B.N. Kirpal, J.
(1) Two Officers of the Indian Po,lice Service viz, Chander Prakash and Sewa Dass have filed these two writ petitions claiming similar reliefs viz., that the Notification dated 23rd February, 1987 constituting a Committee of Mr. Justice Dalip K.Kapur (retd.)and Km. Kusum Lata Mital be quashed and, further no action be taken by the respondents on any report or observations made by any of the members of the said Committee.
(2) Briefly stated the facts are that Chander Prakash joined the Indian Police Service, and was allotted the Union Territory's cadre, in the year 1971 while Sewa Dass was appointed to this service in 1973. On 31st October, 1984 Smt. Indira Gandhi, the then Prime Minister of India was assassinated by her security guards. Both the petitioners were, at that time, posted at Delhi. Chander Prakash was Deputy Commissioner of Police, South Delhi and Sewa Dass was serving as Deputy Commissioner of Police, East Delhi.
(3) The aftermath of the dastardly act of murder of a Prime Minister of this country was that large scale communal riots broke out in Delhi. For three days there was arson, looting and killing of innocent persons. Allegations were made to the effect that no effective steps were taken to control the situation and there was a complete break down of law and order. The immediate result of this was that on 12th November, 1984 Shri S.Tandon, the then Commissioner of Police of 'Delhi was transferred and in .his place Shri S.S.Jog was appointed.
(4) With a view to enquire into the alleged failure of the Delhi Police in controlling the riots Shri S.S. Jog vide his order dated 25th November. 1984 appointed Shri Ved Marwah, Additional Commissioner of Police, Delhi as a one man Inquiry Committee. Shri Ved Marwah was appointed to conduct an inquiry to identify the causes and the officers/men behind the alleged failure of Delhi Police to maintain law and order. Some specific points were also referred, in this behalf, to the Committee which arc not relevant for our purposes.
(5) The committee was not allowed to function for any great length of time. The petitioners in April, 1985 filed a Suit No. 67/85 in this Court, inter alia, praying for a decree for quashing and setting aside the Inquiry Report alleged to have been prepared by Shri Marwah and for permanently injuncting the Government from publishing the impugned report. Along with the suit an application for interim injunction was also filed and by a detailed order dated 25th November, 1985 a single Judge of this Court restrained Shri Ved Marwah and the Commissioner of Police from publishing the inquiry report or from submitting the same to Lt. Governor and the Union of India from taking any action against the plaintiffs. None of the defendants took any steps to file an appeal against the said order and to have it set aside.
(6) On 26th April, 1985 the Government of India issued a Notification under Section 3 of The Commissions of Inquiry Act, 1952 (hereinafter referred to as the said Act) appointing Mr. Justice Rang Nath Mishra (as he then was) as a Commission of Inquiry to inquire into allegations in regard to the incidents of organized violence which took place in Delhi following the assassination of late Smt. Indira Gandhi. One of the two terms of reference was 'to recommend measures which maybe adopted for prevention of recurrence of such incidents'. Report was submitted by Mr. Justice Rangnath Mishra which, inter alia, contained a recommendation for setting up of an Inquiry Committee to make further detailed inquiry into the delinquencies and good conduct of Police Officers. It was pursuant to this recommendation, which was accepted by the Government, that on 23rd February, 1987 while the Government placed the report of the Rangnath Mishra Commission in the Parliament, the Delhi Administration issued an order appointing Mr. Justice Dalip K. Kapur and Km. Kusum Lata Mital as a Committee to conduct inquiry. The said order is as follows:
(7) 'WHEREAS a number of deaths occurred and a number of grave offences were committed in various incidents of rioting following the assassination of the late Prime 2. Whereas it is reported that there was total passivity, callousness and indifference of the Police in the matter of controlling the situation and protecting the people within the Union Territory; 3. Now, thereforee, the Administrator of Delhi hereby appoints a Committee consisting of Justice Dalip K.Kapur, former Chief Justice of Delhi High Court and Kumari Kusum Lata Mital, retired Secretary to the Government of India to conduct enquiries with the following terms of reference: (a) Enquire into delinquencies of individual police officers and men with respect to matters referred to in paragraph 2 above and also good conduct of individual police officers and men and recommend such action as may be called for; (b) Any other matter related to the above. 4. The Committee is hereby authorised to obtain such information, papers or any other assistance from the Delhi Administration including Delhi Police as may be required by it for the purposes of its enquiry. 5. The Committee is required to submit its report to the Administrator of Delhi within six months from the date of issue of this order.'
(8) According to this order the Committee was authorised to obtain such information, papers or other assistance from the Delhi Administration including the Delhi Police as may be required by it for the purpose of its inquiry. Before the report could be submitted by the said Committee, Chander Prakash filed the present writ petition (CW 2271/88) praying for the reliefs which are mentioned here in above, while issuing rule nisi a Division Bench of this Court on 4th October, 1988 directed that in case any report is submitted, pending notice of motion then no action will be taken against the petitioner until further orders.
(9) On lst March, 1990 it is alleged that the said Committee submitted two separate reports to the Lt. Governor. According to the averments in the writ petition filed by Sewa Dass (CW 3593/90); while Mr. Justice Dalip K. Kapur did not give any finding but recommended that a detailed inquiry should be made only after giving an opportunity of hearing to the police officials, Km. Kusum Lata Mital, however, has submitted her findings based on the ex parte inquiry. In the writ petitions not only is the Notification dated 23rd February, 1987 being challenged but the challenge is also to the report so submitted specially by Km.. Kusum Lata Mital.
(10) It was vehemently contended by the learned counsel for the petitioners that the inquiry in question was a public inquiry and not an internal or preliminary enquiry. Elaborating this contention it was submitted that in view of its nature and function the Committee appointed under The Commissions of Inquiry Act, 1952. The main contention of the learned counsel, in this behalf, was that no Inquiry Committee in respect of a definite matter of public importance could be constituted by the Lt. Governor in exercise of his Executive powers and an Inquiry Committee could only be appointed under The Commissions of Inquiry Act, 1952. In order to further strengthen his contention the learned counsel drew our attention to a public notice which had been issued by the said Committee inviting, from members of the public, affidavits, from those persons who were -acquainted with the subject matter of the Inquiry. In this connection it is also submitted by Shri Gupta that the report which was submitted was meant to be public and as the terms of reference were matters of public importance, thereforee, a reference could only have been made to a Committee under the said Act. The main reason for raising this contention, according to the learned counsel for the petitioners, is that the persons whose conduct is called in question should have an opportunity to defend themselves. It was submitted that if a Commission had been appointed under The Commissions of Inquiry Act then if a conduct of a person is likely to be called in question, in that case Section 8B of the said Act enjoins a notice being issued to the person concerned. The grievance of the petitioners is that by not regarding this Committee as having been appointed under the said Act the protection of Section 8B is not being accorded to them.
(11) Before dealing with this contention we propose to examine and analyze the background in which this Committee came into existence.
(12) Rangnath Mishra Commission had at page 34 of its report observed as follows:
'THOUGH senior police officers have denied that there was any active support or association of the Police with the crowds and the Commission does not have any definite material against named policemen of having played such role, it is difficult to reject the allegation as baseless. The Commission is of the view that detailed investigation inquiry should be undertaken to find out whether some policemen of the Delhi Administration had not behaved that way.'
(13) Having stated that a detailed investigation should be undertaken, the Commission gave the reasons why it did not do so itself. In this behalf the Commission observed as follows;
'At one stage the Commission- was inclined to go into the lapses, issue notices under Section 8B of the Commissions of Inquiry Act and record findings of lapses, but in view of the evidence later available that the lapses were rampant and several officers of different ranks would be involved if such an inquiry is undertaken, the Commission changed its approach io the matter. Such an inquiry would have protracted the proceedings and unusual delay in submission of the report on the issues referred to the Commission was not considered expedient. Again, the Commission has taken into consideration the position that even if a finding under section 8B of the Act is given,- it would not bring about suitable punishment for the delinquency that may be found and further administrative or criminal action would be necessary for such purpose. Keeping all these aspects in view, the Commission has not thought it proper to name anyone as a delinqent. This, however, does not mean that the Commission is of the view that the conduct of the delinquent police officers should not be inquired into. On the other band, the Commission is of definite opinion that a proper inquiry should be undertaken. Such a probe is in the interest of the police as a force as also the Administration. The black sheep can be identified and suitably dealt with. The dutiful officers should be commended. The defects can be found out and remedied. The morale of the police as a disciplined and professional force can be streamlined on the basis of the result of the inquiry.'
(14) Again at page 40 of the report the Commission made specific reference to the two petitioners and observed that:-
'THE tell-tale circumstance which the Commission is prepared to gather from the conduct of these two Deputy Commissioners of Police is that they were afraid of facing an enquiry. An attempt was made by the Commission to examine Shri Sewa Dass and notice bad been issued but service could not be effected. The Commission did not think it worthwhile to proceed further in the matter of his examination by it as the Commission proposed recommending a detailed inquiry to be undertaken.'
(15) Thereafter the commission recommended that an inquiry into the conduct of police officers should be undertaken and 'since a lot of time has been lost and a detailed inquiry may not be very effective and useful, the Commission recommends that an inquiry be undertaken without delay and preferably the inquiry be bandied by a Committee of two persons-an experienced retired Judge of a High Court and an experienced civilian.A time frame should be prescribed for its working.'
(16) The order dated 23rd February, 1987 was, thereforee, issued pursuant to the aforesaid recommendation of the Rangnath Mishra Inquiry Commission. While the order required the Committee to submit a report within six months, as it transpires no report was submitted till 1st March, 1990, after nearly three years. As alleged by the petitioners atleast one of the two members of the Committee viz., Mr.. Justice Dalip K.Kapur did not give any finding on the terms which had been referred to the Committee. He did not indict any officer who was delinquent nor did be point out any officer who had rendered meritorious service and whose conduct was good. He was of the opinion that good and/or delinquent officers could be identified only after principles of natural justice were complied with.
(17) Be that as it may the order itself required an inquiry to be made, inter alia, into the delinquencies of individual police officers, in respect of allegation of passivity, callousness and indifference of the police in the matter of controlling the situation and protecting the people within the Union Territory. This order authorised the Committee to obtain information papers or other assistance from the Delhi Administration including Delhi Police as may be required by it for the purpose of its inquiry. This order did not contemplate any regular trial or a public inquiry as envisaged by The Commissions of Inquiry Act, 1952. By making specific reference to information, papers and assistance from Delhi Administration the implication is that it was primarily from the evidence on record that the inquiry had to be conducted by the committee. Another pertinent fact is that no Notification was issued under section Ii of the Commissions of Inquiry Act directing the applicability of that Act to this committee,
(18) In our opinion the Kapur-Mital Committee was a fact finding Committed During the period of riots various acts of commission and omission had occurred What were these acts bad to be identified. Who were the persons who were responsible for any acts of commission or omission was not known and, thereforee, those persons had to be identified. Ordinarily such a task could have been undertaken by an Officer of the Delhi Administration but it was in deference to the recommendation of the Rangnath Mishra Commission that a two member high powered Committee was appointed. Even though this Committee may not be called a Committee which was required to give a preliminary report nevertheless this Committee was a purely administrative Committee which was required to do the spade work and, inter alias identify the police officers who were guilty of lack of diligence or other officers whose conduct had been good during the riots.
(19) It is clear from the extract of the Rengnath Mishra Commission report that no notices under Section 8B of the Act were issued by him. The reason stated in the report of the Commission was that issuance of such notices would have protracted the proceedings and the findings given, if adverse, would not bring about suitable punishment to the delinquent officers. The implication clearly was that departmental proceedings against the delinquent officers should take' place who would then have all the opportunities of defending themselves. At that stage, when the report of the Commission was submitted, it was not known as to who were the officers or other police personnel against whom action was to be taken and what were the specific allegations, if any, against which person, had to be clearly spelt out before any disciplinary proceedings are initiated. thereforee, it was necessary for a Committee to go into the material which was available and, inter alia, identify the officers against whom charges were to be framed. The Committee, thereforee, was not meant to be a Commission of Inquiry constituted under the Commissions of Inquiry Act.
(20) If the contention of the learned counsel for the petitioners is accepted that whenever there is a definite matter of public importance then only a Commission under The Commissions of Inquiry Act has to be appointed, it would mean that the said Act is mandatory in terms. The Commissions of Inquiry Act was enacted so as to provide for the appointment of Commissions of Inquiry and for vesting such powers to the Commissions. This is an enabling Act which, whenever definite matters of public importance arise can enable the Government or the appropriate authority, if it so desires, to set up a formal Commission of Inquiry. The Act nowhere states that whenever a definite matter of public importance arises the Government must set up a Commission of Inquiry. The power of the Government or the appropriate authority to set up an administrative committee or to require any individual officer to examine the facts and give an administrative report is not ousted. On the contrary Section Ii of the said Act gives legislative recognition to the existence of authorities which have been constituted to make inquiries into definite matters of public importance by administrative powers and were not governed by the provisions of the Act. Section Ii enables the Government to issue a notification making the provisions of the Act applicable to such an administrative authority. In other words Section Ii recognises the existence of an administrative authority to whom, at any later point of time, the provisions' of the Act are extended.
(21) The matter may be viewed from another angle. If the Government or any employer wants to take action against a delinquent officer it has to apply its mind before any action is taken. Under the Service rules the Government has a power to suspend an employee against whom disciplinary proceedings are contemplated. It is open to the employer to take disciplinary proceedings for the purpose of imposing major or minor penalties. The employer must first, thereforee, apply -its mind before coming to a conclusion whether to take any action against the delinquent employee. It is quite obvious that application of mind must be on some material which is available. Material or facts are gathered by inquiries or otherwise and if the facts which appeal on the record justify disciplinary proceedings being initiated then an action will be taken. Before action is taken, thereforee, material has to be gathered, offences identified and the delinquent officers named. This is all done administratively. The disciplinary authority may do it itself or may require any other person to look into the complaints which may be [available and to give a preliminary report. The occurrence which may give rise to the taking of disciplinary proceedings may be such that it may not be known as to what were the acts of commission or omissions and who was responsible for them. To give an example, if a Government body, and it has happened in Delhi, constructs a housing complex and after a few years it is found that the construction was sub-standard and the foundations of some of the multistoreyed buildings started sinking. The occurrence of such a situation is clearly a matter of public importance. It would call for an action being taken by the departmental authority but it may not be known as to what is the cause of the sinking of the foundations. It may also be not known as to who were the officers, if any, who were either negligent or who bad connived in this bad construction. Is it necessary to set up a commission of inquiry under The Commissions of Inquiry Act in order to determine as to what is the cause of the sinking of foundations or who were the officers who were responsible for the same? The answer, in our opinion, must be an emphatic 'No'. Of course facts will have to be gathered; it may become necessary for the governmental organisation to take outside assistance of experts like civil engineers, surveyors etc. in order to find out as to what was the cause for the building to sink and in this regard persons may have to be examined in order to ascertain as to which of its employees, prima facie, were responsible for the said outcome. This fact finding has to take place before any disciplinary action is initiated and the action of the employer cannot be regarded, while gathering facts, as judicial or quasijudicial or even administrative which would require the principles of natural justice being complied with.
(22) The Kapur-Mital Committee, in our opinion, was required to do no more than to gather facts swiftly and then inform the Government whether it should take action against any police officer and if so against whom. Just as in the example which we have given a departmental committee or an officer could be legitimately required to go into the causes of bad construction, similarly the Kapur-Mital Committee has been constituted to ascertain facts.
(23) It is no doubt true that a public notice was issued asking for affidavits to he filed with regard to the terms of reference but in the very nature of things this was necessry. When the Committee bad to find out as to what were the causes of commission or omission which had taken place, it is the members of public who would be aware of the same. The Committee , have deputed one of the officers attached to it to go and meet members of the public individually and to gather information. This would have resulted in a lot of time being consumed and, thereforee, the solution which it found was that members of the public who knew about any occurrence with regard to 1984 riots were asked to give the requisite information in the form of affidavits. We do not see any infirmity in the said action of the committee. The issuance of such a notice in an effort to gather evidence would not .make the committee a public commission of inquiry. We are informed by Mrs. Ahlawat that the report which was submitted by the two members of the Kapur-Mital Committee on 1st March, 1990 has not been made public. Even the Parliamentary Committee on Government Assurances has not been made available with the .reports.
(24) In Brahma Nand Gupta v. Delhi Administration & Ors. 1989 (4) Delhi Law 94 a similar contention had been raised. In hat case pursuant to the report of Mr. Justice Rangnath Mishra another Committee consisting of Mr. Justice M.L.Jainnd Mr. A.K.Banerjee was constituted. That Committee was similar to the Kapur- Mital Committee. The contention raised in that case was that such a Committee could not have been constituted administratively and could only have been constituted under the Commissions of Inquiry, Act. While referring to the case of P.R.Nayak v. Union of India and Others, 1973 (1) Delhi 747 it was observed by a Division Bench of this Court of which one of us (B.N.Kirpal,J) was a party that: 'A Commissioner a Committee can be constituted by the Government dehors the provisions of The Commissions .of Inquiry Act.'
(25) It was then contended By Mr. Gupta that even if it is assumed that the impugned Inquiry Committee is only an administrative fact finding Committee nevertheless a part of the terms of reference which is 'to recommend action to be taken against the delinquent officers' is without jurisdiction and a nullity and consequently the Committee had no power to recommend any action to be taken against the guilty officers. In support of this contention the learned counsel has drawn our attention to the decision of the Supreme Court in the case of R.K. Dalmia Vs . Justice Tendulkar, : [1959]1SCR279 . In that case one of the terms of reference which was made to the Commission was to make recommendation about the action to be taken 'as and by way of securing redress or punishment'. The Supreme Court observed that the words 'as and by way of securing redress or punishment' occurring in this reference could not be said to be at all necessary for or ancillary to the purposes of the Commission. The aforesaid observations of the Supreme Court in R.K. Dalmia's case can be of no assistance to the learned counsel for the petitioners. In R.K. Dalmia's case a Commission had been appointed under the provisions of The Commissions of Inquiry Act, 1952. The words 'as and by of securing redress or punishment' were ordered to be deleted because it was held that they 'clearly went outside the scope of the Act and such provision was not covered by the two legislative entries and should, thereforee, be deleted.
(26) In the present case, however, the Committee has not been constituted under the provisions of the said Act. This is purely an administrative Committee and has no constraints like the one which were there in R.K. Dalmia's case (supra). The Kapur- Mital Committee has been constituted for giving advice to the Government as to what action it should take, if any, against any of the officers who are identified, prima facie, to be guilty of dereliction of duty.
(27) Mr. Gupta then submitted that even if it be assumed that the impugned Committee is an administrative fact finding Committee nevertheless it was bound to follow principles of natural justice and should have associated the petitioners with the inquiry to be held. The contention was that principles of natural justice must be observed in all administrative actions and administrative inquiries as they are the basic structure of our Constitution, Jurisprudence and the rule of law. These rules of natural justice are required to be observed by all inquiry commissions whether they were constituted administratively or appointed under The Commissions of Inquiry Act. The same had merely been codified or given statutory recognition in Sections 8B and 8C of the 1952 Act. In other words whether the inquiry was under the Act of 1952 or an administrative inquiry the same must conform to the principles of natural justice and a person whose civil rights and reputation are likely to be affected must be given an opportunity of hearing. As this Committee bad not given the petitioners any opportunity of hearing, thereforee, the report submitted by it was a nullity and should not be acted upon. In support of his contention the learned counsel has cited the well known decision of A.K. Kraipak Vs . Union of India, : [1970]1SCR457 which has been followed in a number of decisions including a more recent decision of the Supreme Court in Union of India Vs . E.G. Nambudiri, : (1991)IILLJ594SC . It is contended by the learned counsel for the petitioners that if any adverse observations are made in the report of the Committee it is the reputation of the petitioners which will suffer and as held in the case of Kiran Bedi & Jinder Singh Vs . Committee of Inquiry, : 1989CriLJ903 the effect on reputation, involves civil consequences. thereforee, principles of natural justice, even in an administrative action, should be followed. Mr. Gupta also contended that further promotion of the petitioners is jeopardised because of the inquiry report of the Committee.
(28) It is, no doubt, true .that the development of jurisprudence in this country has been to the extent that even in case of an administrative action, principles of natural justice are required to be complied with, but only under certain circumstances. It is only if an administrative action is taken which results in civil consequences ensuing that the principles of natural justice have to be complied with. The meaning of this is that the administrative action itself must result in detriment to the affected party. A fact finding report either by an employee or by an outside expert informing the employer about' the correct state of affairs cannot fall under this category. The report itself, even if it indicts the petitioners is of no consequence and can have no adverse effect on the petitioners. As we have already noted it has been contended by Mrs. Ahlawat that the Kapur-Mital Committee report has not been released and not made public by the Administration. This being so the question of the report resulting in any adverse civil consequences would not arise.
(29) If the contention of the learned counsel for the petitioners is correct, then disastrous consequences will follow. It would mean that under no circumstance will an employer ever be able to take any departmental action against his employee without holding a two-fold inquiry because, as we have already indicated, no departmental proceedings can be held without the employer first making up its mind, after gathering facts on the record, that it is necessary to proceed against an employee. In this connection the employer may also deem it necessary to suspend the employee. The act of suspension or the act of initiating disciplinary proceedings would also, in a way, cast an aspertion on the career or reputation of a deliquent officer. Surely it cannot be seriously suggested that before any departmental proceedings are initiated an opportunity of bearing must be granted. Justus facts can be gathered departmentally prior to the initiation of departmental proceedings similarly, as in this case, an administrative Committee can be constituted for the purpose of collecting facts, and on the basis of it an administrative or disciplinary action can be taken. The confidential report .or advice which is tendered by the Committee cannot be regarded as visiting any civil consequences on the petitioners.
(30) Mr. Gupta, however, has strenuously urged that a contrary view has been taken by a Division Bench of the Orissa High Court in the case of Praful Chandra Vs . State, : AIR1988Ori18 . In that case an Inquiry Authority was appointed to go into the conduct of police officers. The inquiry was administrative in character and was not under the Commission of Inquiries Act, 1952. By an administrative order the Inquiry Authority had been constituted. Though the provisions of The Commissions of Inquiry Act were not applicable nevertheless it proceeded to hold a public inquiry. As is evident from page 26 of the report soon after the constitution of the Authority notices were issued inviting affidavits and documents and some of the petitioners who were responsible officers of the Government and were concerned with the situation of the incident which was to be inquired into were required to file affidavits. While fixing the modalities of further progress of the inquiry it was agreed that only the pities who would be or likely to be prejudicially affected by the evidence adduced from the oral examination, may cross-examine the witnesses and the cross-examination would be limited to the oral deposition before the Inquiry Authority. Moreover the Inquiry report was submitted to the Government. The observations and findings of the Inquiry Authority have been extracted in the judgment which seem to indicate that the public and certainly the petitioners had access to the report, which may have been made public. What is more important, thereforee, to note is that in Praful Chandra's case the Inquiry Authority had held a public inquiry which is not the case here. Kapur Mittal Committee examined no oral witnesses and no witness was cross-examined. Be that as it may, we are firmly of the opinion that a fact finding Committee like the present which merely gives advice to the Government prior to the initiation of the disciplinary proceedings under statutory rules cannot be regarded as a Committee whose report would attract the principles of natural justice.
(31) Reference may, at this stage, be usefully made to the decision of the Supreme Court in the case of Champaklal v. Union of India Air 4864 Sc 1954. In this case one of the questions which arose for consideration was whether the preliminary enquiry which was held, before the start of the departmental proceedings, is governed by the provisions of Article 311(2) of the Constitution. Explaining the nature of the preliminary enquiry and while holding that the provisions of Article 311(2) are not attracted the Supreme Court observed as follows:
(32) 'IN short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Art. 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex-parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, Explanationn is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the government and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that the protection implies as already indicated above. There must thereforee be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Art. 311 that the government servant is entitled to the protection of that Article.'
(33) In State of Orissa Vs . Shiva parashad Das, : (1985)IILLJ204SC the Supreme Court held that the provisions of Article 311 were not attracted when a government servant was suspended prior to the holding of the disciplinary proceedings.
(34) The principles enunciated in the aforesaid two cases would be clearly applicable here. The Kapur-Mital Committee was, in effect, a Committee required to give preliminary report on the terms of reference which had been made to it.It was, inter alia, required to enquire into delinquencies of individual police officers and men. Such enquiry would entail finding out details as to what actually happened and which particular police officers or men were connected therewith. A report indicating the facts with regard to individual officers who may prima facie be found to be guilty of delinquencies would, in the very nature of things, be a preliminary report to the Delhi Administration. The intention of constituting the Committee clearly was that after the Administration had received such a report, it will be able to make up its mind as to what action should be taken against which particular police officer.
(35) As on the date the order dated 23rd February, 1987 was issued and the Kapur- Mittal Committee was constituted, the Delhi Administration did not, it appears, have sufficient facts which could have enabled it to come to the conclusion as to against which officer departmental proceedings should be initiated. Allegations of delinquencies relating to individual officers could be made only after a preliminary report was received by the Delhi Administration. Even though the Committee which was constituted by the order dated 23rd February, 1987 was a high powered one nevertheless, in law, the report which it submitted was no different than a preliminary report and held in Champaklal's case (supra), it did not require the principles of natural justice to be followed. It is only when an action is taken and thereafter departmental proceedings initiated, as in this case, with the issuance of charge sheets to the petitioners, that the principles of natural justice will come into play. Furthermore suspending an officer also results in information not only to the officer concerned but also to the members of the public that a particular officer has been suspended pending departmental inquiry. Even though suspension itself does not result in reduction in rank and is also not regarded as a punishment nevertheless, in practical terms, a shadow is cast on the calibre of the officer concerned who is suspended pending departmental inquiry. Just as in such a case principles of natural justice have not to be complied with similarly the mere fact that an administrative report may indict any of the police officers would also not attract such principles as it by itself does not result in civil consequences ensuing. The report submitted by the administrative Committee has no force in the eye of law and it is merely a piece of advice or recommendation which the Government may or may not accept.
(36) Strong reliance was also placed by Mr. Gupta on the observations of Lord Denning in the case of Re Pergamon Press Ltd., 1970 (3) All E.R 535. In this case the Board of Trade ordered an investigation under the Companies Act into the affairs of the company and Inspectors were appointed. The said Inspectors recorded evidence and the Directors desired that the transcript of the evidence be given to them and they should be permitted to cross-examine the witnesses. The contention raised before the Court of Appeal was that the Inspectors should conduct the inquiry much as if it were a judicial inquiry in a Court of Law. This part of the contention was not accepted and it was observed by Lord Denning that: 'It seems to me that this claim on their part went too for. This inquiry was not a court of law. It was an investigation in the public interest, in which all should surely co-operate, as they promised to do.'
(37) It was observed that the Inspectors are not a Court of Law, their proceedings are not judicial proceedings, they are not even quasi-judicial for they decide nothing, they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meeting, nevertheless it was observed by Lord Denning that they have to make a report which may have wide repercussions. Their report may lead to judicial proceedings and may expose persons to criminal prosecution or civil action. Keeping these in mind it was observed by Lord Denning that:-
'SEEING that their work and their report may lead to such consequences, I am clearly of opinion that the Inspectors must act fairly.... The Inspectors can obtain information in any way which they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.'
(38) The aforesaid observations of Lord Denning have to be understood in the context in which they appear. That was a case where an inquiry had been ordered under the statutory provisions of the Companies Act. The report itself would have had the effect of prejudicing the Directors if any observations were made against. them as the same was to be produced in the proceedings. In the present case, however, the Committee which had been constituted is not under any statutory provision and its report was not made public or produced in any proceedings. It is merely a fact finding body.
(39) On the other hand the Supreme Court in the case of Krishna Chandra V. Union of India, : AIR1974SC1589 bad to deal with the contention that during the course of departmental inquiry, report which bad been made against the delinquent officer had not been supplied to him. In that case the Commissioner of Income-tax bad received numerous complaints against Krishna Chandra. The Commissioner of Income-tax asked an officer of the Department to inquire into the complaints and to make a report. This report was not made available to the officer and in this connection the Supreme Court observed as follows:-
'IT is obvious that the appellant was not entitled to a copy of the report made by Mr. Shrivastava or any other officer unless the enquiry officer relied on these reports. It is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, thereforee, before he makes up his mind be will either himself investigate or direct his subordinates to investigate in the matter and it is only after he receives the result of these investigations that he can decide as to whether disciplinary action is called for or not. thereforee, these documents of the nature of inter-departmental communications between officers preliminary to the holding of enquiry have really no importance unless the Enquiry Officer wants to rely on them for his conclusions. In that case it would only be right that copies of the same should be given to the delinquent. It is not the case here that either the Enquiry Officer or the Commissioner of Income-tax relied on the report of Shri R.N. Srivastava or any other officer for bids finding against the appellant. thereforee, there is no substance in this submission.'
(40) thereforee, a report which is preliminary in nature is meant only to assist the disciplinary authority in deciding as to what action, if any, is to be taken against the delinquent officer and the said report does not even have to be communicated to the officer concerned if the report is not relied upon during the departmental proceedings. thereforee, the question of any opportunity of hearing being granted by the Committee while collecting facts and making its report did not arise.
(41) Learned counsel for the petitioners had also relied upon the decision of the Supreme Court in the case of Bishamber Dayal Chander Mohan v. State of. U.P. : [1982]1SCR1137 . After referring to its earlier decision in the case of Ram Jawaya Kapur v. State of Punjab, : [1955]2SCR225 it was observed at page 42 that:
'IF there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill.'
(42) The learned counsel for the petitioners submits that these observations of the Supreme Court clearly imply that once The Commissions of Inquiry Act had been enacted the Government lost its right to issue any administrative directions requiring an inquiry to be conducted into definite matters of public importance. We arc unable to accept this contention. In this very case of Bishamber Dayal Chandra Mohan, it was observed that: 'so long as the State Government docs not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed' The two observations of the Supreme Court taken together would mean that the executive powers of the Government are co-extensive with its legislative powers but once a law has been enacted no executive power can be exercised which is in any way in conflict with or in violation of the law. We have already held that The Commissions of Inquiry Act is not mandatory in the sense that whenever any definite matter of public importance arises it is incumbent upon the Government to institute a public inquiry. This being so it was open to the Government to constitute a fact finding Committee, like the present, to advice or educate the Government and inform it about the correct state of facts on the basis of which further action could be taken by the Government. The same is not in conflict with the Act.
(43) It was then contended by the learned counsel for the petitioners that the report submitted by Kapur-Mital Committee was not a report of the Committee. To constitute a report of the Committee, it was contended, it must be a unanimous report but in the present case two different reports were submitted by the members of the Committee and such reports could not be acted upon by the Government and no charge sheet could be based on such reports.
(44) The two members of the Committee have expressed their own views in this case. It was not the requirement of the order constituting the Committee that the report bad to be unanimous. In any case the report was merely administrative in nature and had no binding force. Furthermore whenever a Committee is constituted, whether under the statute or otherwise, there is a possibility of divergence of opinion amongst the members. A Committee which is meant to advice the Government would be failing in its duty if its members did not express their own views, even if the views did not consider with each other. This is precisely what has happened in this case. Whereas Km. Kussum Lata Mittal was of the opinion that it was possible to give a definite report on the terms which bad been referred to it, Mr. Justice Dalip K. Kapur, however, came to the conclusion that it was not possible to identify the delinquent officers without giving them a fair opportunity of defending themselves. The report of Mr. Justice Kapur, thereforee, it appears, contained no names of officers against whom departmental action could be taken by the Government. In our opinion merely because different views were expressed by the two members of the Committee would not mean that the report submitted by them was no report on which the Government could take any action. In any case in the charge sheets which have been served on the petitioners there is no reference to the report of Mr. Justice Dalip K. Kapur or of Km. Kusum Lata Mital. It is possible that the respondents may have gathered material indicated in the report of Km Mital and thereafter issued the charge sheets. We see no legal infirmity in this. The report itself is not the basis of the charge sheets. In the charge sheets, charges are framed and statements of allegations have also been supplied to the petitioners. It is for the disciplinary authority to prove the charges against the petitioners. It is wholly immaterial whether the report submitted to the Government was unanimous or not.
(45) Learned counsel for the petitioners also relied upon the decision in the case of State of Bihar v. Jai nanadan Prasad Singh, . In that case a decision bad been taken by the District Committee, by circulation of the file, for the taking over of certain aided elementary schools. A question arose whether this decision was valid. Section 3(2) of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 provided that the aided elementary schools shall be taken over. by the State Government with effect from the date which may be determined by the District Committee. No meeting of the District Committee took place but the file was sent to the members of the Committee for their opinion. The Supreme Court observed that even though the file contained the signatures of all the members of the Committee it could not be said that there was a meeting of minds of the members on the question on which they had to take a decision.
(46) It will be seen that it was a provision of a statute which required the District Committee to take a decision. It is obvious that such a statutory decision could not be taken without the meeting taking place. In the present case, however, it is an administrative Committee which was set up which was required to give its report. It is evident that the two members of the Committee bad a difference of opinion but this itself shows the application of mind whereas in Jai nanadan Pd. Singh's case (supra) the conclusion of the Supreme Court was that there was no meeting of minds. The aforesaid decision is of no assistance to the learned counsel.
(47) It was further submitted by Mr. Gupta that the report of Km. Mital is vitiated by mala fide. Allegations in this behalf have been made in the writ petition. It has been alleged therein that she acted in an illegal and mala tide manner and tried to resurrect essentially the alleged report of Marwah Inquiry Committee despite an injunction granted by Mr. Justice M.K.Chawla. That she was trying to do so was allegedly reported in the press as far back as 11th July, 1988. Further allegation is that she avoided to record evidence and did not examine any witness. A more serious allegation contained in the writ petition of Sewa Dass is that Km. Mital leaked out the contents of the report or associated unauthorised persons with the drafting of her report and this was evident, to the petitioner, from the fact that Shri Kuldip Nayar, a Journalist was in the know of and bad published the contents of her report even before it was officially submitted to the Lt. Governor of the Delhi Administration. The column of Shri Kuldip Nayar was printed in the magazine known as 'Sunday' For the week 4-10 March, 1990.
(48) It was also alleged that Km. Mital's mode of functioning and the act of premature leakage of her report to the press made it clear to the petitioner that she formed part of the conspiracy 'to cover up the truth about the riots which was set afoot by the Marwah Inquiry Committee to serve certain vested interests by misleading public opinion.'
(49) At the outset we would like to observe that we do not find any affidavit in reply having been filed by Km. Mital. It has been repeatedly held that when allegations of mala fide are made in a writ petition and, specially when the person against whom tie allegations are made is a party to the writ petition, then that person must file an affidavit to controvert the allegations. This is unfortunately not being done in the preset case.
(50) Even in the absence of an affidavit of Km. Mital we do not find any substance in these allegations. It will not be out of place to mention here that allegations of mala fide were also alleged against Shri Ved Marwah who bad earlier given a report which was challenged in a suit filed by the two petitioners. thereforee, making allegations of mala fide against an official who gives a report against the petitioners is not something new as far as the petitioners are concerned. The petitioners admit that they have not seen the report of Km. Mital. This being so we fail to understand how they can make an averment to the effect that the report of Km. Mital is essentially resurrection of the Marwah Committee Report. In fact even the Marwah Committee report has not been made public. Secondly the mere fact that Km. Mital did not record evidence of any witness does not mean that she had any animus against the petitioers. The procedure which was adopted by Km. Mital pursuant, to her appointment to the Committee, was, in our opinion, a correct one. She was required to examine the papers and documents and other material which was available on the record and then to make a report to the Lt. Governor, which she did.
(51) The allegation in the writ petition that Km. Mital leaked out the contents of her report to Shri Kuldip Nayar appears to be clearly without any basis. The report has not yet been made public and though Sbri Kuldip Nayar has referred to the said report there is no warrant for saying that, even if Shri Kuldip Nayar was aware of the contents of the report, that it was Km. Mital who leaked the same to him. In any case even if it be assumed that Km. Mital informed Kuldip Nayar about the contents of the report that would in no way show that she bad any animus against the petitioners. There is no valid reason indicated in the writ petitions as to why Km. Mital would have any prejudice against the petitioners. The final averment regarding mala fide to the effect that Km. Mital formed part of the conspiracy to cover up the truth about the riots js most irresponsible to say the least. If anyone is guilty of thwarting any investigation or inquiry in this behalf it is the petitioners themselves. They first obtained an injunction from this Court in a suit filed in 1985 and thereafter, after Ved Marwah Committee report was scuttled they succeeded in obtaining interim orders of stay from this Court in these writ petitions. An attempt bad also been made by them to go to the Central Administrative Tribunal for securing a stay of further proceedings. We are, thereforee, surprise at the averments made in the writ petitions alleging that it is Km. Mital who is stated to have formed part of the conspiracy to cover up the truth about riots. In an allegation of conspiracy it is necessary to name the co-conspirators, but the petition is silent about the same. Vague allegation regarding some Vested interests has been made. We do not hesitate in coming to the conclusion that the allegation of mala fide contained in the writ petition is most irresponsible and uncalled for.
(52) Lastly it was contended by the learned counsel for the petitioners that principles of Articles 14 and 21 have been violated in this-case. The contention of the learned counsel is that when two procedures are laid down the one more beneficial should be adopted. In this connection it was submitted that when a definite matter of public importance arises the Government should have appointed a Commission of Inquiry under the Act of 1952 but it chose not to do so and instead appointed an administrative Committee. The result of this was that the protection which was granted by Sections 8B and 8C of the Act is taken away. It was further submitted that the Government cannot pick and choose in which case it will appoint a Commission of Inquiry and in which case an administrative Committee will be appointed. We have already held that The Commissions of Inquiry Act. is not mandatory. The purpose of appointing an administrative Committee was only to ascertain,factsso that the Government could decide as to what further action should be taken against the delinquent officers. This is not a case where two statutory procedures were available. No decision has been brought to our notice where reference to an administrative Committee has been struck down in preference to the holding of an inquiry under The Commissions of Inquiry Act. Be that as it may in the present case a Commission of Inquiry headed by Mr. Justice Rangnath Mishra was constituted. It is that Commission of Inquiry which gave a report observing that instead of issuing notices under Section 8B it will be better and appropriate that another Committee be appointed and thereafter departmental proceedings taken. No fault, can, thereforee, be found with the action of the respondents. We, thereforee, do not see any merit in the afore said submission of the learned counsel.
(53) No other contention had been raised before us. Before concluding we would like to observe that we do hope that the disciplinary proceedings which have been commenced will be concluded within a reasonable period of time. It is not advisable that when serious allegations of dereliction of duty are made against members of the Police force that undue delay should be there incompletion of the inquiry. The citizens of the country have to look towards the police force for protection. They must have confidence in the members of the police force. thereforee, if there is any allegation of dereliction of duty against a member of the armed forces then an inquiry in this behalf should be completed with utmost expedition. Either the officer concerned will be exonerated or, if held guilty will be punished. In either event there is no reason as to why such an inquiry should be delayed inordinately. Delay will in no case serve the public interest. We, thereforee, expect the inquiry in this behalf to be completed expeditiously so that if the petitioners are innocent then there is no reason as to why their names should not be cleared at the earliest and, if on the other hand they are guilty then appropriate action should be taken against them at the earliest.
(54) For the aforesaid reasons the writ petitions filed by Chander Prakash and Sewa Dass are dismissed. The respondents will be entitled to costs.