B.S. Chauhan, C.J.
1. This writ petition has been filed for declaration of the appointment of Justice S.C. Mohapatra, former Lokpal, as Commission of Enquiry of killing of Swami Laxmanananda Saraswati on 23.8.2008 and aftermaths vide Notification No. 1705 dated 3.9.2008 published in the Official Gazette of the State of Orissa bearing No. 1705 dated 17.9.2008 as illegal.
2. The facts and circumstances giving rise to the case, as taken herein, are that one Swami Laxmanananda Saraswati and four others were assassinated on 23.8.2008 and subsequent thereto, a fundamental section of the Society resorted to road blockade from 23.8.2008 and onwards. There had been disturbance in a part of Phulbani town and Kandhamal area, and destruction of the public and private properties and damages to the vehicles etc. Several instances of outraging the modesty of women were reported and some persons had been subject to inhuman torture. The State Authorities could not control the situation. The present petitioner filed writ petition No. 12575 of 2008 before this Court seeking certain reliefs and this Court issued large number of directions for providing protection to all sections of the Society and prevent any kind of atrocities on any person. The State Government decided to appoint a Commission under the Commissions of Inquiry Act, 1952 (hereinafter called the 'Act, 1952') to enquire into the killing of Swami Laxmananda Saraswati and the consequential communal violence in Kandhmal and for that purpose, Justice S.C. Mohapatra, who had earlier been the Lokpal of the State of Orissa has been appointed. Petitioner does not have any objection for holding the Inquiry nor it has any complaint against Justice S.C. Mohapatra. The petitioner has been filed purely on a technical ground that Justice S.C. Mohapatra had earlier been Lokpal under the provisions of Orissa Lokpal and Lokyuktas Act, 1995 (hereinafter called 'Act, 1995') which puts an embargo for his further employment. Thus, Justice S.C. Mohapatra is ineligible to be appointed as Commission of Inquiry.
3. Sri P.K. Nanda, learned Counsel appearing for the petitioner submits that in view of the provisions of Section 5(3) of Act, 1995, certain disabilities are attached to the person who holds the office of Lokpal and he becomes disqualified for any future employment. Therefore, the petition deserves to be allowed.
4. On the contrary, learned Advocate General, Mr. B.K. Mohanti duly assisted by Sri Sisir Das, learned Addl. Government Advocate and Mr. P. Panda, learned Addl. Standing Council has opposed the petition contending that the appointment of Justice S.C. Mohapatra as Commission of Inquiry does not amount to employment. He does not hold any office, so the question of maintainability of the writ petition for issuance of a writ of quo warranto does not arise. The petition is liable to be dismissed.
5. We have considered the rival contentions made by the learned Counsel for the parties and perused the record.
6. A 'post' is a service or employment. A person holding a 'post' is a person serving or employed. There is a relationship of master and servant between the employer and employee. This indicates that the employer has right to select and appoint the holder of the post. Employer has a right to suspend and dismiss the employee. The employer has right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. The relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is always a question of fact in each case whether there is such relationship between two persons. A 'post' is an 'employment' but every 'employment' is not a 'post'. A casual labourer is not the holder of any post. Employer may create or abolish the post or may regulate the conditions of service of all persons appointed to the 'post'. Thus the 'post' denotes an 'office'. A 'post' under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. A person holding the 'post' may be required to vacate the post and it emphasizes the idea of a 'post' existing apart from the holder of the 'post'. A 'post' may be created before the appointment or simultaneously with it. A position to which a person is appointed amounts to 'post'. Right to be considered for appointment can only be claimed in respect of a post in a cadre, (vide State of Assam and Ors. v. Shri Kanak Chandra Dutta : (1968)ILLJ288SC ; State of Assam v. Ranga Muhammad and Ors. : (1968)ILLJ282SC ; P.R. Nayak v. Union of India : (1972)ILLJ535SC ; Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. : (1973)IILLJ495SC ; High Court of Punjab & Haryana v.State of Haryana AIR 1976 SC 613; Superintendent of Post Offices and Ors. v. P.K. Rajamma : [1977]3SCR678 ; O.P. Singla v. Union of India : (1985)IILLJ309SC ; Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. : AIR1991SC537 ; R.K. Sabharwal and Ors. v. State of Punjab and Ors. : [1995]2SCR35 ; and State of U.P. and Ors, v. Chandra Prakash Pandey and Ors. : [2001]2SCR506 ).
7. In order to determine as to whether the master and servant relationship exists between the parties, it is to be seen that employer has the right to control and supervise the manner of work done by the employee.
8. In Chintaman Rao v. State of M.P. : 1958CriLJ803 , the Supreme Court laid down that the concept of 'employment' involves three ingredients: (1) employer (2) employee and (3) the contract of employment. Thus under the contract of service the employee agrees to serve the employer subject to its control and supervision.
9. The word 'employment' must, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a temporary nature for a short period on account of some urgency (vide The Regional Provident Fund Commissioner, Andhra Pradesh v. Sri T.S. Hariharan : (1971)ILLJ416SC ; and Union Public Service Commission v. Girish Jayanti Lal Vaghela and Ors. : AIR2006SC1165 ).
10. In a case where there is no supervision and control of the authority on the person serving it, it cannot be held to be a case of employment. The question whether there exists any relationship of master and servant is a pure question of fact. There could not be straight away answer to the question as it is to be determined having regard to many factors. Nature and extent of control required to establish such relationship would vary from case to case. The relevant factors to be-considered are (a) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative services lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject. The relevant test may be as to whether the employee concerned has fully integrated into the employer's concern meaning thereby independent of the concern although attached therewith to some extent. (vide Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu and Ors. : (2004)IILLJ253SC ).
11. In Roshan Lal Tandon v. Union of India, the Apex Court laid down the law as under;It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statute rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status.... The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.
(Emphasis added).
12. Black Law Dictionary 8th Edn. Defines Employment, Master and relationship as under:
'Employment' (page 566) means (1) relationship between master and servant, (2) Act of employing, (3) The State of being employed, (4) Work for which one have been hired and is being paid by an employer.'
'Master' (Page 997) has been defined as, one who has personal authority over another's services, specific, a principal who employs another to perform one or more services and who controls or has the right to control the physical conduct of the other in the performance of the service; Employer & the law of master and servant is defined as relation between two persons, one of whom (the master) has authority over the other (the servant), with the power to direct the time, manner and place of service. The relationship is similar to that of principal and agent, but that terminology applies to employments in which the employee has some discretion, while the servant is almost completely under the control of the master.'
'Relationship' (page 1314) is defined to be nature of association between two or more people especially a legally recognized association that makes a difference in the participant's legal rights and duties of care. Currently the phrase is used as employer and employee relationship replacing a common law use of master servant.
13. In Jawahar Lal Sazawal and Ors. v. State of J&K; and Ors. : (2002)IILLJ836SC , the Apex Court held that it is necessary to make reference to the statute or statutory rules which govern the service condition in case of permanent employment.
14. In State of U.P. and Anr. v. Johri Mal : AIR2004SC3800 , the Supreme Court considered whether a government advocate hold a civil post and as to whether the master and servant relationship exists in such a case and reached the conclusion that it was purely a professional engagement and he does not hold any civil post. By holding a post of District Counsel or Public Prosecutor no status is conferred on the incumbent. However the Public Prosecutor or Addl. Public Prosecutor being an employee of the State holds civil posts. They are answerable for their conduct to higher statutory authority.
15. In Samarendra Das, Advocate v. State of West Bengal and Ors. : (2004)2SCC274 , a similar view has been taken by the Supreme Court.
16. When a reference is made to the employment or post in strict legal sense, it becomes imperative to consider the provisions of Articles 14 and 16 of the Constitution. Article 14 provides for equality before law and the equal protection of the law. Article 16(4) provides for equality in public employment with certain exception e.g. reservation etc.
17. Whenever there is a vacancy in public office, constitutional provisions mandate to advertise the post inviting applications through newspapers having wide circulation, so that all eligible persons may apply. The process of selection is to be completed assessing the inter se merit of the candidates. It is not permissible to fill up the vacancy exceeding the number of vacancies so advertised and any appointment made in contravention of such constitutional requirements vitiate the selection process itself and render it to nullity. (Vide B.S. Minhas v. Indian Statistical Institute and Ors. : (1984)ILLJ67SC ; Delhi Development Horticulture Employees' Union v. Delhi Administration and Ors. : (1992)IILLJ452SC ; State of Haryana v. Piara Singh : (1993)IILLJ937SC ; Prem Singh and Ors. v. Haryana State Electricity Board and Ors. : (1996)IILLJ786SC ; Excise Superintendent Maikapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. : (1997)ILLJ56SC ; Government of Orissa v. Har Prasad Das AIR 1998 SC 375; Subash Chand Dhrupta and Anr. v. State of H.P. and Ors. : (2000)10SCC82 ; Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors. : AIR2005SC2103 ; National Fertilizers Ltd. v. Somvir Singh : (2006)IILLJ1113SC ; Secretary, State of Karnataka and Ors. v. Umadevi and Ors. : (2006)IILLJ722SC ; Ashok Kumar Sonkar v. Union of India and Ors. : (2007)4SCC54 ; and Commissioner Municipal Corporation Hyderabad and Ors. v. P. Mary Manoranjani AIR 2008 SCW 704.)
18. Articles 14 and 16 of the Constitution of India have to be construed in a broad and general, not in a technical way for the reason that these Articles apply with rigors not merely at the time of appointment but subsequent to the employment also for the purpose of promotion etc. (Vide General Manager, Southern Railways v. Rangachari : (1970)IILLJ289SC ; Government of A.P. and Anr. v. A. Suryanarayan arao and Ors. : AIR1991SC2113 ; and Union Public Service Commission v. Girish Jayantilal Vaghela and Ors. (supra)).
19. Admittedly, no such procedure has been followed. If the appointment of the Commission of Inquiry is to be held as an employment, then mandatory requirements of Articles 14 and 16 are necessary to be observed which are never followed. Thus it is apparent that it cannot be an employment in strict legal sense.
20. In Hargovind Pant v. Dr. Raghukul Tilak and Ors. : [1979]3SCR972 , the Constitution Bench of the Hon'ble Supreme Court confirmed the judgment of a Full Bench of the Rajasthan High Court in, Har Govind Pant v. Chancellor, University of Rajasthan and Ors. , wherein the issue arose as to whether the office of a Governor of a State is an 'employment' under the Government. An ex-member of a State Public Service Commission had been appointed as Governor. Therefore, the question arose as to whether any disability provided under Article 319 of the Constitution to hold any civil post under the State after ceasing to be a member of the Commission would apply. The Apex Court held as under:.. It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, it one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of Clause (d) of Article 319...
(Emphasis added).
21. In Union of India v. Sankalchand Himatlal Sheth : [1978]1SCR423 , the Apex Court considered the issue as to whether a High Court Judge is a government servant and held that the relationship between the Government and High Court Judge is not of an employer and employee. He is the holder of the Constitutional office/post and performs constitutional function and duties. He has to adjudicate upon the question whether the executive or the legislature has overstepped its power under the Constitution. The Court held that though Article 217(1) provides for appointment of a person to the office of High Court Judge by the President, which amounts in fact and substance the Central Government, but that is only laying down the mode of appointment and it does not make the Central Government an employer of a High Court Judge. Further the Court held that the Central Government does not become the employer of the High Court Judge, as a Judge he does not have any employer. He occupies a high constitutional office, which is coordinate between executive and the legislature.
22. In Dr. Chandra Bhan Singh v. State of Rajasthan and Ors. , the Rajasthan High Court considered whether an ex-member of the State Public Service Commission could be appointed as an Advocate General. The question arose as to whether the disability under Article 319(3) of the Constitution was attracted. The Court held that office of the Advocate General was not an employment under the Government within the meaning of Article 319(d) of the Constitution. The appointment of the Advocate General was to be made under Article 165(1) of the Constitution and there was no bar in that Article to appoint a person who had earlier been the member of the Public Service Commission. The Court held as under:
Although under Clause (3) the office is held by the Advocate-General during the pleasure of the Governor and such remuneration is received by him, as may be determined by the Governor, yet, in my opinion, he cannot be treated as a Government servant on this score, because he holds the office to discharge the functions under the Constitution, as is evident from Clause (2) of Article 165 thereof without being subordinate to the Government of the State. For the discharge of functions and duties of his office he is not controlled by the Governor or the State Government, because while giving advice to the State Government upon any legal matter referred to him or while performing duties of a legal character assigned by the Governor or while discharging the functions conferred on him by or under the Constitution or any other law for the time being in force, he is free to exercise his discretion, though according to law, and according to his best ability the Governor or the State Government is not empowered to ask him to discharge his functions or to perform his duties in the manner in which they like. Similarly, he is free to give such legal advice or assistance to private parties in all such cases in which he is not likely to be called upon to give advice to the Government or to conduct or argue them in the Court on behalf of the State....
23. In Statesmen (Private) Ltd. v. H.R. Deb : [1968]3SCR614 , a Constitution Bench of the Supreme Court held that the High Court in a quo warranto to proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.
24. The Hon'ble Supreme Court in B. Srinivas Reddy v. Karnataka Urban Water Supply & Drainage Board Employee's Association and Ors. : AIR2006SC3106 referred to Black's Law Dictionary for the purpose of defining 'public office' as under:
Public Office : Essential characteristics of 'public office' are : (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of Government, key element of such test is that 'officer' is carrying out sovereign function.
Essential elements to establish public position as 'public office' are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and power must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity.
(Emphasis added)
25. In Commissioner, Agra and Ors. v. Rohtas Singh and Ors. : 1998CriLJ838 , the question arose regarding the status of the Advocate General as to whether he could appear for private party or refuse to appear for the Government Servant on the instruction of the State. The Court came to the conclusion that in a broad situation, the Advocate General may decline to appear for the officer or the employee of the State Government if he so wants. While deciding the said case, reliance had been placed upon its earlier judgment in the case of T.C. Hingorani v. G.P. Misra 1967 A WR 662; and Mohd. Iqbal Khanday v. Abdul Majid Rather : [1994]3SCR396 . In T.C. Hingorani (supra), the Apex Court held that the Advocate General was not a Government Servant though he received the remuneration for his appointment under Article 165(3) of the Constitution and he was subject to other terms and conditions of his appointment.
In Union of India and Anr. v. U.D. Dwivedi : AIR1997SC1313 , the Apex Court examined a case where a former member of Union Public Service Commission had accepted the engagement on contract basis as a Chairman of the Assessment Board in Recruitment and Assessment Centre (RAC) of Defence Research & Development Organisation (DRDO). The Court held that bar under Article 319(c) of the Constitution prohibits this kind of engagement even on contract basis under the Government of India or State Government. The Court observed that the constitutional mandate prohibits employment and therefore it becomes immaterial whether the employment is under a contract or otherwise for considering ineligibility.
26. Section 5(3) of the Act, 1995 is quoted hereunder:
Save as otherwise provided in Sub-section (1) on ceasing to hold office, the Lokpal or a Lokayukta shall be ineligible for further employment under the State Government or for any employment under o office in any such local authority, corporation, Government company or Society.
(Emphasis added).
It would be also relevant to refer to Section 7 of the Act which is quoted hereunder:
7. Mattels which may be investigated by Lokpal or Lokyukta-(1) Subject to the provisions of this Act, the Lokpal may investigate any action which is taken by or with the general or specific approval of:
(i) a Minister or the Chief Secretary or a Secretary; or
(ii) any other public servant being a public servant of a class or sub-class of public servant notified by the State Government in consultation with the Lokpal in this behalf;
in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Lokpal, the subject of a grievance or an allegation.
(2) Subject to the provisions of this Act, a Lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being a Minister, the Chief Secretary or a Secretary or other public servant to in Sub-section (1) in any case where a complaint involving a grievance or an allegation is made in respect of such action can be or could have been, in the opinion of the Lokayukta, the subject of a grievance or any allegation.
(3) Notwithstanding anything contained in Sub-section (2) the, Lokpal may for reasons to be recorded in writing, investigate any action which may be investigated by a Lokayukta under that Sub-section whether or not a complaint has been made to the Lokpal in respect of such action.
(4) Where two or more Lokayukta are appointed under this Act, the Lokpal may, by general or special order, assign to each of these matters which may be investigated by them under this Act:
Provided that no investigation made by a Lokayukta under this Act and no action taken or thing done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.
27. On a conjoint reading of the aforesaid two provisions, it would be clear that once a person has been appointed as a Lokpal, such a person is disqualified from holding any employment either under the State or any employment under any local authority, corporation, Government company or Society. Apart from this disqualification or ineligibility, since the Lokpal has the authority under Section 7 to investigate any action which is taken by or with the general or specific approval of the Minister or Chief Secretary or a Secretary or any other public servant, such a person can no longer be appointed to such post and remains ineligible for such employment.
28. Learned Counsel for the petitioner placed reliance upon a judgment of the Hon'ble Supreme Court in Shri Justice S.K. Ray v. State of Orissa and Ors. : [2003]1SCR434 ; and particularly on the following observations:
xxx Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the Office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all times to come thereafter.
29. The above observation has been made by the Hon'ble Supreme Court in view of the submissions made by Sri Justice S.K. Ray, Ex. Chief Justice of Orissa that he had incurred certain disabilities to hold the office being ineligible for further employment under the State Government or for any other employment under in any such local authority, corporation, government company or society registered under the Societies Registration Act, 1860.
30. In view of the above prayer made by the appellant and in consequence of the disqualification of the person to hold the office of Lokpal, the Apex Court allowed the appeal and modified the order of the High Court to the extent of awarding compensation for the period he could have continued in office.
31. In the said case issue was as to whether after appointing him as Lokpal for a term of five years he could have been removed from the office in the midst of his tenure. The Apex Court had not considered the issue as to whether he had incurred disability for having employment etc in future after completing the tenure of his office.
32. In the light of the above decision, Hon'ble Supreme Court clearly emphasized that a person who had hold the office of Lokpal is disentitled from holding any employment under Section 5(3) of the Orissa Lokpal and Lokayuktas Act, 1995.
33. The Supreme Court considering the above aspects of the matter held that even after the Lokpal ceases to hold office, such a person is not only ineligible for employment under the State or its agency but is also ineligible to hold such post to which 'strings are attached to him by reason of holding office earlier.'
34. In the present case at hand, the appointment of the opposite party as Commission of Inquiry cannot be termed as 'employment' as referred under the provisions of the Act, 1995.
35. Under the provisions of Section 3 of the Commissions of Inquiry Act, 1952, 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. Therefore, such appointment cannot be termed as an appointment to a post where there is master servant relationship. The Commission so appointed cannot be replaced by any other person and it does not survive after submission of the report. Such appointment cannot be treated as 'employment' under the State or his agency and the Commission of Inquiry does not come within the scope and ambit of the post of Lokpal for the matter of investigation and therefore no springs can be attached to such post.
36. In Mehboob Dawood Shaikh v. State of Maharashtra : 2004CriLJ1359 , the Court observed as under:
A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treat it to be complete law decided by the Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Supreme Court.
While deciding the said case, reliance has been placed by the apex Court upon the judgment in CIT v. Sun Engineering Works (P) Ltd. : [1992]198ITR297(SC) , where it has been held as under:
The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.
37. Similarly in Madhav Rao Scindia v. Union of India : [1971]3SCR9 , the apex Court held as under:
It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.
38. Thus, the judgment is to be read in the context it is decided taking into consideration the issues involved therein. The Apex Court had not gone to consider the issues involved herein for the simple reason that in the case of Justice S.K. Ray v. State of Orissa and Ors. : [2003]1SCR434 ; the Apex Court was considering as to whether he was entitled for any compensation for being removed in the midst of tenure of his appointment and the issue of disability had to be taken into consideration. But this was not the issue as to whether Justice S.K. Ray had become ineligible for any other appointment in State.
39. Section 10 of the Act 1952 provides that every member of the Commission and every officers appointed shall be deemed to be a public servant within the meaning of Section 21 of Indian Penal Code (hereinafter called 'IPC').
40. It has been submitted by Mr. Nanda, learned Counsel for the petitioner that being a public servant it is implied that Commission is a Government servant and thus it is enough to hold that Commission of Inquiry is an 'employment'.
41. There is a complete fallacy in the submissions made on behalf of the petitioner. Had it been so, there was no occasion for the legislature to define the servant of the Government under Section 14 IPC separately. Section 14 IPC defines 'Servant of Government' means any officer or servant continued, appointed or employed in India by or under the authority of Government. 'Public servant' may not necessarily be a 'Government servant' or may not be in any 'employment' of the State for the simple reason that it is an illustrative definition and certain powers and obligations had been conferred upon the person who is being asked to perform a public duty. Every officer of a Court of Justice (including a liquidator, receiver or commissioner), every juryman, assessor, or member of a panchayat assisting a Court of Justice, Arbitrator etc. have been included under Section 21 of IPC as a 'public Servant'.
42. A Full Bench of Andhra Pradesh High Court in Advocate General of Andhra Pradesh, Hyderabad v. Rachapudi Subba Rao held that a High Court Judge is a public servant undoubtedly, but he is not a Government Servant. Therefore, mere referring to the provision of Section 10 of the Act would not serve the purpose. However, Mr. Nanda was not willing to render any assistance to the Court any further on this issue.
43. The word 'Public Servant' is distinguishable from 'Government Servant'. A public servant is not necessarily a Government servant. A public servant may not be on the payroll of the Government, but a Government servant always remains on the payroll of the Government. The term 'public servant' in a wider connotation might include a Government servant. A public servant means a person who has been asked to exercise to some extent and in certain circumstances a delegated function of the Government. He may be with some authority of representative character or his duties are immediately auxiliary to those persons who have earned.
44. The power of the Commission under the Act is only to make a recommendation in respect of the matter referred to it after having investigation/enquiry, and the said report cannot be termed as 'judgment' nor there is any usurpation of judicial functions. A division Bench of the Andhra Pradesh High Court in Md. Ibrahim Khan v. Susheel Kumar and Anr. : AIR1983AP69 , after considering the entire law examined the nature of proceedings under the Commissions of Enquiry Act, 1952 and reached the following conclusion:
We may now sum up our conclusions:
(i) The use of the accolade judicial or quasi-judicial to inquiries under the Commissions of Inquiry Act, strictly speaking, is inappropriate.
(ii) A quasi-judicial inquiry equally presupposes like a judicial inquiry the existence of a dispute between two or more . parties and investigates and declares the liabilities.
(iii) Before a Commission of Inquiry appointed under the Act, there is no lis between the parties and no decision prejudicially affecting the rights of parties by the Commission, is given. The function of the Commission is purely to investigate, assess the ascertained facts and report. That is the purpose and the end. The report of the Commission is not binding on the Government.
(iv) The procedure to be followed by the Commission has been laid down in Sections 8B and 8C of the Act. The basic rules of natural justice have been incorporated in Sections 8B and 8C of the Act and the Commission is invested with the power to regulate its own procedure subject to the provisions of the Act and the rules made thereunder.
(v) The provisions of Sections 8B and 8C of the Act do not confer the right to summon parties who have given evidence on affidavit for cross examination. The general right to cross-examine a witness will accrue only when the evidence is recorded viva voce.
(vi) Rules of natural justice do not supplant but only supplement the law.
45. In T.T. Antony v. State of Kerla and Ors. : 2001CriLJ3329 , the Apex Court held that the Courts, civil or criminal, are not bound by the report or findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law. The report and findings of the Commission of Inquiry are meant for information of the Government. 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. The investigating agency may take the advantage and make use of the report of the Commission in its onerous task of investigation bearing in mind that it does not preclude the investigating agency from forming a different opinion under Sections 169/170 Cr.P.C. if the evidence obtained by it supports such a conclusion.
46. Section 4 of the Act, 1952 undoubtedly gives the Commission with certain powers of the Civil Court, but it does not confer on it the status of a Court. In Sub-section 4 of Section 5 of the Act the Commission is deemed to be a Civil Court and under Sub-section 5 of Section 5 it imparts to the proceeding before it the character of judicial proceeding. However these provisions are only to create a friction and cannot be extended beyond the purpose for which it is created. Therefore, the Commission does not become a Court.
47. In State of Gujarat v. Consumer and Education Research Centre and Ors. : AIR1984SC652 , the Apex Court has held that in exercise the power under Section 7(1)(a) of the Act, the Government has ample discretion to discontinue the inquiry if it is of the opinion that continuation of the said inquiry was wholly unreasonable.
48. In State of Madhya Pradesh v. Ajay Singh : AIR1993SC825 , the Apex Court held that where a single member Inquiry Commission is appointed, it cannot be substituted by another member, as it is beyond the competence of the State Government. Therefore, the Single Member Commission cannot be re-constituted after its appointment by replacing the existing sole member by any other person.
49. Mr. Nanda had unfortunately played a uncharitable role and was not able to explain what he was arguing. His submission was that his case is squarely covered by the judgment of the Apex Court in S.K. Ray (supra) and therefore the petitioner was entitled for the reliefs sought in the petition and he was not concerned to any other question or judgment of any Court whatsoever. He referred to the provision relating to sovereign function but he straightaway expressed his inability to explain what is sovereign power and what sovereign function means. He also requested the Court not to ask him any question as it interrupts his thoughts.
50. It is settled legal proposition that in the absence of proper assistance to the Court by the lawyer, there is no obligation on the part of the Court to decide the case for the simple reason that unless the lawyer satisfies the Court that there is some balance in his client's favour to alter the situation, the Court is not able to decide the case. It is not for the Court itself to decide the controversy. (Vide Thakur Sukhpal Singh v. Thakur Kalyan Singh and Anr. : [1963]2SCR733 ; and in Mst. Fakrunisa and Ors. v. Moulvi Izarus Sadik and Ors. AIR 1921 PC 55.)
51. In T.C. Mathal and Anr. v. District & Sessions Judge, Thiruvananthapuram, Kerala : 1999CriLJ2092 , Supreme Court observed:
The work in a Court of law is a serious and responsible function. The primary duty of a...Court is to administer...justice. Any lax or wayward approach, if adopted; towards the issues involved in the case, can cause serious consequences for the parties concerned.... In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the Court gets proper assistance from both sides.
52. The Rajasthan High Court in Bhola Singh and Ors. v. The Prescribed Authority The Tehsildar and Ors. held as under:.the quality of the judgment depends upon the assistance rendered at the Bar. The Judge can not take the entire responsibility of laying down a correct law unilaterally without any assistance of the learned members of the Bar. The Judge cannot afford to retire from chamber and sit in the library and find out the case law on the issues involved in every case and what is the occasion to do anything in a case where the pleadings are so vague as the petition itself cannot be entertained.
53. In D.P. Chadha v. Triyugi Narain Mishra and Ors. (2001) 2 SCC 221 the Apex Court has observed as under:.Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. As responsible officers of the Court, as they are called - and rightly, the counsel have an overall obligation of assisting the Courts in a just and proper manner in the just and proper administration of justice.... A lawyer must not hesitate in telling the Court the correct position of law when it is undisputed and admits of no exception....This obligation of a counsel flows from the confidence reposed by the Court in the counsel appearing for any of the two sides. A counsel, being an officer of Court, shall apprise the Judge with the correct position of law whether for or against either party.
54. In the instant case, no assistance has been rendered by the learned Counsel for the petitioner, rather he submitted otherwise. In the written notes submitted by the learned Counsel for the petitioner, it is stated that petitioner has never prayed before this Court for issue of writ of quo warranto. Therefore, this Court cannot insist and ask as to what are the circumstance where a writ of quo warranto can be issued. The relevant part of the written submissions reads as under:
It is humbly submitted that in order to mislead and confuse the proposition of the case such a argument has been advanced. A bare reading of the writ petition at page-9 in the prayer portion the petitioner has never prayed any particular writ far less writ of quo warranto.
On this technical issue, Court was expecting proper assistance Bar. However, Mr. Nanda comfortably avoided every question Court does not have any right to seek any clarification or explanation on the factual and/or legal issues. Under Section 165 of the Evidence Act, the Court has a right to ask any question unless it falls under any exception mentioned therein. The party and its counsel is under legal duty to answer the same, even if the questions put to the counsel is relevant or irrelevant.
55. Be that as it may, as we reach an inescapable conclusion that Commission of Inquiry does not fall within the disability prescribed under Section 5(3) of the Act, 1995 being not employment, the petition is liable to be dismissed and is accordingly dismissed.
B.N. Mahapatra, J.
56. I agree.