No Obligation On Govt To Appoint Commission Of Inquiry In Every Matter Of Public Importance: Kerala HC Refuses To Order Probe Against Mayor
The Kerala High Court has dismissed a writ petition filed by the Ex. Councillor of Thiruvananthapuram Municipal Corporation seeking probe into the alleged incident involving Thiruvananthapuram Mayor Arya Rajendran S and D.R. Anil, LDF Parliamentary Party Secretary allegedly requesting the CPI(M) District Secretary to provide the list of party members for appointment to various posts in the Health Division of the Municipal Corporation.
The Court has held that there cannot be a legal or statutory obligation upon the appropriate government to appoint a Commission of Inquiry even if it is a definite matter of public importance.
A Single Bench of Justice K. Babu dismissed the writ petition and stated –
"Going by the words of Section 3 of the Act it is crystal clear that there cannot be a legal or statutory obligation upon the appropriate Government to appoint a Commission of Inquiry even if it is a definite matter of public importance. As the Statute imposed no legal duty on the Government to appoint a Commission, the petitioner has no legal right to enforce its performance. In Kallara Sukumaran's case (supra) the Division Bench following a series of precedents held that a writ of mandamus cannot be issued for directing the Government to appoint a Commission of Inquiry under the Act. As the petitioner has no right under the Statute he has no locus standi to seek the relief as prayed for above. Issue No.3 is answered accordingly against the petitioner."
Advocate K.R. Rajkumar appeared on behalf of the petitioner while Director General of Prosecution T.A. Shaji appeared for the respondents.
Facts of the Case –
In the present case, the petitioner came across information from the media that Mayor of Thiruvananthapuram Corporation and Councillor of the Corporation had requested the District Secretary of the Communist Party of India (Marxist) [CPI(M)], the ruling political party, to provide the list of party members for appointment to various posts in the Health Division of the Municipal Corporation.
The petitioner found copies of the letters sent by respondents on their official letterheads in the media. In the copy of the letter addressed to the District Secretary of the CPI(M), the Mayor had requested to take necessary steps to make available the priority list of candidates to be appointed in the Health Division of Thiruvananthapuram Municipal Corporation on a contract basis. In the letter, the Councillor had made a similar request to the Party Secretary. The petitioner alleged that it is the usual practice of the Corporation to select persons having political affiliation for appointment in the Corporation and the action of respondents sending a communication to the District Secretary is against the oath taken by both when they had sworn in as Councillors of the Thiruvananthapuram Corporation. He also filed a complaint before the Director Vigilance and Anti-Corruption Bureau and approached the High Court.
Following were the issues before the High Court -
(1) If a person has a grievance that the Police have not registered his complaint or having registered it, they have not investigated it properly, can he resort to the public law remedy under Article 226 of the Constitution of India?
(2) Has the petitioner established the requirements for issuing a writ directing investigation by CBI in the matter?
(3) Can the High Court issue a writ of mandamus under Article 226 of the Constitution of India to the Government to appoint a Commission of Inquiry under the Commission of Inquiry Act, 1952?
While considering the first issue, the Court said, "In the present case, the petitioner filed Ext.P3 complaint on 5.11.2022 and rushed to the High Court, and filed the writ petition on 8.11.2022. He had not adopted the procedure provided under the Code. The petitioner had alternate remedies to redress his grievances. Therefore, he is not entitled to the public law remedy under Article 226 of the Constitution. The issue is answered against the petitioner."
The Court with respect to the second issue stated that the complaint lodged by the petitioner did not contain any specific allegations and that the averments regarding the impartiality of the investigating agency in the writ petition are without any solid foundation. It further stated that the petitioner has failed to place any concrete material compelling transfer of investigation and therefore, the conditions laid down by the Apex Court in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal [(2010) 3 SCC 571] are not fulfilled.
The Court after hearing both parties and considering the last issue observed, "Construction of sub-section (1) of Section (3) of the Act makes it clear that the appropriate Government is under a statutory obligation to appoint a Commission of Inquiry in a case where a resolution on that behalf is passed by each House of Parliament or, as the case may be, the Legislative Assembly of the State and the appropriate Government has no option or discretion in the matter. In the absence of such a resolution, the power to appoint a Commission is optional and discretionary even if there is any definite matter of public importance. The words in the section evidently point that a Commission may be appointed by the appropriate Government if it is of opinion that it is necessary so to do. As a necessary corollary, even if there is any definite matter of public importance, the Government may not appoint a Commission of Inquiry if it is of the opinion that it is not necessary to do so."
The Court further noted that the inquiry as provided under the Commission of Inquiry Act, 1952 is not a judicial inquiry and the object of constituting a Commission of Inquiry is to enable the Government 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.
Accordingly, the Court dismissed the writ petition.
Cause Title – G.S. Sreekumar v. The State of Kerala & Ors.