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2020 DIGILAW 46 (ORI)

Shivsankar Mohanty v. State of Odisha

2020-02-10

KUMARI SANJU PANDA, S.K.SAHOO

body2020
JUDGMENT : 1. By the Bench The petitioner Shivsankar Mohanty has filed this writ petition by way of a Public Interest Litigation seeking direction to the opp. party no.1 State of Odisha represented through its Principal Secretary, Home Department to follow the procedure of law in accordance with the provisions of section 3(4) of the Commissions of Inquiry Act, 1952 (hereafter ‘1952 Act’) in laying the inquiry report of Hon’ble Justice (retd.) C.R. Pal Commission before the Legislature of the State of Odisha. 2. It is the case of the petitioner that the Government of Odisha on 11.03.2008 appointed Hon’ble Justice (retd.) C.R. Pal as the single member Commission to look into feasibility and desirability of Orissa High Court Bench outside its location at Cuttack. On 31.05.2014 Hon’ble Justice Pal submitted his report to the Government. It is the case of the petitioner that in view of the public importance in the matter, the State Government without examining the report expeditiously and without taking any action promptly kept the report pending for years together. It is the further case of the petitioner that he made an application under the Right to Information Act, 2005 to the Public Information Officer (PIO) of the opp. party no.3 i.e. Special Secretary, Law Dept., Government of Odisha on the inquiry report of Hon’ble Justice Pal Commission but he was supplied with information, inter alia, that since the report had not been laid before the Legislative Assembly, it is to be treated as exempted category of information and cannot be supplied unless a final decision is taken. It is the further case of the petitioner that in view of section 3(4) of the 1952 Act, the Government shall cause the inquiry report to be laid before the Legislature of the State together with a memorandum of action taken thereon, within a period of six months of the submission of the report by the Commission to the Government. The petitioner in person argued the matter and reiterated the averments taken in the writ petition and placed reliance in the case of Fazalur Rehman Versus State of U.P reported in A.I.R. 1999 Supreme Court 3460. 3. Mr. Mruganka Sekhar Sahoo, learned Addl. Govt. Advocate appearing for the opposite parties on the other hand submitted that the section 3(4) of 1952 Act is not mandatory and therefore, reliefs sought for by the petitioner cannot be entertained. 4. 3. Mr. Mruganka Sekhar Sahoo, learned Addl. Govt. Advocate appearing for the opposite parties on the other hand submitted that the section 3(4) of 1952 Act is not mandatory and therefore, reliefs sought for by the petitioner cannot be entertained. 4. Section 3 of the 1952 Act deals with the appointment of the commission. The Commission of Inquiry is appointed 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. The power of the Commission under the 1952 Act is only to make a recommendation in respect of the matter referred to it after having investigation/inquiry and the said report cannot be termed as ‘judgment’ nor there is any usurpation of judicial functions. (Ref:-Utkal Christian Council -Vrs.-State of Orissa, 2009 (I) Orissa Law Reviews 133). Section 3(4) of the 1952 Act read as follows:- “3(4). The appropriate Government shall cause to be laid before (each House of Parliament or, as the case may be, the Legislature of the State), the report, if any, of the Commission on the inquiry made by the Commission under subsection (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government.” 5. On a plain reading of section 3(4) of 1952 Act, it indicates that after an inquiry report is submitted by the Commission, the Government shall cause such report to be laid in each House of the Parliament or, before the Legislature of the State, as the case may be within a period of six months from the date of submission of the report by the Commission along with the memorandum of action taken on such report. The question for consideration is whether in view of the use of word ‘shall’, it is imperative on the part of the Government to place such report before the House of Parliament or the Legislature of the State, as the case may be or it is to be construed as merely directory. 6. The question for consideration is whether in view of the use of word ‘shall’, it is imperative on the part of the Government to place such report before the House of Parliament or the Legislature of the State, as the case may be or it is to be construed as merely directory. 6. In the case of Fazalur Rehman (supra), it is held that when in a matter of ‘definite public importance’, a Commission of Inquiry is appointed under the 1952 Act, the State Government should examine the report expeditiously and decide what action, if any, is required to be taken on that report promptly. To keep a report pending for years together does no credit to anybody. Reports of Commissions of Inquiry should not be allowed to gather dust for years together as it reflects adversely on the utility of such commissions and would affect the credibility of the entire exercise. 7. In the present writ petition, there is no prayer that the State Government should examine the report submitted by Hon’ble Justice (retd.) C.R. Pal expeditiously and decide what action, if any is required to be taken on the report. The prayer on the other hand is for laying the inquiry report before the Legislature of the State of Odisha. 8. In the case of Shri Ram Krishna Dalmia -Vrs.-Justice S.R. Tendolkar reported in A.I.R. 1958 S.C. 538, a Constitution Bench of the Hon’ble Supreme Court while considering the constitutional validity of the 1952 Act indicated that the Commission is merely to investigate, record its findings and make its recommendation which are not enforceable proprio vigore and that the inquiry or report cannot be looked upon as judicial inquiry in the sense of its being an exercise of judicial function properly so called. The recommendations of the Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. 9. In the case of T.T. Antony Versus State of Kerala reported in A.I.R. 2001 Supreme Court 2637, it is held that the report and finding of the Commission of Inquiry are meant for information of the Government. 9. In the case of T.T. Antony Versus State of Kerala reported in A.I.R. 2001 Supreme Court 2637, it is held that the report and finding of the Commission of Inquiry are meant for information of the Government. The acceptance of the report of the Commission by the Government would only suggest that being bound by the Rule of Law and having duty to act fairly it has endorsed to act upon it. 10. It is not in dispute that in section 3(4) of the 1952 Act, the word ‘shall’ has been used before the words ‘caused to be laid’ before each House of Parliament or, as the case may be, the Legislature of the State. In case of Sainik Motors -Vrs.-State of Rajasthan reported in A.I.R. 1961 S.C. 1480, it is held that the word ‘shall’ is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands. In the case of State of U.P. -Vrs.-Babu Ram Upadhya reported in A.I.R. 1961 S.C. 751, it is held that when a statute uses the word ‘shall’, prima facie it is mandatory but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. In the case of Nasiruddin -Vrs.-Sita Ram Agarwal reported in (2003) 2 Supreme Court Cases 577, it is held that the word ‘shall’ is ordinarily imperative in nature. If an act is required to be performed a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequence therefore are specified. 11. It is the settled position of law that whether a duty under a statute is obligatory, mandatory or directory has to be ascertained from the scheme of the statute, nature of the duty imposed and thus use of ‘shall’, ‘must’ or ‘may’ are not always conclusive factors. Where a statute imposes a public duty and lays down the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from a rigid adherence to the statutory prescription may be a relevant factor in holding such prescriptions only directory. (Principles of Statutory interpretation, Justice G.P. Singh, 8th Edition (2002), Page 326). 12. Where a statute imposes a public duty and lays down the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from a rigid adherence to the statutory prescription may be a relevant factor in holding such prescriptions only directory. (Principles of Statutory interpretation, Justice G.P. Singh, 8th Edition (2002), Page 326). 12. In the case of V. Narayana Roa -Vrs.-State of Andhra Pradesh reported in A.I.R. 1987 Andhra Pradesh 53, a Full Bench considered the question whether sub-section (4) section 3 of 1952 Act is mandatory or directory and it is held that the provision is not mandatory. It is further held that there is no other provision in the Act which provides for the consequence that flows from the non-observance of the requirements of subsection (4). Evidently, this section was conceived as a check upon the Government inaction, or deliberate suppression of the report before the Parliament/Legislative Assembly along with the memorandum of action taken by it thereon. It was further held that if it is held non-pressing of the report or non-observance of the time limit prescribed in the sub-section results in rendering the very report void, and that, on that account, the Government is precluded from taking any action on the basis of such report, it would amount to placing a premium upon the delay or default on the part of the Government and would not serve the purpose of the sub-section. It is one thing to say that on account of the lapse of time, the report has lost its relevance or validity in a given case or that the relevant circumstances have undergone such a qualitative change that the report is no longer relevant, or of any use, and quite a different thing to say that the report is render void after the period of six months on the ground of noncompliance with the said sub-section. In case of non-observance of the said sub-section, it is always open to any member of the Parliament/Legislature, or any opposition party/group to question as to why the report of the Commission is not placed before the House, and also regarding the action taken by the Government on such report. 13. In case of non-observance of the said sub-section, it is always open to any member of the Parliament/Legislature, or any opposition party/group to question as to why the report of the Commission is not placed before the House, and also regarding the action taken by the Government on such report. 13. In the case of Suresh Rupsankar Mehta -Vrs.-State of Gujarat reported in (2015) 3 Gujarat Law Reporter 2749, a Division Bench of Gujarat High Court also held that it is not mandatory for the Chief Minister or the Governor to place the report of Justice M.B. Shah Commission of Inquiry before the House of Legislative Assembly. 14. In view of the foregoing discussion, we are of the view that no direction by way of writ of mandamus can be issued to the opp. party no.1 for laying the report submitted by Hon’ble Justice (retd.) C.R. Pal Commission before the Legislature of State of Odisha in terms of section 3(4) of 1952 Act. The provision is not mandatory. 15. Accordingly, the writ petition being devoid of merits stands dismissed.