P K KUNJU Vs. STATE OF KERALA

JUDGEMENT

(1.) AFTER the general elections in March 1967, what was popularly known as the united Front Ministry took office in this State on 6-3-1967, headed by the 3rd respondent (Sri E. M. S. Namboodiripad) as the Chief Minister. The personnel of the ministry was drawn from seven different political parties, viz. , the Marxist-Communists (C. P. I. M.), the Communist Party of India (Rightists or Right communists --C. P. I.), the Revolutionary Socialist Party (R. S. P.), the Muslim league, the Samyuktha Socialist Party (S. S. P.), the Karshaka Thozhilali Party (K. T. P.) and the Kerala Socialist Party (K. S. P. ). The Chief Minister belonged to the marxist Communist Group, and the petitioner, who was the Finance Minister, to the S. S. P. It is of some relevance to mention that the Speaker of the Assembly was a Member of the S. S. P. , and that Sri. Willington, the Health Minister, belonged to the K. T. P. There was a Co-ordination Committee drawn from the ranks of all the coalition parties, and of which all the Ministers were members, to evolve the greatest common measure of agreement amongst the parties, and to serve, according to the petitioner, as a balance-wheel in running the administration. On 13-2-1969 two members of the Legislative Assembly Sri. Wilson of the S. S. P. and sri. K. T. George of the Congress Party (not within the fold of the United Front), made certain allegations against the petitioner on the floor of the Assembly. This eventually led to the constitution of a Commission of Enquiry under the commissions of Inquiry Act 1952, under Ext. P6 notification, and to the petitioner vacating office as the Finance Minister, pending clearance of his conduct at the enquiry. Ext. P6 notification was published in the Gazette as ordered in Ext. P5 of the same date. A retired Judge of this Court was appointed as the Commission of enquiry to go into the allegations against the petitioner, and to submit his report on or before 30th September 1969. Two different applications were moved before the Commission by the petitioner. The one complained that the charges were vague that Ext. P6 notification was without jurisdiction. The other was to restrain proceedings on the ground that the same would constitute a breach of privilege of the Assembly. Both these were rejected by the commission by Exts. P9 and P10 orders. This writ petition was moved lo quash exts. P5, P6, P9 and P10 on various grounds. ' At the admission stage, one of us (Eradi, J.), by an order dated 17-9-1969 found that there was no ground for interference with Exts. P9 and P10 orders, and overruled the petitioner's objections, (1) as to the Government's jurisdiction to issue Ext. P6 notification, (2)as to the authority of the 'special' Secretary who had purported to authenticate exts. P5 and P6 to exercise such power under Article 166 (2) of the Constitution, and (3) as to the correctness of the action taken by the 3rd Respondent in passing ext. P6 order, without consulting, and placing the matter before, the Council of ministers. The orders Exts. P9 and P10, passed by the Commission of Enquiry (2nd respondent) were hence found to be not open to challenge. On the ground of mala fides, which had been raised in the writ petition, it was felt that investigation was necessary and called for, and therefore notice was issued to Respondents 1 to 3. Against this order of the learned Judge, Writ Appeal No. 893/1969 was filed by the petitioner and was dismissed in limine as incompetent and not maintainable. It was held that the writ petition was still pending, and the rejection by the learned judge of some of the grounds urged in support of the really main relief to quash ext. P6 notification, was, at best, only a finding regarding those grounds, and not a 'judgment' or 'order' within the meaning of Section 5 of the Kerala High Court act, so as to attract a right of appeal conferred by that section. The writ petition was then ordered to be placed before a Division Bench and has come before us.

(2.) COUNSEL for the petitioner contended that the grounds of attack against Ext. P6 notification, even if they be common to the attack against Exts. P9 and P10 orders, and regarded as foreclosed by the order passed at the admission stage by one of us, are still at large. He further maintained that this writ petition having now been placed before a Division Bench, any expression of opinion --'findings', as they were characterised in W. A. No. 893/1969 --made by one of us, at the admission stage, regarding the tenability of some of the grounds would not bind this Division Bench. Assuming that all the matters covered by the writ petition are still res integra, Counsel for the petitioner fairly stated that the only point found against at the admission stage by one of us, which he could usefully press before us, was that Exts. P5 and P6, had not been properly and validly issued.

(3.) THE case as to mala fides, broadly stated, was developed by the petitioner thus: that the petitioner had from time to time been seething with discontent and protest against the 3rd Respondent's Ministry, that is outbursts against the 3rd respondent and his Ministry had caused resentment and annoyance to the 3rd respondent and to his party, both of whom had come to regard him as a thorn by their side; and that the impugned action, ostensibly taken for the purpose of ordering an enquiry against him, was only a sinister device to weed him out of office. The 3rd Respondent was also accused of partiality and favouritism and even of double standards, in the course of action pursued against his other colleagues in the Ministry, against some of whom similar allegations had been voiced at or about the same time. It was also said that the 3rd Respondent had acted under political pressure from his party.