary resources or advantages or other benefits by abusing and exploiting his official position or positions and whether during the said period or periods his family, relatives and other persons in whom he was interested obtained, with his knowledge, consent or connivance, any assets, pecuniary resources, advantages or other benefits;(c) Whether, and if so to what extent each of the persons above-named otherwise indulged in corruption, favouritism, abuse of power and other malpractices; and(d) Whether, besides the persons abovenamed, any other person or persons holding official position either as a member of the Council of Ministers or otherwise, during the aforesaid period, made illegal gains or indulged in corruption, favouritism, abuse of power or other malpractices in like manner as aforesaid."Later the Government of Bihar decided on October 31, 1967 that clause (d) should be deleted and it was so deleted. The notification went on to state further:"Without prejudice to the scope of the inquiry, the Commission shall, in particular, inquire into and report on the mala fide and corrupt conduct of the persons above-named in relation to the following matters, viz-(a) Contracts for works;(b) Grant of mineral concessions and issue and renewal of leases, licenses, and permits, particularly with respect to mines, minerals, forests, forest-products, non-ferrous metals, mills, generation and distribution of electricity, ferries, transport, etc(c) Purchase and supplies of stores and materials(d) Appointments, transfers, promotions etc. of officers(e) Institutions and withdrawals of cases(f) Protection to criminals and corrupt officers(g) Remissions of Government dues, loans and taxes(h) Misuse of Government money and property(i) Acquisition, deacquisition, settlement and lease of lands(j) Collection of money through checkposts(k) Any other matter which may be brought to the notice of the Commission in course of the inquiry."The inquiry was entrusted to Mr. T. L. Venkatarama Aiyar, a retired Judge of this Court. The Commission was to enter upon its duties from November 6, 1967. On October 31, 1967 a petition was filed in the High Court at Patna. The High Court summarily dismissed the petition on November 4, 1967. This appeal arises from the order.

Court's reasoning:
There is no provision such as Art 62 or 68 (1) in the scheme of the Governors appointment. On the other hand, the proviso to Art. 156 (3) contemplates that the Governor is to continue to hold office notwithstanding the expiration of his term. The effect of these words is to exclude all questions of the legality of the holding of office by a Governor after the expiry of his term. There must always be a Governor under Art. 153 and the interregnum is avoided by the proviso. It is, of course, to be expected that a new Governor will be nominated betimes but circumstances may come into being which may take the holder beyond his five years term without a successor being named. It may not always be possible to appoint a Governor within the term of the incumbent. Suppose, for instance, a person is designate within the five years and be intends joining after a few days.Mr. Sen concedes that the former Governor may continue to hold office till the new Governor assumes charge and this may take the former Governor beyond his term of five years. Suppose after that term is over the Governor designate declines the office.There will immediately be an interregnum. No doubt the provisions of Art. 160 may be resorted to but even that may not be sufficient to prevent an interregnum. Therefore, it is legitimate to hold that a person once appointed a Governor continues to hold that office till his successor enters upon his office. This successor may be appointed under Art. 155 or an order may be made under Art. 160. Whatever the position the former Governor continues to hold office till the new Governor enters his office. For these reasons we hold that Mr. M. A. Ayyangar acted validly as Governor on October 1, 1967. We may however, say that there may be cases in which neglect to appoint a Governor soon may lead to an inference of failure to act under the Constitution and it may, require further examination as to the remedy in such cases. As we do not view this case as satisfying the need for such examination we say nothing about it.No facts bearing upon the failure to designate a successor have been pleaded here10. We find ourselves unable to accede to the request for summoning the relevant files. The reason is fairly obvious. Once we have held that the inquiry is legal, it is manifest that the truth or otherwise of the allegations is for the Commissions consideration.If the disproof of the allegations is so simple, there should be no difficulty in bringing the facts to the notice of the Commission. We have no doubt that our former colleague, who heads the Commission, will be able to decide the issue as we are invited to do11. We have read the charges which are to be investigated. We do not wish to say anything about the merits of these charges since what we say is likely to have a bearing one way or another upon their truth. This matter is not in our hands, nor are we in possession of all the materials on which these charges will hereafter be attempted to be proved or disproved.We can only say at (as we see them) each charge refers in detail to events, with dates, names of persons concerned, particulars of the action taken and the conduct which is to be considered. The charges are such that we think an inquiry can be ordered. Whether they are true or false is another matter12. It cannot be stated sufficiently strongly that the public life of persons in authority must never admit of such charges being even framed against them. If they can be made then an inquiry whether to establish them or to clear the name of the person charged is called for.If the charges were vague or speculative suggesting a fishing expedition we would have paused to consider whether such an inquiry should be allowed to proceed. A perusal of the grounds assures us that the charges are specific, and that records rather than oral testimony will be used to establish them.We agree with the High Court that the affidavit in opposition make out a sufficient case for inquiry13. It is contended that clause (d) was excluded from the notification so that the inquiry might not recoil upon those who had started it. Reference is made to the notification of March 12, 1968 to show that in the notification ordering inquiry against Mr. Mahamaya Prasad Sinha and his colleagues that clause is included. That should be a matter of satisfaction to the present appellants.It is unlikely that the Commission will overlook evidence which points to corruption or malpractice in others. Even if no direct finding is given there will be ample reference to these matters in the report14. Finally it is argued that the action is mala fide. This can only be decided if it can be held that the allegations were false.The Commission will first find the facts. Whether they lead to the conclusion that the inquiry was justified or it was malicious, cannot be said just now, when there are only allegations and recriminations but no evidence. If the charges have been made maliciously or falsely, we are sure the Commission will say so, where necessary.We cannot anticipate the inquiry and hold one ourselves.