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TMI Blog2019 (7) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... any manner in furtherance of the Shah Commission Report. 2. The Petitions contain allegations of more or less similar nature, though individual facts and particulars concerning each of the Petitioners may be different. The thrust of their contentions, however, is the same. All the Petitioners complain of serious violation of principles of natural justice, particularly having regard to the procedure required to be followed by the Commission and, in particular, Section 8-B and 8-C of the Commission of Inquiry Act, 1952. These latter provisions mandate that persons, who are likely to be prejudicially affected by the proceedings or report of the Commission, have to be heard and should also have the right of cross examination and representation by a legal practitioner. It is the grievance of all the Petitioners that prejudicial findings, which tend to affect their reputation, have been rendered by the Commission against them without following these mandatory provisions. Considering the nature of the Petitioners' grievance, Writ Petition No.606/2014 is taken as the lead Petition, the facts and averments in which are set out and discussed in the order below as representative facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icing; (iii) illegal transportation of mineral ores without obtaining requisite permits, etc. Based on the report, Respondent No.1-Union has prepared a memorandum of action taken. The Petitioners are aggrieved by the adverse remarks in the Third Report concerning their business, particularly involving allegations of under-invoicing in export of iron ore by the Petitioners, as also actions, particularly on the part of Union of India, based on such adverse remarks. 6. In particular, it is submitted by the Petitioners that the Third Report makes adverse remarks against the them, alleging under-invoicing, evasion of payment of export duty, etc. by erroneously considering some stray material available in public realm, without giving any notice to the Petitioners and without allowing them to explain this material. By way of examples, various instances have been cited by the Petitioners. It is submitted that the Commission, by considering shipping bills and their dates (erroneously) alone and without reference to the contracts of sale and their dates, has concluded that the export prices disclosed by the Petitioners were less than those charged by other exporters, and this indicated und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be followed by a Commission of Inquiry. In particular, he draws our attention to Sections 8-A, 8-B and 8-C of the Act. Section 8-B provides for opportunity to be given to a person of being heard in the inquiry and to produce evidence in his defence, if the Commission, at any stage of the inquiry, considers it necessary to inquire into the conduct of such person, or is of the opinion that his reputation is likely to be prejudicially affected by the inquiry. Section 8-C reserves unto such person the right to cross-examine witnesses other than the one/s produced by him. It allows the noticee to address the Commission and be represented before it by a legal practitioner or with the permission of the Commission, by any other person. Mr. Dada relies on several judgments, including the judgments in the cases of State of Bihar vs. L.K. Advani, reported in 2003 (8) SCC 361, and Kiran Bedi vs. Committee of Inquiry and another, reported in 1989 (1) SCC 494. Relying on these judgments, it is submitted that notice to a person, whose conduct is being inquired into or who is likely to be prejudicially affected by the inquiry, is a sine qua non for such inquiry and any failure to comply with this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence. Learned Addl. Govt. Advocate submits that the State adopts and takes the same stand in so far as the Third Report of the Commission is concerned. Learned Advocate submits that this statement holds good not only vis a vis mining lessees, but also traders and exporters of ore. 10. Mr. Amonkar, learned Standing Counsel appearing for Union of India, also makes a similar statement on the part of the Union. Learned Counsel submits that the Union would also not take any action against mining lessees or traders or exporters of ore only on the basis of the Commission's report, without making its own assessment of facts, and without first giving opportunity of hearing and to produce evidence to the affected parties. 11. The functions of the Commission, appointed under the Act, and inquiry made in pursuance of the terms of reference of its appointment, are a pure fact finding exercise. Facts found, as also conclusions drawn, by a Commission of Inquiry, are not judicial pronouncements. The report of the Commission neither constitutes a binding judgment nor a definitive pronouncement. The Commission, as held by the Supreme Court in the case of State of Karnataka vs. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese parts were liable to be expunged from the report. It is in connection with this part of the order of the High Court that the Supreme Court made the observations about commissions of inquiry and their mandate, particularly in reference to Sections 8-B and 8-C of the Act, which have been relied upon by Mr. Dada. In the backdrop of these facts, the Supreme Court said that the fact that the report is yet to be considered from the point of view of taking any action on it, is no reason to deny opportunity to the affected party to contest the report. The Court observed that there may in fact be occasions where, after consideration of the report, the Government may decide not to take any action against the person concerned and yet the observations and remarks may be such as would play upon the reputation of the person concerned. The Court noted that this aspect of the matter had been fully taken care of by clause (b) of Section 8-B of the Act. The Court held that it was not, therefore, necessary that one must wait till a decision was taken by the Government to take action after consideration of the report. The Court, in the premises, did not accept the Respondent-State's case that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the Commission. No doubt, some of the findings purportedly rendered by the Commission create a suspicion about the business tactics adopted by the concerned individuals and in that sense, may be said to be broadly derogatory. But, as we have noted above, the Commission itself has made it clear that it had not so much gone into individual illegalities or irregularities, but had made a broad assessment of the matters left for its investigation by the appointing authority. For making such assessment, the Commission was per force driven to consider export prices offered by different traders and exporters and, and name them and their prices in tables and annexures forming part of the report. Though an impression is thereby created that the individuals named in the report have indulged into deliberate underpricing, there is no direct finding of any such under-pricing by any particular trader or exporter. 15. In the premises, in our view, the report of the Commission does not call for any interference in the writ jurisdiction of this Court. The grievance of the Petitioners is primarily of a possible illegal action based exclusively on the findings and recommendations of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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