BHARAT ALUMINUM COMPANY LTD. V. COMMISSION OF INQUIRY and ORS.

WPC/10/2012

AI Insights

The case involves Bharat Aluminum Company Limited challenging the order of the Commission of Inquiry, which rejected their application under Sections 8B & 8C of the Commissions of Inquiry Act, 1952. The Commission was set up following a tragic incident where a blast furnace under construction collapsed, resulting in several deaths. The Commission's inquiry aimed to determine the causes and circumstances of the accident. The petitioner argued that they were not given a fair opportunity to present their case and that the Commission had not disclosed expert opinions that could affect their defense. The respondents, including the Commission and the State of Chhattisgarh, contended that all necessary documents were available for inspection and that the inquiry was still ongoing.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 743544 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 30-06-2012
• Assessment Year: misc
• Other Referred Cases: Smt Kiran Bedi v. Committee of Inquiry, State of Bihar v. Lal Krishna Advani & others, Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-1 & another, Union of India & others v. E.G. Nambudiri, Union of India & another vs. Tulsiram Patel, Kothari Filaments & another v. Commissioner of Customs (Port), Kolkata & others, State of Karnataka v. Union of India & Another, Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni And Others, Managing Director, ECIL, Hyderabad And Others v. B. Karunakar And Others
• Laws Referred To: Commissions of Inquiry Act, 1952, Constitution of India
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: RAJEEV SHRIVASTAVA; MALAY SHRIVASTAVA; SAMEER SHRIVASTAVA; Y S THAKUR; DHARMESH SHRIVASTAVA; ASHOK TIWARI
• Assessee Lawyers: ABHISHEK SINHA; GHANSHYAM PATEL
• Keywords: Expert Opinion; Natural Justice; Opportunity of Hearing; Writ petition; Commission of Inquiry
• Section: 8C; 8B

Judgement Text

"% -4- ^ ^ IN THE HON»BLEHIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER: .....1<.^L:S^<~ ft.N--'\"'S.^-k<'><'^..--\"\"\" ^\"^wsw'iZu*--\"\"\" ,;s^w°.S.t.1 Aa d-\">\"\" WritPetition(QNo. f0 of 2012 Bharat Aluminum Conipany Limited (A company incorporated under the provisions of the Companies Act, 1956) through its authorized officer/power of attorney holder, a duly constituted attorney, having its registered office e at Scope Complex, Core-6, Lodhi Road, New Delhi and its plant at Balco Nagar, Korba.(C.G.) RESPONDENTS: yERSUS Conim.ission of Inquiry, constituted u/S 3 of the Comniissions of Inquiry Act, 1952, presided over by Shri Sandeep Bakshi, through its Secretary, having its notified office at Collectorate, Korba, District Korba. (C.G.) State through (C.G.) of Chhattisgarh, Collector, Korba. SEPCO, a company incorporated under the laws of China/ having its camp office at 1200 MW Power Project, Balco Nagar, Korba. (C.G.) Gannon Dunkerley and Company Limited (GDCL), a company incorporated under the Companies Act, 1956, having its site office at 1200 MW Power Project BaJco Nagar, Korba (C.G.) -5- w^ WRIT PETITION ARTICLE 226 OF CONSTITUTSON OF INDIA FOR ISSUANC_EOF OR DIRECTION OR ORDBR AS THB FACTB OF THE AP^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITLON (C) N0.10 OF 2012 PETITIONER RESPONDENTS Bharat Aluminum'Company Limited Versus Commission of Inquiry & Others Post for pronouncement of orderson the ^.6 day of June, 2012 Sd/- Satish K. Agnihotri Judge •< ;-4~ 1^^ ,:^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (C) N0.10 OF 2012 PETITIONER RESPONDENTS BharatAluminum Company Limited Versus Commission of Inquiry & Others (Writ Petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Abhishek Sinha and Shri Ghanshyam Patel, Advocates for thepetitioner. Shri Rajeev Shrivastava, Shri Malay Shrivastava and Shri Sameer Shrivastava, Advocates for the respondent No.1. Shri Y.S. Thakur, Dy. Advocate General for the State/ respondent No.2. Shri Dharmesh Shrivastava, Advocate for the respondent No.3. Shri Ashok Kumar Tiwari, Advocate for the respondent No.4. (Delivered on this _2^,ayofJune,2012) Challenge in this petition is to the order dated 24th December, 2011 (Annexure - P/1) passed by the respondent No.1 - Commission of Inquiry (for short \"the Commission\") whereby the application of the petitioner filed on 24th December, 2011 (Annexure - P/4) under Sections 8B & 8C of the Commissions of Inquiry Act, 1952 (for short \"the Act, 1952\") was rejected. The facts, in brief, leading to filing of this petition, are that a blast furnace (chimney) under construction for establishing power plant by the petitioner, collapsed causing death of several persons. The State Govemmentexercising its power under Section 3 ofthe Act, 1952, in public interest, appointed one man Commission under Shri Sandeep Bakshi, District & Sessions Judge, Raipur, by order dated 13th October, 2009 (Annexure - P/2). The terms of reference of the Commission was that (i) when and how the accident tookplace; (ii) circumstances and reasons, which r ..J ^nd oi 6uuB9L| p Ai.iunyoddo luepiyns pQpjoye ueeq seq jeuoi^ed 9L|i \"Ayed e p uoiieindoj eqi peye 0^ eiqissod SBM 11 pue uiejeq P \"8 C'ON siuepuodsej 'jeuoii.iied 'iueuuujeAoo 9^3 sje ssiyed peujeouoo eqi ^uepiooe eoeujnj iseiq p ^inbue eqi 6uunp ^eqi pQ/ussqo 1.1,02 'JequjQoea ^z, psiep jepjo Aq UOISSILULUOQ 9L|i •6uue9q j.o Aiiunijoddo qsejj. pjojj.e 0} jeuoi^ed eq^ euiyiujjed ZQQ^ 'py 9LI:t P 99 uoipes jepun peiujoj ueeq seq uoiuido qons ou'jeq^inj •jeuoi^Qd eqi isuieCe p9||9A9| suo!ie69||e puej.ep 0} pue SQSSQUIIM eqi euiuuexe-ssojo 0} pue 90u9piA9 eonppe 0} Aiiunijoddo p9|ieAe Ape9J|e seq jsuoiiiied 9i|i l8L|i uiejaLiiBuiieis (Q/J - 8Jbx9uuv)l.|.OZ 'JsquJsosQ 4^2 •Q'! Aep euues eqi uo uo^eojidde pjes eq^ 01 A|d9j sij peujujqns eieis 941 •jeuueuu eMpeye ui esuodsej s} ^ujqns ueo jeuo^i.ed eq]. ieqi os 'yedxQ leojuqoei eqi Aq peyjuuqns eoueisisse/uoiujdo 9qi Suipnpui 'siueuunoop eqi ||B pepiAOjd eq jeuoi^ad eqi 'pQpeye eq Aiiepipnfejd Aeuu jeuoi^ed eqi ^eqi uoiuido p UOIIBUUJOJ 01 seinquiuoo yedxo leoiuqoei eqi p uojuido 9L|i ji pue uoipedsui p eujii eq^ ^e UMoqs uesq pu SBLI Ijedxeieoiuqoei eqi Aq peyiLuqns uoiuido ©41leqi. uoneoiidde siq ui peuiuuqns jeqynj jeuoi^ed eqi •jeuoi^oejd |e69| e Aq sseu^iM eqi 9UIIUBX9-SSOJO 0} Aiiun^ioddo ue OS|B pueGuueeq ^o Ai.iunyoddo ue pepiAOjd eq jeuoi^ed eqi 'pepejj.e Aiiepipnfejd eq 01 A|9>|!| si jeuoi^ed eqi p uoii.sindej 'UOISSIUUUUOQ eqi. p uoiuido eqi ui i 'ye^ 6uiieis i.1.02 |euu 0} joqijnj. (IA) pue Seiqjsuodsej SJQM oqM ^ou jj 'uojion^suoo 9L|i ui peAo|dLU9 suosjed 9^ p Ayjnoes pue A^es joj us^ei ejOMSdeis ieq/v (A) ieiqisuodsej SJSM oqM 'ou ^1 pue >|JBLU eqi 01 dn SBM uojpnjisuoo 9L|i ui pesn leueieuj e^ jeqietiM (AI) ii.uepiooe eqi joj. eiqisuodsej SBM oq/v (iii) Seoeujnj iseiq jo 9sde||oo 01 p9| r \"r\" ^..; ^•'-'' c \"•v.^ ..siy .^^:'i. '••<;• ^%^-M' jj^-^^^ i, ^^m^ 1 ^ ^ .•^ iNN«*». ,,^ 8. forward its case and produce evidences. The Commission has not taken any opinion of the expert except some assistance. It was further held that all the documents and records, which were referred and likely to be relied on, have been made available to the petitioner to have inspection in the office. The Commission also held that the petitioner was at liberi:y to have inspection again, as it was not possible to supply copies of the said documents. Shri Sinha, learned counsel appearihg for the petitioner, would submit that if at any stage of inquiry, the Commission considers it necessary to inquire into the conduct of any person, or is of the opinion that the reputation of any person is likely to be prejudicially affected by the enquiry, the Commission shall give oppori:unity of being heard and to produce evidence in his defence. Shri Sinha would further submit that the Commission has sought assistance from the experts and thereafter nothing has been disclosed to the petitioner to put forward its case. Thus, there is an infringement of mandatory provisions of Section 8B of the Act, 1952. Accordingly, the impugned order be quashed and the Commissionbe directed to afford proper opportunity of hearing to the petitioner and also to provide a copy of the expert opinion so that the petitioner can put forward its defence effectively and properly. Shri Sinha would next submit that the manner in which the Commission has proceeded amounts to violation of regulation framed by the Commission before initiating the inquiry. The petitioner was refused certified copy of the proceedings/documents collected by the Commission. In support of his contention, Shri Sinha placed reliance upon the decisions of the Supreme Court rendered in Smt Kiran Bedi v. -.\"•^ ' -^^m- •?' Committee of Inquiry and another, State of Bihar v. Lal Krishna Advani &others , Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-1 & ahother3 Union of India & others v. E.G. Nambudiri4, Union of India & another vs. Tulsiram Patel5 and Kothari Filaments & another v. Commissioner of Customs (Port), Kolkata & others6. 10. On the other hand, Shri Rajeev Shrivastava, learned counsel appearing for the respondent No.l/Commission would submit that all the documents and records on which the Commission is going to rely on, have been made available for inspection. Thus, the contention of the petitioner that no reasonable opportunity of hearing has been afforded to the petitioner has no force. The stage of forming the opinion in respect of reputation of a person which is likely to be prejudicially affected under Section 8B has not yet come. Section 8B of the Act, 1952 provides that at any stage if a situation comes, the Commission shall follow the law strictly in its letter and spirit. 11. Shri Thakur, learned Deputy Advocate General appearing for the State/ respondent No.2 supported the. arguments advanced by the learned counsel appearing forthe Commission. 12. Shri Dharmesh Shrivastava and Shri Ashok Kumar Tiwari, learned counsel appearing for the respondents No.3 & 4, would submit that the parties and some general public had filed affidavits and they were examined and cross-examined. Learned counsel would further submit that the Commission ought to have disclosed the 1 (1989)18cc 494 2 (2003) 8 SCC 361 3 (2008)148cc 151 4 (1991)38cc 38 5 (1985)38cc 398 6 (2009)28cc 192 material, information and documents collected by it to all the parties including the respondents. 13. I have heard learned counsel appearing for the pariiies, perused the pleadings and the documents appended thereto. 14. On perusal of the documents produced before the Court, it is evident that the Commission has held that it is possible that the reputation of a person may likely to be affected, however, it was observed that reasonable opportunity has been afforded to the petitioner and, as such, there is no occasion to afford opportunity second time under SectionSB ofthe Act, 1952. 15. At this stage, it is not possible to examine asto whether an opinion has been formed by the Commission, which may prejudicially affect the reputation of the petitioner, and if it is so, as the final report has not been submitted. It is mandatory that a person, whose reputatipn is likely to be prejudicially affected by the inquiry, shall be provided a reasonable opportunity to defend himself in respect of the documents, which lead to forming of an opinion to that effect, in addition to the general opportunity of hearing provided to all the concerned parties in the enquiry conducted by the Commission. 16. it can be inferred from the above that the stage has not yet come wherein the Commission has formed the opinion, which may result into affecting the reputation of the petitioner prejudicially and if it is so, such person is entitled for a reasonable opportunity of being heard and to produce evidence in his defence. 17. The decisions of the Supreme Court rendered in £.G. Nambudih (supra) and Tulsiram Patel (supra) are not relevant to the facts in dispute. Even the decision rendered in Kothari Filaments (supra) is also not relevant, as the case arises from the Customs Act and there was no such provision, as Section 8B of the Act, 1952. The petitioner has cited decisions of others High Courts, in respect of ^WWHH^.. principles of natural justice, which are not being referred to avoid repetition of the well settled law on the issue of opportunity of hearing under Section 8-B oftheAct, 1952. This will unnecessarily burden the judgment. 18. Sections 8B & 8C of the Act, 1 952 reads as under:- \"8B. Persons likely to be prejudicially affected to be heard.—If, at any stage of the inquiry, the Commission,— (a) considers it necessary to inquire into the conduct of any person; or (b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached. 8C. Right of cross-examination and representation by legal practitioner.—The appropriate Government, every person referred to in Section 8-B and, with the permission of the Commission, any other person whose evidence is recorded bythe Commission,— (a) may cross-examine a witness other than a witness produced by itorhim; (b) may address the Commission; and (c) may be represented before the Commission by a legal practitioner or, with the permission of the Commission, by any other person.\" 19. Section 8B of the Act, 1952 does not provide the stage, where opportunity of hearing be afforded. At any stage, when the opinion is formed by the Commission that the reputation of any person is likely to be prejudicially affected by the inquiry, reasonable ^^NNI^1. opportunity of being heard to such person and to produce evidence in his defence, shall be provided. It is mandatory. 20. In State of Karnataka v. Union of India & Another^, wherein the Central Government appointed a Commission of Inquiry againstthe Chief Minister of Karnataka under provisions of the Commission of Inquiry Act, 1952. Chandrachud J. the, then, His Lordship was, while concurringwith the majority judgment, explained the scheme and the purpose of the enquiry as under: \"184. It is clear from these provisions and the general scheme of the Act that a Commission of Inquiry appointed under the Act is a purely fact-finding body which has no power to pronounce a binding or definitive judgment. It has to collect facts through the evidence led before it and on a consideration thereof it is required to submit its repori: which the appointing authority may or may not accept. There are sensitive matters of public importance which, if left to the normal investigational agencies, can create needless controversies and generate an atmosphere of suspicion. The larger interests of the community require that such matters should be inquired into by high-powered Commissions consisting of persons whose findings can command the confidence of the people.\" 21. In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni And Others8, the Supreme Court observed as under: \"13......And this view was taken as flowing from Article 21 which mandates that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The expression \"life\" does not merely connote animal existence or a continued drudgery through life. The expression \"life\" has a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardised and the same can be put in 7 1977(4)8cc 608 8 (1983)1 SCC124 '€.2; y ^ .€.-^\" W'NIII^ jeopardy only by law which inheres fair procedures.........\" 22. The Supreme Court in Kiran Bedi v. Committee of lnquiry9, observed as under: \"3(4)......Mere non-issue of notices to them under Section 8-B ought not to make any difference if they otherwise satisfy the conditions mentioned in Section 8-B. The issue of such a notice is not contemplated under Section 8-Bof the Act. It is enough if atany stage the Commission considers it necessary to inquire into the conduct of any person. Such person would thereafter be governed by Section 8-B of the Act. The Committee should have considered whether the petitioners were entitled to be treated as persons governed by Section 8-B of the Act before asking them to get into the witness box for being cross- examined. Ifthe Committee had found thatthe petitioners were covered under Section 8-B, then perhaps they would not have been asked to get into the witness box for being cross- examined till the end of the inquiry. The Committee would have then asked them to give evidence along with others who were similarly placed at the end ofthe inquiry.\" 23. In Smt. Kiran Bedi (supra), the Supreme Court, further clarified the above ratio and observed as under: \"17......Recourse to procedure under Section 8-B is not confined to any particular stage and if not earlier, at any rate, as soon as the Committee made the aforesaid unequivocal declaration of its intention in its interim report, it should have issued notice under Section 8-B to the two petitioners, if it was of the view as it seems to be, for which view there is apparently no justification, that issue of a formal notice under Section 8-B was the sine qua non for attracting that section. At all events, the Committee could not deny the petitioners the statutory protection of Section 8-B by merely refraining from issuing a formal notice even though on its own declared intention the section was clearly attracted. 25. In D.F. Marion v. Davis, itwas held: \"The right to the enjoyment of a private reputation, unassailed by malicious slander (1988)48cc49 l;<%ft is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.\" 24. A Constitution Bench of the Supreme Court in Managing Director, ECIL, HyderabadAnd Others v. B. KarunakarAnd Others10, held that denial of reasonable opportunity amounts to violation of Article 14 & 21 of the Constitution of India and observed as under: \"61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integralpart ofArticle 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basisfor the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the repori: along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice.......\" 25. In Lal Krishna Advani (supra), the Supreme Court, held as under: \"6.....1t is thus amply clear that one is entitled to have and preserve one's reputation and one also has a right to protect it. In case any authority, in discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, it must provide a chance to him to have his say in the matter. In such circumstances right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon by a Commission of Inquiry is statutorily recognised and violation of the same will have to bear the scrutiny of judicial review. A reference may be made to Peter Thomas Mahon v. Air New Zealand Ltd. 10 (1993)48cc727 ' '^ -^ INN^, 10 8. It may be noticed that the amendment was brought about, about 20 years after passing of the main Act itself. The experience during the past two decades must have made the legislature realize that it would but be necessary to notice a person whose conduct the Commission considers necessary to inquire into during the course of the inquiry or whose reputation is likely to be prejudicially affected by the inquiry. It is further provides that such a person would have a reasonable opportunity of being heard and to adduce evidence in his defence. Thus the principles of natural justice were got inducted in the shape of a statutory provision. It is thus incumbent upon the Commission to give an opportunity to a person, before any comment is made or opinion is expressed which is likely to prejudicially affect that person. Needless to emphasise that failure to comply with the principles of natural justice renders the action non est as well as the consequences thereof.\" 26. The Supreme Court in Sahara India (Firm), Lucknow (supra), observed as under: \"15. Rules of \"natural justice\" are not embodied rules. The phrase \"natural justice\"is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action. As observed by this Court in A.K. Kraipak v. Union of lndia12 the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see ITO v. Madnani Engg. WorksLtd.)\" 27. It is informed that during pendency of this petition, the parties have been directed to file written submission by order dated 12th June, 2012 passed by the Commission. 28. If is the caseof the respondent No.l/Commission that all the opportunities have been provided, however, it is nowhere observed that the Commission has formed any opinion except that it is possible to have effect on some of the parties. No material has 29. 30. 11 been produced before me to indicate that the Commission has formed its opinion to the effect that reputation of any person is likely to be prejudicially affected by the inquiry. The inquiry is not complete, as the repori: has not been submitted. Before forming an opinion against a person underthe provisions ofSection 8B ofthe Act, 1952, it is mandatory that such person be afforded reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. The law in this respect is well settled. In view of the above, 1 do not propose to issue any direction to the Commission, as the Commission has toconduct its business in accordance with the provisions of law. As an upshot, the writ petition is disposed of. No orderasto costs. Gowri Sd/- Satish K. Agnihotri Judge "