G.K. Misra, C.J.
1. On 27-6-1967 a memorial (Annexure 'A') was submitted to the President of India by Sri Sadasiba Tripathy and 24 M. L. As. and M. Ps. of the Congress Party alleging corruption and impropriety against Sarbasri R.N. Singh Deo (Chief Minister), Pabitra Mohan Pradhan (Deputy Chief Minister), S.N. Patnaik (Minister), Banamali Patnaik (Minister), Santanu Kumar Das (Minister), N.K. Choudhury (Ex-Chief Minister) and Dr. H.K. Mahtab (Ex-Chief Minister and petitioner) and praying for the appointment of a Commission of Inquiry. This memorial was sent by Sri Chavan, the then Home Minister of India, to the Chief Minister for such action as the latter deemed proper. The Chief Minister wrote to Sri Chavan saying that on examination of the records available with the Government of Orissa, no prima facie case was made out against anyone of the aforesaid persons. He however said that if the Home Minister of India desired, he might get the matter examined by a sitting Judge of a High Court or the Supreme Court of India. Sri Chavan replied that it would not be possible to ask any sitting Judge to do the job and the matter might be examined by the Chief Minister through a retired High Court or Supreme Court Judge. Sri Mudholkar (Opposite Party No. 3), a retired Judge of the Supreme Court, agreed to examine the matter. He was appointed on 3-5-1968 to conduct the inquiry as per the following notification dated 3rd May, 1968 (Annexure '18').
"No. 303 MC. Shri J.R. Mudholkar, Retired Judge of the Supreme Court of India is appointed as a Special Judge against the post created in G. O. No. 292-EC dated the 3rd May, 1968 to conduct the enquiries entrusted to him by the State Government.
His headquarters will be at New Delhi.
By order of the Governor
Secretary to Government".
The Chief Minister addressed the letter (Annexure 21 to Sri Mudholkar on 3-5-1968 containing the terms of reference. The material portions of this letter are extracted hereunder :--
"xx xx xx
Under such circumstances, I refer the Memorial to you for a preliminary verification into any definite allegation contained therein as against any person who held office as a Chief Minister or a Minister sometime or other during the period 1947 to 1961. The preliminary verification should pertain to the discharge of the official duties of such persons who held office of a Chief Minister or a Minister
XX XX XX
On preliminary verification you are requested to report as to whether any prima facie case against any such person as aforesaid exists, and in case any prima facie case is found with respect to any of the allegations, you are also requested to report as to whether in public interest as at present a Commission of Inquiry should be established in order to have a full and complete enquiry into the said matters.
The preliminary enquiry may be conducted by you in accordance with such procedure as you deem fit and proper. However, the enquiry for all purposes shall be a confidential enquiry and shall not be open to the public or press. In case after the memorialists lay all facts, you feel that any explanation is necessary from any person concerned, you may confidentially call for such explanations. Your Headquarters for the purpose shall be Delhi, but if you need looking into any official records of the State of Orissa, you may for the purpose come to Bhubaneshwar. You may also come to Bhubaneshwar for the purpose of the enquiry as and when you deem it proper.
The Advocate-General, Orissa has been authorised to assist you in the enquiry on behalf of the State Government."
On 8th of May, 1968 Sri Mudholkar wrote a letter (Annexure 'B') to Sri Dinabandhu Sahu, Advocate for the memorialists. The material parts of this letter may be extracted:
"xx xx xx
This inquiry shall be of a confidential nature and shall not be open to the public or the press.
XX XX XX
It is possible that you may like to clarify or further particularise some of the allegations made against the Chief Minister and four other persons named by you in the memorial, who held office sometime or other between 1947 and 1961. If so, I shall be grateful, if, along with the particulars of the evidence which you would make available to me and of the particulars about official records which I should request the State Government to produce, you also let me have such further statement which you individually or all the memorialists collectively choose to make.
XX XX XX
I shall be grateful if you make it convenient to come personally or send some one to represent you cither individually or collectively on that date. I shall take the opportunity to ascertain from you or your representative what views you nave regarding the procedure to be followed, I would also request the Chief Minister and the other persons to be present or be represented on that date to help me in evolving the procedure to be followed at the inquiries. I shall then fix that date or dates for production of evidence. I think it would suit the general convenience of the memorialists and the State Government (which will have to produce the required records) if I conduct that part of the inquiry at Bhubaneshwar itself."
In response to this letter Sri Gangadhar Mahapatra (opposite party No. 4) wrote to Sri Mudholkar the letter (Annexure 'C') on 26-5-1968. He suggested, inter alia, that Sarbasri H.K. Mahtab, Nabakrushna Choudhury, Lokanath Choudhury, M. L. A. and Radhanath Rath might be examined in the case for proving certain things as indicated therein.
The first date of hearing was fixed at New Delhi on 27-5-1968. Some parties and lawyers were present The supplementary memorial (Annexure 'C/1') was filed. The second and third dates of hearing were at Bhubaneshwar on 6-7-1968 and 8-7-1968 respectively. Dr. Mehtab met Sri Mudholkar and there was some discussion (Annexure 'I'). On 23rd of August, 1968 the fourth date of hearing was at Bhubaneshwar. Dr. Mehtab had two meetings with Sri Mudholkar. The latter visited Ekarma Nivas in Bhubaneshwar, the residential house of Dr. Mahtab, on that day.
On 23rd of August, 1968 Sri Mudholkar recorded an order (Annexure II) to the following effect:
"Dr. Mahatab came and saw me today in the evening. He said that if I prepare a questionnaire he would be ready to answer the questions put to him. I asked him one question pointedly about Miss Kely. He admitted that she had come to Bhubaneshwar and stayed at the Guest House as his guest. He said that she was running a school known as Miss Grange School in Bombay and two of the Trustees were the Governor of Bombay and the Chief Justice of Bombay. Therefore, while he was the Governor of Bombay he became ex-officio trustee of the school. That is how he came to know her. I did not ask any further question regarding the purpose of the visit etc., but I would do so when I prepare a comprehensive questionnaire. This can only be possible after the evidence by the Memorialists is led before me. XX XX XX
Dr. Mahtab said that he was willing to answer any questions I wished to ask of him but requested that I should prepare and give him a comprehensive questionnaire. This is a reasonable request and I shall prepare one after the Memorialists tender all their evidence."
On 26th of August, 1968 Sri Khatavkar, the Secretary, wrote to Sri Mudholkar to the following effect:--
"After the session is over and all the evidence both oral and documentary is laid before the Commission, we shall have to prepare a questionnaire for Dr. H.K. Mahtab and this will have to be fairly exhaustive as we will require his statement on each and every specific allegation made against him in the memorial. We will also have to give him sufficient time say 10 to 15 days to give his detailed replies on the points raised in the questionnaire."
Though Sri Mudholkar on 1-9-1968 by his letter (Annexure 3) asked the Government for extension of time till the end of 1968 for submission of his report, on 5-9-1968 he wrote the letter (Annexure 4) to the Government that he would be in a position to submit his report by end of September, 1968 and that there would be no need for further extension of time.
The sixth date of hearing was at Bhubaneshwar on 9-9-1968. Sri Mudholkar had discussion with Sarbasri Biju Patnaik, Nilamani Routrai, Dibakar Patnaik, Babubhai Patel and Dinabandhu Sahu in camera. On 10th, 11th and 12th of September he talked in camera with other witnesses on behalf of the memorialists. By midday plane of 12th September he left Bhubaneswar.
On 10th of September, 1968, it was announced over the radio that Shi Mudholkar was appointed a Commission of Inquiry by the Government of Bihar to enquire into certain charges against the Ministers. After 12-9-1968 Sri Mudholkar did not visit Bhubaneswar and no questionnaire was furnished to Dr. Mahatab. He handed over this report (Annexure 33) to the Home Secretary on 26-9-1968 at New Delhi in sealed cover to be delivered to the Chief Minister.
On 9-10-1968 a Press Note was issued by the Government of Orissa in the Home Department (Para 11 of the writ petition), it runs thus:
Government of Orissa
Shri Mudolkar's report was received by the Chief Minister on 29th September, 1968. Although the report has been received, papers relating to the report have not yet been received and about this correspondence is going on. It will be remembered that several allegations were made against the Chief Minister and other Ministers now in the Government and also against Shri N.K. Choudhury and Dr. H. Mahtab who were Chief Ministers in the previous Governments. So far as the present Chief Minister and other Ministers of the present Government are concerned the report has wholly exonerated them from all charges and allegations. So far as Shri. N.K. Choudhury is concerned, he did not respond to Sri. Mudholkar's request to meet. So far as Dr. Mahtab is concerned, Sri Mudholkar has recommended further enquiry into certain matter. This is now under examination. The evidence which Sri Mudholkar collected is not yet before Government nor Dr. Mahtab's explanation. When these are received and when the whole matter is thoroughly examined and Government came to a decision, there will be further statement on the subject. Of course, the whole matter will be placed before the Legislative Assembly.
Office of the Chief Minister, Orissa Bhubaneshwar, Asvina 17, 1890 (October 9, 1968)."
2. The recommendations of Sri Mudholkar which the petitioner seeks to be quashed by the issue of a writ of certiorari are as follows:
"In view of these Endings, I recommend that it is in the public interest even at this point of time to constitute a Commission of Inquiry for making an enquiry against Dr. Mahtab in respect of the following specific matters.
(a) Grant of remission of Government dues to Kendu leaves contractors in 1959;
(b) grant of lease of a chromite mine to Md. Serajuddin in 1957;
(c) rapid acquisition of wealth by Dr. Mahtab between the years 1956 to 1960; find
(d) the withdrawal of criminal prosecution against ten iron and steel dealers.
I may reiterate that not only in the public interest, but also in the interest of Dr. Mahtab himself, an enquiry into these matters be caused to be made by a Commission of Inquiry appointed under the Commission of Inquiries Act."
In Chapter XXV of the report a summary of the findings and recommendations of Sri Mudholkar find place. On many of the allegations. Sri Mudholkar did not think it necessary that a Commission of Inquiry should be held against Dr. Mahtab. For, instance, he had said that there was no prima facie evidence of undue favour shown to Rungta by Dr. Mahtab and that no mala fides had been made out and none can be inferred from the records in the matter of granting certain concessions to Dalmias and the Government investing a large sum of money in the shape of taking preference shares in Orissa Cements and in granting loans to it. He also held that there was neither substantial nor even some reliable evidence in support of the allegation that Dr. Mahtab put large sums of money in the pockets or the Prajatantra Prachar Samiti by obtaining it by improper use of his position as Chief Minister, and there was no prima facie evidence to show that special favour was shown to the Orissa Co-operative Marketing Committee, or that its President Dr. Banamali Patnaik was shielded by Dr. Mahtab.
3. It would be pertinent to notice the manner in which Sri Mudholkar was functioning and in which way his mind was working with reference to the aforesaid four allegations in respect of which Sri Mudholkar made a recommendation for appointment of a Commission of Inquiry.
In connection with the allegation regarding the grant of remission of Government dues to Kendu leaves contractors in 1959, Sri. Mudholkar observed thus:
"Some of these allegations were repeated before me by persons who appeared before me. Almost all of them, however, appear to he interested one way or the other and, therefore, without an opportunity of being able to test their statements there can be no judicial appraisal of their testimony. One person, however, who is highly respected in the State and who does not bear any ill will either for Dr. Mahtab or the Finance Minister, Mr. Singh Deo, said something against Dr. Mahtab, which I feel serious enough to be fully inquired into. I have deliberately not made an actual note of the precise words he had used because this verification being merely in the nature of a confidential inquiry it is at least doubtful how far he would be protected by law in respect of this statement. In this state of affairs, I am constrained to observe that though the decision was of a Cabinet and can perhaps be supported on some ground or other, it is necessary in the public interest to hold an inquiry under the Commissions of Inquiry Act. There is also another reason which is equally strong and it is that a person like Dr. Mahtab who has held high offices and who still continues to command sizeable following in Orissa and also commands respect of many people not only in Orissa but in the country, should he given an opportunity of clearing his name. A public enquiry by a Commission will afford him such an opportunity."
His observation with regard to the allegation relating to the grant of lease of a chromite mine was as follows:
"It is primarily for Serajuddin, as Dr. Mahtab pointed out to me and not for him, to explain the entry. But this shows that an enquiry into this is indicated in public interest.
When I had spoken about this lease to Dr. Mahtab in one of the three meetings I had with him, he said that the lease was granted in view of a direction from the Government of India. But when Mr. K.D. Malaviya, who was then the Minister-in-charge in the Government of India after his resignation from the Cabinet on the Serajuddin affairs said in his statement before the Parliament -- if my recollection is right --that this lease was agreed to by him as Dr. Mahtab was pressing him to sanction it. Who is right, only an enquiry may show.
The charge relating to the grant of the lease is definite and it is even at present in the public interest that it be enquired into by a Commission. Like the other two matters dealt with earlier, this one also still appears to be agitating the public mind and also appears to have formed a cloud on Dr. Mahtab's reputation. Only by a full and proper enquiry can Dr. Mahtab have an opportunity to have his reputation cleared and the public be enabled to know the actual truth concerning a matter which has caused a sizeable loss to the State."
On the allegation of rapid acquisition of wealth by Dr. Mahtab, Sri Mudholkar observed thus:
"It is based on a large number of al legations, some of which have been accept ed by Dr. Mahtab, some accepted only partly or with qualifications and several denied,
xx xx xx
The material adduced by or on behalf of the memorialists includes a valuable document, but by and large consists of oral evidence which can neither be wholly accepted nor wholly refected without being tested by cross-examination. Moreover, it is not -- and in the nature of things, could not be -- on oath. All the same, I feel satisfied that a strong case has been made out for directing a full probe into the matter by a body competent to compel the production of evidence, to take it on oath or affirmation, to permit its being tested by cross-examination and to have all this done publicly. XX XX XX
There appear to be many who, while having admiration for Dr. Mahtab for his valuable services to the Orissa State and for the part he played in the national struggle, express their sorrow or surprise or even indignation at his alleged delinquencies. There is, therefore, little doubt in my mind that Dr. Mahtab's reputation is under a cloud and it is as much in his interest as of the general public to appoint even at this date a Commission of Enquiry."
XX XX XX
I had questioned Mr. A.T. Bombawala, who was the Comptroller, when Dr. Mahtab was the Governor of Bombay, about this. He told me that that was not so, and that Dr. Mahtab's pay bill used to be sent to his Bank, the United Commercial Bank Ltd. at Flora Fountain in Bombay, for collection (a fact which Dr. Mahtab admitted before me on 13-9-1968)"
It is to be noted that the accuracy of the date '13-9-1968' was challenged as Sri Mudholkar left Bhubaneshwar on 12-9-1968. This is however immaterial. Either the date was given by mistake or Dr. Mahtab might have met Sri Mudholkar somewhere outside Bhubaneshwar. The essential fact however remains that Sri Mudholkar had a discussion with Dr. Mahtab on this issue.
Sri Mudholkar also made similar observations in connection with the allegation regarding withdrawal of criminal prosecution against ten iron and steel dealers.
It would thus appear that Sri Mudholkar while making the recommendation did not conclusively determine the matters. He was aware of his lack of powers to go into the matters completely and fully and in respect of each and every allegation he expressed the view that a prima facie case was made out for a full and proper enquiry by a Commission of Inquiry. He himself indicated that the enquiry before him was not a judicial enquiry. It was confidential and secret not open to the public and the press. The evidence before him was not tested by cross-examination, nor was given on oath, nor he had power to compel production of evidence. Sri Mudholkar was therefore not in a position to say that the evidence given by the memorialists represented the true state of affairs. This is why Sri Mudholkar wrote to the Government that his report should not be placed before the Assembly nor should it be made public (see paragraph 4 of the affidavit of the Chief Minister.)
4. In this background of facts, the contention advanced on behalf of the parties would be noticed.
5. Mr. Sidhartha Ray, on behalf of the petitioner, advanced the following contentions:
(i) Even though Sri Mudholkar was appointed by an administrative order, the enquiry before him required a quasi judicial approach. Principles of natural justice are to be followed in a quasi judicial proceeding. As Sri Mudholkar failed to furnish Dr. Mahtab a comprehensive questionnaire the principles of natural justice were violated and as such the report is bad in law and is liable to be quashed by a writ of certiorari.
(ii) Even if the original proceeding was not quasi judicial, by his own action Sri Mudholkar converted the proceeding into a quasi judicial character by laying down the procedure that he would hear all parties, and in particular by promising to furnish a comprehensive questionnaire to Dr. Mahtab which he ultimately failed to do. Thereby not only the principles of natural justice were violated but he failed to act in a fair and just manner.
(iii) The reference made to Sri Mudholkar was on the allegations contained in the original memorial and as such he had no jurisdiction to go into the allegations contained in the supplementary memorial.
(iv) The conclusions reached in the report are such that no reasonable man could arrive at those conclusions on the materials on record. In other words, the conclusions of Sri Mudholkar recommending appointment of a Commission of Inquiry is based on no evidence.
(v) Once the State Government had arrived at the conclusion that there was no prima facie case for appointing a Commission of Inquiry, the State Government had no jurisdiction to appoint Sri Mudholkar to hold the impugned enquiry.
6. The aforesaid contentions are all combated by the learned Advocate-General Mr. Misra for opposite party No. 4, and Mr. Mohanty appearing amicus curiae. Mr. Misra besides combating the aforesaid arguments contended that even if the principles of natural justice applied to the impugned enquiry before Sri Mudholkar, the same were appropriately observed in the facts and circumstances of this case as the principles of natural justice cannot be confined within closed jackets and would vary according to the facts and circumstances of each case. Sri Mohanty contended that the character of the enquiry before Sri Mudholkar must be judged in the context of Section 3 of the Commissions of Inquiry Act (hereinafter to be referred to as the Act) and judged in that light Sri Mudholkar was performing a purely administrative and not a quasi-judicial function. He further urged that Sri Mudholkar was invested with purely investigatory or advisory function and his ultimate conclusion was of a purely administrative character and that an administrative power cannot be converted into a quasi-judicial power by an alleged assurance given by an authority in exercise of his wide discretion.
All these contentions require careful examination.
7. The main question to be answered in this case is whether a writ of certiorari lies to quash the impugned report. The general principle underlying the basis of the Court's Jurisdiction by way of certiorari and prohibition is most precisely stated by Atkin, L. J., in (1924) 1 KB 171 (R, v. Electricity Commrs.) The passage from this judgment which has been relied upon in all subsequent decisions, both in England and India, runs thus:--
"xx xx xx
the operation of the writs has extended to control the proceedings of bodies who do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
8. The expression "any body of persons" includes not only inferior courts in the strict sense but also a person, body or authority having the duty to act judicially. If Sri Mudholkar had the duty to act judicially, a writ of certiorari can issue against the impugned report.
The learned Advocate-General however seriously contended that the body of persons to whom a writ of certiorari can issue must be a statutory body and no writ of certiorari can lie against a non-statutory body. He was unable to cite any decision in support of such contention.
On the other hand, (1967) 2 QBD 864 (R. v. Criminal Injuries Compensation Board, Ex parte Lain) is a direct authority in support of the proposition that the supervisory jurisdiction can extend to a non-statutory body. In that case the Board was a body of persons constituted under the prerogative and not by statute. The determination by the Board gave rise to no legally enforceable rights. Yet their Lordships held that the Board was amenable to the supervisory jurisdiction of the High Court exercised by way of certiorari in that it was a body of persons of a public as opposed to a purely private or domestic character having power to determine matters affecting subjects and a duty to act judicially.
1970 SCD 181 (The D. F. O., South Kheri v. Ram Sanehi Singh) also supports a similar view. In that case the Divisional Forest Officer set aside the proceeding of a subordinate authority and passed an order which involved the respondent in considerable loss. The respondent had actually removed the timber with the sanction of the lower forest authorities. The matter was one of pure contract. Their Lordships set aside the order of the Divisional Forest Officer on the simple ground that it was passed contrary to the rules of natural justice. The Divisional Forest Officer's order in that case was not passed by virtue of any statutory power.
Under Article 162 of the Constitution the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make law. The exercise of such a power is however subject to the provision of the Constitution. The State Government appointed Sri Mudholkar in exercise of its executive power to assist it to arrive at its own satisfaction as required under Section 3 of the Act.
On the aforesaid analysis, we are clearly of opinion that though Sri Mudholkar was not a statutory body, a writ of certiorari can issue against the impugned report subject however to the fulfilment of other conditions required for issue of a writ of certiorari. We accordingly reject the contention of the learned Advocate-General that a writ of certiorari is not maintainable merely on the ground that Sri Mudholkar did not constitute a statutory authority.
9. Before we examine the implication of the expression "to determine questions affecting the rights of subjects" we would proceed to analyse if the condition "having the duty to act judicially" is mandatory. The observation of Atkin, L. J., was construed in some of the subsequent decisions as treating this condition mandatory. In (1928) 1 KB 411 (R. v. Legislative Committee of the Church Assembly) Lord Hewart, C. J., observed that it is not enough that a body should have the legal authority to determine questions affecting the rights of subjects but there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially. This observation was disapproved by the House of Lords in (Ridge v. Baldwin 1964 A. C. 40). After citing the passage from the judgment of Lord Radeliff in Nakkuda Ali's case, (1963) 1 QB 539 which quoted the judgments of Atkin LJ and Lord Hewart C. J., Lord Reid observed thus:
"Of course if it were right to say that Lord Hewart's gloss on Atkin L. J., stated 'a general principle that is beyond dispute', the rest would follow. But I have given my reasons for holding that it does no such thing, and in my judgment the older cases certainly did not 'illustrate' any such general principles.... they contradict it. No case older than 1911 was cited in Nakkuda's case on this question, and this question was only one of several difficult questions which were argued and decided. So I am forced to the conclusion that this part of the judgment in Nakkuda's case was given under a serious misapprehension of the effect of the older authorities and therefore cannot be regarded as authoritative."
Ridge v. Baldwin, (1964) AC 40) has been consistently accepted as laying down good law by the Supreme Court (See AIR 1965 SC 1595 (Associated Cement Companies Ltd. v. P.N. Sharma) and AIR 1965 SC 1767 (Bhagwan v. Ram Chand)). Referring to the earlier case in the subsequent decision Gajendragadkar, C. J., held that the test prescribed by Lord Reid affords valuable assistance (see para 5).
The statute or the administrative order creating the authority may either expressly or by necessary implication lay down that the enquiry would be one of quasi-judicial in nature in which principles of natural justice would be followed. But the converse is not true. In other words, the absence of such a prescription does not necessarily lead to the conclusion that the proceeding is not quasi-judicial. The duty to act judicially is to be inferred from the nature of the power and it is not required to be superadded by any provision of law granting the power.
10. In this case there is no statute or statutory rule conferring power on Sri Mudholkar. The power was conferred on him by the letter (Annexure 2). We would accordingly proceed to examine if Annexure 2 required that the enquiry by Sri Mudholkar is to be quasi judicial in nature. As has already been extracted, no duty was cast on Sri Mudholkar to follow the principles of natural justice in conducting the enquiry. The letter indicated that the preliminary enquiry may be conducted by Sri Mudholkar in accordance with such procedure as he deemed fit and proper. A wide discretion thus vested in him. An injunction was issued that the enquiry for all purposes shall be confidential and shall not be open to the public or the press. Sri Mudholkar was not also bound to examine any of the persons complained against or any evidence on their behalf. It was said in the letter that in case after the memorialists lay all facts Sri Mudholkar felt that any explanation was necessary from any person concerned he may confidentially call for such explanation. It was therefore open to Sri Mudholkar not to examine anyone of the concerned persons or taking any evidence on their behalf. Thus the authority conferring the power on Sri Mudholkar to make the enquiry did not make it obligatory either expressly or by necessary implication that the enquiry would be conducted in a quasi-judicial manner by Sri Mudholkar.
This was also consistent with the very nature of work Sri Mudholkar was called upon to perform. He was not to make an enquiry as prescribed under the Act. His function was merely to examine the available materials to see if a prima facie case is made out for appointment of a Commission of Inquiry which itself would thoroughly go into all the allegations by following the principle of natural justice as is applicable to the facts and circumstances of a particular case. By virtue of the terms of reference therefore Sri Mudholkar had no duty to act quasi-judicially.
11. The view expressed by Lord Denning as to the nature of the enquiry and the power conferred upon him in respect of his enquiry into the Profumo scandal throws considerable light on the question in issue. Lord Denning was not appointed to make enquiry under the Tribunal of Inquiries Act, 1921 corresponding to the Act. He was appointed to make enquiry in exercise of the prerogative of the Crown. His views appear from the introduction to his report. It appears therefrom that some of the witnesses did not wish their identity to be disclosed. Accordingly a list of their names was not appended to the report. In paragraph 5 he stated thus:
"The appointment of a tribunal under the Tribunal of Inquiries Act, 1921, is an elaborate and costly machine, equipped with all the engines of the law--counsel, solicitors, witnesses on oath, absolute privilege, openness to the public (so far as possible) and committal for contempt -- but it suffers from the invincible drawback, in doing justice, that there is no prosecution, no charge, and no defence. The appointment of a Select Committee of one or both Houses of Parliament is a very representative body, but it is said to suffer from the drawback (to some eyes) that the inquisitors are too many and may be influenced in their, often divergent, views by political considerations, so that there may be too much dissent to carry authority. Now there is this inquiry which I have been entrusted with alone. It has the advantage that there can be no dissent, but it has two great disadvantages: first, being in secret, it has not the appearance of justice; second, in carrying out the inquiry, I have had to be detective, inquisitor, advocate and judge, and it has been difficult to combine them. But I have come to see that it has three considerable advantages. First, inasmuch as it has been held in private and in strict confidence, the witnesses were, I am sure, much more frank than they would otherwise have been. Secondly, I was able to check the evidence of one witness against that of another more freely. Thirdly, and most important, aspersions cast by witnesses against others (who are not able to defend themselves) do not achieve the publicity which is inevitable in a Court of Law or Tribunal of Inquiry." In paragraph 7 he observed thus:
"My inquiry is not a suitable body to determine guilt or innocence. I have not the means at my disposal. No witness has given evidence on oath. None has been cross-examined. No charge has been preferred. No opportunity to defend has been open. It poses for me an inescapable dilemma. On the one hand, if I refrain from going into such matters my inquiry will be thwarted. Questions that have been asked in the public interest will not be answered. Suspicions that have already fallen heavily on innocent persons may not be removed. Yet, on the other hand, if I do go into these matters I may well place persons under a cloud when it is undeserved: and I may impute to them offences or misconduct which they have never had the chance to rebut. Above all I have to remember that the information that I have been given has been given in confidence. In order to enable every witness to speak frankly and truly to me, I have assured each one that what they tell me is in strict confidence and will be used only for the purposes of my inquiry and report. This means that, whatever I say in this report, it should not be used for any other purpose; in particular none of it should be used for the purposes of any prosecution or proceeding against anyone. But I cannot, of course, prevent anyone from seeking evidence aliunde and acting on it."
The enquiry by Sri Mudholkar stands on a footing analogous with that by Lord Denning.
12. The question may now be examined in the context of the Act. Section 3 of the Act so far as material states that the appropriate Government may, if it is of opinion, that it is necessary so to do, xx xx xx, appoint a Commission of Inquiry for the purpose of making an enquiry into any definite matter of public importance xx xx. It has now been authoritatively pronounced by the Supreme Court that the formation of the opinion of the State Government is subjective and the ultimate conclusion reached is not justiciable unless the same was arrived at mala fide. In AIR 1958 SC 538 (Ram Krishna Dalmia v. S.R. Tendolkar) their Lordships observed that the only power that the Commission has is to enquire and make a report and embody there in its recommendation. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. The Commission is merely to investigate, record its findings and recommendations without having any power to enforce them (see para 8).
In paragraph 16 their Lordships observed thus:
"........ it cannot be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial enquiry into the truth of the materials brought before it, and examine the informants on oath in the presence of the parties who are or may be likely to be affected by its decision. In matters of this kind, the appropriate Government has of necessity to act upon the information available to it. It is the best judge of reliability of its source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that the act and the conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance calling for an enquiry with a view to devise measures for preventing the recurrence of such evil, this Court, not being in possession of all the facts will, we apprehend, be slow to adjudge the executive action to be bad and illegal."
It would thus be apparent that the enquiry that the State Government might, make to reach the ultimate decision is not a quasi-judicial enquiry in which any of the parties had the right of hearing.
The same view was taken in (1968) 34 Cut LT 666 (P. V. Jagannath Rao v. State of Orissa) wherein it was held that if a tentative conclusion can be arrived at on the allegations made, it is not open to the Court to go further and quash the Notification on the ground of insufficiency or impropriety of those materials. This decision was upheld in AIR 1969 SC 215 (P.V. Jagannath Rao v. State of Orissa).
In AIR 1969 SC 258 (Krishna Ballabh Sahay v. Commission of Inquiry) their Lordships went a step further. They said "The charges are such that we think an inquiry can be ordered. Whether they are true or false is another matter." If the charges made were considered enough for starting an inquiry whether they are true or false, it would be difficult to contend that the inquiry preceding the ultimate conclusion is quasi-judicial in any sense.
The sanction of the public inquiry is necessary on occasions for the purpose of maintaining a high standard of public administration and, indeed, of public life. After the true facts have been found and stated, it may be necessary to stigmatise conduct which, though not a criminal offence or civil wrong falls short of the requisite standards of our public life. It may also be necessary, to kill harmful rumours which are found to be unjustified. It may be necessary to restore public confidence in public conduct and administration. These ends may well be of such importance to the life of the nation, as to justify means which inflict hardship on individuals. These were the observations made by the House of Lords with reference to the object of the Tribunal of Inquiries Act, 1921.
Lord Denning in his book "Freedom Under the Law" (7th Impression, 1962) gives an analysis as to the character of public inquiries. He said:
"Now there have been several cases in the courts about this procedure and I fear that there has been a good deal of confusion of thought about it. The task of the inspector has sometimes been regarded as almost a judicial function, as if he could only act on evidence and could not receive any information from one side without giving the other an opportunity of dealing with it, and so on. The truth is that the inspector at a public inquiry of this kind is not exercising a judicial function. He is not a judge and does not behave like one. He does not rule on the admissibility of evidence nor give any judgment. He cannot commit for contempt of court. Neither he nor the advocates or witnesses have any absolute privilege in what they say. He is not there to hear and decide. He is only there to hear and report. His report is made confidential to the Minister the parties do not see it. The Ministry must no doubt consider it, but he is in no way bound by it. Nor is he confined to it. If he chooses to act on other information, he can do so; or even if he chooses to act without any evidence, he can do so. He is not even bound to bring an open mind to bear on the matter. He may act on his preconceived ideas, if he likes, so long as he genuinely considers the objections that have been made.
All this would seem quite shocking if the Minister were exercising judicial functions. But that is where the difference comes. The exercise of his powers for the public good is not a judicial function but an administrative one; with which the court will only interfere if the Minister acts in a disingenuous way, or as the French put it, in "a way that is cynical or maladroit. This is shown quite clearly by the Stevenage case, (1948 AC 87, Franklin v. Minister of Town Planning)."
In that case the question was whether the order made by the Minister of Town and County Planning for a new town at Stevenage was valid. There had been an inquiry by an inspector and a report to which no objection could be taken, but it was said that the order was bad, because before the Minister had considered the objections, he had gone down to Stevenage and made the speech. He had said 'K went to carry out in Stevenage a daring exercise in town planning ......", This provoked some of the audience to jeers, and he went on "It is no good your jeering; it is going to be done'. Applause and boos greeted this more coupled with cries of Dictator'. The objectors said that in view of this speech beforehand, the Minister was biased and had not approached his task with an open mind. The House of Lords, however, pointed out that no judicial or quasi-judicial duty at all was imposed on the Minister and that any reference to judicial duty or bias was irrelevant. He was right to have a policy in the matter and could not be expected to come with a blank mind. The only question was whether he did in fact genuinely consider the inspector's report and the objections: and as there was no evidence that he had not done so, his order was good. Lord Denning continued to state thus:
"Before this case and other recent cases had been commonly understood by lawyers that the Inspector at the local inquiry, and the Minister in considering his order, must act, as it were, judicially, and must observe the elementary rules applicable to judicial functions, such as to allow each party to deal with information adverse to him. That view must now, it appears, be regarded as wrong. The Minister in these matters is not exercising judicial functions, but administrative functions."
The aforesaid view clearly demonstrates how there is a confusion of thought and how there are different decisions taking opposite views but the law, as it stands at present, is that such inquiries are neither judicial nor quasi-judicial but are purely administrative.
13. The contention of Mr. Ray that as Sri Mudholkar, a retired Judge of the Supreme Court, was appointed as a special Judge, the enquiry must be treated as quasi-judicial with an obligation upon him to resort to principles of natural justice and give a hearing to the parties does not impress us. The memorial making allegations of impropriety and corruption concerned the Chief Minister of the State also. To show fairness on the part of the State Government which had already reached a conclusion that there was no prima facie case, the preliminary verification was entrusted to a retired Judge of the Supreme Court who had been trained in the atmosphere of impartiality and detachment, and was wholly, unconnected with Orissa politics. The choice of a high judicial authority for preliminary verification into the allegations cannot invest the inquiry with an impress of being quasi-judicial. The status and qualification of the person entrusted with the inquiry would not determine its intrinsic character. Even purely administrative inquiries can be entrusted to such persons.
14. On the aforesaid analysis, we are of opinion that the inquiry made by Sri Mudholkar was purely administrative and was not quasi-judicial in character where principles of natural justice were to be observed.
15. It was contended by Mr. Ray that even assuming that the proceeding before Sri Mudholkar was not initially quasi-judicial, it became quasi-judicial after Sri Mudholkar promised to Dr. Mahtab that a comprehensive questionnaire would be furnished to him and the non-compliance of the promise violated the principles of natural justice. There is no dispute that Dr. Mahtab requested Sri Mudholkar to prepare a comprehensive questionnaire which he was willing to answer. Sri Mudholkar treated this request as reasonable and at one stage recorded that he shall prepare one after the memorialists tendered all their evidence.
In Annexure 2 the authority conferred upon Sri Mudholkar for examining the concerned persons was to the effect that "In case after the memorialists lay all facts, you feel that any explanation is necessary from any person concerned, you may confidentially call for such explanations." Thus under the administrative order conferring authority Upon Sri Mudholkar, he had a wide discretion not to examine any of the concerned persons. It entirely depended upon him whether to examine anyone or all of them after the memorialists lay their facts.
It is only in the month of August that Sri Mudholkar had recorded an order that he shall prepare a comprehensive questionnaire after the memorialists tendered all their evidence. On some dates in the month of September Sri Mudholkar had discussion with some of the important witnesses on behalf of the memorialists. After the close of the evidence Sri Mudholkar possibly felt that there was no necessity for preparing a comprehensive questionnaire, particularly when he had some discussions with Dr. Mahtab on each of the four matters relating to which he recommended the appointment of a Commission of Inquiry. Thus by the time Sri Mudholkar thought of preparing a comprehensive questionnaire for Dr. Mahtab, all the materials on behalf of the memorialists had not been presented to him. Sri Mudholkar did not fail to exercise his jurisdiction nor acted in excess of jurisdiction in taking a decision not to prepare a comprehensive questionnaire subsequently. Doubtless on the 10th of September, 1968 an announcement was made on the radio that he had been appointed a Commission of Inquiry by the Bihar Government. But the coincidence is merely accidental. There was enough time for Sri Mudholkar to prepare a comprehensive questionnaire and he could have given some time to Dr. Mahtab for answering the questionnaire. Sri Mudholkar had a high judicial background and it would be difficult to accept an argument that the change of attitude was the outcome of his being appointed a Commission of Inquiry in Bihar and that he acted mala fide. He submitted his report towards the end of September 1968, and there was sufficient time for preparing a questionnaire and getting the answer. The reasonable conclusion seems to be that Sri Mudholkar thought it unnecessary to have a questionnaire prepared as in the context of facts collected and the explanation of Dr. Mahtab given on each item in course of prior discussion it was enough for him to reach a decision whether there should be a further probe by appointment of a Commission of Inquiry in respect of those items. We are therefore satisfied that Sri Mudholkar did not act either illegally or with material irregularity in exercise of his jurisdiction when he did not think it necessary to prepare a comprehensive questionnaire which he had at an earlier stage thought necessary for the purpose. The question of examining the persons concerned was left to his absolute discretion only after the materials on behalf of the memorialists had been received. Any earlier promise would not take away from him the discretion of not adhering to it. In this view of the matter, there is no substance in the contention that by the factum of promise the proceeding was converted into a quasi-judicial one. Such a promise can even be given in an administrative proceeding.
Reliance was placed by Mr. Ray on (1970) 1 SCC 582 = (AIR 1971 SC 1021) (Century Spinning and Manufacturing Co., Ltd, v. The Ulhasnagar Municipal Council) wherein their Lordships observed that public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their decision to their prejudice. This case has no application to the present facts. Here, nothing was done by Dr. Mahtab to his prejudice by the promise given by Sri Mudholkar. In fact mere was no promise. It was merely acceding to the request that a comprehensive questionnaire would be prepared after the evidence on behalf of the memorialists was collected and that again was to be worked out in the context of the authority conferred upon Sri Mudholkar under Annexure 2 whereunder he would exercise his discretion after all the materials were collected. When a copy of the memorial had been served on Dr. Mahtab, it was always open to him of his own accord to file a written statement before Sri Mudholkar explaining all the allegations. A written statement was never refused. In fact Sri Mudholkar had a discussion on each of the four matters with Dr. Mahtab as would appear from various observations made in the impugned report.
Reliance was also placed by Mr. Ray on (1953) 1 WLR 1150 (Regina v. Metropolitan Police Commissioner, Ex parte Parker). In this case the Commissioner of police having become satisfied, by reason of the report of two police constables that the applicant was no longer a fit person to hold a cab-driver's licence, assented to a proposal by the Assistant Commissioner that the applicant should be brought before the licensing committee and confronted with the two police officers, and that the licence should be revoked unless anything transpired before the committee which in their opinion might lead the Commissioner to reconsider his decision to revoke the licence. After the meeting, at which the two constables and the applicant appeared, the Assistant Commissioner informed the applicant that his licence had been revoked. The applicant moved for an order of certiorari on the ground that as he was not allowed to call a witness whom he alleged would have been able to rebut the allegation of the police, there had been a denial of natural justice.
On those facts their Lordships held that the Commissioner was not exercising any judicial or quasi-judicial function and an order of certiorari would not issue against him. Donovan J., with whom Parker J, agreed, however examined the question whether in discharging their duty the committee was performing a judicial or quasi-judicial act. Their Lordships held that if the Commissioner had set up an enquiry charging it to hear evidence, and report its finding to him, so that he might decide whether to revoke the licence or not, then such a committee would be acting judicially and would have to observe the rules of natural justice. The aforesaid principle has no application to the present case where Sri Mudholkar was not charged to hear evidence under Annexure 2. That is enough to distinguish the case.
But there are further observations in the case which support the contention of the learned Advocate-General that the proceeding is not quasi-judicial. Their Lordships observed thus:
"Suppose, on the other hand, the Commissioner having already taken a decision to revoke the licence, called in two or three members of his staff and said "I have decided to revoke this licence, but before I implement the decision, just see Parker and the two policemen and near what each has to say, and then if you think I ought not to revoke, let me know", would the ensuing inquiry then be a judicial or a quasi-judicial one? If so, then one is at or very near the position when every policeman taking notes of the statements made by each party to a street collision or some other untoward happening which might lead to a prosecution, would be said to be acting in a judicial or quasi-judicial role. On the contrary, as it seems to me, he is performing an administrative act simply for the purpose of reporting to his superiors, and none-the-less so because it involves hearing, noting and re-porting allegation and counter allegation. If that be right, the question here is whether the licencing committee were really doing anything more. In the circumstances of this case, I think they were not. They were to see the policemen and the applicant. They were to hear their allegations and counter allegations and to report if they thought the result would or might change the Commissioner's decision to revoke. In doing that they were, in my opinion, simply taking a share in the administrative acts culminating in the revocation of the licence, and that share did not involve that they were taking part in judicial or quasi-judicial proceedings. Had it been otherwise, I think the applicant should have been allowed to call the witness Gray, whose evidence that the taxi-meter showed 8s. 3d. at midnight conflicts with the evidence of the officers that it showed nothing."
The aforesaid observation fully applies to the facts of this case. Here, the State Government had arrived at a decision that there was no prima facie case for appointment of a Commission of Inquiry. Sri Mudholkar was appointed to make preliminary verification into the facts relating to the allegations to assist the State Government whether any alteration would be made in its previous decision. The proceeding before Sri Mudholkar cannot be termed as quasi-judicial. 47 DLR 189, (Regina V. Minister of Labour, Ex parte General Supplies Co. Ltd.) follows the aforesaid decision without noticing the distinction. With respect, we do not agree with this decision. The ultimate conclusion in this decision is divorced from the principle as extracted supra.
Mr. Ray also placed reliance on ILR (1968) 2 Mad 188, (Villimayil v. Commission of Inquiry, Chidambaram). In that case the learned Single Judge held that the exercise of the function of the Commission was quasi-judicial and the principle of natural justice was applicable to it. There the Commission had fixed a particular mode of procedure. He subsequently changed it without hearing the concerned parties. This decision is distinguishable. Under Section 8 of the Act the Commission shall, subject to any rules that may be made in this behalf, have power to regulate its own procedure. Thus by statutory provision a Commission has been enjoined upon to follow the principle of natural justice as laid down in the rule or as regulated by it. Once therefore a particular procedure was prescribed by the Commission, it was to be followed and if it was departed from without hearing the concerned parties, there was violation of the principles of natural justice. Sri Mudholkar was not a Commission, and was not charged with the duty of hearing any of the parties. We have already given reasons as to how there was no violation of the principles of natural justice in not supplying a comprehensive questionnaire.
The correct position of law had been indicated in (1953) 2 All ER 766 (R. v. Statutory Visitors to St. Lawrence's Hospital, Caterham, Ex parte Pritchard) in which a reference has been made to Ex parte Parker's case in (1953) I WLR 1150. The facts of that case were that an infant was detained under Section 8 of the Mental Deficiency Act, 1913. She was seen by the statutory visitors who prepared a special report under Section 11 (4) (a), which was submitted to the Board of Control, recommending that the detention order should be extended. The mother of the infant applied to the visitors to be allowed to be present at the examination of the infant and to be heard by counsel, but the visitors refused to permit this. The infant asked for a writ of certiorari to bring up the report of the visitors to be quashed. The same Bench as decided the Ex parte Parker's case held that under Section 11 (2) it was for the Board of Control, and not for the visitors, to decide whether the continuance of the detention order was required in the interests of the infant and to make an order for that purpose; the special report submitted by them to the Board merely contained evidence to enable the Board to come to a decision; and, therefore, certiorari would not go to quash the report of their opinion. Lord Goddard, C. J., observed thus:
"It is impossible, looking at the whole of the section, to say that the visitors are to hold anything which can be called an inquiry in the sense that persons shall be allowed to be present at the inquiry or that they shall hear evidence. They have to form an opinion and report to the board, and to say that their report, which is nothing more than a report of their opinion, can be brought up to be quashed by this court by means of certiorari would be extending the doctrine relating to certiorari to an unlimited and an unfortunate extent."
The principle of the aforesaid decision fully applies to the impugned report which cannot be quashed by a writ of certiorari.
16. We would next proceed to examine the scope and ambit of the expression "to determine questions affecting the rights of subjects" as laid down by Atkin, L. J. The term 'rights' has been given a broad interpretation. The rights affected might appertain to personal liberty or status or they might be of a proprietary, fiscal or contractual nature and they were not necessarily 'rights' in the strict jurisprudential sense of attributes to which correlative duties are annexed; but in a wider sense which include the clearly defined interest of the subject (See Seervai Constitutional Law of India, page 606, which has extracted the aforesaid passage from Judicial Review of Administrative Action by S. A. de Smith).
As has already been stated in 1964 AC 40 if any administrative order adversely affects any right or interest, then the principles of natural justice must be observed in the inquiry unless the statute either expressly or by necessary implication prohibits it. In such cases there is a, duty to act judicially. In (1967) 2 QBD 864 Ashworth, J., observed thus:--
"In my judgment the words in question read in the context of what precedes and follows them, would be of no less value if they were altered by omitting "the rights of so as to become 'affecting subjects'".
This decision has been accepted as good law in AIR 1970 SC 150 A.K. Kraipak v. Union of India. The Supreme Court in that case laid down the following proposition:
"For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the Jaw conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised."
Their Lordships further said:--
"The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power."
17. We would now proceed to examine whether Sri Mudholkar was determining questions affecting the rights or interests of the persons concerned. The power conferred upon him was merely for preliminary verification of the allegations made. The verification would be with the object of seeing whether prima facie it is based on reliable materials which would justify the appointment of a Commission of Inquiry. The inquiry does not affect the rights or interest of the persons concerned. The recommendation of Sri Mudholkar relating to the four matters would result only in the appointment of a Commission of Inquiry which itself is a fact finding body and would enquire whether the allegations are true or not. The ultimate findings of the Commission of Inquiry are not enforceable proprio vigore. The enquiry of Sri Mudholkar does not therefore affect any interest or right of the persons concerned.
Mr. Ray contends that Sri Mudholkar's inquiry affects Dr. Mahtab inasmuch as his reputation has been assailed, his career and status has been jeopardized, he stands the risk of facing a Commission of Inquiry relating to events which date back to 1956 resulting in great harassment and trouble and incurring large expenses to defend himself and his completed and finalised income-tax proceedings are sought to be reopened. We do not see any force in this contention. If at all, Dr. Mahtab's reputation has been affected by the allegations themselves. By the acts of Sri Mudholkar none of these consequences ensues. Even if Sri Mudholkar's report is accepted, a Commission of Inquiry would be appointed. In the inquiry Dr. Mahtab's stand may be redeemed. The harmful rumours about him would get killed and public confidence may be restored in him. What would ultimately be held by the Commission of Inquiry, it is difficult to predict. But the position is clear that no, harm is caused to his reputation by the action of Sri Mudholkar, At best, the aforesaid apprehensions might be the indirect and very remote effect of Sri Mudholkar's report which is intended only for testing the allegations themselves and that for the limited purpose of finding out a prima facie case for a further probe. The analogy is more or less with an inquiry under Section 202, Criminal Procedure Code. Investigation into a complaint cannot be said to affect the person complained against in any manner.
18. An admirable exposition of the legal position is to be found in AIR 1935 PC 3, (William Francis O'Conor v. Gordon Waldron). In that case the Judicial Committee held that a Commissioner appointed under the Combines Investigation Act, 1927 has not attributes similar to those of a Court of Justice and that he had no absolute privilege. Lord Atkin observed thus:--
"...... the sections dealing with investigations by Commissioners and others were merely administrative machinery for inquiring whether the offences had been committed. It is only necessary to remember that the Commissioner by the Act is empowered to enter premises and examine the books, papers and records of suspected persons to see how far his functions differ from those of a Judge. His conclusion is expressed in a report; it determines no rights nor the guilt or innocence of anyone. It does not even initiate any proceedings, which have to be left to the ordinary criminal procedure. While it is true that some tribunals charged with the duty of enquiry whether an offence or breach of duty has been committed have been held entitled to judicial immunity such as a military Court of inquiry (1873) 8 QB 255, or an investigation by an ecclesiastical commission (1905) 1 KB 504, there were in those cases conditions as to the way in which the tribunal exercised its functions, and as to the effect of its decisions which led to the conclusion that such tribunals had attributes similar to those of Court of Justice. On the other hand, the fact that a tribunal may be exercising merely administrative functions though in so doing it must act 'judicially' is well established and appears clearly from (1892) 1 QB 431. If it is exercising such functions it seems to be immaterial whether it is armed, with powers of a Court of justice in summoning witnesses, administering oaths and punishing disobedience to its orders made for the purpose of effectuating its inquiries (see 1931 AC 275)".
The underlined sentences indicate the principle which applies to the present case. The conclusion of Sri Mudholkar is expressed in a report. He determines no rights nor the guilt or innocence of anyone. He does not even initiate any proceedings which have to be left to the ordinary criminal procedure. Thus by the inquiry conducted by Sri Mudholkar the rights and interest of Dr. Mahtab are not affected and as otherwise no duty was laid on Sri Mudholkar to act judicially, the question of conducting the inquiry in accordance with the principles of natural justice does not arise.
19. An answer must now be furnished to the proposition enunciated in AIR 1970 SC 150 and reiterated in an unreported decision of the Supreme Court in Union of India v. J.N. Sinha, disposed of on 12-8-1970 in Civil Appeal No. 381 of 1970 (since reported in AIR 1971 SC 40). The proposition is whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of exercise of that power. As has already been critically examined, the express words in Annexure 2 do not enjoin upon Sri Mudholkar to conduct the inquiry in accordance with the principles of natural justice. He had a wide discretion in the matter and could act in any way he chose. In fact he himself made certain investigations at Bombay without the knowledge of either the memorialists or the persons complained against. We have also said that the nature of the power was to find out whether a further probe is to be made into the allegations and whether in the public interest as at present a Commission of Inquiry should be established. The second question is not objective at all and is one of policy. It is only on the materials Sri Mudholkar himself was to make an inference. In respect of many of the allegations Sri Mudholkar said in his report that a further probe should not be made after such a long lapse of time. The purpose for which power was conferred on Sri Mudholkar to hold an inquiry was to have cleanliness in public life and to kill harmful rumours about Dr. Mahtab and to restore public confidence in his public conduct The effect of the exercise of the power was either to have or not a further probe by appointment of a Commission of Inquiry. In our view the exercise of the power conferred upon Sri Mudholkar does not necessitate an inquiry in accordance with the principles of natural justice.
20. In the aforesaid unreported decision, AIR 1967 SC 1269 (State of Orissa v. Dr. Binapani Dei) and AIR 1970 SC 150 were distinguished. In the first case, the impugned administrative order took away some of the existing rights of the petitioner. In the second case, one of the persons in the Selection Committee was a rival of a candidate and the dispute between them was pending and consequently their Lordships held that there was contravention of the principles of natural justice. In the unreported case the respondent was made to retire after his 55th year before he completed the 58th year. Their Lordships held that the compulsory retirement under the rules did not involve any civil consequence and did not take away any of the rights that had accrued to the Government servant because of his past services. Thus though the compulsory retirement had some adverse effect on the Government servant who was compulsorily retired, yet their Lordships held that principle of natural justice was not to be followed. This case clearly establishes that unless some rights or interests of Dr. Mahtab were adversely affected, the principles of natural justice were not to be followed.
21. We would now proceed to examine the contention raised by Mr. Misra that in the facts and circumstances of this case Sri Mudholkar acted in a fair and just manner and there was no violation of the principles of natural justice. To appreciate the factual aspect of the matter, it would be proper to examine what exactly this doctrine means. Its import and ambit are no longer res Integra and have been dealt with in a series of Supreme Court decisions. It is unnecessary to refer to all of them. In AIR 1967 SC 122 (State of Jammu and Kashmir v. Bakshi Ghulam Mohammad) it was contended that Bakshi Ghulam Mohammad should have been given a right to cross-examine all those persons who had sworn affidavits supporting the allegations against him, and as no such opportunity was given there would be infringement of the rule of natural justice. This contention was negatived. Their Lordships observed:
"the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any preconceived notions, but in the light of the statutory rules and provisions." AIR 1963 SC 1719 (Meenglas Tea Estate v. The Workmen) was distinguished as it did not deal with a fact finding body which was the matter in Bakshi Ghulam Mohammad's case. As their Lordships were dealing with a statute which permitted a Commission of Inquiry to be set up for fact finding purposes, their Lordships construed the Act as not contemplating a right of hearing to include a right of cross-examination. The rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights: (AIR 1970 SC 150 and the unreported J.N. Sinha's case. Civil Appeal No. 381 of 1970, D/- 15-8-1970 = (Since reported in AIR 1971 SC 40)).
22. We would therefore examine whether in the facts and circumstances of this case Sri Mudholkar acted in a fair and just manner. A perusal of the impugned report on each of the aforesaid four matters clearly indicates that Dr. Mahtab's explanation was considered by Sri Mudholkar before arriving at his ultimate conclusion whether a further probe is desirable. It is not necessary to refer in detail to all that Sri Mudholkar had said. A few illustrations would suffice.
Regarding the item of rapid acquisition of wealth, the impugned report contains the following passage:
"From certain unofficial copies of the income-tax proceedings in respect of the accounting year 1957-58 filed by Dr. Mahtab through his counsel Mr. Surajmal Saha, it appeared that an inquiry was made by the Income-tax Officer into the deposits made by Dr. Mahtab in his account with the United Commercial Bank in that particular year. Dr. Mahtab informed me that a secret re port had been submitted by the Income-tax Officer to the Income-tax Commissioner of which he produced an unofficial copy. I did not think it appropriate to look into these papers without obtaining official copies from the Board of Revenue and without their permission to make use of them. I got an official copy of the report as well as that of a letter written by Dr. Mahtab to the In come-tax Officer on 22-12-3962 and of the D. O. sent by the Income-tax Officer to the Inspecting Assistant Commissioner dated 24-12-1962. I have now the permission of the Chairman of the Board of Revenue to make use of them. In order to get a clear picture of the entire proceedings, I have also looked into the unofficial copies produced by Dr. Mahtab. All these are kept in a separate file and marked "secret".
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Then, there is only the word of Dr. Mahtab that this amount was in fact received by him from his brother (Gopinath Das ?). Before me a typed statement has no doubt been filed by Gopinath Das showing that between the years 1935 and 1960 his "income" was Rs. 1,23,894.3 Paise." The report considers the various documents filed by Dr. Mahtab in support of his case. It cannot therefore be said that Sri Mudholkar did not act in a just and fair manner in the context of the duty imposed upon him.
Similarly, in the impugned report Sri Mudholkar discussed about the mining lease thus:
"When I had spoken about this lease to Dr. Mahtab in one of the three meetings I had with him, he said that the lease was granted in view of a direction from the Government of India.
XX XX XX
There is an entry, no doubt of a time when Dr. Mahtab was not holding the office of Chief Minister or of a Minister in the State of Orissa, in the accounts of Serajuddin showing a debit of Rs. 3,000/- against Dr. Mahtab. It is primarily for Serajuddin, as Dr. Mahtab pointed out to me and not for him to explain the entry. But this shows that an enquiry into this is indicated in public interest."
It would thus be seen that in discharging his duties in the matter of preliminary verification Sri Mudholkar acted in a fair and just manner. The fact that a comprehensive questionnaire was not ultimately supplied does not affect the crux of the matter. The comprehensive questionnaire would have covered the large number of allegations made against Dr. Mahtab. Even without an answer to such a questionnaire, all other matters were not considered by Sri Mudholkar as proper cases for a further probe. In respect of the aforesaid four matters Sri Mudholkar did take into consideration the stand of Dr. Mahtab. Doubtless, the entire matter was not examined as it would have been in a Court of law but that is besides the matter. The principle of natural justice or the duty to act in a just and fair manner is to be considered with reference to the facts and circumstances of each case. We are satisfied that in the context of the present case Sri Mudholkar acted in a fair and just manner. On such a conclusion a writ of certiorari cannot issue.
23. The next contention of Mr. Ray was that Sri. Mudholkar had been called upon in Annexure 2 to make preliminary verifications of the allegations contained in the original memorial and he had no jurisdiction to go into allegations contained in the supplementary memorial. This contention has no substance. In fact Sri Mudholkar did not make an inquiry into any allegation which was not the subject-matter of the original memorial, He had merely called upon parties to give further particulars of the allegations in the original memorial. Those further particulars he bad jurisdiction to examine and in fact he did examine. In Chapter I of the impugned report Sri Mudholkar clarified the position. He had observed thus;
"In my letter dated 8th May, 1968, I had invited the memorialists to furnish further particulars regarding the allegations made by them in the memorial. A Statement was filed before me by Mr. Gangadhar Mahapatra and was adopted on behalf of such of the memorialists as were represented."
He also stated:
"Whether a particular allegation is de finite or not has to be ascertained only by a reference to the memorial and excludes consideration of any fresh allegation even though it may be definite in its nature,
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In the further particulars furnished by the memorialists, additional charges have been levelled against Dr. Mahtab of showing undue favours to some building contractors by granting them large and profitable Government contracts. These charges are not separately made in the amassing wealth made in the memorial. I have examined them and have dealt with them at the appropriate place."
The aforesaid extracts would clearly establish that Sri Mudholkar only made preliminary verifications of the allegations made in the original memorial as enjoined upon him in Annexure 2 and did not travel beyond his jurisdiction in inquiring into any independent allegation not covered by the memorial. This contention is accordingly rejected.
24. It was further contended by Mr. Ray that the conclusions reached in the impugned report are such that no reasonable man could arrive at those conclusions on the materials on record. In other words, the conclusion of Sri Mudholkar recommending appointment of a Commission of Inquiry is based on no evidence. This contention is wholly without any merit. The report has fully discussed the materials on the basis of which further probe was suggested in respect of the aforesaid four matters. There may be difference of opinion amongst different persons about the ultimate conclusion to be drawn; but hardly there is any basis for the contention that the conclusions were reached without any foundation or were such that no reasonable man could reach them.
25. The last contention of Mr. Ray which was not seriously pressed is that once the State Government had arrived at a conclusion that there was no prima facie case for appointing a Commission of Inquiry, it had no further jurisdiction to appoint Sri Mudholkar to hold the impugned inquiry. We find no substance in this contention. The State Government is not barred by principles of estoppel or res judicata. The satisfaction reached by the State Government that there was no prima facie case for appointment of a Commission of Inquiry was entirely subjective and was a purely administrative decision. It is open to the State Government to re-examine the same conclusion from time to time and arrive at a different conclusion if materials are found. When there was a memorial to the President that there was a prima facie case for appointment of a Commission of Inquiry, the State Government acted very fairly in getting the matter examined by a High Judicial Authority to determine whether a case for a further probe can be made out.
26. We would now sura up our conclusions as follows:
(i) A writ of certiorari can issue against a non-statutory body if other conditions for issuing the writ are fulfilled.
(ii) The enquiry before Sri Mudholkar was purely administrative and not quasi-judicial and he had no duty to act judicially.
(iii) The administrative proceeding before Sri Mudholkar was not converted into quasi-judicial character, merely because he allowed the concerned persons some opportunity of giving evidence or explanation. Even in a purely administrative proceeding an authority is not precluded to act in a just and fair manner.
(iv) The enquiry by Sri Mudholkar did not affect Dr. Mahtab's rights or interest in any manner. The real purpose of the enquiry was to make a preliminary verification of the materials to determine whether a further probe is to be made by a Commission of Inquiry.
(v) If such rights and interests had been affected, the inquiry would have been quasi-judicial in character even though Annexure 2 did not impose any duty to act judicially.
(vi) In fact, Sri Mudholkar followed the principle of natural justice in conducting the inquiry as was appropriate in the facts and circumstances of the case.
(vii) Sri Mudholkar's change of mind at the close of the inquiry not to furnish a comprehensive questionnaire to Dr. Mahtab as was contemplated by him at an earlier stage did not introduce any infirmity in the observance of the principles of natural justice in the facts and circumstances of the case.
(viii) Sri Mudholkar made preliminary verification only into the allegations made in the original memorial and not into any independent allegations made in the supplementary memorial not covered by the original memorial.
(ix) The criticism that the conclusions of Sri Mudholkar were such as could not be reached by any reasonable man is unfounded.
(x) The State Government fully acted within jurisdiction in getting the alienations verified by Sri Mudholkar, even though earlier it had the satisfaction that there was no prima facie case.
27. On the aforesaid conclusions, we find no merit in this writ application. It is accordingly dismissed; but in the circumstances without costs.
28. We record our appreciation of the assistance given, to us by the learned counsel for the parties and by Sri G.B. Mohanty.
29. I agree.