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TMI Blog1988 (11) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... han ₹ 1,09,80,000/- than the Asian Tech Company . In order to make the H.C.C. as the lowest tenderer technically and thus to award the contract to them, conventions and approved methods followed hitherto for tabulating tenders were violated. The Minister, Sri. R. Balakrishna Pillai has accepted ₹ 50 lakhs as bribe in this transaction. 2. In awarding the contract of Power Tunnel Driving and concrete lining works of the Kakkad Project to C.S. Company, Kottayam and in giving mobilisation advance of ₹ 19 lakhs to it, corruption was committed. The Minister has received ₹ 5 lakhs as bribe in this transaction. 3. Instead of entrusting the transporting and erection works, of the Idikky second stage Project to the lowest tenderer namely 'B InNY COMPANY', Madras, the same was given to a sister organisation of the H.C.C. viz., Indian Hume Pipe Company, Poona at the interference of the Minister, wherein he has committed corruption. 4. The Minister had interfered and committed corruption in awarding a compensation of ₹ 145.38 lakhs to the H.C.C. the Contractors of the Idamalayar Project in the name of Labour Disputes, etc., and in extending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Minister. 13. Sri. Unnikrishnan Nair, who was a relative of the Minister while working as Tahsildar in the Revenue Department was transferred to Palghat. He was appointed as Land Acquisition Tahsildar by upgrading the post of Dy. Tahsildar in land acquisition under the K.S.E. Board and posted Sri Unnikrishnan Nair at Kottarakkara by dividing the Land Acquisition Office at Trivandrum and shifting one office to Kottarakkara. This act reveals his Patronage of relatives. 14. As per Section 78A of Electricity Supply Act, the Government is empowered to give directions to the K.S.E.B. only in policy matters, but Sri Balakrishna Pillai as the Minister interfered and gave directions in the day to day working of the Board and by violating the approved norms in the transfer of employees directions and orders are being given and the Electricity (Supply) Act and Rules are being continuously flouted. The above allegations were contained in a memorandum presented by Sri. E.K. Nayanar (present Chief Minister L.D.F. and the former leader of the Opposition) and 5 other members of the Legislative Assembly of the Seventh Kerala Legislative Assembly. The memorandum was presented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be referred to a Commissioner, who shall be a serving or retired High Court Judge. In the case of the petitioner, as per Ext.P1(a) dated 12-8-1983, Justice Janaki Amma (Retired) was appointed to conduct an enquiry into 12 allegations (Allegations Nos. 4 and 14 in the appendix to Ext.P6 omitted). After enquiry, Justice Janaki Amma submitted Ext.P2 report dated 1-5-1984 stating that none of the allegations were established or proved . Sri. E.K. Nayanar and 5 others, who submitted the memorandum to the Chief Minister, never participated in the enquiry. In Ext.P2 report it was found that allegations Nos. 1 to 11 referred to her were not established or proved. Regarding allegation No. 12, it was held that it is not a serious irregularity on the facts. Regarding charge No. 4 in Ext.P6 the Government had appointed Justice P. Narayana Pillai (Retired) as the Commissioner. He had submitted Ext.P3 report dated 11-10-1982, holding that the allegations are without substance. Counsel for the petitioner submitted that allegation No. 14 in Ext.P6 is vague. The former U.D.F. Cabinet was not inclined to refer the said question. The former Government (U.D.F.) accepted the findings by the Enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons to deviate from Exts.P2 and P3. On these premises, it was contended that the power vested under S.3 of the Act has been exercised mala fide, without application of the mind and Ext.P6 has not been passed in accordance with law. It is illegal and unreasonable and is an abuse of power and so unauthorised. Briefly stated the main thrust of attack against Ext.P6 centered round two aspects, which were highlighted during arguments, to the effect that Ext.P6 was passed without application of the mind and that it is irrational or unreasonable . It is also stated that the present L.D.F. Government, led by Sri. E.K. Nayanar, is biased against the petitioner due to political rivalry. Finally, it was also feebly urged that there was an enquiry against Sri P.S. Sreenivasan, Minister for Revenue, and he was also the Minister for Revenue in the Ministry led by Sri. Nayanar in 1982. There were allegations against him which were enquired into by Justice N.D.P. Namboodiripad (Retired) as per Ext.P1 order, which were found to be untenable. The matter has not been referred under S.3 of the Commissions of Enquiry Act apparently because Sri. P.S. Sreenivasan is now a Minister in the L.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like Ext.P6 against Sri P.S. Sreenivasan, appointing a Commission under S.3 of the Commissions of Enquiry Act, Ext.P6 violates Article 14 of the Constitution of India or otherwise discriminatory. We repel the said plea. The fundamental question before us is, whether the Government has jurisdiction to promulgate Ext.P6 notification under Section 3 of the Commissions of Enquiry Act. Mr. Narayanan Poti, petitioner's counsel, did not dispute the existence of jurisdiction in the Government to promulgate the notification (Ext.P6) under S.3 of the Act. It is the exercise of the power under Section 3 of the Act in this case, that is assailed. Petitioner's counsel argued that Ext.P6 was passed mala fide . Counsel stated that it was so done due to 'personal animosity' and 'political rivalry', that the present L.D.F. Ministry is biased against the petitioner and so ordered an enquiry as per Ext.P6, that in passing Ext.P6 there is a non-application of the mind to relevant facts, and that it was uncalled for and that there is absolutely no reason to deviate from Exts.P2 and P3 and so Ext.P6 is unreasonable and unjustified. Though Ext.P6 was attacked in more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature. The above statement of law was approved by a Bench of three Judges of the Supreme Court, though in another context, in Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66 at p. 75, paragraph 29. The Nagpur decision as also the above Supreme Court decision were approved by a 7 member Bench of the Supreme Court in State of Karnataka v. Union of India, AIR 1978 SC 68, in paragraphs 132, 182 and 227. In the recent decision of the Supreme Court, in Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609, K. Jagannatha Shetty, J. at page 719 (of SCC) observed as follows : 237. The Commission under our Act is given the power to regulate its own procedure and also to decide whether to sit in camera or in public. A Commission appointed under the Act does not decide any dispute. There are no parties before the Commission. There is no lis. The Commission is not a court except for a limited purpose. The procedure of the Commission is inquisitorial rather than accusatorial. ... ... ... ... So, it is evident that the purpose of an enquiry under S.3 of the Commissions of Enquiry Act is only to enable the Government to gather facts or information. The information can be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorialists wanted a sitting Judge should be the Enquiry Commission. Both the enquiries were ordered only under Ext.P1 executive order and there was no enquiry under Section 3 of the Commissions of Enquiry Act as demanded by them; the terms of reference were not satisfactory or effective, that the exclusion of certain items of allegations were not justified and that the petitioner was continuing in office as Minister and without stepping down from office there could be no impartial or meaningful or proper enquiry in the context in which very serious allegations were made. In assailing Ext.P6 from various angles, as stated in paragraph 7 supra, Mr. Poti, petitioner's counsel, stated that Exts.P2 and P3 reports of the Enquiry Commissions were made after investigation, that they were accepted by the Government as per Exts.P4 and P5 orders, and no reason is shown or no material is available to show as to why a deviation is made at present. It was argued that in order to depart from the decision arrived at by the Government, evidenced by Exts.P4 and P5, accepting Exts.P2 and P3 reports of the Enquiry Commissions, there should be more tangible or definite material available in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a series of decisions of the Supreme Court, the House of Lords and other Courts. We shall mention only a few of them. Even at the outset, we should state, that a survey of decided cases shows that there is a great and eternal principle that there is nothing like unfettered , or absolute discretion immune from judicial scrutiny or review, though Courts do not ordinarily go into the merits of the exercise of discretion. One of the earliest cases, in which the Supreme Court had occasion to consider, about the meaning and content of the words occurring in a statute to the effect in the opinion of the Government , is the case reported in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295. The Court took the view that the formation of opinion is a subjective process and the scope of judicial review is strictly limited. The frontiers of judicial review were laid down in the different judgments delivered by Court (Paragraph 10 page 302), paragraph 39 (page 313) and paragraph 63 (page 324). In I.-T. Commissioner v. Mahindra and Mahindra Ltd., AIR 1984 SC 1182 at page 1188, para 11, the Supreme Court held as follows : ..........Indisputably, it is a settled position that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Judicial Review of Administrative Action'', De Smith 4th Edn., at pp. 285-287. (Same passage was cited with approval in the earlier case I.-T. Commr. v. Mahindra and Mahindra Ltd., AIR 1984 SC 1182 at page 1189). The said passage is to the following effect : The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictation of other body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider. And the decision to which he comes must be one which is reasonable in this sense, that it is, or can be, supported with good reasons or at any rate be a decision which a reasonable person might reasonably reach. Such is, I think, plain from Padfield v. Minister of Agriculture Fisheries and Food (1968) 1 All ER 694 : (1968) AC 997 which is a landmark in our administrative law, and which we had in mind in Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (No. 2) (1972) 2 All ER 949 : (1972) 2 QB 455. So much for the requirements if the Minister is to be 'satisfied'. ... ... ... ... No one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view. The said decision was affirmed by the House of Lords ((1976) 3 All ER 679). In Council of Civil Service Unions v. Minister for the Civil Service ((1984) 3 All ER 935), at pages 950, 951, Lord Diplock stated the law thus : Judicial r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural justice. Lord Roskill stated the law thus, at pages 953 and 954 : ..... executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action, as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what are called, in lawyers' shorthand, Wednesbury principles. The third is where it has acted contrary to what are often called 'principles of natural justice'. As to this last, the use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (HL)) : The ground on which the Courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense, i.e. unreasonableness verging on an absurdity: see the speech of Lord Scarman in Nottinghamshire CC v. Secretary of State for the Environment, (1986) 1 All ER 199 at 202 : (1986) 2 WLR 1 at 5. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. Tested in the light of the above legal principles, we have to examine, whether the discretionary power vested in the Government under Section 3 of the Act has been validly , bona fide and reasonably exercised in passing Ext.P-6? It has been noticed that the Commission of Enquiry is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enquiry, were placed before us. It is evident therefrom that the Government passed Ext.P6 order after applying its mind and after a detailed consideration of all facts and circumstances. In particular, we perused through the entire files relating to G.O. MS. No. 113/87/Vig., which is the parent file that finally resulted in Ext.P-6 order. While adverting to this aspect of the case, we shall deal separately with the report submitted by Justice Janaki Amma Commission, appointed as per Ext.P-1, evidenced by Ext.P-2, and the report submitted by Justice P. Narayana Pillai Commission, appointed as per Ext.P-1, evidenced by Ext.P-3. We shall first deal with charges Nos. 1 to 14, (except charges Nos. 4 and 14) which was the subject-matter of the report submitted by Justice Janaki Amma Commission. The files disclose that after adverting to relevant facts, the Government took the view that the findings of Justice Janaki Amma Commission are ex parte and were given in a summary manner, that the memorialists did not co-operate with the Commission and so the best material did not come on record, that the appointment of Justice Janaki Amma Commission was only as per Ext.P-1 order, that the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amma Commission. At the same time, regarding charges 4 and 14, the matter stands slightly on a different footing. All that is seen from the files is, there is a statement to the effect that there is no prima facie justifiable reason as to why charges Nos. 4 and 14 should be deleted and so it was ordered that all the 14 allegations will be the subject matter of enquiry under the Commissions of Enquiry Act. The learned Advocate General, when posed with this aspect of the matter and rightly in our opinion, submitted that charges Nos. 4 and 14 in Ext.P-6 may stand on a different footing. On facts, it cannot be said that there was an application of the mind geared to the earlier report of the Commission of Enquiry (Justice P. Narayana Pillai) which resulted in Ext.P-3, regarding charge No. 4, and so it cannot be said that the inclusion of charge No. 4 in Ext.P-6 is in any way justified in law. Similarly, charge No. 14 was held to be vague and so not one referable by the earlier Council of Ministers. That aspect has not been adverted to before passing Ext.P-6 order. It was stated by the learned Advocate General that the Government itself will take steps to delete the said two charg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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