http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: KRISHNA BALLABH SAHAY AND ORS.

       Vs.

RESPONDENT: COMMISSION OF ENQUIRY & ORS.

DATE OF JUDGMENT: 18/07/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SHAH, J.C. RAMASWAMI, V. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.

CITATION:  1969 AIR  258            1969 SCR  (1) 387  CITATOR INFO :  E&R        1978 SC  68  (137,227)  R          1987 SC 877  (17)  RF         1992 SC 604  (140,142)

ACT: Constitution  of  India, Arts.  153,  156(3),  160-Governor- Continuance after term over-Validity. Commission of Inquiry Act (60 of 1952)-Enquiry by succeeding Ministry into conduct of outgoing Ministers-Powers of.

HEADNOTE: Persons  in opposition when the Congress Party was in  power in  the Bihar State formed the Government on the voting  out of  office  of  the  Congress  Ministry.   As  soon  as  the succeeding  ministry  took  over,  the  Governor   announced institution of an inquiry into the conduct of the appellants who   were  ministers  in  the  Congress  Ministry,  and   a notification   ordering   the  enquiry  was   issued.    The notification  was issued by the Governor, after 5  years  of his entering upon the office.  The appellants unsuccessfully filed a writ petition in the High Court.  In appeal to  this Court, the appellants contended that (i) the Governor’s term having come to an end under the Constitution, he was functus officio  and could not order the inquiry : (ii) power  could not  be  exercised by the succeeding Ministry  to  institute inquiry  into the conduct of the Ministry that goes out  and (iii)  the  inquiry was the result of malice  and  political vendetta and the grounds were false and scurrilous. HELD : The appeal must fail. (i)  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 interregnums   is  avoided  by  the  proviso.   There   will immediately  be an interregnums, if after the term is  over, the  Governor designate declines the office.  No  doubt  the provisions of Art. 160 may be resort-ad to but even that may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

not be sufficient to prevent an interregnums.  Therefore,  a person  once  appointed a Governor continues  to  hold  that office  till  his  successor enters upon  his  office.   The successor may be appointed under Art. 155 or an order may be made under Art. 160.  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. [392 D-H] (ii)When  a Ministry goes out of office, its  successor  may consider any glaring charges and may, if justified, order an inquiry.   Otherwise, each Ministry will become a  law  into itself and the corrupt conduct of its Ministers will  remain beyond scrutiny. [393 C] Shri P. V. Jagannath Rao v. State of Orissa, [1968] 3 S.C.R. 789 followed. (iii)Without saying anything as to their merits. the charges were  specific, and details and particulars of -each  charge had  been  stated.  The charges were such  that  an  enquiry could be ordered.  Whether they are true or false is another matter  which  ought  to be gone  into  by  the  Commission. Public life of persons in authority must never admit of such 388 charges being even framed against them.  If they can he made then  an enquiry whether to establish them or to  clear  the name of the person charged is called for. [393 H-394 C], Whether the action was malafide or not could only be decided if  it could be held that the allegations were  false.   The Court was not enquiring into the charges. [394 E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 150 of 1968. Appeal  by special leave from the judgment and  order  dated November 4, 1968 of the Patna High Court in C.W.J.C. No. 702 of 1967. A.   K.  Sen, K. K. Jain, Bishambar Lal, H. K. Puri,  C.  B. Belwariar, Basudev Prasad, Bat Bhadra Prasad Singh, for  the appellants. M.   K. Nambiar, R. K. Garg, S. C. Agarwal, Bandnath  Prasad and Anil Kumar, for respondent No. 2. J.   P.   Goyal and Sobhag Mal Jain, for respondents Nos.  3 to 6. D.   N. Mukherjee, for respondents Nos. 7 and 8. R.   K. Garg, S. C. Agarwal, Anil Kumar Gupta and B. S. Khoji for respondent No. 9. The Judgment of the Court was delivered by Hidayatullah,  C.J. 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 under the Commission 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 give. As  is common knowledge there was for a time no stable  Gov- ernment in Bihar.  The Congress Ministry continued in office for some time first under Mr. Binodanand Jha and then  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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  389 22,  1968  to be succeeded by another headed  by  Mr.  Bhola Paswan  Shastri.   During the continuance  of  the  Congress Minis-try 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-Committce 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 Commission of  Inquiry  Act  on October  1,  1967 by which inquiry was ordered  against  the appellants and two others (Mr.  Baghavendra Narain Singh and Mr.  Ambika  Saran 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 above named,               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 abovenamed otherwise  indulged               in corruption, favoritism, abuse of power  and               other malpractice; 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               390               favoritism,   abuse   of   power   or    other               malpractice 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             Commission shall, in particular, inquire  into               and  report  on  the  mala  fide  and  corrupt               conduct of the persons abovenamed 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, nonferrous  metals,               mills,   generation   and   distribution    of               electricity, ferries, transport, etc.               (e)   Purchase  and  supplies  of  stores  and               materials.               (d)   Appointments,   transfers,   promotions,                             etc. of officers.               (e)   Institution and withdrawal 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,  reacquisition,  settlement               and lease of lands;               (j)   Collection of money through check-posts;               and               (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. Since  no rule was issued by the High Court the  allegations in  the  petition were not controverted or admitted  by  the opposite  parties.   When  the  present  appeal  was   filed reliance  was  placed  upon the affidavits  filed  with  the petition and fresh affidavits were 391 also filed.  Opportunity was afforded to the respondents  to file  affidavits in reply.  An affidavit in reply was  filed by Abraham, -Vigilance Commissioner, on behalf of Government and respondent No. 5 on behalf of respondents 3-6.  Separate affidavits  were also filed by appellant 1 on April  4,  and May  2, 1968.  We have considered all the  affidavits  which find place on the record of the appeal. The arguments of the appellants in this Court were  substan- tially  the same as were urged in the High Court.  They  are really  two in number.  Shortly stated, they  are:  firstly, that  the appointment of the Commissioner is a  campaign  of vilification for political gain by a party in opposition and is  based  on  personal animus against those  who  kept  the members  of  that party out of office.   The  argument  thus attributes   malice   and  mala  fides   to   the   Govern’s notification and abuse of the powers under the Commission of Inquiry Act for an illegitimate purpose.  Side by side there is  the argument that a succeeding Ministry  cannot  inquire into  the conduct of public and governmental affairs of  the Ministry  that  goes out.  The second argument is  that  the Governor’s   term   having  come  to  an   end   under   the Constitution, he was functus officio and could not order the inquiry contemplated by the Government then in power. The second argument goes to the root of the matter and  may, therefore, be considered first.  It was rejected by the High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

Court.  Mr. M. A. Ayyangar, the Governor in whose regime the notification  was issued, was sworn in as Governor of  Bihar on May 6, 1962.  Under Art. 156(3) he, could hold office for a term of five years from the date on which he entered  upon the  office, that is to say, till May 5,  1967.   Therefore, the  contention  is  that  his  continuance  in  office  was illegal.   The  respondents rely upon the  proviso  to  Art. 156(3), which says               Provided that Governor shall,  notwithstanding               the  expiration of his term, continue to  hold               office   until  his  successor   enters   upon               office,"               and   point  out  that  there  cannot  be   an               interregnums in view of the provision of  Art.               153  that there shall be a Governor  for  each               State.   In reply Mr. A. K. Sen refers to  the               provisions  of Art. 160 which makes  provision               for contingencies by laying down :               "160.   Discharge  of  the  functions  of  the               Governor in certain contingencies.               The  President may make such provision  as  he               thinks fit for the discharge of the  functions               of the Governor of a State in any  contingency               not provided for in this Chapter." 392 His  contention is that under the third clause of  Art.  155 the  Governor’s term is a closed term and if the term  comes to an end without the successor being named, the  provisions of  Art. 160 must be used.  The proviso, according  to  him, covers only the time lag before the successor enters  office and  not a case where no successor is appointed  before  the term of the holder is over.  To hold otherwise, he  submits, might  enable the appointing authority to set at naught  the provisions  of the main clause through the proviso.  By  way of analogy he refers to Arts. 56 and 62(1) in respect of the President  and Arts. 67 and 68(1) about  the  Vice-President which enjoin that the election to fill the vacancies has  to be  completed  in  each case before  the  term  ceases.   He contends, that the same result is implicit in the scheme  of things   in  relation  to  the  Governor  because   of   the distinction between ’appointment’ and ’entering an office’. We are unable to accept the contention.  There is no  provi- sion  such  as  Art. 62(1) or 68(1) in  the  scheme  of  the Govern’s  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 incum- bent.  Suppose, for instance, a person is designated  within the five years and he 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 interregnums.   No doubt the provisions of Art. 160  may  be resorted  to but even that may not be sufficient to  prevent an interregnums.  Therefore, it is legitimate to hold that a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

person  once  appointed  a Governor continue  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 exami-  393 nation  we say nothing about it.  No facts bearing upon  the failure to designate a successor have been pleaded here. This  brings  us to the main question.  As  we  pointed  out above,  the first argument consists of two limbs.  We  shall examine  them  separately.  The contention  that  the  power cannot  be  exercised by the succeeding  ministry  has  been answered already by this Court in two cases.  The earlier of the two has been referred to by the High Court already.  The more recent case is Shri P. V. Jagannath Rao & Ors v.  State of  Orissa(1).  It hardly needs any authority to state  that the  inquiry  will be ordered not by  the  Minister  against himself  but by some one else.  When a Ministry goes out  of office,  its successor may consider any glaring charges  and may,  if  justified,  order  an  inquiry.   Otherwise,  each Ministry  will  become  a law unto itself  and  the  corrupt conduct  of its Ministers will remain beyond scrutiny.   The High  Court has adequately dealt with this point and we  see no error. The  next  limb of the argument is that the inquiry  is  the result of malice and political vendetta and the grounds  are false and scurrilous.  In the affidavit of Abraham reference is made to the charges which have been drawn up against  the appellants and 2 others (who were also heard by us).   These charges number 74 against the ex-Chief Minister (Mr.  K.  B. Sahay)  and 36, 19, 42, 10 and 11 against the others.   Some of  the  charges  are  interconnected.   Mr.  Sahay  in  his affidavit  of  May 2, 1968 has attempted to  establish  that Abraham himself had given a different version in his reports and had found nothing wrong where he now finds fault.  A few of  the  charges  are attempted to  be’  controverted  also. Request is made that the relevant files be summoned so  that the falsity of the charges may be established. 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 Commission’s   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,  Com- mission, will be able to decide the issue as we are  invited to do. 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 that (as we see  them)  each charge refers in detail to events with (1)  [1968] 3 S.C.R. 789. 394

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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 matter. 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 affidavits in opposition  make out a sufficient case for inquiry. 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, has been  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 report. 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. These  reasons  impelled us to order the  dismissal  of  the appeal which order we formally pronounced earlier. Y.P.                            Appeal dismissed. 395