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2008 Supreme(Ori) 439
2008 (II) OLR — 891
I.M. QUDDUSI AND A.K. PARICHHA, JJ.
Sarat Kumar Kar...Petitioner
Versus
State of Orissa and another...Opp. Parties
W.P.(C) No.905 of 2007
Decided on 30th September, 2008.
For Petitioner:Petitioner in person
For Opp.parties:Advocate General (O.Ps.1 & 2)
M/s. J. Katikia, D. Nayak and S. P. Swain for intervenors
Headnote:1. COMMISSION OF INQUIRY ACT, 1952 - Sec. 3 - Jurisdiction of the State Government in appointing a commission of inquiry under the Act to enquire into the affairs of the Orissa Legislative Assembly - State Government is the appropriate Government in relation to a commission appointed by it to make an inquiry into any matter enumerated in List-II, i.e. the State List or List-III i.e. the Concurrent List - Scope of the State Government to appoint commission of inquiry is limited to matters enumerated in List II or List III and not beyond that - For appointment of a Commission there is necessity of a resolution by the Legislature of the State and if there is resolution of the State, the other provisions are to be followed - In the instant case, neither there is any resolution of the State Legislature to conduct an inquiry by the commission nor is the State Government empowered to take action if the commission gives its report - The State Government has no jurisdiction to take any action in the affairs of the State Legislative Assembly - Held, the appointment of the Commission under the Commission of Inquiry Act in the instant case is beyond the jurisdiction of the State Government - Impugned notification held illegal and quashed.
The State Government can exercise its legislative authority even in the absence of a resolution of the legislature but it can be exercised only in respect of the matters enumerated in List II and List III of Seventh Schedule of the Constitution which are within its jurisdiction. Since the appointment of secretarial staff or making rules regulating their appointment or exercise of administrative or financial powers in the Secretariat of the Assembly is not vested with the State Government, no action can be taken by the State Government in the affairs of the Secretariat of the State Assembly. (Paras - 11 to 21)
2. CONSTITUTION OF INDIA, 1950 - Arts. 187 (2), 226 and 227 - Commission of Inquiry Act, 1952 - It is the legislature of the State who may regulate the recruitment and conditions of persons appointed to the Secretarial staff of the Assembly by law and therefore, there is no interference of the State Government therein - Section 3 of the Act empowers the 'appropriate Government' to appoint commission of inquiry for the purpose of making an enquiry into any definite matter of public importance - The appointment of commission of inquiry is beyond the scope of the "appropriate Government" in respect of the Legislative Assembly.
There are three pillars of the Constitution; the Legis¬lature, the Executive and the Judiciary. All are independent and are not subordinate to each other. Hence, the Legislative Assembly cannot be subordinate to the Government as well as the Judiciary and, therefore, in our opinion, any matter related to any of the three wings each being competent enough to take action in their respective affairs, the State Government cannot have jurisdiction over the executive action taken by the Speaker in the Legislative Assembly. In view of the above, recruitment of the employees of the State Legislative Assembly or purchases made by the State Legislative Assembly does not come within the above four entries and, therefore, the appointment of Commission of Inquiry is beyond the scope of the ‘appropriate government’ in respect of the Legislative Assembly. (Paras - 11 to 19)
JUDGMENT
I.M. QUDDUSI, J. — By means of this writ petition, the petitioner has questioned the jurisdiction of the State Govern¬ment in appointing a Commission of Inquiry under the Commission of Inquiry Act, 1952 to enquire into the affairs of the Orissa Legislative Assembly and to quash the order dated 10.1.2007 passed by the Commission of Enquiry by which it has ordered that the point of jurisdiction raised by the petitioner shall be decided in its final report.
2. The brief facts of the case are that the petitioner, namely, Sri Sarat Kumar Kar, who was a legislator for few terms, was elected as the Speaker of the 12th Assembly. During his tenure, some appointments in the Assembly Secretariat and pur¬chase of computers were made. There were statutory rules for appointment of staff. As Speaker of the 12th Assembly, the peti¬tioner appointed a Selection Committee as per rules which made the appointments. The Hon’ble Speaker of the 13th Assembly being aware of the adverse media publicity and to get the image of the Assembly cleared of any media abuse, appointed a retired Judge of this Court as the Commission of Enquiry under the Commission of Inquiry Act, 1952 (hereinafter referred to as ‘the Act’). The Speaker himself realized the same to be incorrect view as he was not one of the authorities to appoint the Commission. Therefore, he recommended to the State Government which ultimately appointed the Commission.
3. The Commission proceeded with the matter, recorded evidence etc. But the petitioner moved an application before the Commission challenging the authority of the State Government to appoint the Commission to enquire into the affairs of the Assem¬bly. The petitioner argued that appointment of the Commission by the State Government was neither constitutional nor legal. More¬over, it is not desirable and honourable to set up such enquiry commission in Parliamentary democracy where the Assembly’s pro¬ceedings under the capacity of Speaker reflects the honour, prestige and independence of the Legislature.
4. From the record, it appears that initially the Hon’ble Speaker in exercise of powers conferred by Section 3 read with Sub-section (1) of Section 5 of the Commission of Inquiry Act, 1952 (60 of 1952), issued notification appointing a Commission of Inquiry consisting of Justice Chira Ranjan Pal, Retired Judge of Orissa High Court to enquire into and report in respect of the matters mentioned therein within 3 months from the date of publi¬cation of this notification in the Orissa Gazette. After the aforesaid notification was issued, the learned Advocate General, Orissa gave his opinion on 18.8.2004 that the notification issued on 23rd July, 2004 by order of the Hon’ble Speaker appointing a Commission is not justified under the Constitution or the rules framed under the Constitution. This may at the most be informa¬tion to the State Government to form an opinion under Section 3 of the Act. Thereafter, it appears that the Speaker of Orissa Legislative Assembly had brought to the notice of the State Government the issue of alleged corruption in purchase of comput¬ers and illegal appointments made during the 12th Assembly on which the State Government in exercise of the powers conferred by Section 3 read with Section 5 of the Commission of Inquiry Act appointed a Commission of Enquiry consisting of Justice Shri Chira Ranjan Pal, retired Judge of Orissa High Court with effect from 22.7.2004, i.e. with retrospective effect to enquire into and report in respect of the above mentioned three matters by notification dated 15.9.2004. The said notification was published in Orissa Gazette Extraordinary dated 15.9.2004 which is repro¬duced as under :
PARLIAMENTARY AFFAIRS DEPARTMENT
NOTIFICATION
The 15th September, 2004.
S.R.O. No.437/2004- Whereas the Hon’ble Speaker, Orissa Legisla¬tive Assembly has brought to the notice of the Government the issues of alleged corruption in purchase of Computers and illegal appointments made in the Oriss
