1. The petitioner, Sri. R. Balakrishna Pillai, is a member of the Kerala Legislative Assembly. He belongs to the Kerala Congress (J) which is a component of the United Democratic Front (hereinafter referred to as the U. D.F.) led by the Congress (1). He was a Minister holding the portfolio of Electricity in the previous Ministry (U.D.F. Government) which was in power from 1982 to 1987. In this Original Petition, the attack is against Ext.P6, a notification issued by the State Government dated 16-12-1987. The said notification is one issued under Section 3 of the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952). As many as 14 allegations against the petitioner are included in the Appendix to Ext. P6. A free translation of the said allegations in English (as furnished by petitioner's counsel) is as follows :
1. The contract of Tunnel driving works of the Lower Periyar Project was given to the "Hindustan Construction Company" (H.C.C.) which was quoted more than Rs. 1,09.80,000/-than the" Asian Tech Company". In order to make the H.C.C. as the lowest tenderer technically and thus to award the contract to them, conventions and approved methods followed hither to for tabulating tenders were violated. The Minister, Sri. R. Balakrishna Pillai has accepted Rs. 50 lakhs as bribe in this transaction.
2. In awarding the contract of Power Tunnel Driving and concrete lining works of the Kakkad Project to C.S. Company, Kottayam and in giving mobilisation advance of Rs. 19 lakhs to it. corruption was committed The Minister has received Rs. 5 lakhs as bribe in this transaction.
3. Instead of entrusting the transporting and erection works, of the Idikky second stage Project to the lowest tenderer namely 'BINNY COMPANY', Madras, the same was given to a sister organisation of the H.C.C. viz., Indian Hume Pipe Company, Poona at the interference of the Minister, wherein he has committed corruption.
4. The Minister had interfered and committed corruption in awarding a compensation of Rs. 145.38 lakhs to the H.C.C the Contractors of the Idamalayar Project in the name of Labour Disputes, etc., and in extending the period without completing the works taken up by them, even by overriding the decision of the Council of Ministers.
5. The Minister has accepted Rs. 20 lakhs as bribe through the Agent Sri. Parameswarankutty, who is his relative, by giving the order to the "Crompton Engineering Company", cancelling the orders already issued to the "TELEX", a Public Sector Organisation in the purchase of three transformers for the Idukky second stage.
The work of transmission towers was awarded to the Growel Company, Madras by overlooking even the recommendations of the Board Officials, thereby committing corruption by the Minister.
7. The order for the supply of the distribution transformers was given to an outside State agency Johnson Company, without giving the same either to K.E.L a public sector organisation or to Indian Transformers Company, a private sector organisation, thereby committing corruption by the Minister.
8. The act of deputing Parameswarankutty, a relative of the Electricity Minister, to work as an agent of 12 Companies from whom materials have been purchased by the Kerala State Electricity Board, has resulted in the corruption by the Minister.
9. The Electricity Board needs only 10,000 Poly Phase Metres, annually but lump sum orders were placed for 68,000 metres, out of which orders for 53,000 metres were issued to "Symco Metres'" and Electricals, Hyderabad, etc. This is an action of corruption by the Minister.
10. The Electricity Board has negotiated and given an order for 660 K.M. of A.C.S.R. Cables at Rs. 186.72 lakhs. The order was awarded to the Falcon Wires and 'Omega' Madras, because Sri. Parameswarankutty, who is a close relative of the Minister, was working as their agent and 20% commission was received by him overlooking the claim of the Kundara Alind Company, which was agreed for the same rate. The Minister has a role in this deal
11. Before finalisation of approval of the Scheme for a master plan for Trivandrum, bad quality cables worth Rs. 2 crores were purchased from Universal Cable Company, U. P. This is an act of corruption by the Minister, which has resulted in a huge loss to the Board, as the cables were not useful.
12. The licence was given to "Western India Erectors", Poona for the electrical installation work at Vellor News Print Factory due to illegal interference by the Minister.
13. Sri. Unnikrishnan Nair, who was a relative of the Minister while working as Tahsildar in the Revenue Department was transferred to Palghat. He was appointed as Land Acquisition Tahsildar by upgrading the post of Dy. Tahsildar in land acquisition under the K.S.E. Board and posted Sri. Unnikrishnan Nair at Kottarakkara by dividing the Land Acquisition Office at Trivandrum and shifting one office to Kottarakkara. This act reveals his Patronage of relatives.
14. As per Section 78 A of Electricity Supply Act, the Government is empowered to give directions to the K.S.E.B. only in policy matters, but Sri. Balakrishna Pillai as the Minister interfered and gave directions in the day to day working of the Board and by violating the approved norms in the transfer of employees directions and orders are being given and the Electricity (Supply) Act and Rules are being continuously flouted.
The above allegations were contained in a memorandum presented by Sri. E K. Nayanar (present Chief Minister L.D.F. and the former leader of the Opposition) and5 other members of the Legislative Assembly of the Seventh Kerala Legislative Assembly. The memorandum was presented to the former Chief Minister (present leader of the Opposition -- U.D.F.) on 3-8-1983. Ext.P6 is assailed in this Original Petition. The petitioner prays for the issue of a declaration that the notification (Ext.P6) appointing Justice Sri. O. Chinnappa Reddy, former Judge of the Supreme Court (originally the 2nd respondent -- deleted as per orders in C.M.P. No. 5689/1988 dated 7-3-1988) as a Commissioner under the Commissions of Enquiry Act, 1952, to inquire into the charges referred to him, is unconstitutional, mala fide, illegal and void. There is also a prayer for the issue of a writ of prohibition interdicting the Commissioner appointed under the Act from proceeding to inquire into the charges contained in Ext P6.
2. It is stated that the petitioner was a Minister in the L.D.F. Ministry, led by Sri. E K. Nayanar, which was formed in 1980, that it fell down in 1981, that there was a general election in 1982 when a U.D.F. Government was formed, the petitioner was elected and was the Minister of Electricity in the U.D.F. Government, which was formed in 1982, he was a leading member in the Kerala Congress, which was instrumental for the change in the political set up and the elections in 1982, that as a Minister for Electricity he firmly dealt with the strike sponsored by the Marxist Party of which Sri. E. K. Nayanar was the leader, that Sri. E. K.Nayanar and other members of his party were relentlessly availing of every opportunity to worst the petitioner under any circumstances, that the political vendetta and personal animosity on the part of Sri. E K. Nayanar (Chief Minister) and his party against the petitioner and the present action initiated under Ext.P6 is a concurrence of the said personal animosity and political vendetta, and so Ext.P6 is mala fide. It is also stated that out of six signatories (Sri. E. K. Nayanar and 5 other M.L.As.) who submitted the memorandum to the former Chief Minister on 3-8-1983, 4 of them are Ministers in the present L.D.F. Ministry. The petitioner further states that as per Ext.Pl executive order dated 20-12-1969, issued, pending the enactment of the Kerala Public Men (Prevention of Corruption) Act, 1983 (Act 6 of 1984), Government set up an interim machinery to enquire into the allegations against public men. 'Public men' included Ministers and Chief Minister and the enquiry for misconduct against a public man should be referred to a Commissioner, who shall be a serving or retired High Court Judge. In the case of the petitioner, as per Ext.P1(a) dated 12-8-1983, Justice Janaki Amma (Retired) was appointed to conduct an enquiry into 12 allegations (Allegations Nos. 4 and 14 in the appendix to Ext.P6 omitted). After enquiry, Justice Janaki Amma submitted Ext.P2 report dated 1-5-1984 stating that none of the allegations were ''established or proved". Sri. E. K. Nayanar and 5 others, who submitted the memorandum to the Chief Minister, never participated in the enquiry. In Ext. P2 report it was found that allegations Nos. 1 to 11 referred to her were not established or proved. Regarding allegation No. 12, it was held that it is not a serious irregularity on the facts. Regarding charge No. 4 in Ext. P6 the Government had appointed Justice P. Narayana Pillai (Retired) as the Commissioner. He had submitted Ext.P3 report dated 11-10-1982, holding that the allegations are without substance. Counsel for the petitioner submitted that allegation No. 14 in Ext.P6 is vague. The former U.D.F. Cabinet was not inclined to refer the said question. The former Government (U.D.F.) accepted the findings by the Enquiry Commissions (Ext.P4) accepting Justice Sri. P. Narayana Pillai's report by order dated 17-3-1983 and Ext.P5, accepting Justice Kumari P. Janaki Amma's report by order dated 15-11-1984). On these premises, it is argued as follows :
The enquiry initiated as per Ext.P6 is mala fide. The purpose of an enquiry under Section 3 of the Commissions of Enquiry Act, 1952, is only to "collect" or ''gather information" relating to "any definite matter of public importance". Justice Janaki Amma, in Ext.P2 report, found that allegations Nos. 1 to 11 referred to her, were not established and for allegation No. 12 no action need be initiated. Similarly, for charge No. 4, Justice Naryana Pillai held that it is one without substance. Charge No. 14 was found to be vague by the earlier Council of Ministers. In the light of Ext.P2 report of Justice Janaki Amma and Ext.P3 report of Justice Narayana Pillai, there is nothing which remains to be ascertained or investigated and facts relating to all the 14 charges have already been gathered or collected by the Government. Since the entire facts and files are with the Government, there is no further necessity to get information by exercising the statutory power under Section 3 of the Commissions of Enquiry Act. Moreover, Exts. P2 and P3 reports were considered by the Cabinet and accepted by the Government (Ext.P4 and Ext.P5). Out of the six signatories to the complaint filed before the Chief Minister, 4 of them are Ministers now. Though as per Exts. P2 and P3 reports it has been stated that the charges levelled against the petitioner were not established, without any further or additional material and without any application of the mind, the State Government has referred all the 14 charges to the Commissioner appointed under the Commissions of Enquiry Act, 1952. The charges were once investigated by two retired Judges of this Court. They found that the charges were not established In the light of the above, the power vested in the Government, under Section 3 of the Commissions of Enquiry Act, has been exercised for extraneous reasons to wreak vengeance on the petitioner. There is no reason to order the appointment of a fresh Commission under the Commissions of Enquiry Act, in the light of Exts.P2 and P3 reports. There is no necessity to have ''more information" or enquiry, than those reflected in Exts.P2 and P3. There is a total absence of reasons to deviate from Exts. P2 and P3. On these premises, it was contended that the power vested under Section 3 of the Act has been exercised mala fide, without application of the mind and Ext. P6 has not been passed in accordance with law. It is illegal and unreasonable and is an abuse of power and so unauthorised. Briefly stated, the main thrust of attack against Ext.P6 centered round two aspects, which were highlighted during arguments, to the effect that Ext.P6 was passed "without application of the mind" and that it is "irrational" or "unreasonable".
3. It is also stated that the present L.D.F. Government, led by Sri. E. K. Nayanar, is biased against the petitioner due to political rivalry.
4. Finally, it was also feebly urged that there was an enquiry against Sri P. S. Sreenivasan, Minister for Revenue, and he was also the Minister for Revenue in the Ministry led by Sri. Nayanar in 1982, There were allegations against him which were enquired into by Justice N.D.P. Namboodiripad (Retired) as per Ext.Pl order, which were found to be untenable. The matter has not been referred under Section 3 of the Commissions of Enquiry Act apparently because Sri. P. S. Sreenivasan is now a Minister in the L.D.F. Government. This is discriminatory, and violative of Article 14 of the Constitution of India.
5. On the other hand, the learned Advocate General, referred to the counter-affidavit dated 25-5-1988 and also the relevant files available with the Government and submitted that the earlier two enquiries conducted by Justice Janaki Amma and Justice Narayana Pillai were as per Ext.Pl executive order, that they were not statutory or proper or full-fledged enquiries as is done now under the Commissions of Enquiry Act, that the earlier reports. Exts. P2 and P3, are not acceptable to the Government (Council of Ministers) that it was felt that the earlier enquiries were neither full-fledged nor (air and that t here were difficulties for the proper and meaningful working of the Commissions. These led to the non-participation of Mr. E K. Nayanar and 5 others before the Justice Janaki Amma Commission. Similarly, allegation No. 4, investigated by Justice Narayana Pillai and the report filed in that connection was one found to be unacceptable and the resolution of the Cabinet stating that allegation No. 14 is vague and not pointed, is not correct and the said matters require an evaluation and appraisal from a correct angle or perspective, in a free and impartial enquiry and that resulted in the Government promulgating Ext.P6 notification.
6. We shall first take up the plea of discrimination and violation of Article 14 of the Constitution of India. Except reiterating the plea mentioned in para 17 of the O. P., petitioner's counsel Mr. Narayanan Potti did not seriously press the said point. We do not have details regarding the circumstances under which an enquiry was ordered against Mr. P. S. Sreenivasan, Minister for Revenue, the matters referred to the Commission, the report filed by the Commission and such other factors which will enable us to fully understand its scope and content. The order appointing the Commission, the report of the Commission and other details relating thereto, are not produced; nor was any attempt made to get those documents. In the absence of details relating to the said enquiry, the report thereof etc., we are not in a position to evaluate or fully appreciate on what basis the petitioner's counsel could successfully raise the point of discrimination or violation of Article 14 of the Constitution and say that in the absence of a similar order like Ext. P6 against Sri P. S. Sreenivasan, appointing a Commission under Section 3 of the Commissions of Enquiry Act, Ext.P6 violates Article 14 of the Constitution of India or otherwise discriminatory. We repel the said plea.
7. The fundamental question before us is, whether the Government has jurisdiction to promulgate Ext.P6 notification under Section 3 of the Commissions of Enquiry Act Mr. Narayanan Poti, petitioner's counsel, did not dispute "the, existence of jurisdiction" in the Government to promulgate the notification(Ext.P6) under Section 3 of the Act. It is the "exercise of the power" under Section 3 of the Act in this case, that is assailed. Petitioner's counsel argued that ExtP6 was passed "mala fide". Counsel stated that it was so done due to 'personal animosity' and 'political rivalry', that the present L.D.F. Ministry is "biased" against the petitioner and so ordered an enquiry as per Ext P6, that in passing Ext.P6 there is a "non-application of the mind" to relevant facts, and that it was uncalled for and that there is absolutely no reason to deviate from Exts.P2 and P3 and so Ext.P6 is unreasonable and unjustified. Though Ext.P6 was attacked in more than one way, and from different angles, the meat of the matter is only this : Was Ext.P6 passed "bona fide" and "in accordance with law?" Was there an application of the mind while passing Ext.P6? Is it reasonable in all the circumstances of the case? For reasons stated hereinafter, we have no doubt in our mind that the answer can only be in the affirmative.
8. In order to pronounce upon the crucial question as to whether Ext.P6 was passed legally and validly, it will be useful to bear in mind the scope, nature, purpose and extent of the power of Section 3(1) of the Commissions of Enquiry Act 1952. Section 3( 1) runs as follows : --
"3. Appointment of Commission.-- (1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly."
The scope and content of the said section and the nature and function of the Commission appointed under Section 3 of the Commissions of Enquiry Act have been laid down in innumerable decisions of the Supreme Court and other High Courts. In M. v. Rajwade v. Dr. S. N. Hassan, AIR 1954 Nag 71, delivering the judgment of the Division Bench, B. P. Sinha, C.J. (as he then was) observed as follows : ....... . .
"12. An enquiry under the Commissions of Inquiry Act, 1952, on the other hand, is of wholly different character. There is no accuser, no accused and no specific charges for trial; nor is the Government, under the law, required to pronounce, one way or the other, on the findings of the Commission.
The Commission in question was obviously appointed by the State Government "for the information of its own mind" in order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice and equity" in ordering a departmental enquiry against its officers. It was, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature."
The above statement of law was approved by a Bench of three Judges of the Supreme Court, though in another context, in Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66 at p. 75, paragraph 29. The Nagpur decision as also the above Supreme Court decision were approved by a 7 member Bench of the Supreme Court in State of Karnataka v. Union of India, AIR 1978 SC 68, in paragraphs 132, 182 and 227. In the recent decision of the Supreme Court, in Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609 : (AIR 1988 SC 1883), K. Jagannatha Shetty, J. at page 719 (of SCC) : (at p. 1946 of AIR) (paragraph 237) observed as follows :
"237. The Commission under our Act is given the power to regulate its own procedure and also to decide whether to sit in camera or in public. A Commission appointed under the Act does not decide any dispute. There are no parties before the Commission. There is no lis. The Commission is not a court except for a limited purpose. The procedure of the Commission is inquisitorial rather than accusatorial.
So it is evident that the purpose of an enquiry under Section 3 of the Commissions of Enquiry Act is only to enable the Government "to gather facts or information." The information can be obtained or gathered in any manner. The proceedings before a Commission is not judicial or quasi-judicial. It is only a fact finding authority. The enquiry is done or made to reach an ultimate administrative decision.
9. It cannot be denied that the appointment of a Commission under Section 3 of the Commissions of Enquiry Act is generally impelled by a desire to set up and maintain high standard of moral conduct in public life and administration. This is a welcome step to maintain high standards in public life. It is definitely a matter which will result in cleanliness of public life in which the public are vitally interested. In this context, we would usefully quote the observations of the Royal Commission on Tribunals of Inquiry, 1966, to the following effect:
"The evil, if it exists, shall be exposed so that it may be rooted out and if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed We are satisfied that this would be difficult, if not impossible, without public investigation by an inquisitorial tribunal possessing the powers conferred by the Act of 1921."
10. We may also state that the appointment of a Commission, under Section 3 of the Commissions of Enquiry Act, for the purpose of enquiring into lapses on the part of Ministers, acquisition of vast wealth by Ministers or near relations by abuse of official position, acts of malfeasance, misfeasance and misappropriation on the part of Ministers, etc., have been held to be competent and! valid by the decisions of the Supreme Court e.g. State of Jammu and Kashmir v. Bakshi Gulam Mohammed, AIR 1967 SC 122. It has also been held that the existence of political rivalry by itself is insufficient to hold that the appointment of a Commission of Inquiry is illegal: Jagannath Rao v. State of Orissa AIR 1969 SC 215 at p. 224. Once it is held that the purpose of Section 3 of the Act is to obtain information or collect facts or details to reach an ultimate administrative decision, normally, it cannot be stated that the said power is in any way curtailed, either qualitatively or quantitatively.
11. We may incidentally state the reasons which seem to have deterred the memorialists, who submitted a memorandum to the Chief Minister on 3-8-1983 from participating before the Two Commissioners who conducted the enquiries. The memorialists wanted a sitting Judge should be the Enquiry Commission. Both the enquiries were ordered only under Ext.Pl executive order and there was no enquiry under Section 3 of the Commissions of Enquiry Act as demanded by them; the terms of reference were not satisfactory or effective, that the exclusion of certain items of allegations were not justified and that the petitioner was continuing in office as Minister and without stepping down from office there could be no impartial or meaningful or proper enquiry in the context in which very serious allegations were made.
12. In assailing Ext.P6 from various angles, as stated in paragraph 7 supra, Mr. Poti, petitioner's counsel, stated that Exts.P2 and P3 reports of the Enquiry Commissions were made after investigation, that they were accepted by the Government as per Exts. P4 and P5 orders, and no "reason" is shown or no material is available to show as to why a deviation is made at present. It was argued that in order to depart from the decision arrived at by the Government, evidenced by Exts.P4 and P5, accepting Exts.P2 and P3 reports of the Enquiry Commissions, there should be more tangible or definite material available into any definite matter of public importance, and in the absence of such requisites, it cannot be said that in passing Ext.P6 order Government applied its mind or came to an honest opinion to appoint a commission of Enquiry into any definite matter of public importance. The materials or facts required on various allegations have already been gathered in Exts.P2 and P3 and in such circumstances, why a further enquiry was called for, calls for an explanation. It has not been stated in Ext.P6 that Exts.P2 and P3 reports filed by the Enquiry Commissioners (Justice Janaki Amma and Justice P. Narayana Pillai) are incomplete or infirm and so not acceptable. In this background, Ext.P6 has been passed "unreasonably". On the other hand, the learned Advocate General submitted that the scope and nature of the enquiry under Section 3 of the Act is only "inquisitorial", it is ordered only for the information of the Government, and the information can be gathered by the Government at any time and in any manner it pleases. The exercise of the power by the Government under Section 3 of the Act is not hedged in by any limitation except that the power should be exercised "bona fide" and in accordance with law for the purpose of making an enquiry into any definite matter of public importance. The nature of the allegations, the imperfect, incomplete and unsatisfactory nature of the earlier enquiries, "called for" or demanded a fresh and proper enquiry under the Commissions of Enquiry Act Advertence to the files and records which preceded the passing of Ext.P6 order will show that the Government did apply its mind to "all facts and circumstances", acted "bona fide" and "reasonably" and in accordance with law and ExtP6 is not open to any challenge.
13. In substantiating the rival contentions, counsel on both sides referred to a few decisions and passages from leading text books which have laid down the guidelines regarding the permissible extent of judicial scrutiny in cases of exercise of discretionary statutory powers based on subjective satisfaction. It was stated that there is no "unfettered or unexaminable discretion" vested in the Government under Section 3 of the Act and the power should be exercised reasonably", "bona fide" and in "accordance with law". We are of the view that the scope of judicial review in cases of exercise of discretionary statutory powers is well settled by a series of decisions of the Supreme Court, the House of Lords and other Courts. We shall mention only a few of them. Even at the outset, we should state, that a survey of decided cases shows that there is a great and eternal principle hat there is nothing like "unfettered", or "absolute" discretion immune from judicial scrutiny or review, though Courts do not ordinarily go into the merits of the exercise of discretion. One of the earliest cases, in which the Supreme Court had occasion to consider, about the meaning and content of the words occurring in a statute to the effect "in the opinion of the Government", is the case reported in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295. The Court took the view that the formation of opinion is a subjective process and the scope of judicial review is strictly limited. The frontiers of judicial review were laid down, in, the different judgments delivered by Court (Paragraph 10 page 302), paragraph 39 (page 313) and paragraph 63 (page 324 ). In L-T. Commissioner v. Mahindra and Mahindra Ltd, AIR 1984SC1182atpage 1188, para 11, the Supreme Court held as follows :
"..........Indisputably, itisa settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to. or has been arrived at by the authority misdirecting itself by adpting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni v. Union of India (1981) 1 SCR 962 : AIR 1981 SC 431, has observed thus : "It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertient and proximate matters only, eschewing the irrelevant and the remote."
In State of U. P. v. Renusagar Power Co., AIR 1988 SC 1737 at pages 1763 and 1765 the Court observed as follows :
"The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. See Commr. of Income-tax v. Maindra and Mahindra Ltd., (1983) 3 SCR 773 at pp. 786-787 : AIR 1984 SC 1182 at pp. 1188-89.
Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasoanble body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. See also the observations at page 787 (of SCR) : (at p. 1189 of AIR)."
In J. R. Raghupathy v. State of A. P. (1988) 4 SCC 364 : (AIR 1988 SC 1681), the Supreme Court held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over Government's decision and proceed to evaluate merits and demerits of such decision with its own perspective. The Court also adverted to the statement of the law on the point as narrated in the book "Judicial Review of Administrative Action", De Smith 4th Edn., at pp. 285-287. (Same passage was cited with approval in the earlier case L-T. Commr. v. Mahindra and Mahindra Ltd, AIR 1984 SC 1182 at page 1189). The said passage is to the following effect :
"The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of other body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act. and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts."
The Supreme Court in Raghupathy's case ((1988) 4 SCC 364 : (AIR 1988 SC 1681)) also referred to the leading English decisions of the House of Lords and the Court of Appeal and text books of reputed authors, in particular, the decisions of the House of Lords in Padfield v. Minister of Agriculture, Fisheries and Food ((1968) 1 All ER 694), Secretary of State v. Tameside ((1976) 3 All ER 665) and Council of Civil Service Unions v. Minister for the Civil Service ((1984) 3 All ER 935) were cited with approval. The decision of the Court of Appeal in Laker Airways Ltd. case ((1977) 2 WLR 234, affirming 1976 (3) WLR 537) wherein the passages from Padfield and Tameside cases were quoted and relied on was also referred to. The Supreme Court observed that "The general approach now is for the courts to require that the government must produce reasnable grounds for its action, even where the jurisdictional fact is subjectively framed."
14. In Padfield v. Minister of Agriculture etc. ((1968) 1 All ER 694), the Court held that though the statute conferred unfettered discretion on a Minister, it will nevertheless be limited to the extent that it must not be so used whether by reason of misconstruction of the statute or other reason as to frustrate the object of the statute which conferred it and that the Minister was bound to exercise the discretion lawfully, i.e. not to misdirect himself in law, or to take into account irrelevant matters, nor to omit relevant matters from consideration. In Tameside case ((1976) 3 All ER 665 (CA)), Lord Denning MR stated the law thus :
"To my mind, if a statute gives a Minister power to take drastic action if he is satisfied that a local authority have acted or are proposing to act improperly or unreasonably, then the Minister should obey all the elementary rules of fairness before he finds that the local authority are guilty or before he takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or unreasonaleness and a fair opportunity of dealing with it. I am glad to see that the Secretary of the State did so in this case. He had before him the written proposals of the new Council and he met their leaders. In addition, however, the Minister must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider. And the decision to which he comes must be one which is reasonable in this sense, that it . is, or can be, supported with good reasons or at any rate be a decision which a reasonable person might reasonably reach. Such is, I think, plain from Padfield v. Minister of Agriculture Fisheries and Food (1968) 1 All ER 694 : (1968) AC 997) which is a landmark in our administrative law, and which we had in mind in Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (No. 2) (1972) 2 All ER 949 : (1972) 2 QB 455. So much for the requirements if the Minister is to be 'satisfied'. ... ... ... ... No one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong so, wrong that no reasonable person could sensibly take that view."
The said decision was affirmed by the House of Lords ((1976) 3 All ER 679). In Council of Civil Service Unions v. Minister for the Civil Service ((1984) 3 All ER 935), at pages 950, 951, Lord Diplock stated the law thus :
"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety'.
By' illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as "Wednesbury unreasonablenss' (see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1947) 2 All ER 680 : (1948) 1 KB 223). It applies to a decision which is co outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls, within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow (1955) 3 All ER 48 : (1956) AC 14 of irrationality as a ground for Court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
Lord Roskill stated the law thus, at pages 953 and 954 :
".....executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action, as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what are called, in lawyers' shorthand, Wednesbury principles (see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1947) 2 All ER 660 : (1948) 1 KB 223). The third is where it has acted contrary to what are often called 'principles of natural justice'. As to this last, the use of this phrase is no doubt hallowed by time an J much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case as, indeed, the decided cases since 1950 consistently show. Many features will come into play including the nature of the decision and the relationship of those involved on either side before the decision was taken.
My noble and learned friend Lord Diplock in his speech has devised a new nomenclature for each of these three grounds, calling them respectively 'illegality', 'irrationality' and 'procedural impropriety', words which, if I may respectfully say so, have the great advantage of making clear the differences between each ground."
The statement of the law contained in Council of Civil Service Unions v. Minister for the Civil Service ((1984) 3 All ER 935) was reiterated by the House of Lords in Wheeler v. Leicester City Council ((1985) 2 All ER 1106 at p. 1111), Lord Roskill reiterated the law thus :
"In his speech Lord Diplock ((1984) 3 All ER 935 at 950 : (1984) 3 WLR 1174 at 1196) classified three already well established heads or sets of circumstances in which the Court will interfere. First, illegality, second irrationality, and third, procedural impropriety. If I may be forgiven for referring to my own speech in the case, a similar analysis appears therein ((1984) 3 All ER 935 at 954, (1984) 3 WLR 1174 at 1200). Those three heads are not exhaustive and as Lord Diplock pointed out, further grounds may hereafter require to be added. Nor are they necessarily mutually exclusive."
In evaluating as to whether a decision is "reasonable", or in other words, the authority has acted"unreasonably", we should bear in mind the words of caution propounded by Lord Hailsham, L.C in Re W (an infant) ((1971) 2 All ER 49 at P. 56). "Two reasonable (persons) can perfectly reasonably come to opposite conclusions on the same set of facts, without forfeiting their title to be regarded as reasonable." And, it is perhaps due to this note of caution, Lord Scarman said, in Nottinghamshire County Council v. Secretary of State ((1986) 1 All ER 199 (HL)), that for the Courts to intervene on the ground of "unreasonableness", prima facie case should show that the official concerned has behaved "absurdly" or "must have taken leave of his senses" and Lord Brightman said in Puhlhofer v. Hillingdon London B C ((1986) 1 All ER 467 at P. 474 (HL)) :
"The ground on which the Courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonablenes in the Wednesbury sense (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. (1947) 2 All ER 680 : (1948) 1 KB 223), i.e. unreasonableness verging on an absurdity; see the speech of Lord Scarman in Nottinghamshire CC v. Secretary of State for the Environment, (1986) 1 All ER 199 at 202 : (1986) 2 WLR 1 at 5. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, conscious or unconsciously, are acting perversely."
15. Tested in the light of the above legal principles, we have to examine, whether the discretionary power vested in the Government under Section 3 of the Act has been " validly", "bona fide" and "reasonably" exercised in passing Ext. P-6? It has been noticed that the Commission of Enquiry is appointed by the Government, under Section 3 of the Act, only to gather facts or to inform itself on any definite matter of public importance. The various allegations do prima facie disclose that the enquiry has been ordered, as per Ext. P-6, as against the petitioner, regarding the various lapses on his part, abuse and misuse of his official position, acts of malfeasance and misfeasance etc., while he was a Minister in the State. In order to arrive at a decision, as to whether any action is called for on such matters, it is open to the Government to order an inquisitorial enquiry so as to instruct or inform its mind about the various aspects and to decide about the action or step to be taken. It is towards this purpose, a Commission has been appointed as per Ext. P-6. Prima facie, the enquiry ordered as per Ext. P-6 is certainly regarding "definite matters of public importance". It is valid It cannot be said to be illegal.
16. But, still the question is, was Ext. P-6 order appointing a Commission of Enquiry necessitated or justified in the light of two earlier reports of Commissioners (Exts. P-2 and P-3)? Was the power exercised "bona fide" and "reasonably"? It should be stated that the earlier two Commissioners were appointed under an executive order (Ext. P1) dated 20-12-1969. The scope, extent and power of the Commissioner appointed under Ext. P-l executive order is far different from a Commission of Enquiry appointed under the Commissions of Enquiry Act. Indeed, counsel on both sides were agreed on this aspect. Even so, in exercise of the powers under Ext. P-l executive order, the Enquiry Commissions appointed were retired High Court Judges, as provided in Clause (3) of Ext. P-l. As per the order impugned (Ext. P6), the Commission of Enquiry is appointed under the Commissions of Enquiry Act, which is different in content and scope from the Commission of Enquiry appointed under Ext. P-1 The purpose for which a Commission of Enquiry is appointed under Section 3 of the Act is to arrive at an administrative decision. Sucha decision can be arrived at by appointing any person as a Commission of Enquiry. The Act has not in any way restricted the personnel of the Commission, nor is there any fetter with regard to the mode of collection of data or facts under Section 3 of the Act.
17. The relevant files which resulted in passing Ext. P-6, appointing a Commission of Enquiry, were placed before us. It is evident therefrom that the Government passed Ext. P-6 order after "applying its mind" and after a detailed consideration of all facts and circumstances. In particular, we perused through the entire files relating to G.O. MS. No. 113/87/Vig., which is the parent file that finally resulted in Ext. P-6 order. While adverting to this aspect of the case, we shall deal separately with the report submitted by Justice Janaki Amma Commission, appointed as per Ext P-1, evidenced by Ext. P-2, and the report submitted by Justice P. Narayana Pillai Commission, appointed as per Ext. P-l, evidenced by Ext. P-3.
18. We shall first deal with charges Nos. 1 to 14, (except charges Nos. 4 and 14) which was the subject-matter of the report submitted by Justice Janaki Amma Commissioa The files disclose that after adverting to relevant facts, the Government took the view that the findings of Justice Janaki Amma Commission are ex parte and were given in a summary manner, that the memorialists did not cooperate with the Commission and so the best material did not come on record, that the appointment of Justice Janaki Amma Commission was only as per Ext P-1 order, that the nature of enquiry was really summary and unsatisfactory and different in content and nature from an enquiry under Section 3 of the Commissions of Enquiry Act and so it is not acceptable, that there is no provision in the Commissions of Enquiry Act, 1952 which bars or prevents a second Commission of Enquiry into a matter when the first Commission's report is found to be unacceptable, that there is a definite matter of public importance in that the truth about the charges made against the petitioner Minister) should be brought out, that the report of Justice Janaki Amma Commission did not carry credibility, since it suffered from fundamental infirmities, that there were serious criticisms about the non-availability of many vital documents before the enquiry commission and that the enquiry is faulty, scrappy and untenable, and there was persistent demand for a further enquiry and a deeper probe with all the files available with the Government, and since the people have the right to know the truth, the Government considered that an enquiry under Section 3 of the Commissions of Enquiry Act should be ordered. This was approved by the Council of Ministers.
19. On the basis of the above materials and in the light of the principles of law laid down by Courts, regarding the scope of Section 3 of the Commissions of Enquiry Act and the scope of judicial review of the "discretionary" power vested in the Government we are not in a position to say that in passing Ext. P-6, Government "did not apply its mind" or acted without "due care and caution" or "mala fide" or failed to take into account relevant facts into consideration or took into account irrelevant facts into consideration or acted "unreasonably". By no stretch of imagination, can it be said that in passing Ext. P-6 Government acted arbitrarily or mechanically, without applying its mind. Nor can it be said that Ext. P-6 is "unreasonably wrong" or that it is "absurd" or "perverse". In otherwords, we are of the view that in passing Ext P-6, in so far as it relates to all the charges except 4 and 14, the Government acted "bona fide" for a lawful purpose. The Government did apply its mind, acted "bona fide" and "reasonably" and in accordance with law.
20. While referring to note file, which finally resulted in Ext. P-6 order, we had occasion to say that there was detailed reference to Ext. P-2 report submitted by Justice Janaki Amma Commission. At the same time, regarding charges 4 and 14, the matter stands slightly on a different footing. All that is seen from the files is, there is a statement to the effect that "there is no prima facie justifiable reason as to why charges Nos. 4 and 14 should be deleted" and so it was ordered that all the 14 allegations will be the subject matter of enquiry under the Commissions of Enquiry Act. The learned Advocate General, when posed with this aspect of the matter and rightly in our opinion, submitted that charges Nos. 4 and 14 in Ext. P-6 may stand on a different footing. On facts, it cannot be said that there was "an application of the mind" geared to the earlier report of the Commission of Enquiry (Justice P. Narayana Pillai) which resulted in Ext. P-3, regarding charge No. 4, and so it cannot be said that the inclusion of charge No. 4 in Est. P-6 is in any way justified in law. Similarly, charge No. 14 was held to be "vague" and so not one referable by the earlier Council of Ministers. That aspect has not been adverted to before passing Ext. P-6 order. Itwasstated by the learned Advocate General that the Government itself will take steps to delete the said two charges. This is recorded.
21. In the light of the above, we hold that Ext. P-6 order dated 16-12-1987, appointing a Commission of Enquiry under Section 3 of the Act, in so far as it relates to all charges, except charges 4 and 14, is valid, legal and reasonable. To that extent, Ext. P-6 is not open to any attack.
The Original Petition is without merit. It is dismissed There shall be no order as to costs.