# KRISHNA BALLABH SAHAY AND ORS v. COMMISSION OF ENQUIRY & ORS

- **Citation:** [1969] 1 S.C.R. 387
- **Court:** Supreme Court of India
- **Decided:** 1968-07-18
- **Bench:** M. HlDAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-ballabh-sahay-and-ors-v-commission-of-enquiry-ors-4469
- **Pages:** 8

## Headnote

J. C. SHAH,
V. RAMASWAMI,
B
V. BHARGAVA AND C. A. VAID!ALINGAM, JJ.]
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Constitution of India, Arts. !53, 156(3), 16{}-Governor--Continuance aJ-ter term over-Validity.
·Commission of Inquiry Act (60 of 1952)-Enquiry by
succeeding
Ministry into conduct of outgoing Ministers-Powers of.
Persons in opposition when the Congress Party was in power in the
Bihar State formed the Government on the voting out of office of the
Congress Ministry.
As soon as the succeeding ministry took over, the
Governor announced institution of an inquiry into the conduct of the
appellants who were ministers in the Congress MinistrY, and a notification
orde'ring the enquiry was issued.
The notification was issued by
the
Governor, after 5 years of his entering upon the office.
The appellants
unsuccessfully filed a writ petition in the High Court. In appeal to this
Court, the appellants contended that (i) the Governor's term having
come to- an end under the Constitution, he was junctus officio and could
not order the inquiry : (ii) power could not be exercised by the sncceed.-
ing Ministry to institute inquiry into th·e conduct of the Ministry that
goes out and (iii) the inquiry was the result of malice and
political
vendetta and the grounds were false and scurrilous.
HELD : The appeal must fail.
(i) The proviso to Art, 156(3) contemplates that the Governor is
to continue to hold office 'notwithstanding the expi'ration of his term'.
The effect of these words is to exclude all questions of the legality of the
holding of office by a Governor after the expiry of his term. There
must always be a Governor under Art. 153 and the interregnum is avoided
by the proviso.
There will immediately be an inter'rcgnum, if after the
term is over, the. Governor designate declines the office.
No doubt the
provisions of Art 160 may be resorted to but even that may not be
sufficient to prevent an interregnum.
Therefore, a pe'rson once appointed
a Governor continues to hold that o:ffic~ till his successor enters upon his
office. The successor may be appointed under Art. 155 or an order may
be made under A'rt. 160. There may be cases in which neglect to appoint
a Governor soon may lead to an inferenee of failure to act under the
Constitution and it may require further examination as to the remedy in
such cases. [392 D-H]
(ii) When a Ministry goes out of office, its successor may consider
any glaring charges and m,ay, if justified, order an inquiry. Otherwise,
each Ministry will become a law into itself and the corrupt conduct of
its Ministers will remain beyond scrutiny. [393 C]
S!iri P. V. Jagannath Rao v. State of Orissa, [1968] 3 S.C.R. 789
followed.
(iii) Without saying anything as to their merits, the charges were
specific, and details and particulars of each cha1rgc. had been stated. The
charges were such that an enquiry could be ordered.
Whether they are
true or false is another matter which ought to be gone into by the Comm1ssioll.
Public life of persons. in authority must never admit of such
388
SUPREME COURT REPORTS
[ 1969] l S.C.R.
charges being even framed against them. If they can be made then an
cnqwry whether to establish them or to clear the name of the person
charged is called for. [393 H-394 CJ
Whether the action was ma/afide or not could only be decided if it
could be held that the allegations were false. The Coun was not enquiring
into the charges. [394 E]

## Text

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A
, KRISHNA BALLABH SAHAY AND ORS.
v.
COMMISSION OF ENQUIRY & ORS.
July 18, 1968
(M. HlDAYATULLAH, C.J.,
J. C. SHAH,
V. RAMASWAMI,
B
V. BHARGAVA AND C. A. VAID!ALINGAM, JJ.]
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Constitution of India, Arts. !53, 156(3), 16{}-Governor--Continuance aJ-ter term over-Validity.
·Commission of Inquiry Act (60 of 1952)-Enquiry by
succeeding
Ministry into conduct of outgoing Ministers-Powers of.
Persons in opposition when the Congress Party was in power in the
Bihar State formed the Government on the voting out of office of the
Congress Ministry.
As soon as the succeeding ministry took over, the
Governor announced institution of an inquiry into the conduct of the
appellants who were ministers in the Congress MinistrY, and a notification
orde'ring the enquiry was issued.
The notification was issued by
the
Governor, after 5 years of his entering upon the office.
The appellants
unsuccessfully filed a writ petition in the High Court. In appeal to this
Court, the appellants contended that (i) the Governor's term having
come to- an end under the Constitution, he was junctus officio and could
not order the inquiry : (ii) power could not be exercised by the sncceed.-
ing Ministry to institute inquiry into th·e conduct of the Ministry that
goes out and (iii) the inquiry was the result of malice and
political
vendetta and the grounds were false and scurrilous.
HELD : The appeal must fail.
(i) The proviso to Art, 156(3) contemplates that the Governor is
to continue to hold office 'notwithstanding the expi'ration of his term'.
The effect of these words is to exclude all questions of the legality of the
holding of office by a Governor after the expiry of his term. There
must always be a Governor under Art. 153 and the interregnum is avoided
by the proviso.
There will immediately be an inter'rcgnum, if after the
term is over, the. Governor designate declines the office.
No doubt the
provisions of Art 160 may be resorted to but even that may not be
sufficient to prevent an interregnum.
Therefore, a pe'rson once appointed
a Governor continues to hold that o:ffic~ till his successor enters upon his
office. The successor may be appointed under Art. 155 or an order may
be made under A'rt. 160. There may be cases in which neglect to appoint
a Governor soon may lead to an inferenee of failure to act under the
Constitution and it may require further examination as to the remedy in
such cases. [392 D-H]
(ii) When a Ministry goes out of office, its successor may consider
any glaring charges and m,ay, if justified, order an inquiry. Otherwise,
each Ministry will become a law into itself and the corrupt conduct of
its Ministers will remain beyond scrutiny. [393 C]
S!iri P. V. Jagannath Rao v. State of Orissa, [1968] 3 S.C.R. 789
followed.
(iii) Without saying anything as to their merits, the charges were
specific, and details and particulars of each cha1rgc. had been stated. The
charges were such that an enquiry could be ordered.
Whether they are
true or false is another matter which ought to be gone into by the Comm1ssioll.
Public life of persons. in authority must never admit of such
388
SUPREME COURT REPORTS
[ 1969] l S.C.R.
charges being even framed against them. If they can be made then an
cnqwry whether to establish them or to clear the name of the person
charged is called for. [393 H-394 CJ
Whether the action was ma/afide or not could only be decided if it
could be held that the allegations were false. The Coun was not enquiring
into the charges. [394 E]
CIVIL APPELLATE JURISDICTION:
Civil Appeal )'.;o, 150 of
1968.
Appeal by special leave from the judgment and order dated
November 4, 1968 of the Patna High Court in C.W.J.C. No. 702
of 1967.
A. K. Sen, K. K. Jain, Bishambar Lal, H.
K.
Puri, C. B.
A
B
Belwariar, Basudev Prasad, Bat Bhadra Prasad Singh,
for
the
C
appellants.
M. K. Nambiar, R. K. Garg, S. C. Aganm/. Band11a1/1 Prasad and Anil Kumar, for respondent No. 2.
J. P. Goyal and Sobhag Mal Jain, for respondents Nos. 3 to
6.
D
D. N. Mukherjee, for respondents Nos. 7 and 8.
R. K. Garg, S. C. Aganval, Anil Kumar Gupta and B. S.
Khoji for respondent No. 9.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This appeal is brought against an order of
the High Court at Patna, November 4, 1967, dismissing a petition
under ArK 226 and 227 of the Constitution.
By that petition
the appellants sought a declaration that a
notification of the
Governor of Bihar appointing a Commission of Inquiry under the
Commission of Inquiry Act, 1952, was ultra vircs.
illegal and
inoperative' and for restraining the Commission from proceeding
with the inquiry. The High Court dismissed the petition without
issuing a rule but gave detailed reasons in its ord~rs. The appellants now appeal by special leave granted by this Court. After
the hearing of the appeal concluded, we ordered the dismissal of
the appeal but reserved the reasons which we now proceed to
give.
As is common knowledge there was for a time no stable Government in Bihar.
The Congress Ministry continued in office
for some time first under Mr. Binodanand Jha and then under
the first appellant. Mr. K. B. Sahay. When the Congress Ministry was voted out of office, a ministry was formed by the United
Front Party headed by Mr. Mahamaya Prasad Sinha. The
l:Jnited Front Ministry also resigned on 25th January, 1968 and
another Ministrv was formed bv the Shoshit Dal headed by Mr.
B. P. Mandal. " This Ministry atso went out of office on March
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K. B. SAHAY v. COMMISSION OF ENQUIRY (Hidayatullah, C.J.) 389
22, 1968 to be succeeded by another headed by Mr. Bhola
Paswan Shastri. During the continuance of the Congress Ministry Mr. Mahamaya Prasad Sinha helped by Mr. Kamakhya
Narain Singh and his brother Mr. Basant Narain Singh and
others were in opposition. When the United Front Ministry
emerged these opponents became ministers. The Ministry began
to function from March 5, 1967. On March 17, 1967, the
Governor announced in his speech that an inquiry would be made
against the conduct of some of the Ministers who had gone out
of office including the present appellants. It appears that the
Council of Ministers then constituted a Cabinet Sub-Committee
on July 22, 1967 to make a preliminary examination of the allegations and the materials relating to them.
The upshot was a
notification issu.ed by the Governor of Bihar under s. 3 of the
Commission of Inquiry Act on October 1, 1967 by which inquiry
was ordered against the appellants and two others (Mr. Baghavendra Narain Singh and Mr. Ambika Saran Singh). The Commission was directed to inquire into and report on the following·
matters, namely :
" (a) What was the extent of the assets and pecuniary
resources owned and possessed by each of the
persons above-named, his family, relatives and
other persons in whom he was interested, (i)
at the beginning and (ii) at the end of the
tenure of office or each of the offices held by
him as aforesaid;
(b)
(c)
(d)
Whether each of the persons above named,
during the tenure of office or offices held by him,
obtained any assets, pecuniary resources or advantages or other benefits by abusing and exploiting his official position or positions and
whether during the said period or periods his
family, relatives and other persons in whom he
was interested obtained,
with his
knowledge,
consent or connivance, any assets, pecuniary
resources, advantages or other benefits;
Whether, and if so to what extent, each of the
persons abovenamed otherwise indulged in c:Orruption, favouritism, abuse of power and other
malpractices; and
Whether, besides the persons abovenamed, any·
other person or persons holding official position
either as a member of the Council of Ministersc
or otherwise, during the aforesaid period, made
illegal
gains
or - indulged
in
corruption,
:390
SL'PREME COCRT REPORTS
f 1969 j I S.C.R.
favouritism, abuse of power or otber malpractices
A
m ltke manner as aforesaid."
Later the Government of Bihar decided on October 31, 1967
that clause (d) should be deleted and it was so deleted.
The
notification went on to state further :
"'Without prejudice to the scope
of the
inquiry.
B
th.~ Conunission shall. in particular, inquire ii1to
and
report on the ma/a fide and corrupt conduct of the
persons abovenamcd in
relation
to
the
following
matters, viz.-
( a) Contracts for works;
(b) Grant of mineral concessions and
issue
and
renewal of leases, licenses, and permits. particularly with respect to mines, minerals, forests,
forest-products, non-ferrous metals, mills, generation and distribution of electricity.
ferries,
transport, etc.
( c) Purchase and supplies of stores and materials.
( d) Appointments, transfers, promotions, etc. of officers.
(e) Institution and withdrawal of cases;
(f) Pro'.ection to criminals and corrupt olliccrs;
( g) nemissions of Government dues,
loans
and
taxes;
(h) misuse of Government money and property;
( i) Acquisition.
dc;1cquisition.
settlement
and
lease of lands;
(j) Collection of money through check-posts; and
( k) any other matter which may be brought to the
notice of the Commission in course of the inquiry."
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The inquiry was entrusted to Mr. T. L. Yenkatarama Aiyar, a
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retired Judge of this Court. The Conm1ission was to enter upon
·its duties from November 6, 1967. On October 31. 1967 a petition was filed in the High Court at Patna. The High Court summarily dismissed the petition on November 4, 1967. This appeal
arises from the order.
Since no rule was issued by the High Court the allegations in
11
the petition were not controverted or admitted by the orpositc
-parties.
When the rresent appeal was tiled rdiancc was placed
;upon the affidavits filed with the petition and fresh afliclavits were
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K. B. SAHAY v. COMMISSION OF ENQUIRY (Hidayatullah, C.J.)
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also filed.
Opportunity was afforded to the respondents to file
affidavits in reply.
An -affidavit in reply was filed by Abraham,
Vigilance Commissioner, on behalf of Government and respondent No. 5 on behalf of respondents 3-6. Separate affidavits
were also filed by appellant 1 on April 4, and May 2, 1968. We
have considered all the affidavits which find place on the record
of the appeal.
The arguments of the appellants in this Court were substantially the same as were urged in the High Court. They are really
two in number. Shortly stated, they are: firstly, that the appointment of the Commissioner is a campaign of vilification for political gain by a party in opposition and is based on personal animus
against those who kept the members of that party out of office.
The argument thus attributes malice and mala fides to the Governor's notification and abus.~ of the powers under the Commission of Inquiry Act for an illegitimate purpose.
Side by side
there is the argument that a succeeding Ministry cannot inquire
into tbe conduct of public and governmental affairs of the Ministry that goes out.
The second argument is that the Govennor's
term having come to an end under the Constitution,
he was
functus officio and could not order the inquiry contemplated by
the Government then in power.
The ·second argument goes to the root of the matter and may,
therefore, be considered first.
It was rejected by the High Court.
Mr. M. A. Ayyangar, the Governor in whose regime the notification was issued, was sworn in as Governor of Bihar on May 6.
1962.
Under Art. 156(3) he could hold office for a term of
five years from the date on which he entered upon the office.
that is to say, till May 5, 1967. Therefore, the contention is that
his continuance in office was illegal.
The respondents rely upon
the prov:so to Art. 156(3), which says :
"Provided that Governor shall, notwithstanding the
expiration of his term, continue to hold office until his
successor enters upon office,"
aud point out that there cannot be an interregnum in v'ew of the
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provision of Art. 153 that there shall be a Governor for each
State. In reply Mr. A. K. Sen refers to the provisions of Art. 160
which makes provision for contingencies by laying down :
H
"160. Discharge of the funct10ns of the Governor
in certain contingencies.
·
The Pr.~sident may make such prov:sion as he thinks
fit for the discharge of the functions of the Governor
of a State in any contingency not provided for in this
Chapter."
392
SUPREME COURT REPORTS
(!969] 1 S.C.R.
His contention is that under the third clause of Art.
155 the
Governor's tenn is a closed term and if the tenn comes
to an
end without the successor being named, the provisions of Art.
160 must be used.
The proviso, according to him, covers only
the time lag before the successor enters office and not a case
where no successor is appointed before the tenn of the holder
is over. To hold otherwise, he submits, might enable the appointing authority to set at naught the provisions of the main clause
through the proviso.
Ry way of analogy he refers to Arts. 56
and 62 (I) in respect of the President and Arts. 67 and 68 (!)
about the Vice-President which .enjoin that the election to fill the
vacancies has to be completed in each case
before the
tenn
ceases. He contends tha• the same result is implicit in the scheme
of things in relation to the Governor because of the d:stinction
between 'appointment' and 'entering an office'.
We are unable to accept the contention.
There is no provision such as Art. 62 (I) or 68 (I ) in the scheme of the Governor's
appointment.
On the other hand, the proviso to Art. 156 (3)
contemplates that the Governor is to continue to hold office 'notwithstanding the expiration of his term'.
The effect
of these
words is to exclude all questions of th'.: legality of the holding of
office by a Governor after the expiry of his tenn.
There must
always be a Governor under Art. 153 and the interregnum is
avoided by the proviso. It is, of course, to be expected that a
new Governor will be nominated betimes but circumstances may
come into being which may take !he holder beyond his five years'
.term without a successor being named.
It may not always be
possible to appoint a Governor within the tenn of the
incumbent.
Suppose. for instance, a person is designated within
the
five years and he intends join;ng
after a
few
days.
Mr. Sen
concedes that the former Governor may continue to hold office
till the new Governor assumes charge and this may take the former Governor b.~yond his term of five years. Suppose af'er that
term is over the Governor designate declines the office.
Ther.-
will immediately be an ;ntcrregnum. !'lo doubt the provisions of
Art. 160 may be resorted to hut even that may not be sufficient
lo orcvent an interrc~num. Therefore, it is lcgitimat_, to h<:>ld
that a person once appointed a Governor continue to hold that
office till his successor enters upon his office. This successor may
be appointed under Art. 155 or an order may be made under
Art. 160. Whatever 1h~ position the former Governor continues
to hold office till !he new Governor cn•ers his office.
For these
reasons we hold that Mr. M. A. Ayyangar acted validly as
Governor on October 1, 1967. We may, however, say that there
mav be cases in which neglect to appoint a Governor soon may
lead to an inference of fa;lure lo act under the Constitution and
it may require further examination as to the remedv in such cas~.
As we do not view this case as 'atisfying the need for such examtc
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nation we say nothing about it. No facts bearing upon the failure
to designate a successor have been pleaded here.
This brings us to the main question. As we pointed o_ut above
the first argument consists of two limbs. We shall exanune them
separately.
The contention that the power cannot be exercise~
by the succeeding ministry has been answered
already by this
Court in two cases. The earlier of the two has been referred to
by the High Court already. The more recent case is Shri P. v.
Jagannath Rao & Ors v. State of Orissa('). It hardly needs any
authority to state that the inquiry will be ordered not by the
Minister against himself but by some one else. When a Ministry
goes out of office, its successor may consider any glaring charges
and may, if justified order an inquiry. Otherwise, each Ministry
will become a law ~nto itself and the corrupt conduct of its
Ministers will remain beyond scrutiny.
The High Court has
adequately dealt with this point and we see no error.
The next limb of the argument is that the inquiry is the result
of malice and political vendetta and the grounds are false and
scurrilous. In the affidavit of Abraham reference is made to the
charges which have been drawn up against the appellants and 2
others (who were also heard by us). These charges number 7 4
against the ex-Chief Minister (Mr. K. B. Sahay) and 36, 19, 42,
10 and 11 against the others. Some of the charges are interconnected. Mr. Sahay in his affidavit of May 2, 1968 has attempted
to establish that Abraham himself had given a different version
in his reports and had found nothing wrong where he now finds
fault.
A few of the charges are attempted to be controverted
also.
Request is made that the relevant files be summoned so
that the falsity of the charges may be established.
We find ourselves unable to accede to the request for summoning the relevant files.
The reason is fairly obvious.
Once we
have held that the inquiry is legal, it is manifest that the truth or
otherwise of the allegations is for the Commission's consideration.
If the disproof of the allegations is so simple, there should be no
difficulty in bringing the facts to the notice of the Commission.
We have no doubt that our former colleague, who heads the Commission, will be able to decide the issue as we are invited to do.
We have read the charges which are to be iiJ.vestigated. We
do not wish to say anything about the merits of these charges
since what we say is likely to have a bearing one way or another
upon their truth. This matter is not in our hands, nor are we in
H
possession of all the materials on which these charges will hereafter be attempted to be proved or disproved. We can only say
that (as we see them) each charge refers in detail to events with
(1) [1968] 3 S.C.R. 789.
394
SUPREME COURT REPORTS
[1969J I S.C.R.
dates, names of persons concerned, particulars of the action taken
A
and the conduct which is to be considered. The charges arc such
that we think an inquiry can be ordered.
Whether thev arc true
or false is another matter.
·
It cannot be stated sufliciently strongly that the public life of
persons in authority must never admit of such charg~ being even
framed against them.
If they can be made
then
an
inquiry
B
whether to establish them or to clear the name of the person
charged is called for.
If the charges were vague or speculative
suggesting a fishing expedition we would have paused to consider
whether such an inquiry should be allowed to proceed.
A perusal of the grounds assures us that the charges are specific, and that
records rather than oral testimonv will he used to establish them. c
We agree with the High Court that the affidavits in
opposition
make out a suflicient case for inquiry.
It is contended that clause ( d) \\as excluded from the notification so that the inquiry might not recoil upon those who had
started it.
Reference is made to the notification of March 12,
1968 to show that in the notification ordering inquiry against Mr.
D
Mahamaya Prasad Sinha and his colleagues that clause is included. That should be a matter of satisfaction to the present appellants. It is unlikclv that the Commission will overlook evidence
which points to corruption or malpractice in others.
Even if no
direct finding is given there will be ample
reference
to
these
ma'.ters in the report.
i;
Finally it is argued that the action is ma/a
fide.
This can
only be decided if it can he held that the allegations were false.
The Commission will first find the facts.
Whether they lead to
the conclusion that the inquirv was justified or it was malicious,
cannot he said just now. when there are only allegations and recriminations but no evidence.
If the charges have been made
F
maliciously or falsclv, we are sure the Commission will say so,
where necessary.
We cannot anticipate the inquiry and hold one
ourselves.
These reasons impelled us to order the dismissal of the appeal
which order we formallv pronounced earlier.
G
Y.P.
A ppea/ dismis.1ed.