the factual matrix to decide whether the petitioners had incurred

disqualification on appointment as Parliamentary Secretaries, without

being influenced by the earlier order or observations on the said aspect in
this order”.

2. In compliance with the said direction of the Hon’ble High Court this Commission
issued Notices dated 13.04.2018 to the parties and called them for hearing arguments
on 17.05.2018. Meanwhile, certain Applications were filed by the Respondents on
16.05.2018 and 17.05.2018 and the Respondents requested the Commission to first hear
arguments and decide on those Applications. Hearings were conducted in the
Commission on 17.05.2018, 21.05.2018, 22.05.2018, 23.05.2018, 24.05.2018 and
25.05.2018.

3. The Respondents have filed the following Applications:

a. Application dated 16.05.2018 for Cross-Examination of the Petitioner – Shri

Prashant Patel and calling of witnesses.

b. Application dated 17.05.2018 for Adjournment of Hearing and for allowing

inspection of records.

c. Application dated 22.05.2018 filed by Respondent No. 16 for allowing the

Application dated 16.05.2018 for Cross-Examination of the Petitioner – Shri
Prashant Patel and calling of witnesses.

d. Application dated 22.05.2018 filed by Respondent No. 16 seeking clarification of

this Commission on the News Report which reported that the Commission has
rejected the Application filed by the Respondents for Cross-Examination of the
Petitioner – Shri Prashant Patel and calling of witnesses.

e. Application dated 24.05.2018 filed by Respondent No. 16 seeking the fixing of

date for cross-examination after 05.07.2018.

4. The Application dated 17.05.2018 for Adjournment of Hearing and for allowing
inspection of records was adjudicated upon on 17.05.2018. The Commission did not
grant any adjournment and instead allowed the counsels seeking adjournment to present

2|Page
 their case at the end of the arguments of all other counsels which would allow them to
inspect the records as well. By the last date of hearing all the Counsels had argued their
case on these Applications. Inspection of records was permitted and appropriate
arrangements were made for the same on 18.05.2018 on which date the counsels made
inspection of records and when they requested for more time to inspect the records the
same was also allowed and appropriate arrangements were made for the same on
21.05.2018, 22.05.2018, 23.05.2018 and 24.05.2018 however no inspection was made
on these days.

5. The Application dated 22.05.2018 filed by Respondent No. 16 seeking clarification of

this Commission on the News Report which reported that the Commission has rejected
the Application filed by the Respondents for Cross-Examination of the Petitioner – Shri
Prashant Patel and calling of witnesses was adjudicated on the same day. The
Commission clarified it to the Parties that it is a baseless news report as no order had
been passed by the Commission on the said Applications.

6. Thus, the only Applications pending adjudication pertain to the prayer for cross-
examination and calling of certain witnesses and the common prayer of these
Applications is as under:

A. Direction of the Commission to the Complainant to present himself for cross-

examination in support of his allegations

B. To summon witnesses as under:

S. No. Witness Purpose

1 Secretary, Delhi Legislative For proving the fact that none of

Assembly the Respondents received any
profit, so as to disqualify them
from the Legislative Assembly.

2 Concerned Officer from the To prove the receipt of

General Administration 08.04.2016 and its reply dated
Department, Government of 21.04.2016.
NCT, Delhi.

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 3 Concerned Officer from To prove, if any
Accounts Department, remuneration/salary was paid to
GNCTD, Delhi. the respondent MLAs

4 Concerned Officer from To prove, whether the Respondents

concerned Ministry, GNCTD, were given any car and office
Delhi. space in the Minister’s Office.

7. During the hearing held at the Commission on 17.05.2018 Mr. Manish Vashisht,
Advocate appearing for Respondent No. 16 stated that the Applications need to be
heard and decided a priori and it is only then that the Commission can commence the
hearing on the merits of the case.

8. Ld. Counsel Mr. Manish Vashisht submitted that the Respondents, in their Reply dated
20.11.2017 filed in Reply to the Commission’s Notice dated 02.11.2017, had submitted
before this Commission that at some point of time in future the cross examination of
the Petitioner shall become necessary and that the occasion for filing this application
has arisen only today.

9. At the outset the Commission read over the operative part, i.e. sub-para (iv) of Para 113
as quoted in Para 1 above, of the Hon’ble Delhi High Court’s judgment dated
23.03.2018 passed in Writ Petition (C) No. 750/2018 Kailash Gehlot & Ors. v. Election
Commission of India & Ors. and intimated Mr. Manish Vashisht and the other Ld.
Counsels appearing for the Respondents that as per the direction of the Hon’ble High
Court the Commission is only required to hear arguments and asked the Ld. Counsels
to assist the Commission in fulfilling the direction of the Hon’ble High Court.

SUBMISSION I: THE PROCEEDINGS BEFORE THE COMMISSION ARE ADVERSORIAL IN

NATURE AND STRICT PROCEDURES AS APPLICABLE IN ELECTION PETITIONS SHOULD BE
ADOPTED AS SERIOUS CONSEQUENCES WILL FOLLOW ANY ADVERSE OPINION OF ECI

10. In the hearing held before the Commission on 21.05.2018, Ld. Counsel Mr. Manish
Vashisht submitted that there were factual issues which needed to be considered by the
Commission, and there were precedents where guidelines have been laid by the
Hon’ble Supreme Court and various Hon’ble High Courts about the procedure of
removal of an elected office bearer and the ensuing enquiry.

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11. Ld. Counsel Mr. Manish Vashisht placed heavy reliance on Ravi Yashwant Bhoir v.
District Collector, Raigad & Ors. [(2012) 4 SCC 407] and read over para nos. 23-38,
40, 42, 44, 47 - 48, 59 and 60 of the judgment, which are not being reproduced here for
the sake of brevity, and relying on these paragraphs Mr. Manish Vashisht submitted
that disqualification is a very serious and grave consequence for an elected
representative as it negates his statutory right to represent his constituency; puts a
stigma upon his name; and deprives even the voters of his constituency of the right to
be represented by a representative of their choice. Mr. Manish Vashisht also submitted
that since disqualification is a very serious consequence and since the Hon’ble Supreme
Court has held that a representative of the people can only be removed by strict
adherence to statutory provisions, therefore the Procedure for Conduct of Enquiries in
Reference Cases, 2016 (hereinafter referred to as “ECI Procedure”) as laid down by
this Commission must be followed in stricto senso. Mr. Manish Vashisht highlighted
the observation of the apex Court that any elected official in local self-government has
to be put on a higher pedestal as against a government servant and when a temporary
government employee cannot be removed on the ground of misconduct without holding
a full-fledged inquiry, then it was difficult to imagine how an elected office-bearer
could be removed without holding a full-fledged inquiry and held that for the removal
of elected officials a more stringent procedure and standard of proof is required. In this
line only, Ld. Counsel Ms. Trisha Nagpal submitted that ECI Procedure has rules for
examination of witnesses and these rules must be followed or else they will become
redundant.

12. While the observations made by the Hon’ble Supreme Court in Ravi Yashwant Bhoir
v. District Collector, Raigad & Ors. (supra) are very apt and succinct, it is to be noted
that the Hon’ble Court was concerned with a disqualification arising from proven
misconduct which also had the ramification of rendering the concerned representative
disqualified for contesting the elections for a further stipulated period which is very
different from the present case where the Commission is not required to look at the
conduct of the Representatives but simply the potential of the office that they held and
this disqualification does not render them disqualified for re-contesting in the elections
and it therefore does not affect the right of the people to be represented by a person of
their choice. Also, the comparison between an elected official and government servant
was made as the ground for disqualification was that of ‘proven misconduct’ which

5|Page
 also exists for government servants. However, disqualification for holding Office of
Profit is applicable only on elected representatives and therefore the question of
pedestal and requirement of higher standards of proof as held by the Hon’ble Court in
this case are not applicable in Reference cases.

13. It is also pertinent to note at this juncture that the Hon’ble Supreme Court has held in
Ashok Shankarrao Chavan v. Madhavrao Kinhilkar & Ors. [(2014) 7 SCC 99] that in
cases under S. 10A of RP Act, 1951 the requirement of standard of proof is that of
‘preponderance of probabilities’. It is also pertinent to note that under S. 10A the
disqualification is a future disqualification for contesting elections as well and therefore
the ruling in Ashok Shankarrao Chavan v. Madhavrao Kinhilkar & Ors. (supra)
establishes that there is no general rule that whenever an elected representative is to be
disqualified then the charges or allegations must be proved beyond reasonable doubt
and that rather the test to be applied in case of each provision providing for
disqualification must be such so as to make the provisions workable and not render
them toothless in handling the menace against which they were brought into being.

14. Moreover, the observation of the Hon’ble Court in Ravi Yashwant Bhoir v. District
Collector, Raigad & Ors. (supra) that the statutory provisions must be strictly
complied with is a word of caution to prevent any miscarriage of justice however a just
procedure is not supposed to handicap this Commission in the discharge of
Constitutional duties for the effective discharge of which the legislature considered it fit
and necessary to not prescribe any detailed procedure and left the matter to the
discretion of this Commission. It is also pertinent to note at this juncture that the ECI
Procedure is not a statutory rule and it does not foreclose the right of the ECI to follow
a different and modified procedure when required, and this fact has also been accepted
by the Hon’ble Delhi High Court in its judgment dated 23.03.2018 (para 52). The
flexibility in procedural matters that is available to the Commission can be ascertained
by the perusal of S. 146B of RP Act, 1951 which states that the Commission “shall
have the power to regulate its own procedure” the essence of which has also been
reflected in the savings clause contained in Rule 25 of the ECI Procedure which states
that “the Commission may decide to follow any procedure for hearing of the matters as
per the status of the pleadings and the case at the time of hearing”.

6|Page
15. Moreover, the Hon’ble Delhi High Court in para 52 of the judgment dated 23.03.2018
has also accepted the fact that the ECI Procedure are non-statutory as they have not
been framed in exercise of any rule making power given under the statute. Therefore, it
is no one’s case that by denying the prayer for cross-examination of the Petitioner or
the prayer for calling of certain witnesses which the Commissions seems unnecessary
(in view of the documents available on record and the purpose explained in the
Application for calling of witness) any statutory rule will be violated.

16. Ld. Counsel Mr. Manish Vashisht read out page 3 of the Presidential Order dated
20.01.2018 wherein it was stated that “the Petitioner has sought disqualification of Shri
Praveen Kumar and 20 other Members of Delhi Legislative Assembly” and submitted
that the Petitioner has objected to the submissions of the Respondents by filing
Rejoinder Affidavits and has appeared before this Commission and has been
represented by Senior Counsels before the Commission as well as before the High
Court and all of this shows that the current proceedings are not inquisitorial but
adversarial in nature and that the Petitioner is not a whistle-blower and his complaint is
politically motivated. It is noteworthy to mention that the nature of proceedings cannot
be determined on the basis of the submissions made by the Petitioners or his conduct
and rather it is determined by the governing statutory provision which in the present
case is S. 146 of RP Act, 1951 and a perusal of the same makes it abundantly clear that
these proceedings are inquisitorial in nature. Moreover, the motivation of the Petitioner
is of no concern here as there is no lis inter partes as it exists in adversarial
proceedings.

17. Ld. Counsel Mr. Manish Vashisht further submitted that a layman cannot be allowed to
shoot a letter to the President calling for disqualification of certain elected
Representatives. However, it is a preposterous argument that a layman cannot be
allowed to invoke the provisions of the Constitution under which an inquiry may be
initiated against elected representatives when that very lay man is allowed to vote and
elect these representatives. It is rather the beauty of the Indian Constitution that every
citizen has the right to invoke the Constitutional provisions and the Constitution
makers, in their wisdom, considered it fit to keep it open to every citizen to invoke the
provisions of Articles 103 and 191 unlike the provisions of RP Act, 1951 under which
only an elector or candidate can file an Election Petition. Thus, a complaint of ‘Office

7|Page
 of Profit’ can be filed by an elector of Nagaland in respect of a Member of Legislative
Assembly of Puducherry. This difference shows that the makers of the Constitution
envisioned a greater answerability from the elected representatives in respect of certain
disqualifications and therefore did not provide any eligibility for invoking these
Constitutional provisions and also provided for an inquisitorial inquiry by a
Constitutional body to ensure that even where the complainant is not able to adduce any
evidence in favour of his complaint or backs out from his complaint, the inquisitorial
inquiry once set into motion must come to its logical end and the statute therefore
provided this Commission with the suo moto power to call for documents and records
from any person or Government. Such an inquisitorial inquiry by this Commission also
contains within itself appropriate protection against baseless and frivolous complaints.

18. Ld. Counsel Mr. Manish Vashisht submitted that the present inquiry is a factual enquiry
and it cannot be said to be a pure legal enquiry. It is trite to observe in this context that
merely because the nature of this inquiry is not just legal but also factual, it does not
imply that the parties can compel the ECI to keep investigating the facts even when this
Commission is satisfied that enough documentary evidence is available on the records
to draw conclusions about the existence of essential facts leading to the forming of an
opinion.

19. Ld. Counsel Mr. Manish Vashisht submitted that the ECI vide Order dated 16.09.2016
had directed certain paragraphs (and accompanying documents) of the Reply of the
Petitioner dated 28.12.2015 to be struck-off from the records and lamented that despite
such an order, the Opinion of ECI dated 19.01.2018 referred to the Delhi Members of
Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2015.

20. Mr. Amitabh Chaturvedi, Ld. Counsel for Respondent Nos. 3, 8 and 11 referred to the
judgment dated 23.03.2018 passed by the Hon’ble Delhi High Court wherein the Court
was pleased to note in paragraph 54 that the proceedings before this Commission in a
Reference Case are quasi-judicial in nature and resulting consequences are serious in
nature and factual issues may arise; in paragraph 67 that the Commission has the
discretion to decide the conduct of the proceedings but the procedure adopted must be
just, fair and equitable; and in paragraph 68 that the Commission had exercised the
power under S. 146 to call for documents from GNCTD.

8|Page
21. Ld. Counsel Mr. Chaturvedi then referred to paragraph 70 of the judgment dated
23.03.2018 passed by the Hon’ble Delhi High Court where it was observed that if the
opinion of the Commission ‘would be or could go against the elected representative,
hearing is mandated and compulsory’ and it will also be necessary ‘where the ECI feels
a deeper scrutiny of facts or legal position is required’. Mr. Chaturvedi submitted that
reading these observations with the direction of the High Court, it becomes clear that
the High Court remanded the matter back to ECI to grant oral hearing because factual
issues have arisen in the present case.

22. Mr. Sameer Vashisht, Ld. Counsel for Respondent Nos. 1, 5 and 15, referred to Articles
102 and 191 to discuss the issue of conflict of interest. He stated that S. 100 of the
Representation of People’s Act, 1951 provides the grounds for declaring an election to
be void and the provisions from S. 86 onwards relate to the manner in which an Election
Petition can be filed and the trial that follows when a candidate is alleged to have held an
office of profit prior to the elections. Mr. Vashisht submitted that even where an elected
representative is found to have held an office of profit post the elections, the
consequence is same and the person is disqualified under S. 146. In view of the above,
Mr. Vashisht argued that if there is a full-fledged trial contemplated under
disqualification proceedings prior to elections, then the same should be applied even for
post-election disqualifications and the proceedings should not be summary in nature. He
submitted that the reason behind his argument was that the consequences of the two
proceedings are the same and therefore two different procedures with different standards
of proof cannot be employed for tackling the same merely because S. 146 does not spell
out a trial. In the same line, Ld. Counsel Mr. Manish Vashisht also argued that the same
statute book cannot provide two different procedures for the determination of the
disqualification on the same ground and therefore it must be assumed that similar
procedure is to be adopted in Reference Cases and thus a full-fledged trial with leading
of witnesses and cross-examination of witnesses is necessary and mandatory.

23. It is pertinent to note that despite the fact that the consequence of disqualification is a
commonality between the two provisions they deal with two different kind of situation as
an Election Petition is filed in a pre-election disqualification case and a Reference Case
arises in post-election disqualifications. In Election Petitions there is a direct lis inter
partes and the Election Petitioner may even stand to be declared as the returned

9|Page
 candidate and therefore those proceedings are governed by different provisions given
under Part VI of the RP Act, 1951 where a full-fledged trial is conducted before the
concerned High Court as against the inquisitorial proceedings in Reference Cases which
are conducted under Chapter IV of Part VIII of RP Act, 1951. In this context it is also
highly pertinent to note the observation of the Hon’ble Delhi High Court in para 54 of
the Judgment dated 23.03.2018 passed in Kailash Gehlot & Ors. v. Election
Commission of India & Ors. (supra), to which Ld. Counsel Mr. Manish Vashisht has
himself brought the attention of this Commission, wherein the Hon’ble High Court has
held as under:

“We would accept that there is per se no lis or contending parties or for that matter
contest between the authority and the subject when the ECI gives its opinion or final
decision but this would not make the opinion or the decision less quasi-judicial.”
[Emphasis Supplied]

24. Therefore, even the Hon’ble Delhi High Court has accepted the fact that there is no lis
inter partes in Reference Case proceedings before the Commission and therefore the
proceedings before this Commission in Reference Cases are not adversarial but
inquisitorial in nature. This also gets abundantly clear by perusal of S. 146 of RP Act,
1951 and Articles 103 and 192 of the Constitution of India. Reference Cases are not like
EPs where the Petitioner would fail in the suit if no evidence is led to prove his
allegations. Instead, in Reference Cases it cannot be simply stated that the burden lies on
the Petitioner and therefore the Reference Case would fail if no evidence is led on the
allegations by the Petitioner. In fact, even if the Petitioner dies and is not represented by
any legal heir or if he never attends to the proceedings of the Reference Case before this
Commission or simply leads no evidence then also the Reference is required to be
inquired into and answered by this Commission. Therefore, in a hypothetical situation
where none of the parties lead any evidence this Commission is required to conduct its
own inquiry to answer the Reference. There are many other substantive as well as
procedural differences between an EP and a Reference case, for example, there is a
window of 45 days from the date of the announcement of result by which an EP must be
filed whereas in post-election disqualification cases which are decided by the ECI or in
Reference cases no such limitation period has been prescribed by the statute book.

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25. Therefore commonality of consequence cannot be the basis for importing the procedure
prescribed for a different proceeding to Reference cases. Moreover, it is a golden rule of
statutory interpretation that even in case of a conflict between statutory provisions such
meaning is to be given to the statute which makes both the provisions workable. In the
present case while there is no conflict between statutory provisions as there is no overlap
in their operation, the difference in the procedure prescribed by the statute implies that it
was the intent of the legislature to prescribe different procedures and the same must be
brought into effect.

26. For the reasons discussed above, it is clear that Election Petitions are very different from
Reference Cases and therefore the ruling of various Courts on stringent procedure, strict
compliance with evidentiary requirements and burden of proof etc. given in Election
Petitions are not applicable in the present proceedings.

27. In this context the Ld. Counsel Mr. Sameer Vashisht relied on the case of Election
Commission of India v. Dr. Subramaniam Swamy [(1996) 4 SCC 104] wherein the
Hon’ble Supreme Court has held as under:

“12. It is true that Article 192(2) of the Constitution expects that the
Governor “shall obtain” the opinion of “the Election Commission” and
“shall act” according to such opinion in giving his decision on the question
of disqualification raised before him. Obtaining the opinion of the Election
Commission is, therefore, imperative. It is equally imperative for the
Governor to act according to such opinion. Thus, the opinion of the Election
Commission is decisive of the decision to be taken by the Governor.
Obviously, the Election Commission referred to in Article 192(2) of the
Constitution would be the one appointed under Article 324(2) of the
Constitution. This article in terms provides that the Election Commission
shall consist of the Chief Election Commissioner and such number of other
Election Commissioners as the President may fix from time to time.
Therefore, the Chief Election Commissioner is a must whether it is a single-
member or multi-member body. In the case of a multi-member body, Article
324(3) expects him to act as the Chairman of that body. Section 146 of the
RP Act outlines the procedure to be followed in deciding the question
arising under Article 192. That procedure is the one a civil court follows in

11 | P a g e
 deciding matters brought before it. Section 9-A was introduced in the RP
Act to empower the Election Commission to delegate some of its functions to
the Secretary or Deputy Election Commissioner, subject to such direction as
the Election Commission may choose to give. But it was pointed out that
only routine matters can be delegated under this provision.”

28. Ld. Counsel Mr. Sameer Vashisht placed reliance on the case of Sitaram Jivyabhai
Gavali v. Ramjibhai P. Mahala [(1987) 2 SCC 262] to highlight that a trial, where the
onus is on the Petitioner, has to be held to decide the dispute. However, the case
referred to by the Counsel was also a case of Election Petition and since that procedure
is not applicable in Reference Cases, this judgment is not relevant in the present
situation.

29. It is trite to reiterate here that merely because the consequence of disqualification is
common to the Election Petitions and the Reference Cases, it is neither sufficient nor
proper to import and read into Section 146 the procedural requirements of Election
Petitions. It has also been recognized by the Hon’ble Delhi High Court in para 52 of the
judgment dated 23.03.2018 that the ECI Procedure is not statutory in nature and that the
same would not curtail and foreclose the right of the Commission to follow a different
or modified procedure when required and necessary. As noted above, there is a relaxed
locus standi requirement in Reference Cases and there is no time bar on filing a
complaint leading to Reference Case unlike the 45 day period prescribed for Election
Petitions and all these differences show that the legislature had the intention to
prescribe a different procedure and different standard of proof for Reference Cases and
therefore the submissions of the counsels of Respondents as noted above are liable to
be rejected.

SUBMISSION II: THAT THE RIGHT OF CROSS-EXAMINATION IS PART OF THE PRINCIPLES

OF NATURAL JUSTICE AND THEREFORE THE PETITIONER MUST BE DIRECTED TO SUBMIT
TO CROSS-EXAMINATION AS THE ENTIRE BURDEN OF PROOF LIES ON HIM

30. Ld. Counsel Mr. Manish Vashisht referred to Para 24 of the Opinion dated 19.01.2018,
which read as follows: “As to the demand of the Respondents for cross-examination of
the Petitioner/Complainant, it is observed that in Reference Cases the complainant is
like a whistleblower and to allow cross-examination of him would create a travesty of

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 the process of law. Moreover, there is no necessity to cross-examine the complainant as
neither is he in possession of any information in his personal or official capacity which
he has relied upon in his complaint nor is he a witness in these proceedings. Therefore
there is no need to cross-examine the complainant and this demand will lead to
unnecessary delay”, and argued that the Opinion dated 19.01.2018 was set aside and
termed as ‘vitiated’ and ‘bad in law’ by the Hon’ble High Court because of the
observation made in the above quoted paragraph and therefore it is now mandatory for
this Commission to direct the Petitioner to present himself for cross-examination by the
Respondents as has been prayed for in the Application dated 16.05.2018.

31. Ld. Counsel Mr. Manish Vashisht submitted that after the Judgment dated 23.03.2018
passed by the Hon’ble Delhi High Court there is no subjective discretion under S. 146
of RP Act, 1951 and only objective discretion could be exercised. He further contended
that once a question pertaining to the factual matrix comes before the Commission, it
needs to be sure of its veracity and for that, cross-examination is necessary.

32. Ld. Counsel Mr. Manish Vashisht further submitted that “argument” does not mean
mere argument without any evidence or cross-examination and argued that right to
cross-examine is an inherent part of principles of natural justice for which he read over
and placed reliance on the following judgments:

i. Shahid Balwa, Vinod Goenka v. Directorate of Enforcement [201 (2013) Delhi

Law Times 211 (DB), para 16-19]

ii. Ayaaubkhan Noorkhan Pathan v. State of Maharashtra [(2013) 4 SCC 465, para
33 and 44];

iii. Lakshman Exports Ltd. v. Collector of Central Excise [(2005) 10 SCC 634]

33. While there can be no doubt about the applicability of the Principles of Natural Justice in
a quasi-judicial proceedings such as the present Reference, the exact contours of the
rights that will flow to the parties from the application of the Principles of Natural Justice
in such proceedings cannot be fixed in a tight frame and it will always depend on the
facts and circumstances of each case. The Principles of Natural Justice envisage a
reasonable opportunity of defence to be provided to the defendants within the contours of
the statutory provisions and it essentially means that no evidence shall be considered
behind the back of a party and each party should be given a reasonable opportunity to

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 call witnesses in support of his defence and to cross-examine the witnesses and rebut the
documents produced against him. In the instant case, the entire evidentiary basis is in the
form of Government Documents which have been provided by the GNCTD in response
to the inquiry conducted by this Commission. These documents were made available to
the parties and have been relied upon by the Respondents in their Second Reply dated
24.10.2016. It is not a case where there is no evidence on record. Therefore, the
submission of Ld. Counsel Mr. Manish Vashisht that ‘argument’ does not mean
argument without any evidence or cross-examination is a superfluous argument which
has no basis with the facts and circumstances of the present matter. Moreover, in an
inquisitorial inquiry under S. 146 of RP Act, 1951 the sufficiency of evidence is left to
the satisfaction of the Commission and not the parties. It is also pertinent to note that the
remand order passed by the Hon’ble Delhi High Court is very specific, i.e. to hear
arguments on the question as to what is meant by the term ‘office of profit under the
Government’ and there is no direction from the Court to grant to the Respondents an
opportunity to Cross-Examine the Petitioner. Therefore, the remand order passed by the
Hon’ble Delhi High Court cannot be interpreted to mean that there is a direction to hear
the case de novo and collect fresh evidence and then hear arguments on the same.

34. The judgments of Shahid Balwa, Vinod Goenka v. Directorate of Enforcement (supra);
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (supra); and Lakshman
Exports Ltd. v. Collector of Central Excise (supra) were delivered in the peculiar facts
and circumstances of those cases. While in Shahid Balwa, Vinod Goenka v. Directorate
of Enforcement (supra); and Ayaaubkhan Noorkhan Pathan v. State of Maharashtra
(supra) testimony of witnesses were relied upon without affording the defendant an
opportunity to cross-examine such witnesses and thus it was held to be violative of the
Principles of Natural Justice, in Lakshman Exports Ltd. v. Collector of Central Excise
(supra) the President of the Excise Tribunal had erroneously noted that no request was
made for cross-examination and had thus denied the same and therefore the remand order
was passed without being contested by the department. Therefore, the above quoted
judgments relied over by Ld. Counsel Mr. Manish Vashisht do not create a Right to
Cross-Examine a non-witness as cross-examination becomes a right only in respect of a
witness who has testified or given some information from his personal knowledge and
such testimony is to be relied upon by the adjudicating authority. Principles of Natural
Justice are said to have been violated when any statement of such a witness is relied

14 | P a g e
 upon without affording the defendants a chance to cross-examine such a witness and all
the judgments relied upon by the Ld. Counsel state the same position of law. However,
where either no reliance is placed on the statement of a witness or where a person is not a
witness at all, there is no right or requirement to allow cross-examination of such a
person. The question of exercising the right to cross-examination of a witness would
arise when a witness has given his testimony, written or oral, based on his personal
knowledge and reliance is being placed on the same and in the present case where neither
the Petitioner has given any testimony based on his personal knowledge nor is any
reliance being placed on the same by this Commission there appears to be no valid
reason for cross-examining the Petitioner.

35. It is also highly pertinent to note at this juncture that in the case of Shahid Balwa, Vinod
Goenka v. Directorate of Enforcement (supra), relied upon by Ld. Counsel Mr. Manish
Vashisht, the Hon’ble Supreme Court while allowing the appellant to cross-examine the
witnesses had in fact, in view of the facts and circumstances of the case, denied the
prayer for cross-examination of the complainant as he had only filed the complaint based
on the material gathered by the respondent in that case and the relevant paragraph is as
under:

“35. However, other than the three witnesses no grounds are made out to
cross-examine any other person. The request of the appellant to cross-
examine Shri Rajeswhar Singh, Assistant Director, the complainant is a
request without merits. The said complainant has filed the complaint based
on material gathered by the respondent. No purpose would be served by
putting him to cross-examination as is sought by the appellants.” [Emphasis
supplied]

36. In rejoinder to the Written Submission submitted by the Petitioner, Ld. Counsel Mr.
Manish Vashisht submitted that the Hon’ble Delhi High Court had written elaborately on
the importance of adhering to Principles of Natural Justice in the present proceedings.
Mr. Manish Vashisht relied on the case of Ravi Yashwant Bhoir v. Collector (supra) to
submit that the right of cross-examination flows from the Principles of Natural Justice
and therefore it can’t be denied to the Respondents. He further submitted that in the same
case it was also held that a Court may treat a complaint as an exhibit and compel the

15 | P a g e
 complainant to submit for cross-examination and therefore this Commission must also
direct the complainant to submit to cross-examination.

37. Ld. Counsel Mr. Manish Vashisht further asserted that if the Petitioner is being allowed
to file replies and rejoinders as a party he becomes a witness who is filing documents and
therefore the Respondents must be given the right of cross-examination and conversely,
if the Respondents are not given the right of cross-examination, then no material filed by
the Petitioner must be considered or taken note of.

38. Ld. Counsel Mr. Manish Vashisht placed reliance on the case of Town Area Committee
v. Jagdish Prasad [(1979) 1 SCC 60], which also states that the right of cross-
examination exists in relation to the witnesses examined against a party and therefore the
said judgment also adds no strength to the argument of Mr. Manish Vashisht.

39. The brief facts of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (supra) are
that the caste certificate of the Appellant was challenged and in the enquiry proceedings
over his caste certificate certain witnesses were examined behind his back, i.e. without
affording him the right to cross-examine them and evidence of certain witnesses was
accepted by way of affidavit. In this case though the Supreme Court directed the
Appellant to be allowed to cross-examine the witnesses examined behind his back, it did
not grant the prayer for calling of records from the office of Tehsildar. The apex Court
held that the evidence on affidavit cannot be accepted as the said witness never appeared
before the Scrutiny Committee and the said affidavit was produced by the Respondent
No. 5 who was pursuing the case from one court to another and his conduct was found to
be reprehensible. It is in such facts and circumstances that the apex Court applied the
general rule that one who alleges must prove as the said caste certificate was validly
issued and a presumption of validity operated in its favour. However, in view of the
peculiarity of facts and circumstances of the present Reference, the judgment of
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (supra) appears to be of no
assistance.

40. Ld. Counsel Mr. Manish Vashisht relied on the observation of the Hon’ble SC in the case
of Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd.
[(1981) 3 SCC 333] as quoted in Ayaaubkhan Noorkhan Pathan v. State of
Maharashtra (supra, para 33) wherein it was held that “it is generally unsatisfactory to

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 record a finding involving grave consequences [with respect] to a person, on the basis of
affidavits and documents [alone], without asking that person to submit to cross-
examination” and submitted that Principles of Natural Justice imply that what is not
evidence cannot be relied upon. However, the above quoted observation of the Hon’ble
Supreme Court does not imply that documents and affidavits are no evidence at all and
that no reliance can be placed upon the same. Moreover, the said observation of the apex
Court came from the peculiarity of the factual circumstances where a certain shareholder
who had originally held a miniscule 0.05% shares had in the course of time become one
of the largest share-holders and there was a dispute regarding the outcome of certain
Board Meetings and in that context it was alleged that since the said shareholder had
misled the Board Members the real circumstances and true facts could not be ascertained
without his cross-examination and only on the basis of the documents available on
record. The peculiarity of these circumstances distinguishes this case and the observation
of the Court made on the basis of those facts and such circumstances and is therefore of
no relevance in the present proceedings.

41. Ld. Counsel Mr. Manish Vashisht further relied on the observation of the Supreme Court
in Ramesh Kumar v. Kesho Ram [1992 Supp (2) SCC 623] as quoted in Ayaaubkhan
Noorkhan Pathan v. State of Maharashtra (supra, para 34) wherein it was held that in
Rent Control proceedings the provisions of Order 19 Rules 1 and 2 of the CPC are
applicable and hence “the Court, if it finds that having regard to the nature of the
allegations, it is necessary to record oral evidence tested by oral cross-examination, may
have recourse to that procedure”. However, the provisions of CPC are not applicable in
Reference proceedings and therefore the said finding may be of little assistance in this
regard. Moreover, even under the said provisions and as per the said finding of the apex
Court the discretion is granted to the Court to adjudge if the circumstances make it
necessary to invoke such powers and call the author of affidavit for cross-examination
and it does not create a right in rem for cross-examination of the authors of affidavits
irrespective of whether or not such affidavit is being relied upon as evidence.

42. Ld. Counsel Mr. Manish Vashisht placed reliance on Transmission Corpn. of A.P. Ltd.
v. Sri Rama Krishna Rice Mill [(2006) 3 SCC 74] where, in the context of reliance
being made on reports alleging tampering or pilferage, the Hon’ble Supreme Court held
that the person demanding cross-examination has to cull out cogent reasons for

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 explaining as to why cross-examination is necessary and the authority, before which this
request is made, must weigh the said reasons and pass a speaking order on the same, and
demanded a reasoned order may be passed on his Application.

43. The Hon’ble Supreme Court has held in Transmission Corpn. of A.P. Ltd. v. Sri Rama
Krishna Rice Mill (supra, para 9) that where the reliance is placed only on the accounts
prepared by a person then cross examination is not necessary.

44. Ld. Counsel Mr. Manish Vashisht also relied on the judgment of State of Kerala v. K.T.
Shaduli Grocery Dealer [(1977) 2 SCC 777] where cross-examination was held to be
essential when third party accounts were relied upon to arrive at the conclusion that the
account submitted by the assessee was untrue which is a very different from the facts and
circumstances of the present case, however, it may be relevant to quote the observation
of the Hon’ble Court as under:

“3. One of the rules which constitutes a part of the principles of natural
justice is the rule of audi alteram partem which requires that no man
should be condemned unheard. It “is indeed a requirement of the duty to
act fairly which lies on all quasi-judicial authorities and this duty has been
extended also to the authorities holding administrative enquiries involving
civil consequences or affecting rights of parties because as pointed out by
this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : (1970) 1
SCR 457] “the aim of the rules of natural justice is to secure justice or to
put it negatively, to prevent miscarriage of justice” and justice, in a
society which has accepted socialism as its article of faith in the
Constitution is dispensed not only by judicial or quasi-judicial authorities
but also by authorities discharging administrative functions. This rule
which requires an opportunity to be heard to be given to a person likely to
be affected by a decision is also, like the genus of which it is a species, not
an inflexible rule having a fixed connotation. It has a variable content
depending on the nature of the inquiry, the framework of the law under
which it is held, the constitution of the authority holding the inquiry, the
nature and character of the rights affected and the consequences flowing
from the decision. It is, therefore, not possible to say that in every case the
rule of audi alteram partem requires that a particular specified procedure

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 is to be followed. It may be that in a given case the rule of audi alteram
partem may import a requirement that witnesses whose statements are
sought to be relied upon by the authority holding the inquiry should be
permitted to be cross-examined by the party affected while in some other
case it may not. The procedure required to be adopted for giving an
opportunity to a person to be heard must necessarily depend on facts and
circumstances of each case.”
[Emphasis Supplied]

45. Ld. Counsel Mr. Manish Vashisht also relied on the judgment of S. C. Girotra v. United
Commercial Bank (UCO Bank) & Ors. [1995 Supp (3) SCC 212] where in service
matter the Report of Officers was relied upon and such officers were examined to prove
the said report but cross-examination of the said officers was not allowed which was held
by the Hon’ble Supreme Court to be faulty and therefore this judgment offers no
guidance in the present matter.

46. Ld. Counsel Mr. Manish Vashisht further referred to paragraph 107 of the Opinion dated
19.01.2018 and contended that the evidence available on record was against some
Respondents, that too in their capacity as MLAs, but all 20 Respondents were
disqualified and therefore cross-examination is necessary as the Petitioner must be asked
if he can say that the Respondents attended the meetings in their capacity as MLA or as
Parliamentary Secretary. In this context, it is pertinent to note that by the application of
the Potential Doctrine established in Jaya Bachchan v. Union of India [(2006) 5 SCC
266], it is not necessary or even desirable to look at the actual benefits and actual
conduct of each Respondent and what is to be looked into is the potential of the Office of
Parliamentary Secretary and therefore on that basis the Opinion was given to the Hon’ble
President on 19.01.2018 and if the Respondents desire to challenge the same then too it
would not require cross-examination of the Petitioner but merely arguments on the scope
and meaning of the Potential Doctrine. Moreover, the Petitioner is in no competence to
testify the capacity in which the Respondents attended to Meetings and carried out
various functions. It is also pertinent to note that testimony over the capacity in which
the Respondents attended to Meetings and carried out various functions may only be
required when the Government Documents and Records are not self-explanatory.

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47. Ld. Counsel Mr. Manish Vashisht read over Sections 1 and 3 of the Evidence Act, 1872
and contended that as per S. 3 of the Evidence Act, 1872, evidence can be oral as well as
documentary, however as per S. 1 of the Evidence Act, 1872 affidavit is not evidence
and as the complainant had produced an affidavit to substantiate his allegations, cross-
examination was necessary to prove the contents of the affidavit and till such time no
reliance can be placed on any of the documents submitted by the Petitioner.

48. However, in the case of Kanungo and Co. v. Collector of Customs [(1973) 2 SCC 438]
the Hon’ble Supreme Court has held in the context of customs inquiry, where Indian
Evidence Act, 1872 is applicable as against the present proceedings, that there was no
necessity under the Principles of Natural Justice to allow cross-examination of all the
persons who have given information to the authorities in their inquiry and the relevant
paragraph of the judgment is as under:

“12. We may first deal with the question of breach of natural justice. On
the material on record, in our opinion, there has been no such breach. In
the show-cause notice issued on August 21, 1961, all the material on
which the Customs Authorities have relied was set out and it was then for
the appellant to give a suitable explanation. The complaint of the
appellant now is that all the persons from whom enquiries were alleged to
have been made by the authorities should have been produced to enable it
to cross-examine them. In our opinion, the principles of natural justice do
not require that in matters like this the persons who have given
information should be examined in the presence of the appellant or should
be allowed to be cross-examined by them on the statements made before
the Customs Authorities. Accordingly we hold that there is no force in the
third contention of the appellant.” [Emphasis supplied]

49. In the case of Union of India v. Delhi High Court Bar Assn. [(2002) 4 SCC 275] the
Hon’ble Supreme Court made the following observation in relation to the power of the
Debt Recovery Tribunal to accept evidence by way of affidavits and the procedure to be
adopted in the proceedings:

“23. In other words, the Tribunal has the power to require any particular
fact to be proved by affidavit, or it may order that the affidavit of any
witness may be read at the hearing. While passing such an order, it must

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 record sufficient reasons for the same. The proviso to Rule 12(6) would
certainly apply only where the Tribunal chooses to issue a direction on
its own, for any particular fact to be proved by affidavit or the affidavit
of a witness being read at the hearing. The said proviso refers to the
desire of an applicant or a defendant for the production of a witness for
cross-examination. In the setting in which the said proviso occurs, it
would appear to us that once the parties have filed affidavits in support
of their respective cases, it is only thereafter that the desire for a witness
to be cross-examined can legitimately arise. It is at that time, if it
appears to the Tribunal, that such a witness can be produced and it is
necessary to do so and there is no desire to prolong the case that it shall
require the witness to be present for cross-examination and in the event
of his not appearing, then the affidavit shall not be taken into evidence.
When the High Courts and the Supreme Court in exercise of their
jurisdiction under Article 226 and Article 32 can decide questions of fact
as well as law merely on the basis of documents and affidavits filed
before them ordinarily, there should be no reason as to why a Tribunal,
likewise, should not be able to decide the case merely on the basis of
documents and affidavits before it. It is common knowledge that hardly
any transaction with the bank would be oral and without proper
documentation, whether in the form of letters or formal agreements. In
such an event the bona fide need for the oral examination of a witness
should rarely arise. There has to be a very good reason to hold that
affidavits, in such a case, would not be sufficient.” [Emphasis supplied]

50. In view of the above observation made by the Hon’ble Supreme Court as well as the
provision contained in Section 146(1)(c) of the Representation of People Act, 1951
which specifically and expressly empowers the Election Commission of India to receive
evidence on affidavits, there remains no doubt that the contention of the Respondents
that the Commission cannot take evidence on affidavit as it is not permitted under the
Indian Evidence Act, 1872 is devoid of any merit.

51. During the hearing held at the Commission on 22.05.2018 Ld. Counsel Mr. Manish
Vashisht read over paragraphs 28 to 41 of the Application dated 16.05.2018 for

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 summoning of witnesses and for cross-examination of the Petitioner and submitted that
the initial onus and the entire burden to prove the Respondents’ guilt lies on the
Petitioner. He further submitted that there is no adjudication on this aspect (prayer for
cross-examination of Petitioner) by the Commission which prevents the Respondents
from raising this issue at this stage as the earlier observation on this aspect has been set
aside by the Hon’ble High Court.

52. Ld. Counsel Mr. Manish Vashisht referred to the Complaint dated 19.06.2015 filed by
the Petitioner and his Reply dated 28.12.2015, which was referred as the ‘Second
Complaint’, and submitted that the Petitioner has made serious allegations without
adducing any reliable and cogent proof of the same. Mr. Manish Vashisht relied on
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (supra) and stated that the
burden lies on the Petitioner to prove his allegations and prior to the discharge of this
burden by the Petitioner, the Respondents cannot be called to present their defense as the
stage for it will arise only after the burden of proof that lies on the Petitioner is
discharged by him and the Commission is prima facie convinced about the truthfulness
of the allegations.

53. Ld. Counsel Mr. Manish Vashisht has also read over and placed reliance on the
following judgments to argue that the emphasis in an inquiry of disqualification is
always on evidence and proof which the Petitioner is required to furnish as the burden is
cast upon him to prove the allegations he has made:

i. Surya Kant Roy v. Imamul Hak Khan [(1975) 1 SCC 531]

ii. Karbhari Bhimji Rohamare v. Shankar Rao Genuji Kolhe & Ors. [(1975) 1 SCC
252]

iii. U. C. Raman v. P. T. A. Rahim & Others [(2014) 8 SCC 934]

iv. Umrao Singh v. Darbara Singh & Ors. [(1966) 1 SCR 421]

v. Anokh Singh v. Punjab State Election Commission [(2011) 11 SCC 181]

54. The first four judgments among these, i.e. Surya Kant Roy v. Imamul Hak Khan;
Karbhari Bhimji Rohamare v. Shankar Rao Genuji Kolhe & Ors.; U. C. Raman v. P.
T. A. Rahim & Others; and Umrao Singh v. Darbara Singh & Ors. are cases
originating from Election Petitions and for the reasons discussed above these may not be

22 | P a g e
 of any relevance to throw light either on evidentiary requirements or on the procedure to
be adopted in Reference Cases.

55. Ld. Counsel Mr. Manish Vashisht has also read over and placed reliance on the judgment
of Hon’ble Supreme Court in Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. [(1977) 1
SCC 369] to argue that the burden of proof lies on the Petitioner and not the Respondent.
However, in this judgment the apex Court has very well explained the position about
burden of proof by stating that the “the burden lies on the party which would fail in the
suit if no evidence were led on the fact alleged by him” and since in Reference Cases it is
not the Petitioner who would fail in the suit, it can not be simply stated that the burden
lies on the Petitioner and therefore the Reference Case would fail if no evidence is led on
the allegations by the Petitioner. As discussed above, the Reference Case proceedings are
inquisitorial in nature as opposed to EPs and therefore, it is very necessary that this
difference in the nature of proceedings must be kept in mind and in view of the same
there is no merit in the contention of the Ld. Counsel that the burden of proof is on the
Petitioner and this court must follow the procedure of leading of evidence as set out in
Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. (supra) as it was a case relating to proving
of a will and the nature and procedure of such a case is very different from the nature and
procedure which is to be adopted in Reference cases.

56. Ld. Counsel Mr. Manish Vashisht referred to the Written Submission dated 15.12.2017
filed by the Petitioner and read over paragraph number 8, 10, 13 and 18 wherein certain
allegations have been made or certain adverse averments have been made by the
Petitioner and submitted that since the Petitioner has not adduced any evidence in
support of these averments, he needs to be called for cross-examination. However, this
argument is devoid of any merit as it makes no sense to call the Petitioner for cross-
examination for the reason that he has not submitted any evidence in support of his
allegations as in that case those allegations would automatically fall unless some cogent
proof is discovered by the Commission in its own inquiry in which case again there is no
purpose that could be solved by cross-examining the Petitioner.

57. Ld. Counsel Mr. Manish Vashisht further submitted that the Hon’ble High Court of
Delhi has held in para 40 of the judgment dated 23.03.2018 that where an offence is
committed under Section 175, 178, 179, 180 and 228 of the Indian Penal Code in the
presence of the Commission, the ECI can, after recording facts constituting the offence

23 | P a g e
 and statement of the accused, forward the case to the magistrate having jurisdiction to try
the same and therefore, in the present proceedings, the ECI should invoke this power as
both the sides have filed opposing affidavits and initiate proceedings against the party
whose affidavits are proved to be false by invoking the powers as described in para 40 of
the judgment dated 23.03.2018 and provided under Section 146 of the RP Act, 1951.

58. Ld. Counsel Mr. Manish Vashisht referred to Reply dated 28.12.2015 filed by the
Petitioner (which is referred by the Respondents as the Second Complaint) and to the
Rejoinder dated 24.10.2016 submitted by the Petitioner to show that the Petitioner has
not admitted to any of the contents of the Reply of the Respondents and that the term
‘chauffeur driven car’ has come in use for the first time in the Reply dated 28.12.2015
filed by the Petitioner without furnishing any proof of the same and since the burden of
proof lies on the Petitioner, there is a need to cross-examine the Petitioner.

59. In the same vein, Mr. Ravi Raghunath, Ld. Counsel for Respondent Nos. 9 and 10
submitted that the Petitioner himself has used the words ‘fact finding and opinion
making body’ with respect to the Commission, and thus the Commission should exercise
its fact-finding duty by establishing facts through cross-examination. Further, Mr.
Raghunath argued that since the Petitioner has also admitted that there should be a ‘trial’
of the reference case, he must first discharge his burden and if the Commission feels that
there is a case against the Respondents then they may be made to argue. He also
submitted that the present Applications must be read with the earlier written submissions
filed by the Respondents as they had sought cross-examination of the Petitioner earlier as
well. Ld. Counsel Mr. Raghunath argued that since the Petitioner has admitted that the
Commission has to conduct a ‘trial’, which primarily entails summoning and
examination of witnesses there remains no reason to object to the prayers made in the
present Applications.

60. Ld. Counsel Mr. Raghunath further submitted that in the Written Statement dated
31.08.2016, the Petitioner has himself stated that the Commission is a fact finding body
and fact is found only when someone enters the witness box and is subjected to
examination. However, it is pertinent to note at this juncture that the argument that facts
can be found only through cross-examination is a fallacious argument as cross-
examination is not the only way for establishing facts as it can also be established by

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 documents and the same has also been conceded by his fellow Ld. Counsel Mr.
Chaturvedi (infra, para 82).

61. Ld. Counsel Mr. Raghunath submitted that ECI Procedure mandates cross-examination.
He further submitted that in the judgment and order dated 23.03.2018 given by the
Hon’ble Delhi High Court, the Commission was directed to ‘hear the arguments’ but the
High Court also directed the Commission to ‘re-examine the factual matrix of the case’.
Mr. Raghunath contended that the factual foundation could only be established by
witnesses and cross-examination. He further submitted that para 113 (iv) of the High
Court judgment dated 23.03.2018 had to be read along with paragraphs 54, 94, 110 and
111 of the judgment as these paragraphs would not fall within the ambit of the High
Court direction to decide ‘without being influenced by the earlier order or observations
on the said aspect in this order’. It is trite to note that while the Hon’ble High Court has
held in para 110 of the judgment dated 23.03.2018 that “oral arguments and elucidation
on the legal position as well as factual matrix is required and necessary” in the context of
the present case, it does not imply by any stretch of imagination that the Hon’ble High
Court has intended to permit a re-drawing of the factual matrix and collection of fresh
evidence for the same despite the fact that sufficient evidence is already available on the
record of the case.

62. Ld. Counsel Mr. Raghunath submitted that the Right of Cross-Examination formed a part
of Principles of Natural Justice. He drew the attention of the Commission to the
Complaint dated 22.06.2015 and the Reply filed by the Petitioner on 28.12.2015 and
submitted that in these two documents the Petitioner has stated that the ‘Parliamentary
Secretaries may use government transport’ however in later affidavits he has improvised
on the same and has submitted that the Parliamentary Secretaries were provided
‘chauffeur-driven cars’.

63. Ld. Counsel Mr. Raghunath further submitted that it is in the Rejoinder dated
24.10.2016, in paragraph no. 4, that the Complainant substituted the words ‘government
transport’ to ‘chauffeur-driven car’ without any proof or basis and since the Petitioner
has stated that he has personal knowledge, his cross-examination is imperative. He
further submitted that in his understanding, government transport could also be Delhi
Metro or Delhi Transport Corporation Buses and in order to ascertain the meaning of the

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 phrase – ‘Government Transport’ he needs to examine GNCTD officials. At this point,
this Commission inquired from the Ld. Counsel if it required mentioning in the
Appointment Order in order to enable the Respondents to use public transport or whether
it enabled them to use it for free, to which the Ld. Counsel responded that he needs to
examine GNCTD officials to find out the answers to these questions and clarified that
public transport was not available for use by the Respondents free of cost. Ld. Counsel
further submitted that their case was that no car or facility was given to or availed by the
Respondents. The clarification given by Ld. Counsel that the usage of the term
‘government transport’ did not imply free usage of public transport leaves only one
inference that it entitled the Respondents to avail government paid transportation service
which is not referring to a public transport and therefore was exclusive in nature. Such a
transportation service could only be by a chauffeur driven car as it is a known fact that in
India, the government never provides self-driven vehicles and government vehicle is
always accompanied by a government chauffer. The nature of transportation facility that
would flow from the term ‘government transport’ can be easily inferred from the
available records. Therefore, this dispute over the nature of facilities which the term
‘government transport’ entails is an artificial one and there seems to be no need to clarify
the same by conducting examination of any government official.

64. Ld. Counsel Mr. Raghunath further argued that while Paragraph 8 of the Rejoinder dated
24.10.2016 filed by the Petitioner alleges that by virtue of holding the post of
Parliamentary Secretary, the Respondents became entitled to facilities over and above
the entitlement of MLAs which was also reiterated in paragraph 18 of the Reply dated
15.12.2017 filed by the Petitioner, however the GNCTD Reply dated 20.09.2016 has
denied the same. Thus, he argued that the burden falls on the Petitioner to prove the
veracity of the allegations.

65. Ld. Counsel Mr. Raghunath submitted that the Respondents had submitted in their Reply
dated 16.10.2017 that at an appropriate stage, cross-examination shall become necessary.
He further submitted that the Respondents had denied all the allegations made by the
Petitioner and even GNCTD in its Reply dated 20.09.2016 had confirmed in their favour
and for this reason too cross-examination of the Petitioner is necessary.

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66. Ld. Counsel Mr. Raghunath read over Rules 3, 40, 42, 45 and 46 and Heading of Chapter
6 of the ECI Procedure and submitted that the use of the word “shall” in Rule 3 implies
that the ECI is bound by the ECI Procedure. He submitted that heading of Chapter 6
reads “Evidence”, which goes on to show that it is not alien to take evidence in the
course of enquiry. He further submitted that Rule 40 relates to list of witnesses; Rule 42
provides the procedure for examination of witnesses; Rule 45 prescribes the form of oath
and Rule 46 provides that the Petitioner is the lead witness. Mr. Raghunath further
contended that giving due consideration to Rule 46, if lead witness is not allowed to be
cross-examined, grave injustice would be caused. As explained earlier the ECI
Procedure is in the nature of non-statutory procedural guidelines which are aimed at
assisting the parties as well as the Commission in the conduct of Reference Case
proceedings. Therefore no right can flow from this procedure which is opposed to the
procedural flexibility granted to the Commission by express provisions of the statute. In
this context it is pertinent to note that the ECI Procedure states that when there are
witnesses from both sides, the Petitioner & the Respondent shall be the lead witness from
their respective sides in order to quell any doubts or confusion about the order in which
witnesses need to be examined – it however does not make a complainant a witness in a
case which is solely based on documentary evidence. Moreover, lead witness has no
special importance in terms of evidentiary value being attached to his or her testimony
and therefore in the facts and circumstances of the case, there appears no prejudice which
will be caused if cross-examination of Petitioner is not allowed.

67. Ld. Counsel Mr. Raghunath seconded the reliance placed on Karbhari Bhimaji
Rohamare v. Shanker Rao Genuji Kolhe (supra) on the point that detailed evidence has
to be called to prove the facts.

68. In rejoinder to the Written Statement filed by the Petitioner, Ld. Counsel Mr. Raghunath
submitted that in paragraph 3 of the written statement the Petitioner has submitted that
the proceedings before the Commission are summary in nature, but considering the
inconsistencies in the pleadings, improvements made through subsequent affidavits and
the Petitioners submission on affidavit that the Complaints and replies etc. are based on
personal knowledge, it becomes imperative to carry out cross-examination of the
Petitioner and it is necessary to call the witnesses as prayed.

27 | P a g e
69. Mr. Kamal Mehta, Ld. Counsel for Respondent No. 2 started his arguments by
submitting that the Opinion of ECI dated 19.01.2018 was vitiated and bad in law as it
violated the Principles of Natural Justice. He submitted that three criteria were required
to be satisfied for the disqualification of the Respondents for holding Office of Profit:
Firstly, there should be an office in existence; secondly, the office should be an office of
profit; and finally, the office must be under the government. He submitted that for the
fulfillment of the first criteria, i.e., the existence of an office, the seat or power must be
permanent in nature and must have a going character, instead of being newly created. A
comparison was drawn with the office of the Chief Justice of India and it was
emphasized that while different persons come and leave, on expiration of their term, the
office itself is permanent. Mr. Mehta argued that there was no office of Parliamentary
Secretary in existence prior to the date of appointment of these MLAs and the said office
was created by the Order of Appointment dated 13.03.2015. Further, the office of
Parliamentary Secretary as well as the appointments to the said office was quashed by
the Delhi High Court for want of approval of the Hon’ble Lieutenant Governor of Delhi.
After this order, there was no vacancy in the said office and thus, there was no office in
existence for the purpose of attracting the disqualification for holding an Office of Profit.
For the second criteria, he submitted that the definition of office of profit states that the
said office should give rise to ‘profits’, ‘emoluments’ or ‘pecuniary gains’, all three of
which are financial in nature as per their general dictionary meanings which was read out
by him and therefore he submitted that where an office leads to provision of facilities or
perks of a non-pecuniary nature, it does not qualify as an office of profit.

70. Ld. Counsel Mr. Mehta referred to the Appointment Order dated 13.03.2015 and
emphasized on the fact that it stated that the Parliamentary Secretaries would not be
eligible for any remuneration, perks or other benefits apart from Office Space in the
Ministers Office and Government Transport for official purposes. Ld. Counsel Mr.
Mehta argued that the term ‘Office Space’ meant some space in the already existing
office of the Minister and that ‘Government Transport’ did not automatically mean that a
chauffeur-driven car was provided. He emphasized that the burden was on the Petitioner
to prove that transport was made available all-round the day and he needs to cross-
examine the Petitioner to find out how he could allege that the transport was a
‘chauffeur-driven car’.

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71. Ld. Counsel Mr. Mehta further elucidated the need to carry out cross-examination in this
case by submitting that the Commission does not and may not resort to conducting cross-
examination in cases where it makes a decision in favour of the elected representatives.
He also insisted that it is completely justified if the Commission is biased in favour of
the Respondents as they are elected representatives of the people. However, in a case
such as this, where disqualification of the MLAs has the effect of jeopardizing the right
to representation of the people, Principles of Natural Justice has to followed till the hill
and cross-examination becomes imperative and therefore this Commission must direct
the Petitioner to present himself for Cross-Examination to show the material he has
relied upon and to see whether it is admissible evidence or not.

72. Ld. Counsel Mr. Mehta further submitted that the Commission should not be made to do
the job of the Petitioner and look at the documents supplied by the GNCTD, which run to
over 2500 pages, as it falls outside the jurisdiction of the Commission. It is pertinent to
note in this context that it is the Constitutional duty of this Commission to conduct the
appropriate inquiry and discover and look into all the records and even conduct oral
hearings in appropriate cases to arrive at an opinion the furnishing of which is a
constitutional responsibility of this Commission alone and therefore this Commission
cannot turn a blind eye to the records of the case by shedding the responsibility and
putting it on the Petitioner.

73. Ld. Counsel Mr. Mehta asserted that he has a right to call witnesses to disprove the
material which is going to be relied upon against the interests of the Respondent’s and
the burden falls entirely on the Petitioner to prove what is not available in the
Appointment Order dated 13.03.2015. He further submitted that the amount spent on the
renovation or construction of the offices was for all the MLAs of the Delhi Legislative
Assembly but the Petitioner has alleged that it was spent only on the Parliamentary
Secretaries and such allegations could not be proved without cross-examination of the
Petitioner. He also submitted that the Officer who noted these papers also need to be
examined to find out the reasons as to why or how he made this observation that the
expenditures were made in relation to Parliamentary Secretaries. It is pertinent to note
that the documents referred to above are Government documents which are self-
explanatory and require no proving or disproving. When the subject of a letter issued by
a government department to another notes that the demand is being made ‘for

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 Parliamentary Secretaries’ then there is no further need to call the officers who have
signed on the same for testifying if the said demand or the ensuing expenditure was for
Parliamentary Secretaries or not.

74. Ld. Counsel Mr. Mehta read over S. 146 of the Indian Evidence Act, 1872 which deals
with ‘Questions lawful in cross-examination’ to support his argument that the right of
cross examination is integral to Principles of Natural Justice and more so, when the
proceedings entail serious consequences. Further, he submitted that even the ECI
Procedure provides for cross-examination.

75. Ld. Counsel Mr. Mehta seconded the argument that affidavit of the Petitioner would not
suffice as it is not evidence as per the Evidence Act, 1872. He also asserted that the
complaint seeking the disqualification of the Respondents is mala fide and politically
motivated.

76. Ld. Counsel Mr. Mehta submitted that when the Hon’ble High Court has once remanded
the matter back to the ECI for failure to comply with Principles of Natural Justice then
the Commission should tread carefully lest the same question of Principles of Natural
Justice would arise again and endeavor should be to safeguard from such a situation. He
prayed that this issue should be decided at the threshold by a speaking order so that the
Respondents may invoke their lawful remedies, if aggrieved.

77. Mr. Shubhranshu Padhi, Ld. Counsel for Respondent Nos. 13 and 14 started his
arguments by laying down the broad contours of his contentions as under: First,
principles of natural justice encompasses within it the right to cross-examine; Second, in
an election petition, the burden to prove an office of profit lies on the complainant and
likewise, the same standard shall apply to reference cases; Lastly, the Opinion of the ECI
dated 19.01.2018 was set aside for the want of compliance with Principles of Natural
Justice and therefore, keeping in view the fitness of things, cross examination should be
allowed in a time-bound manner.

78. Proceeding with his first contention, Ld. Counsel Mr. Padhi argued that all quasi-judicial
bodies are mandated to follow Principles of Natural Justice, while conducting any
proceedings. Principles of Natural Justice include - audi alteram partem (hearing the
other side), nemo judex in causa sua (nobody can be a judge in his own cause), and

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 reasons to be given for any decision that the body comes to. Mr. Padhi implored to the
Commission to keep in mind the consequence of disqualification of the elected
representatives and emphasized that there is a higher duty upon this Commission, being
the custodian of democracy, to follow the Principles of Natural Justice. Mr. Padhi
submitted that the Hon’ble Delhi High Court had stated that an opinion made by the
Commission carries great weight and in view of the same, if the Respondents’ Right of
Cross-Examination is not granted, there would be nowhere for them to go.

79. Ld. Counsel Mr. Padhi further submitted that since paragraph 24 of the Opinion of the
ECI dated 19.01.2018 has been set aside, the Respondents are renewing their prayer. He
further submitted that ‘if’ the proceedings are adversarial in nature, the Complainant
must be cross-examined. Therefore, Ld. Counsel Mr. Padhi was not opposed to a finding
that these proceedings are not adversarial but inquisitorial in nature and if such a position
is established then the cross-examination of the Petitioner may not remain necessary.

80. Ld. Counsel Mr. Padhi read over and placed reliance on Ayaaubkhan Noorkhan Pathan
v. State of Maharashtra (supra) of which he referred those paragraphs which quoted
Rajiv Arora v. Union of India (supra) and Lakshman Exports Ltd. v. Collector of
Central Excise (supra) all of which have been dealt with above. Ld. Counsel Mr. Padhi
also placed reliance on the case of Andaman Timber Industries v. Commissioner of
Central Excise, Kolkata – II [(2016) 15 SCC 785] to submit that denial of the right to
cross-examination would be illegal however this was again a case where the testimony of
two witnesses was relied upon by the Assessing Officer for issuing Show Cause Notice
and it was the only evidence available and yet the Cross-Examination was denied and
this was held by the Hon’ble Supreme Court to be bad in law. However, since the facts
and circumstances of the present case are vastly different, this judgment offers no
guidance in the conduct of these proceedings for the reasons already explained above in
relation to other similar cases relied upon by the Respondents.

81. In his second contention, Ld. Counsel Mr. Padhi argued that the burden of proof lies on
the Petitioner even in reference cases. Relying on the provisions of Chapter II and III of
Part VI of the RP Act, 1951, which deal with presentation of Election Petitions to the
High Court and trial of Election Petitions, he submitted that the burden of proof in
Reference Cases also must be on the Petitioner. However, as explained above, there is a

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 vast difference between Election Petitions and Reference Cases and the burden of proof
requirement of Election Petitions cannot be imported to these proceedings.

82. Ld. Counsel Mr. Padhi relied on the following judgments to establish that the burden of
proof lies on the Complainant in an Election Petition:

i. Harikrishna Lal v. Babu Lal Marandi [(2003) 8 SCC 613];

ii. Kona Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442];

iii. Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev [(1992) 4

SCC 404];

iv. Gajanan Samadhan Lande v. Sanjay Shyamrao Dhotre [(2012) 2 SCC 64]

83. However, since all of these cases pertain to Election Petitions, no reliance can be placed
on these judgments for ascertaining the burden of proof in Reference Cases and therefore
these cases offer no assistance in the present case. The difference between the nature and
character of present proceedings as against Election Petitions is not being repeated here
as the same has been dealt with above.

84. Ld. Counsel Mr. Padhi concluded his arguments by submitting his third and final
contention that the Hon’ble High Court had directed the Commission to re-examine the
factual matrix of the case and hence, cross-examination was imperative to determine the
facts.

85. Along these lines, Ld. Counsel Mr. Amitabh Chaturvedi submitted that in the Complaint
dated 22.06.2015, the Petitioner had alleged that the Parliamentary Secretaries ‘may get
benefits’ however in the Second Complaint (Petitioner’s Reply dated 20.12.2015) he
alleged that the Parliamentary Secretaries ‘may use or would be eligible to get benefits’
and annexed a list of benefits such as an office space, government transport, etc. Mr.
Chaturvedi contended that there were two ways to establish the facts: with the Complaint
and the documents furnished by the GNCTD, but not even one word of the former could
be read until the Complainant was subjected to cross-examination. It is apposite to note
that by submitting this argument the Ld. Counsel has conceded to the point that it is
possible to establish the facts by an alternative mechanism that is by using the documents
furnished by GNCTD and therefore there is no necessity to Cross-Examine the Petitioner
and no prejudice will be caused if this prayer is declined.

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86. Ld. Counsel Mr. Chaturvedi also contended that the veracity of certain allegations such
as the allegation that the Respondents made known to their constituents about their status
through hoardings and letter heads etc. could also be verified only through cross-
examination. However, the Commission’s Order dated 16.09.2016 had deleted these
paragraphs from the record of the case and therefore there is no need to conduct any
examination in this regard.

87. Ld. Counsel Mr. Chaturvedi further contended that since there was a direct conflict and
inconsistency between the contents of the Written Statement dated 09.05.2016 (para 14,
24 and 25) filed by the Respondents on Affidavit and the Second Complaint (para 8)
which is also filed on affidavit, and since this kind of dichotomy is arising time and again
due to conflicting pleadings, Cross-Examination of the Petitioner is required to ascertain
the truth. However, it is pertinent to note the submission made by Ld. Counsel Mr.
Chaturvedi above where he has submitted that facts could be ascertained by documents
as well and when in the present case the government documents are available on record
to prove or disprove any contention or allegation made against the Respondents there
appears to be no necessity to call officials for examination. Moreover, the dichotomy in
the complaints filed by the Petitioner is also of no concern as the Commission is not
relying on the affidavits or submissions made by him and is solely relying on the
documents submitted by GNCTD.

88. Ld. Counsel Mr. Chaturvedi referred to the judgment delivered by the Hon’ble Supreme
Court in the case of Ashok Shankarrao Chavan v. Madhavrao Kinhalkar [(2014) 7
SCC 99] and contended that in the aforementioned since cross-examination was not
sought at the preliminary stages of the matter, it resulted in the court deciding that the
said right would not be provided as it had not been asked for earlier. With the help of this
case, Mr. Chaturvedi insisted that they did not want a similar situation to arise. However,
it must be pointed out that even in this case this demand has not been made at the
preliminary stage which was crossed at the time ECI passed the Order dated 23.06.2017
and while the Respondents stated in their Reply dated 16.10.2017 that “at an
appropriate stage the cross-examination of the Petitioner shall become necessary” they
did not move a prayer in that regard even at that time and now when the Hon’ble Court
has remanded the matter back to ECI with a very specific direction, the Respondents are
attempting to re-start the proceedings from the preliminary stage.

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89. Ld. Counsel Mr. Chaturvedi further submitted that the Petitioner is required to be cross-
examined about the veracity of certain allegations and statements made in his Complaint
dated 22.06.2015, Petitioner’s Reply dated 07.10.2016 about the nature of duties of
Parliamentary Secretaries and about the expenditure of money on the construction of
office spaces. Mr. Chaturvedi argued that verification, through examination, of these
statements was required to find out what money was paid to the Respondents and
whether it was used by them.

90. Ld. Counsel Mr. Chaturvedi seconded the argument that since the Petitioner has stated
on affidavit that he has personal knowledge about the statements made in his Replies and
Rejoinders, he should be subjected to cross-examination. Ld. Counsel Mr. Chaturvedi
further seconded the argument that unless the veracity of statements made in the
affidavits is proved by cross-examination, no material supported by the affidavit can be
seen. It is trite to reiterate and reaffirm at this juncture that no statement of the Petitioner
or material supplied by the Petitioner shall be relied upon by the Commission as this
Commission shall primarily rely only on the documents submitted by GNCTD in rely to
the Commission’s notice.

91. Ld. Counsel Mr. Chaturvedi further submitted with respect to reimbursement of air ticket
made to Respondent No. 8 that he will have to question the officers to ascertain its true
nature and to cross-examine the Petitioner as he had made allegations on personal
knowledge. However, he accepted that there is no question of admitting or denying what
is a matter of record, which, in the present case, is the fact that reimbursement was made
to his client for attending the conference which is an undisputed fact as it is borne out of
the records.

92. Ld. Counsel Mr. Chaturvedi submitted that where in the facts and circumstances of the
case the ECI is of the view that a decision is not possible on the basis of affidavits, there
is no reason why recourse should not be taken to s. 146(1)(a) and he furthered this
argument by contending that having exercised the power under s. 146(1)(a) there is no
reason why s. 146(1)(b) should not be exercised where deeper scrutiny is required.
However, this argument is based on the fallacious understanding of the powers used by
the ECI for demanding documents from GNCTD as the ECI did not invoke S. 146(1)(a)
which can generally be used only when a request is made by one of the parties and
therefore the ECI had used its suo moto power under S. 146(2) to conduct this inquiry.

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93. Ld. Counsel Mr. Chaturvedi further argued that the proceedings in reference cases are
not at all inquisitorial and that it is largely in the nature of adversarial proceedings. He
further submitted that the Hon’ble Delhi High Court has rejected the argument that this is
an inquisitorial proceeding. The Ld. Counsels must be warned against such attempts to
mislead the Commission as the matter of fact is that the Hon’ble Delhi High Court
rejected the argument advanced by the Counsel for the Commission that since the present
proceedings are inquisitorial in nature, the same is not quasi-judicial which does not
imply that the Hon’ble High Court rejected the contention that the present proceedings
are inquisitorial in nature. In fact, the Hon’ble Delhi High Court has held that there is
complete absence of lis inter partes in Reference Cases which is to say, in other words,
that Reference Proceedings are not adversarial in nature. It is pertinent to note that the
Commission is given with the power and responsibility to conduct inquiry and call for
documents etc. only because the legislature in its prudence was able to foretell a situation
where the complainant may not be able to procure and submit sufficient evidence and
therefore it put this responsibility upon this Commission and gave it the enabling powers
to execute the same. It is in exercise of this power as contained in Section 146 (2) of RP
Act, 1951 that the Commission has obtained the documents that have been supplied by
GNCTD. Therefore, it is indisputable that the present inquiry is inquisitorial in nature
and the parties are present before the Commission only to assist the Commission in the
discharge of its constitutional duty.

94. Ld. Counsel Mr. Chaturvedi further argued that in cases where there is a myriad of
affidavits, the Commission has taken the view to do away with cross-examination. He
argued that although that Supreme Court has held that inquiries like this cannot be a
fishing inquiry, yet cross-examination is required to test the veracity of the affidavits
filed.

95. Ld. Counsel Mr. Chaturvedi further submitted that in case the Petitioner is shying away
from cross-examination, then it would throw light on his conduct and credibility. He
further submitted that he has a right to discredit the complaint, and to say that it is untrue
and biased. He insisted that the exercise of this right is essential to find out the truth and
it cannot be done without cross-examination. However, when no reliance is being placed
by this Commission on the affidavits filed by the Petitioner, there appears to be no need
to test the veracity of the same.

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96. On this submission, Ld. Counsel Mr. Rikky Gupta referred to para 29 of the Opinion
dated 19.01.2018 and argued that the submission of the Petitioner that the Respondents
were “capable of yielding profit” by virtue of their post of Parliamentary Secretaries
cannot be assumed and they need to be proved beyond doubt on the basis of records.
Next, he referred to para 41 of the Opinion and argued that the real test to determine
whether an office is an office of profit is the “possibility of conflict” and he argued that
conflict cannot be assumed and whether real conflict arose has to be tested for real
existence. Referring to para 42 of the Opinion, Mr. Gupta argued that whether the MLAs
have failed in the discharge of their legislative functions or have been blinded has to be
proved on the basis of evidence. Mr. Gupta submitted that the Petitioner had made
submissions based on his own knowledge and therefore his cross-examination was
necessary. It is pertinent to make reference to the observation made above on the basis of
the judgment of Ashok Shankarrao Chavan (supra) that the evidentiary requirement in
Reference Cases are not the same as the ones in Election Petitions and therefore it may
not be necessary to prove every charge or fact ‘beyond reasonable doubt’ in Reference
Cases. It is also interesting to note that the Ld. Counsel has conceded in this argument
that the potential of the office has to be proved on the basis of records and therefore it
further washes down the argument on the necessity to cross-examine the Petitioner.

97. Ld. Counsel Mr. Gupta also referred to para 78 of the Opinion dated 19.01.2018 which
states that the state legislature has no power to create such an office and pointed out that
it contradicts para 12 of the Opinion dated 19.01.2018 which assumed the existence of
the office and submitted that the Petitioner has to be cross-examined to ascertain his
stand as to whether it is that the office was already in existence or that it had been
created by the Appointment Order. However it is noteworthy that these paragraphs are
not the submissions of the Petitioner and therefore there appears to be no logic behind
the need to ascertain his stand. Moreover, this Commission is not concerned with
anyone’s stand and all that is to be looked into for answering this present reference is the
core facts of the case and applicable laws.

98. Ld. Counsel Mr. Gupta seconded the argument that the Petitioner is not a whistleblower
and instead, he has a personal agenda of his own, for which reason only he has improved
and filed one affidavit after another.

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99. Ld. Counsel Mr. Gupta relied on Manoj Narula v. Union of India [(2014) 9 SCC 1] to
assert that no implied meaning can be given to the term ‘office of profit’.

100.Mr. Gupta relied upon para 125 of the judgment of the Hon’ble Supreme Court of India
in Kalpana Mehta & Ors. v. Union of India [2018 SCC OnLine SC 512] which states
that the finding of Parliamentary Committee on facts cannot substitute the Courts
function as a fact finding body and a court has to arrive at its own conclusions based on
the evidence before it rather than just relying on the findings of the Parliamentary
Committee. This observation of the Hon’ble Supreme Court has no relevance in the
present proceedings as this Commission is fully discharging its function as a fact finding
body and has not relied on the Parliamentary Committee Report for the same. The
Parliamentary Committee Report that was relied upon in the ECI Opinion dated
19.01.2018 was only for ascertaining the view that the Parliamentary Committee has
taken about the doctrine of Office of Profit as it is also a body that examines issues of
Office of Profit and therefore this judgment is of no assistance to the Respondents’ case
at hand. It is also highly pertinent to note that the observation of the Hon’ble Supreme
Court in para 198-199 of the judgment re-affirms that Parliamentary Committee Reports
may be referred to and relied upon for ascertaining the true legislative intent and the
object and purpose of the law.

101.Proceeding with the same submission, Mr. Jai Sahai Endlaw, Ld. Counsel for
Respondent Nos. 12 and 17 argued that the complaint has only omnibus allegations but
no specific allegations have been made in the same.

102.Ld. Counsel Mr. Endlaw contended that while deciding the dispute of All India Anna
Dravida Munnetra Kazhagam (Dispute Case No. 2 of 2017) this Commission did not
allow cross-examination as it would have derailed the proceedings and side-cast the
mandate on ECI, but this is not the case here as it is not a case where two rival factions
of a Political Party are up against each other as on one hand there is the elected
Government of NCT of Delhi and on the other, a motivated Petitioner. Ld. Counsel Mr.
Endlaw argued that not allowing him an opportunity to cross-examine the Petitioner
about whether his clients held office and did any offence would make it very difficult for
him to come out of those allegations.

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103.Ld. Counsel Mr. Endlaw insisted that ECI should allow the Respondents to cross-
examine the Petitioner though the Commission may curtail the cross examination and
ask the Respondents to ask specific questions only and compel them to finish the cross-
examination in a fixed time frame.

104.Ld. Counsel Mr. Endlaw submitted that the consequence of not allowing their prayer for
cross-examination will be that the Respondents will not be able to ascertain the true facts
and the falsehood of the allegations made in the complaint which would deprive them of
an effective defense and hence will be in violation of Principles of Natural Justice. He
referred to S. 146(1) of the Representation of People’s Act, 1951 and stated that if the
ECI is unable to come to a decisive opinion on the basis of material before ECI then
powers under S. 146(1) must be invoked. This submission of the Ld. Counsel is very
pertinent to note as he conceded at this juncture to the legal position that under S. 146(1)
it is the discretion and satisfaction of this Commission which is the basis for exercising
the powers granted under the said provision and it does not grant any right in rem on the
parties to ask for the exercise of such powers.

105.Ld. Counsel Mr. Endlaw submitted that in the present case it was impossible for this
Commission to come to a decisive opinion on the basis of records as the complainant has
not filed any reliable document. This situation mandates the Commission to invoke the
powers under S. 146(1) and therefore the Commission must allow the Respondents to
cross-examine the Petitioner as in this cross-examination either evidence will come up or
the absence of it. He further submitted that the Commission may also direct the
Petitioner to submit documents under S. 146(2) and it would equally satiate the claim for
cross-examination.

106.It is apposite to note at this juncture that the Commission has already invoked its powers
under S. 146 (2) to call for documents from the authority which is the custodian of the
same, i.e. GNCTD and the Petitioner has submitted the documents which were in his
possession in various submissions made before this Commission from time to time and
therefore there is no occasion to believe that the Petitioner would have any document
which he has not produced before this Commission. Therefore, if Ld. Counsels claim for
cross-examination would get satiated by issuing direction to produce documents under S.
146(2) to the Petitioner, it should stand satiated to the fullest by the inquiry done by the
Commission with the GNCTD in which 2500 pages of documents have been submitted

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 by it. In addition to this it is pertinent to state, at the cost of repetition, that whether it is
possible or not to come to a decisive opinion on the basis of available records is the
function statutorily vested in this Commission and cannot be amused by any of the
Parties to a Reference Case proceeding.

107. Ld. Counsel Mr. Endlaw argued that ss. 146A, 146B and 146C cannot come into picture
unless the Respondents are allowed to cross-examine the Petitioner. He insisted that
there is no prejudice caused to the Commission if more evidence is gathered and all
efforts should be made for it as serious consequences are associated with the rendering of
the Opinion by the Commission.

108. Ld. Counsel Mr. Endlaw relied upon Union of India v. Tulsiram Patel [(1985) 3 SCC
398] to submit that a reasonable opportunity must allow the defense to show that the
evidence against him is not worthy of credence or consideration which can only be
possible if he is given a chance to cross-examine the witnesses called against him and to
examine himself or any other witness in support of his defense. He submitted that while
the ECI would not be bound by technicalities of evidence law but their right to natural
justice includes right to cross examine the evidence of witnesses which will be used
against them. The Ld. Counsel placed special emphasis on the following para of the
judgment:

“96. The rule of natural justice with which we are concerned in these
appeals and writ petitions, namely, the audi alteram partem rule, in its
fullest amplitude means that a person against whom an order to his
prejudice may be passed should be informed of the allegations and
charges against him, be given an opportunity of submitting his
explanation thereto, have the right to know the evidence, both oral or
documentary, by which the matter is proposed to be decided against him,
and to inspect the documents which are relied upon for the purpose of
being used against him, to have the witnesses who are to give evidence
against him examined in his presence and have the right to cross-
examine them, and to lead his own evidence, both oral and documentary,
in his defence.”

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109. Ld. Counsel Mr. Endlaw invited the attention of this Commission to the judgment of the
Hon’ble Supreme Court in the case of K. L. Tripathi v. State Bank of India and Ors.
[(1984) 1 SCC 43] where it was held as under:

“33. The party who does not want to controvert the veracity of the
evidence from record or testimony gathered behind his back cannot
expect to succeed in any subsequent demand that there was no
opportunity of cross-examination specially when it was not asked for and
there was no dispute about the veracity of the statements. Where there is
no dispute as to the facts, or the weight to be attached on disputed facts
but only an explanation of the acts, absence of opportunity to cross-
examination does not create any prejudice in such cases.” [Emphasis
supplied]

110. Placing reliance on the above observation made in K. L. Tripathi v. State Bank of India
and Ors. (supra) the Ld. Counsel Mr. Endlaw submitted that he had filed this
Application so that this adverse inference is not drawn against them at a later stage. The
above observation of the Hon’ble Supreme Court further re-strengthens the proposition
that no prejudice will be caused to the Respondents if their plea to cross-examine the
Petitioner is denied.

111. Furthering the arguments on this subject, Ld. Counsel Mr. Sameer Vashisht submitted
that in the first Written Statement dated 10.05.2016, the allegations made by the
Petitioner were termed as irresponsible and presumptuous and it was submitted that the
post of Parliamentary Secretary was an honorary post and the Petitioner had not
submitted any proof to discharge his burden. He also submitted that the GNCTD Reply
was in the favour of the Respondents. Further, he made reference to the Rejoinder dated
07.10.2016 filed by the Petitioner which stated that ‘the 21 Parliamentary Secretaries
were not appointed under any law or statute’ and then submitted that when the Petitioner
himself has accepted that the Parliamentary Secretaries were appointed without any
authority, then there was no reason at all to conduct any further enquiry as to whether it
was an office of profit.

112. Ld. Counsel Mr. Sameer Vashisht drew the Commission’s attention to the Second Reply
dated 21.10.2016 filed by Mr. Vijender Garg where he has stated that he was not holding

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 an office and in para 5 gave a response to the GNCTD Reply. The Ld. Counsel also
referred to para 7 of the said Reply where it was stated that the entire burden of proof
was on the Petitioner and that the documents submitted by GNCTD shall be referred to
for buttressing his arguments.

113. Ld. Counsel Mr. Sameer Vashisht invited the attention of this Commission to Dr.
Narottam Mishra v. Election Commission of India & Ors. [AIR 2017 Del 182] and
submitted that the Commission had conducted 49 sittings and had allowed four of
eighteen witnesses to be examined in that case and therefore the demand of the
Respondents was not something unknown to the procedure of this Commission or
unprecedented.

114. Pursuing the same line of argument, Mr. Dhruv Rohatgi, Ld. Counsel for Respondent
No. 4 submitted that since the Respondents are representatives of the people in whom
these people have reposed their faith, they should not be disqualified without a thorough
examination of the allegations made against them. He further submitted that it is the
reputation of the Respondents that is at stake and therefore there is a necessity to conduct
the examinations as prayed for in their applications and the present proceedings cannot
be conducted in a summary manner. He submitted that ECI is not a consumer forum and
even there in medico-legal cases, serious examination of evidence is done.

115. Ld. Counsel Mr. Rohatgi submitted that when GNCTD has replied that no benefits were
taken by the Respondents then there is contradiction in findings and therefore cross-
examination is necessary. However, it is to be noted that this Commission is not bound to
accept the explanation or inference drawn by GNCTD on the documents and rather it is
the responsibility of this Commission to apply its own mind on the records, draw its own
inference and arrive at its own conclusions and it cannot be asked or expected to go by
the reply submitted by any other authority blindly. It is relevant to note that even for
arriving at the Opinion dated 19.01.2018 this Commission did not blindly rely on the
GNCTD Reply and only placed reliance on those portions which were relevant and
which were logical inferences and conclusions drawn from the records submitted along
with the said Reply. The availability of the documents on the basis of which GNCTD
Reply has been made makes the demand for cross-examination redundant.

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116. Ld. Counsel Mr. Rohatgi pointed out that the Hon’ble Delhi High Court in judgment
dated 23.03.2018 had held that in reference cases the consequences are serious and
factual and legal issues may require determination. He also emphasized on the
observation of the Hon’ble High Court that complexity is a relevant consideration for
determination of the procedure. He insisted that without cross-examination, no purpose
will be solved by mere oral arguments and when the Hon’ble High Court has asked for
re-examination of factual matrix, then it cannot be done in a summary procedure without
effective cross-examination. However, it is to be noted that the direction of the Hon’ble
High Court is very clear and it cannot be stretched to the extent as to say that the Hon’ble
High Court has directed the factual matrix to be re-drawn irrespective of the availability
of the documents on record.

117. Ld. Counsel Ms. Trisha Nagpal for Respondent No. 7 submitted that the Respondents are
disputing each and every fact or allegation that stands against the Respondents. She
insisted that the Respondents are the elected government of Delhi and one person cannot
be allowed to dislodge them without cross-examination. She adopted the submissions
made by her senior colleagues that the burden of proof lies on the Petitioner and right to
hearing flowing from Principles of Natural Justice includes the right of cross-
examination. She submitted that the Hon’ble High Court of Delhi has nowhere directed
in the judgment dated 23.03.2018 that only arguments have to be heard.

118. Ld. Counsel Ms. Trisha Nagpal further submitted that when cross-examination is proved
to be of value then it has to be allowed. She further submitted that cross-examination
should be allowed to unearth the truthfulness of the complaint and the allegations.

119. Ms. Astha Gupta, Ld. Counsel for Respondent No. 19 submitted that the Petitioner has
made improvements upon his first complaint dated 19.06.2015 in the Reply/Second
Complaint dated 28.12.2015 and he needs to be examined as how he obtained this
additional information in 6 months. She further submitted that since the Respondents
have not admitted to a single allegation, the Election Commission cannot believe on the
submissions or affidavits filed by any side without proper examination of witnesses.

120. Ld. Counsel Ms. Astha Gupta adopted the arguments advanced by her Ld. Colleagues
that it is settled position of law that the person who alleges must prove, and not the
denier and that the burden of proof is on the Petitioner. She further submitted that since

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 the GNCTD Report also favors the Respondents, in the facts and circumstances of the
case, even the onus is on the Petitioner and not the Respondents. She submitted that it is
the endeavor of the Respondents to prove their integrity and the falsehood of these
allegations.

121. Ld. Counsel Ms. Astha Gupta further adopted the arguments of her Ld. Colleagues on
the aspect and stated that since the ECI Procedure has rules for calling of witness and
cross-examination, the prayer is not for some relief that is alien to the ECI.

122. Ld. Counsel Ms. Astha Gupta further adopted the arguments of her Ld. Colleagues on
the aspect that the Petitioner is not a whistleblower for the reason that he has appeared
before this Commission, the Hon’ble High Court, talked to the media and filed affidavits,
Written Submissions, Rejoinders etc.

123. Appearing for the Petitioner, Ld. Senior Counsel Mr. Meet Malhotra argued that when
the Respondents have argued that the Petitioner has not made any specific allegation,
then there is no need for his cross-examination. He further submitted that it is settled law
that the person denying must not prove but the one alleging must prove and therefore the
Respondents’ argument that denials have to be proved is merely to elongate the
proceedings to the extent that the Presidential Reference becomes infructuous.

124. Ld. Sr. Counsel Mr. Malhotra further submitted that there is no order or direction in the
judgment dated 23.03.2018 passed by the Hon’ble Delhi High Court to allow leading of
witnesses. He further submitted that the Application dated 16.05.2018 is only aimed at
delaying the proceedings before this Commission.

125. Ld. Sr. Counsel Mr. Malhotra submitted that the argument of the Respondents that they
have a right to cross-examination irrespective of whether or not the petitioners have led
any witnesses, is absurd.

126. Ld. Sr. Counsel Mr. Malhotra submitted that both sides must assist this Commission on
the basis of documents on record. He further submitted that the motivation of the
Petitioner is not of any concern in this inquiry, as the sole concern of this Commission in
the present inquiry is whether the Respondents held Office of Profit.

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127. In response to the contention of the Petitioner that the demand for cross-examination is
delaying tactic of the Respondents by which they are aiming at delaying this Reference
Case till it becomes infructuous, Ld. Counsel Mr. Manish Vashisht submitted that this
infructuous theory was contrary to the judgment of Hon’ble Supreme Court in Ravi
Yashwant Bhoir v. Collector (supra). While the Hon’ble Supreme Court has held in
Ravi Yashwant Bhoir v. Collector (supra) that statutory provisions must be strictly
adhered to when the case concerns the removal of a people’s representative, there is no
statutory rule which is being abrogated by this order. Moreover, the facts of the present
case have been distinguished from the facts of Ravi Yashwant Bhoir v. Collector (supra)
in para 12 above and in light of the same this submission of Ld. Counsel Mr. Manish
Vashisht is liable to be rejected.

128. Taking note of the above arguments, the Commission places reliance in the cases of
Gurbachan Singh v. State of Bombay [AIR 1952 SC 221] and Hira Nath Mishra v.
Principle, Rajender Medical College, Ranchi [(1973) 1 SCC 805], where the Hon’ble
Supreme Court had held the proceedings to be fair despite a non-affording of the right to
cross-examine the witnesses whose testimonies were relied upon in view of the peculiar
facts and circumstances of these cases. In Reference cases leading to disqualification, it
is often a public spirited citizen who files a complaint against a sitting Member of
Parliament or Member of Legislative Assembly. In many cases such a person puts
himself in danger by becoming a threat to the source of power and authority of such
influential persons and therefore to make a straight-jacket formula that in every
Reference case the Petitioner or the Complainant shall be a witness who shall be
subjected to cross-examination de hors the fact as to whether he has given any testimony
or not will prove counter-productive to the objective behind giving the ECI the discretion
to decide on the procedure to govern the conduct of Reference cases under Section 146
of the RP Act, 1951. It is for this purpose that the Procedure Rules have provided for a
savings clause as contained in Rule 25 which states that the Commission may decide to
follow any procedure for hearing of the matters as per the status of the pleadings and the
case at the time of hearing and reading this provision with Section 146B makes it
abundantly clear that the Commission has enough procedural flexibility to decline a
demand for cross-examination of a Petitioner when it appears to the Commission that no
prejudice will be caused to the Respondents by such a decision.

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129. Since in the present case there is no material produced by the Petitioner on the source of
which any question has been raised and since he has given no testimony of his own there
is no purpose that would be served by putting him to cross-examination as is sought by
the Respondents.

130. Therefore, this Commission is of the view that at this juncture there is no need and no
necessity to cross-examine the Petitioner as he is not a witness in the present proceedings
and the Respondents have failed to show any prejudice that will be caused to them due to
the denial of this prayer. However, in order to cull any doubts in the minds of the
Respondents this Commission takes this opportunity to reassure them that this
Commission will not rely on any testimony or information given by the Petitioner which
is not otherwise borne out from the records of the case.

SUBMISSION III: THAT THE RESPONDENTS SHOULD BE PERMITTED TO CALL WITNESSES

FOR PROVING DISPUTED FACTS.

131. Ld. Counsel Mr. Manish Vashisht referred to para 6 of the Second Reply dated
24.10.2016 wherein the Respondents had submitted that “even after the exhaustive
enquiry under taken by the Commission, nothing has come on record which could even
remotely suggest that any office of profit was held by the Respondents” and that the
Respondents “shall refer to the documents submitted by GNCTD to buttress their
arguments as the comprehensive details submitted by GNCTD proves beyond reasonable
doubt that no office of profit has been ever held by the Respondents”.

132. In view of this submission so rightly pointed out by Mr. Manish Vashisht and also the
fact that none of the Respondents considered it necessary or desirable to call any witness
for examination to prove or disprove any document supplied by GNCTD during the
period of about more than a year from the time when the documents were supplied to the
Respondents, i.e. 29.09.2016 till their Reply dated 20.11.2017 to the Notice dated
02.11.2017 issued by the Commission during which time multiple written submissions
were filed by the Respondents and oral hearings were conducted at the Commission,
there is no occasion and no necessity at this juncture to doubt the veracity of the
documents they have themselves so heavily placed reliance upon and have never
challenged or doubted before.

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133. Ld. Counsel Mr. Manish Vashisht referred to the Annexure I filed with the First Reply of
the Respondents dated 10.05.2016 which contained the Letter issued by Shri Kailash
Gahlot, Respondent No. 16, bearing D.O. No. NJF/2016/GAD dated 08.04.2016 vide
which the Respondent No. 16 had made an inquiry from the Principal Secretary of
General Administration Department, Government of NCT of Delhi which was very
similar to the inquiry made by this Commission. Mr. Manish Vashisht then referred to
Annexure II filed with the First Reply of the Respondents dated 10.05.2016 which
contained the Letter dated 21.04.2016 bearing No. F.
18/07/2016/Parl.Secy/GAD/Admn./1129 issued by Deputy Secretary, GAD, Admn
(GAD), GNCTD to Shri Kailash Gahlot in reply to his inquiry letter dated 08.04.2016
wherein it was noted as under :

“I am directed to inform you that no facility viz. Technical Devices, Vehicle,

Staff for Office, Residential accommodation, Official Space, Travelling
Allowance or any additional emoluments/reimbursement of any nature in the
capacity as Parliamentary Secretary has been provided to you by the GAD.”

134. Based on the above Letter dated 21.04.2016 Ld. Counsel Mr. Manish Vashisht argued
that this letter stood in contravention of the allegations made by the Petitioner and the
Commission was in possession of this letter when it made inquiry with the GNCTD and
this shows that the Commission disbelieved on this letter dated 21.04.2016 and also
submitted that this letter was not mentioned in the Opinion dated 19.01.2018 and has not
been challenged by the Petitioner and now he has moved an application for summoning
of this witness as otherwise it is impossible for this Commission to ascertain the truth
about the allegations.

135. In this context it is highly pertinent to note that the subject of the said Letter dated
21.04.2016 states – “Certificate regarding facilities provided by GAD to the
Parliamentary Secretary”. Thus, the letter dated 21.04.2016 speaks only for the facilities
provided by the General Administration Department and not for the entire Government
of NCT of Delhi nor even for the Legislative Assembly of Delhi. Therefore, this
Commission may not rely completely upon this Certificate alone when this Commission
has exercised the power under S. 146 to call for appropriate information and relevant
documents from the concerned departments. It was also clarified during the hearing to
the Ld. Counsel that the Commission’s inquiry with the GNCTD was not based on any

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 disbelief on any document submitted by any party but as a matter of practice in order to
ascertain the entire facts about all the Respondents and therefore it is not a case where
the Commission is doubting the veracity of this document. Therefore, it is preposterous
to seek permission to call a witness to prove a document which has not been challenged
and is not being disbelieved by anyone and for this reason there seems no purpose in
granting the prayer of the Respondent to call the concerned officer of General
Administration Department, GNCTD to prove the receipt of Letter dated 08.04.2016 and
the Reply dated 21.04.2016. Moreover, the said letter dated 08.04.2016 and the Reply
dated 21.04.2016 are both communications between Respondent No. 16 and GAD,
GNCTD alone however, all the Respondents have sought permission to call the
concerned officer as a witness for examination which is again preposterous and deserves
to be rejected as they have no relation with these documents.

136. Ld. Counsel Mr. Manish Vashisht further submitted that the GNCTD Reply dated
20.09.2016 makes it amply clear that the expenditure made by GNCTD in respect of the
Respondents was done in relation to their office of MLA. He relied on para 7.1 which
has noted that no order was issued by GAD for assigning duties to Parliamentary
Secretaries; para 7.6.3 which stated that Shri Manoj Kumar, Parliamentary Secretary has
attended some meetings which at the best can be termed as advisory; and para 7.6.4 of
the GNCTD Reply dated 20.09.2016 where it has been noted that Mr. Manoj Kumar,
MLA never dealt with any official file in his capacity as Parliamentary Secretary. A ‘list
of important dates and legal submissions’ was supplied to this Commission during the
course of arguments, which was filed before the Hon’ble High Court by Ld. Counsels
Shri Rikky Gupta, Ms. Trisha Nagpal, Shri Manish Vashisht and Shri Sameer Vashisht –
wherein a chart has been prepared which shows the paragraphs of the GNCTD Reply
dated 20.09.2016 on which the Respondents have placed their reliance and the
paragraphs are para 7.1, 17.1, 10.4, 10.5, 10.6, 10.8 (iv) & (v), 16.1 (b) and 9.10. It is
pertinent to note that when the Respondents have placed reliance on the GNCTD Reply
dated 20.09.2016 before this Commission as well as before the Hon’ble High Court then
challenging the veracity of only a few sub-paragraphs which contain observations against
them is in the nature of a rowing and fishing inquiry which cannot be permitted in such
proceedings.

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137. It is however pertinent to note that an exhaustive inquiry has already been conducted in
the present case from the GNCTD and the Commission has received not only the
response of GNCTD on the points of inquiry but also the documentary basis of the
response and the entire document has been made available to the Parties on 29.09.2016.
Till date the veracity of not even a single document has been challenged by any of the
Parties. Though it is correct that the Petitioner has filed the complaint and in normal
course there would lie a burden upon him to prove the allegations he has made but when
the Constitution casts a duty upon this Commission to conduct the inquiry in Reference
cases then in such circumstances the Commission cannot be a mere spectator of trial like
proceedings and shun its constitutional duty. When the Commission exercises the powers
conferred upon it under Section 146 of RP Act, 1951 in the discharge of its constitutional
duties and discovers some Government records by such an exercise then a general
presumption of truthfulness would lie in favour of such documents. It is settled law and
was also accepted by Ld. Counsel Mr. Manish Vashisht that presumption of lawfulness
of actions flows from the legal maxim omnia rite esse acta praesumuntur i.e. all acts are
presumed to have rightly and regularly been done and that such a presumption can be
rebutted only by adducing appropriate evidence.

138. The present reference has arisen from a complaint made to the Hon’ble President of
India and when in the opinion of the Hon’ble President of India the issues raised in the
said complaint required consideration and inquiry from this Commission then thereafter
this Commission has no occasion to look at the bona fides of the Complainant.
Moreover, even where there is occasion in some Reference Case to doubt the bona fide
of a complainant, it is of no concern to this Commission as the Commission sits in
inquiry on the questions referred by the Hon’ble President and this Commission has a
constitutional duty to render its Opinion on the merits of the case and it cannot opine that
the issues raised in a complaint are frivolous merely on the basis of a lack of bona fide
on the part of the complainant.

139. It is also known to all that this Commission rendered its Opinion in the present reference
on 19.01.2018 on the basis of the available records. A perusal of these records leaves no
room for doubt over the existence of facts which create a prima facie case and the first
and foremost thing to be looked into is the question as to “what is meant by the
expression ‘office of profit held under the Government’" and it is only thereafter that in
light of the conclusive understanding reached on this question the factual matrix has to

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 be examined to determine whether the Respondents are disqualified for holding Office of
Profit.

140. Therefore, at this juncture, when an inquiry has been done by this Commission and
relevant documents are available on record and this Commission is satisfied about the
truthfulness of such records, there is no need for the Petitioner to discharge any burden
and now it is for the Respondents to argue as to the inference that can be drawn from
such documents and if they challenge the truthfulness of any such document then to
prove the same. However, since neither in the present Applications nor in the arguments
advanced on the same any of the Respondents have challenged the veracity of any
records and have not proposed to call any witness in that regard there appears to be no
reason to grant the said Applications and thus the same are liable to be rejected.

141. Ld. Counsel Mr. Manish Vashisht read over and placed reliance on paragraph number 29
in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (supra) which inter alia
quoted a paragraph from the judgment of Rajiv Arora v. Union of India [(2008) 15 SCC
306] wherein the Hon’ble Supreme Court had held that the Principles of Natural Justice
demand that the maker of the report should be examined save and otherwise where the
facts are admitted or the witnesses are not available for cross-examination etc. In the said
case the report in question was a report on the alleged misconduct of an Airforce
serviceman and in the disciplinary proceedings the custodian of the report was examined
but not the author and therefore the Court held that the said report could not be relied
upon. However, in the present case the reply of GNCTD is not merely the factual
account prepared by an officer as it is based on Government records. However, this is to
re-assure the Respondents that this Commission will not place any reliance on any
statement given in any of the replies furnished by GNCTD which is not borne out from
the relevant government documents and therefore there is no occasion or need at this
juncture to examine the author of the consolidated reply received from GNCTD on
20.09.2016.

142. Ld. Counsel Mr. Manish Vashisht argued that even though paragraph 59 of the Opinion
dated 19.01.2018 relied on the Potential Doctrine, the ECI had not posed this question to
the GNCTD in its inquiry and since this question is purely factual in nature the same
needs to be examined by calling witnesses. He further asserted that Jaya Bachchan v.
Union of India (supra) does not apply to the present case for the reason that in Jaya

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 Bachchan (supra), the appointment letter itself reflected the benefits which is not the
case here as the Appointment Order states that no remuneration shall be payable. It is
pertinent to note at this juncture that the enquiry conducted by the Commission has
posed the relevant questions to the GNCTD from which potential of an office is
established and there is no need to expressly seek an answer on this question from the
GNCTD as the Presidential Reference is to be answered by this Commission and it
cannot be done by blindly relying on the opinion of the concerned Government
department. Moreover, it is preposterous to state that the ratio of Jaya Bachchan (supra)
would only be applicable where there is availability of exactly same evidence as a
question of law has been settled by the Hon’ble Supreme Court in that case which is
applicable on all cases of ‘Office of Profit’. It is absurd to say that the Commission
cannot look beyond the appointment order in this enquiry merely because in Jaya
Bachchan (supra) it was not required to be done as the appointment order itself spelled
out the entitlements.

143. Ld. Counsel Mr. Manish Vashisht further referred to para 99 of Opinion dated
19.01.2018 which referred to certain letters regarding expenditure on creation of office
cabins and for purchase of office furniture and stated that he needs to examine the
Officers who have sent these letters to ascertain whether or not these benefits where used
by his client. He further submitted that he is disputing the some aspects of these
documents submitted by GNCTD as the Respondents never used these facilities and
therefore he is calling witnesses for examination.

144. It is trite to note that in view of the Potential Doctrine this Commission is no more
concerned with the actual use, receipt or employment of any benefit and all that this
Commission is required to look into is the potential or entitlement by virtue of holding
the concerned office which in this case is the Office of Parliamentary Secretary in the
Government of NCT of Delhi. Therefore, the prayer to call witness to prove that any
benefit was not actually used by any particular Respondent or all the Respondents is of
no implication and therefore deserves to be rejected.

145. In the same line, Ld. Counsel Mr. Amitabh Chaturvedi submitted that when the records
were called from GNCTD, the documents already available with the Commission were:
the Complaint dated 22.06.2015, Petitioner’s Reply (referred by the Respondents as
Second Complaint) dated 20.12.2015; and the Reply dated 09.05.2016 given by the

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 Respondents; and since the contents of these documents were disputed, the Commission
had invoked the powers of Civil Court to call upon GNCTD to furnish the relevant
documents. This is a baseless assumption being drawn by the Respondents as neither in
the Letter written by the Commission to the GNCTD nor in any of the notices sent to the
parties has it ever been stated that the veracity of the documents is under doubt and
therefore documents have been called from GNCTD.

146. He argued that the GNCTD Report dated 20.09.2016 solely could not be relied upon. He
substantiated his argument by way of an illustration and said that in land revenue cases
where a dispute arises over mutation and the Sub-Divisional Magistrate files a report on
the same and the matter reaches higher authorities due to some dispute, the higher
authorities do not and cannot make a decision solely on the basis of the report as either
examination of original records or cross-examination of the author of report is required
to be done. It is apposite to note in this context that in the present case no absolute
reliance has been or will be placed on the Report submitted by the GNCTD as the
Commission has looked into all the documents that the GNCTD has supplied along with
the Report and these documents are photocopies of the original records which have been
furnished by the Government to the ECI and therefore a strong presumption is operating
in favour of its genuineness which may be rebutted only by adducing very strong
evidence and not merely by orally challenging the veracity of these documents as has
been attempted in the present proceedings. In any case, as copies of the original records,
as supplied by the GNCTD in response to the ECI’s direction under S. 146, is available
before this Commission it is no case of reliance being made solely on the report of an
officer. The Report of GNCTD is based on the reading and understanding of the
documents available before Secretary, GAD, GNCTD and the same is backed by
supporting documents. This Commission has not relied upon the Report wherever the
Report seems to be divergent from the records and has applied its own mind as to the
inference that can be taken from the original documents. Moreover, as noted earlier, Ld.
Counsel Mr. Chaturvedi has himself submitted that there are two available ways to
ascertain the facts in the present case and one of them is through the documents supplied
by GNCTD and therefore it is no case where only the Report of a Government Officer is
being relied upon and therefore this submission made by the Ld. Counsel deserves to be
discarded.

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147. Ld. Counsel Mr. Chaturvedi submitted that the duties assigned to the Parliamentary
Secretaries, as alleged by the Petitioner, must be on government record but the records
furnished by the GNCTD fail to reflect any such detail. Furthermore, in response to the
Letter dated 07.09.2016 issued by ECI, a Reply dated 12.09.2016 was sent by the Labour
Department of GNCTD. Mr. Chaturvedi argued that action must not be taken simply on
the basis of a communication rendered by a Government Department unless the same is
substantiated by documents or examination of the witnesses and therefore he has filed
the Application for calling of witnesses. However, it is highly pertinent to note at this
juncture that the list of witnesses submitted by the Ld. Counsel does not mention any
witness to testify about the nature of duties assigned to the Parliamentary Secretaries or
to testify on the Reply dated 12.09.2016 and therefore these arguments have been made
for no good reason and deserve to be rejected.

148. Ld. Counsel Mr. Chaturvedi referred to the Written Submission dated 15.12.2017 filed
by Petitioner and read out the paragraphs where the Petitioner has alleged that holding
the office of Parliamentary Secretary entitled the Respondents to avail “far more greater
facilities” than that to which they would be eligible as an MLA and to the paragraph
which referred to paragraphs of GNCTD Reply dated 20.09.2016 on the basis of which
he argued that since the Petitioner is relying on the report of an officer the author of such
a report has to be examined.

149. Ld. Counsel Mr. Chaturvedi also submitted that the GNCTD officials are required to be
questioned about the nature of entitlements of the Parliamentary Secretaries as against
the entitlements available to them in their capacity as MLAs as the GNCTD Report dated
20.09.2016 is backed with records at some places, while in other places it is lacking. It is
however noteworthy to mention at this juncture that Mr. Chaturvedi has not commented
in the nature of the documents available on record and has failed to show if they are
insufficient, and how, in proving the nature of entitlements of the Parliamentary
Secretaries.

150. Along these same lines, Ld. Counsel Mr. Gupta contended that records need to be
examined to determine whether any Respondent has received any amount or
reimbursement and moreover, even the officer who has authored the GNCTD Reply
needs to be examined as it is the opinion of a person. It is very painful to observe that the
Respondents seem to be unaware of the documents submitted by the GNCTD as having

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 perused the same they would not have submitted ridiculous averments such as the one
noted above as GNCTD Reply is not the opinion of a person but the Report of the
Department on the basis of documents available on record and it also attaches the
documents on the basis of which the Report has been made and therefore the
observations made in the Report can be verified from the documents attached to it and
this Commission has placed its reliance mostly on the documents which form the core of
GNCTD Reply. Moreover, as to the need for examination of witnesses to prove actual
receipt of benefits, it has been observed above that the same is unnecessary in view of
the Potential Doctrine.

151. Referring to para 50 of the Opinion dated 19.01.2018 which notes the statement of the
Petitioner about the nature of duties discharged by the Respondents, Ld. Counsel Mr.
Gupta submitted that there are several questions that need to be answered in this context
such as whether any such duty was discharged by any Respondent; whether the effect of
the meeting was implemented; and whether the outcome of the meeting was of any
substance and he submitted that these answers could be obtained only through oral
examination of witnesses. It is however pertinent to note that in none of the Applications
filed by the Ld. Counsel before the Commission has any prayer been made to call any
witness to give testimony on this aspect and therefore this submission is futile and is
liable to be rejected. It is however relevant to mention in this context that the GNCTD
documents offer sufficient answers to the questions raised by the Ld. Counsel and
therefore even if an Application to this effect of calling an appropriate witness was made
the same could have been rejected as being unnecessary in the consideration of
availability of conclusive documentary evidence on the same subject.

152. Ld. Counsel Mr. Gupta made reference to para 59(III) of the Opinion dated 19.01.2018
which had stated that in order to establish if an office is an office of profit the ‘potential’
of such office is to be tested and submitted that as per the contents of the Appointment
Order dated 13.03.2015, there is nothing which shows the potential of any pecuniary
gain. Referring to clause (IV) of the same para, Mr. Gupta submitted that whether those
meetings and letters would amount to discharge of executive function has to be
determined by oral examination of the Officials as well as the Petitioner. He further
submitted that the explanation has to be borne out of records and merely arguments
would not suffice. However it is to be noted that when the document itself is not in

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 question, then it is the sole discretion of the tribunal to decide, after hearing the parties,
as to what inference can be drawn from the same and this Commission cannot rely on the
subjective satisfaction of any third person or authority in this respect.

153. Making reference to para 62 of the Opinion, Ld. Counsel Mr. Gupta submitted that the
Commission has raised an assumption in this para that the Respondents “could be
removed” by the Government. In this respect it is pertinent to note that it is settled law
that the appointing authority has the power to remove subject to applicable rules. In the
present case since the appointment of Parliamentary Secretaries was not governed by any
rule it is not an assumption but a clear position of law that the appointments could be
cancelled or the appointees could be removed by the Chief Minister without any notice
or explanation and they served at the will of the Chief Minister. Further, with respect to
expenditure, Ld. Counsel Mr. Gupta submitted that there is no clear finding of any
official if the expenditures were made only for Parliamentary Secretaries which needed
to be clarified by leading of witnesses. It is again a submission for which no witness has
been called and therefore the submission is liable to be rejected. With respect to
expenditure, there is no need to prove that the expenditures were made ‘only’ for
Parliamentary Secretaries or for others as well as it is evident from the Government
documents.

154. Ld. Counsel Mr. Gupta referred to para 71 of the Opinion relating to inference of the
Oath and stated that it is an assumption and argued that whether this oath was similar to
the oath given to MLAs has to be seen from records. However it is pertinent to note that
this Commission has made the observation in para 71 of the Opinion dated 19.01.2018
on the basis of perusal of the records which is also available with the Respondents and
therefore this submission makes no logical sense.

155. Ld. Counsel Mr. Gupta referred to Para 73 of the Opinion dated 19.01.2018 which
mentions the Jaya Bachchan’s Case (supra) and submitted that the nature of payment
and the substance rather than form has to be considered by this Commission. He further
submitted that in Jaya Bachchan’s Case (supra) the perks amounted to profit but in the
present matter, there was no such perk which had been granted. He also submitted that
the nature of expenditures made had to be seen, i.e., whether they were made upon the
Respondents in their capacity as MLAs or Parliamentary Secretaries. Further, he
submitted that with respect to reimbursements as well, it had to be noted whether it was

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 received as MLAs or Parliamentary Secretaries. At this point, the Commission
questioned the counsel as to whether his client had received any reimbursement. Mr.
Gupta answered in negative, and apologized for speaking on behalf of other Respondents
and stated that he was only making a point that all facts need to be examined and
therefore oral examination of witnesses is necessary. However it is highly pertinent to
note that re-examination of factual matrix does not mean a de novo inquiry into every
factual aspect de hors the availability of reliable evidence in the form of Government
records and documents.

156. Ld. Counsel Mr. Gupta submitted that if the office lapsed with the person, then there
would be no office and witnesses would be required to be examined for ascertaining the
same. Mr. Gupta also contended that it had been assumed in the Opinion that there would
be duties attached and the same had to be confirmed by way of evidence. He asserted
that the role of the Parliamentary Secretaries was only in advisory capacity and no duty
was ever assigned to the Respondents. However, it is pertinent to note that he has not
called any witness for ascertaining whether the office would continue or would lapse
with the person and therefore this submission deserves no consideration by this
Commission.

157. Ld. Counsel Mr. Gupta firmly asserted that the Commission should refrain from giving
an opinion on the basis of assumptions and that a plain reading of the Opinion dated
19.01.2018 makes it evident that assumptions have been made through the use of words
such as “implies” and “expected” in para 89; “the fact that the GNCTD…” in para 94
etc. Mr. Gupta submitted that these assumptions which can even be termed as
conjectures can be answered only by calling witnesses and cross-examination of the
Petitioner.

158. Ld. Counsel Mr. Gupta submitted that in para 97 of the ECI Opinion, the words
‘chauffeur-driven car’ have been used but these words have only been used by the
Petitioner and do not find any mention in any of the records submitted by GNCTD. Mr.
Gupta submitted that the office held by the Respondents did not permit them to take this
facility and they were only allowed government transport which could mean a bus or a
shared taxi as well and witnesses were required to be called for ascertaining the complete
truth. Further, clause (g) under para 99 of the ECI Opinion pertains to ‘amount incurred’
and Mr. Gupta contended that whether or not the amount has been incurred on the

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 Respondents in their capacity as Parliamentary Secretary has to be assessed by calling of
witnesses.

159. Ld. Counsel Mr. Gupta submitted that in para 102 of the ECI Opinion, a table of offices
allotted to the Respondents has been provided and while item 14 related to a Hall, the
nature and use of the same was not clear and item 19 stated ‘not applicable’ and yet his
client was disqualified. Further, Mr. Gupta referred to para 107-108 of the ECI Opinion
and stated that evidence was required to ascertain the capacity in which the meetings had
been attended by the Respondents and therefore witnesses are required to be examined.
However, the capacity in which the Respondents attended to the meetings could be
ascertained using the Minutes of the Meetings prepared in respect of these meetings
which has been supplied by GNCTD and since the veracity of the same have not been
challenged by the Respondents there is no reason why the same should not be believed.

160. Ld. Counsel Mr. Gupta further submitted that a Report of Joint Parliamentary Committee
cannot be considered by this Commission and evidence would be required to show that
the Respondents were wrong. However, he has himself drawn the attention of this
Commission to the judgment of the Hon’ble Supreme Court in Kalpana Mehta & Ors. v.
Union of India (supra) where it has been held that reports of Parliamentary Committees
may be relied upon as an aid to statutory interpretation and construction as these reports
‘may shed light on the purpose of a law, the social problem which the legislature had in
view and the manner in which it was sought to be remedied’ (para 198). Ld. Counsel Mr.
Gupta also asserted that the Commission cannot come to a conclusion only on the basis
of documents and that a presumption would arise in favour of the Respondents. A plain
reading of S. 146 of RP Act, 1951 is enough to state that the submission that the
Commission cannot come to a conclusion only on the basis of documents is diametrically
opposed to the statutory provision which is an enabling provision and gives this
Commission the discretion to exercise certain powers in those cases where it is of the
view that a conclusive opinion cannot be framed on the basis of the available documents.
Moreover, any presumption that could arise in favour of the Respondents would last only
till the time a prima facie case is not brought out in the enquiry conducted by this
Commission after which the onus shifts on the Respondents.

161. Ld. Counsel Mr. Gupta placed reliance on Joseph M. Puthussery v. T.S. John [(2011) 1
SCC 503] on the standard of proof which shall be applicable in the present case.

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 However, in the said case, since the Hon’ble Supreme Court was looking at an appeal
arising from an Election Petition, the observations made in that case and in that respect
are not applicable in the present proceedings. Mr. Gupta also placed reliance on
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (supra) which has been
distinguished on facts above.

162. On this submission, Ld. Counsel Mr. Endlaw submitted that the Commission has
conducted a deep inquiry, which in their humble submission was not required in the
present case, by calling the GNCTD to submit a detailed reply on the questions posed by
the Commission and asking GNCTD to submit the concerned documents and that he is
only praying to expand the scope of inquiry a little more to allow cross-examination of
Petitioner and calling of witnesses.

163. Ld. Counsel Mr. Endlaw argued that when the ECI inquiry has not led to any conclusive
result, it is necessary to call witnesses and cross-examine the Petitioner. However,
whether the inquiry has led to a conclusive result or not is something that is left by the
statute to the discretion of this Commission and not to that of the Ld. Counsels.

164. For the Petitioner, Ld. Sr. Counsel Mr. Malhotra argued that the Respondents are taking
the role of ECI in making their submission that a conclusive opinion cannot be framed on
the basis of documents available on record whereas as per S.146, it is the discretion of
this Commission to decide whether invocation of the powers under S. 146 is required or
not.

165. Ld. Sr. Counsel Mr. Malhotra further submitted that the present reference case is solely
based on Government documents and even in the Court of law cases are decided on the
basis of Government documents on a daily basis. Moreover, if the Commission decides
to hold further inquiry and call witnesses for recording of evidence, then the Petitioner
also has the right to call his witnesses.

166. Ld. Sr. Counsel Mr. Malhotra questioned if the Respondents are challenging the
government documents as these documents had been supplied by their own government.

167. Lastly, Ld. Sr. Counsel Mr. Malhotra submitted that the Delhi Members of Legislative
Assembly (Removal of Disqualification) (Amendment) Bill, 2015 is sufficient evidence
of the guilt of the Respondents and even if the paragraphs making reference to this Bill

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 were deleted from the pleadings by an Order of the ECI, it is still a fact and can be taken
cognizance of by this Commission.

168. It is pertinent to note at this juncture that the Commission invoked the power under s.
146(2) and not S. 146 (1) to call for records from GNCTD. Moreover, the Commission
exercised this power and called for report and records not because the contents of the
documents filed by the parties were disputed but because it is the mandate of the
Commission to conduct a thorough inquiry and ascertain the truth by unearthing
complete facts. It is for the fulfillment of this Constitutional responsibility that the
Commission has been vested with these powers under S. 146 of RP Act, 1951 and it was
in the fulfillment of this objective that the Commission called for the report and
documents from GNCTD. Moreover, In view of the common knowledge that
government business and transactions are normally truly reflected in government records
and in view of the documents supplied by the GNCTD there appears to be no need to
cross-examine the Petitioner or to call the witnesses as prayed in the Applications.

SUBMISSION IV: THAT THE APPOINTMENT LETTER DID NOT PROVIDE FOR ANY PECUNIARY
BENEFITS AND THE COMMISSION CANNOT LOOK BEYOND THE APPOINTMENT ORDER IN
THE COURSE OF ITS INQUIRY.

169. Ld. Counsel Mr. Manish Vashisht submitted that the inquiry of the ECI must ascertain
whether all procedural formalities were followed for the creation of the office of
Parliamentary Secretaries and it cannot merely be on the basis of a pre-supposition as has
been done in para 12 of the Opinion dated 19.01.2018. He further submitted that in the
Note dated 05.03.2015 sent by the Secretary to the Chief Minister, it was clarified that
‘the proposed Parliamentary Secretaries will not receive or be entitled to receive any
pecuniary gains and hence the post will not be considered to be covered under office of
profit’. Relying on this Note dated 05.03.2015 he asserted that it negates the “pre-
supposition of existence of post”. However, in the eyes of this Commission this Note
dated 05.03.2015 negates the assertion of the Respondents that the office of
Parliamentary Secretary is not an office and was not envisioned as an office as it was
merely a post created for the assistance of Ministers as had that been the case then the
same could also have been reflected in the note which only spoke of receipt or
entitlement of pecuniary gains and therefore it is a clear proof that in the eyes of the
administration it was an office and it offered an explanation on the pecuniary benefits on

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 being conscious and aware of this fact and therefore this argument that ‘Parliamentary
Secretary’ was only a post and not an office is merely an after-thought.

170. In this line only, Ld. Counsel Mr. Sameer Vashisht argued that the Great Western
Railway Co. v. Bater [(1922) 8 TC 231] defined the term “office” as per which the post
of Parliamentary Secretary is not even an office and the same will be argued at the
threshold on merits. Ld. Counsel Mr. Sameer Vashisht also contended that when the
position of Parliamentary Secretary is not defined anywhere, how could it be said to be
an office. Mr. Vashisht submitted that there is no permanent office and at the best, the
post was at the pleasure of the Chief Minister and thus, as per definition given in the case
of Great Western Railway, it is not an office.

171. It is pertinent to note that the Hon’ble Delhi High Court in its judgment dated 23.03.2018
has upheld the Commission’s Order dated 23.06.2017 where this Commission applied
the de facto doctrine to hold that illegality in the appointment order, if any, is of no
relevance in the present inquiry as the Respondents had in fact held the office of
Parliamentary Secretary. Thus there is no occasion for the Respondents to re-raise this
argument again and again.

172. Ld. Counsel Mr. Manish Vashisht further referred to sub-para 10.3 and 10.4 of the
GNCTD Reply dated 20.09.2016 and contended that he disputes para 10.3 which stated
that the Office Cabins were constructed for four Parliamentary Secretaries while he
accepts para 10.4 which stated that the Office Cabins so constructed were used by the
official staff of the concerned Ministers and not the Parliamentary Secretaries. Ld.
Counsel Mr. Manish Vashisht severely criticized the Opinion dated 19.01.2018 for not
referring to and not relying upon sub-para 10.4 referred above. In this context, it may be
worthy of repetition that the Potential Doctrine established in Jaya Bachchan v. Union
of India (supra) makes any evidence or argument based on actual use, utilisation and
employment of any benefit devoid of any substance and reliability and it was for this
very reason that the said sub-para was not relied upon in the Opinion dated 19.01.2018.
Moreover, it is also interesting to note that Mr. Manish Vashisht is not representing any
of the Respondents who were named in sub-para 10.3 of the GNCTD Reply dated
20.09.2016 and therefore he is no one to accept or dispute the contents of the said sub-
paras and his submissions in this respect are liable to be dismissed.

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173. Ld. Counsel Mr. Manish Vashisht further asserted that the order made by the Chief
Minister of appointing the MLAs as Parliamentary Secretaries is no order in the eyes of
law as the administration of Delhi is governed by the special provision of Art. 239AA of
the Constitution as per which in the territory of Delhi, it is the Lieutenant Governor who
is the administrator and not the Chief Minister which position has been clarified by the
Hon’ble High Court of Delhi as well. He also submitted that in a recent judgment the
Hon’ble Chhattisgarh High Court has held that the post of Parliamentary Secretary
cannot be treated as Ministers as the same is not provided under the Constitution of India
and this negates the observation of the ECI made in paragraphs 49 and 50 of the Opinion
dated 19.01.2018 that the post of Parliamentary Secretary is akin to the post of Ministers
and that the judgment will be supplied and relied upon in detail when the Respondents
start their argument on merits. However, Mr. Manish Vashisht accepted that the ‘de facto
doctrine’ will be applicable right from the date of appointment order, i.e. 13.03.2015 till
08.09.2016, i.e. the date of Hon’ble Delhi High Court’s Judgment in Writ Petition (Civil)
No. 4714 of 2015, titled as Rashtriya Mukti Morcha v. Government of NCT & Others
wherein the Hon’ble Delhi Court [by following the decision of the Hon’ble Division
Bench in Writ Petition (Civil) No. 5888 of 2015, titled as Government of National
Capital Territory of Delhi v. Union of India] set aside the Appointment Order dated
13.03.2015 on the ground that the said Order was passed without communicating the
decision to the Hon’ble Lt. Governor of NCT of Delhi for his views/concurrence as
required under Article 239AA of the Constitution of India.

174. Ld. Counsel Mr. Manish Vashisht further submitted that the Parliamentary Secretaries
were appointed to facilitate the work of the Ministers and to assist the Ministers however
the appointment order was never exercised and given any effect and moreover the
appointment as Parliamentary Secretary does not give to the Respondents any post or
position which is permanent in nature and therefore there is no office. While it is not the
stage to comment on the merits of the case, it is important to note that the Ld. Counsel
has made a false submission as the Parliamentary Secretaries carried out their functions
and Office Cabins were constructed for them only by giving effect to the said order of
appointment dated 13.03.2015 and this is a fact which is clearly borne out from the
Government records made available by the GNCTD. It is also pertinent to note in this
context that in the Application for Cross-Examination of Petitioner and calling of
Witness dated 16.05.2018 the Respondents have stated in Para 32 that the Hon’ble High

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 Court of Delhi has taken note of the judgment of S. Umrao Singh v. Darbara Singh
(supra) in para 113 of the judgment dated 23.03.2018 . The said judgment has not been
referred to in the said paragraph of the judgment passed by the Hon’ble Delhi High Court
and it has only been noted earlier as one of the cases relied upon by the Respondents in
the course of their arguments. It is very disheartening to note that such misleading
submissions are being resorted to and this Commission may have to resort to strict
measures to control the same if such conduct is repeated in the future.

175. Ld. Counsel Mr. Manish Vashisht relied on the observation of the Hon’ble SC in the case
of Standard Chartered Bank v. Andhra Bank Financial Services Ltd. [(2006) 6 SCC
94] as quoted in para 35 of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra
(supra) wherein it was held that when the documents were not self-explanatory in nature
and when no explanation had been offered by any competent witnesses, it was not open
to the Special Court to come up with its own explanations and decide the fate of the suit
on the basis of its inference based on such assumed explanations. However it is pertinent
to note that in the said case the Special Court had supplemented and supplanted the
meaning of phrases like ‘loan’, ‘lending of scrip to HPD’ and ‘direct’ and also came up
with the appellation of ‘portfolio’ on its own and without them being contained in the
description of the documents.

176. In this context, it is also pertinent to note the following observation of the Hon’ble
Supreme Court, which was made in the context of trial of corrupt practices, in R.
Puthunainar Alhithan v. P.H. Pandian [(1996) 3 SCC 624]:

“6. Section 3 of the Evidence Act, 1872 provides that a fact is said to be
‘proved’ when, after considering the matters before it, the court either
believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstance of the particular case, to act upon the
supposition that it exists; a fact is said to be ‘disproved’ when, after
considering the matter before it, the court either believes that it does not
exist, or considers its non-existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition
that it does not exist; a fact is said to be “not proved” when it is neither
proved nor disproved. Therefore, the court, after considering the evidence
before it, either believes the fact to exist or considers its existence so

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probable as a prudent man ought, under the circumstances available on the
facts in the case on hand, to act upon the supposition that the existence of
the fact is so probable that a court can act upon that evidence.
7. In Maharashtra State Board of Secondary and Higher Secondary
Education v. K.S. Gandhi [(1991) 2 SCC 716] (SCC at p. 748, para 37), this
Court had held that:
“… inference from the evidence and circumstances must be
carefully distinguished from conjectures or speculation. The mind
is prone to take pleasure to adapt circumstances to one another
and even in straining them a little to force them to form parts of
one connected whole. There must be evidence direct or
circumstantial to deduce necessary inferences in proof of the
facts in issue. There can be no inferences unless there are
objective facts, direct or circumstantial, from which to infer the
other fact which it is sought to establish. In some cases the other
facts can be inferred, as much as is practical, as if they had been
actually observed. In other cases the inferences do not go beyond
reasonable probability. If there are no positive proved facts, oral,
documentary or circumstantial from which the inferences can be
made the method of inference fails and what is left is mere
speculation or conjecture.”

Therefore, we hold that to draw an inference that a fact in dispute has been
established, there must exist, on record, some direct material facts or
circumstances from which such an inference could be drawn. The standard
of proof required cannot be put in a strait-jacket formula. No mathematical
formula can be laid on the degree of proof. The probative value could be
gauged from the facts and circumstances in a given case.

8. An inference from the proved facts must be so probable that if the court
believes, from the proved facts, that the facts do exist, it must be held that
the fact has been proved. The inference of proof of that fact could be drawn
from the given objective facts, direct or circumstantial.”
[Emphasis Supplied]

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177. Therefore, the said observation of the Hon’ble SC in Standard Chartered Bank v.
Andhra Bank Financial Services Ltd. (supra) does not imply that this Commission, in
the discharge of its quasi-judicial functions, is not to take cognizance of what is apparent
on the face of the record or is not to make logical inferences by application of mind after
perusal of records and listening of arguments and the judgment of R. Puthunainar
Alhithan v. P.H. Pandian (supra) makes it abundantly clear that as to whether the
available evidence would in the eyes of a prudent mean create a supposition as to the
existence of a fact is the satisfaction of Court or Tribunal concerned which in this case is
the present Commission.

178. On this submission, Ld. Counsel Mr. Mehta contended that the issue of ‘chauffeur-driven
car’ also arose in the Jaya Bachchan’s case (supra) but that case was distinct from the
present case, as in that case the Appointment Letter itself provided for a chauffeur-driven
car for personal use. Further, cross-examination of witnesses was not resorted to in Jaya
Bachchan’s case (supra) as this Commission and the Hon’ble Supreme Court relied on
the Appointment Letter itself. The Appointment Letter was the most important piece of
evidence in that case as there was no denial or dispute over the veracity of the contents of
the Appointment Letter.

179. Ld. Counsel Mr. Mehta drew an analogy submitting that even advocates give opinion to
their clients but it is done only on the basis of material given by the clients. He submitted
that in Jaya Bachchan’s case (supra), there was no need to go beyond the Appointment
Letter and the Hon’ble Supreme Court observed that the Commission did not have the
jurisdiction to go beyond the Appointment Letter, and had to restrict itself to the contents
of the undisputed letter, which was the evidence in that case. Mr. Mehta contended that
even in this case, the Petitioner could not travel beyond the Appointment Order dated
13.03.2015 to show whether any emoluments were given or not.

180. It is highly pertinent to note at this juncture that the submissions of Ld. Counsel Mr.
Kamal Mehta that the Hon’ble Supreme Court held in Jaya Bachchan’s case (supra)
that this Commission has no jurisdiction to go beyond the appointment letter and that the
Appointment Letter in that case provided for personal use of government transport is not
based on the judgment and is untrue and therefore smells of an attempt to mislead this
Commission. Further, it may be noted that the Commission will have to take strict
measures if such conduct is repeated in the future.

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181. Ld. Counsel Mr. Mehta further submitted that the ‘Office of Profit’ disqualification is
primarily for ensuring that there is no conflict of interest which would create a
disturbance in the discharge of functions of an MLA and to prevent a scenario where an
MLA receives pecuniary gains and becomes indifferent to the needs of his constituency.
However, as per Mr. Mehta, the provision was being misused in the present case as the
MLAs were fresh and new politicians, who have their own respective vocations to fall
back on in the event that they cease to remain in the profession of politics. He urged the
Commission to take note of this fact as not just the election of the Respondents but even
the representation of the electorate was at stake and must be free and fair. It is worthy of
appreciation that the Ld. Counsel has gone to the objective of ‘Office of Profit’
legislation and has accepted that its primary objective has been to prevent a ‘conflict of
interest’ in the discharge of functions as a representative of his constituency.

182. In the same vein, Mr. Rikky Gupta, Ld. Counsel for Respondent Nos. 6 and 20 referred
to the Opinion dated 19.01.2018 and submitted that there is no assumption that can be
made under law that Parliamentary Secretary is an ‘Office’ and ‘Office of Profit’ merely
because there is an Appointment Order, especially when it does not mention any perks or
pecuniary gains. He also submitted that in the Appointment Order at hand, the word
‘vehicle’ had not even been mentioned.

183. On the same submission, Mr. Sameer Vashisht stated that no document was filed with
the original complaint and therefore nothing was given to the Hon’ble President of India.
Mr. Vashisht stated that the Appointment Order dated 13.03.2015 provided only for
‘Government Transport for Official Purposes’ and an ‘Office Space in Minister’s office’
and no other remuneration or perks. Mr. Vashisht submitted that as per him this
Appointment Order implied that the concerned Minister will give a table and a chair to
the Respondent to sit and work but nothing in addition or subtraction can be assumed
from the order.

184. Ld. Counsel Mr. Sameer Vashisht submitted that the position of Parliamentary Secretary
may be illegal but the moot question was whether holding the same would amount to an
‘Office of Profit’. Mr. Vashisht argued that even if it was said that the Respondents
worked as Ministers, even then it would not be an Office of Profit, as long as there is no
pecuniary gain or profit obtained from the office.

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185. Further, he submitted that no pecuniary advantage was taken, as it is reflected in the
Appointment Order dated 13.03.2015. Mr. Vashisht contended that Jaya Bachchan’s
case (supra) was distinct from the present matter, as in Jaya Bachchan’s case (supra)
the Appointment Letter itself provided for the facilities and all the benefits were
pecuniary in nature and therefore it was an office of profit.

186. Ld. Counsel Mr. Sameer Vashisht referred to ss. 15(4) and (5) of GNCTD Act, 1991
along with paras 36 to 69 of the HC Judgment and contended that looking at the sum and
substance of the petition, if it is found to be frivolous, it can be thrown away and
requested the Commission to do the same. He submitted that the first complaint gives no
details as to the manner in which any profit was gained. He argued that even a peon is
permitted to use government vehicle and demanded to know how it would burden the
state exchequer, if an MLA avails the same transport services.

187. Ms. Trisha Nagpal, Ld. Counsel for Respondent No. 7 submitted that they have
categorically denied the allegation and it is their submission that there was neither any
office nor profit. She read over paragraph 10 of the Application dated 16.05.2018 which
had summarized the allegations made by the Petitioner and then she contended that all
these allegations are baseless, frivolous and false. Lastly, referring to GNCTD Report
dated 08.09.2016, she submitted that it was stated therein that no facility or emoluments
was ever provided to the Respondents.

CONCLUSION

188. The Hon’ble Delhi High Court vide Judgment dated 23.03.2018 has remanded the
matter back to this Commission with the following direction contained in sub-para (iv)
of Para 113:

“Order of remand is passed to the ECI to hear arguments and thereafter

decide the all important and seminal issues; what is meant by the
expression "office of profit held under the Government" and re-examine
the factual matrix to decide whether the petitioners had incurred
disqualification on appointment as Parliamentary Secretaries, without
being influenced by the earlier order or observations on the said aspect in
this order”.

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189. The direction of the Hon’ble High Court is very clear and precise, that is “to hear
arguments on the most important and seminal issue as to ‘what constitutes an office of
profit under the Government’ and then re-examine the factual matrix to ascertain if the
Respondents have incurred disqualification upon being appointed as Parliamentary
Secretaries”. Thus the Hon’ble High Court has categorically directed this Commission
“to hear arguments” which is distinct from conducting hearing.

190. Thus the High Court has remanded the matter back to the ECI only to hear arguments on
the issue as framed by the Hon’ble High Court and the remand is not a remand to hear
the case de novo where factual matrix may be attempted to be laid down from the
scratch. The factual matrix of the case was made available to the Hon’ble High Court
during the course of proceedings and it appears the Hon’ble High Court being conscious
of the same passed the direction only to hear arguments on the limited question of ‘what
constitutes an office of profit under the Government’ and did not return any finding or
pass any order on the issue of the Respondents demand for cross-examination of the
Petitioner which was also pressed before the Hon’ble High Court. It is also pertinent to
note that the Hon’ble High Court has observed that it has the jurisdiction and the
authority to remand back de novo however it has not exercised this power and therefore
such an inference cannot be taken out from the Order which the Hon’ble High Court has
consciously refrained from passing.

191. In this regard it is pertinent to note that in the judgment dated 23.03.2018 the Hon’ble
Delhi High Court has used the words “factual matrix” only at three places apart from the
operative para 113:

A. Para 45 – “[…] Procedure cannot be put in a strait-jacket and could vary and moulded
from case to case. It is for the Election Commission to determine fair procedure
appropriate and proper in the particular legal and factual matrix.”

B. Para 100 – “Opinion examines the factual matrix under the heading whether the office
of Parliamentary Secretaries was an office that yielded profit or had the potential to
yield profit.”

C. Para 110 – “In the context of the present case, therefore, oral arguments and
elucidation on the legal position as well as factual matrix is required and necessary.

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 This is apparent also from the orders passed by the Commission on 16th September,
2016 and then on 23rd June, 2017.”

It is trite to note that while the Hon’ble High Court has held in para 110 of the judgment
dated 23.03.2018 that “oral arguments and elucidation on the legal position as well as
factual matrix is required and necessary” in the context of the present case, it does not
imply by any stretch of imagination that the Hon’ble High Court has intended to permit a
re-drawing of the factual matrix and collection of fresh evidence for the same despite the
fact that sufficient evidence is already available on the record of the case.

Therefore, it is nowhere implied by the judgment of the Hon’ble High Court that re-
drawing of the factual matrix is required in the facts and circumstances of the case as has
been asserted by the Respondents as it has been their major contention that witness need
to be examined and Petitioner needs to be cross-examined to ascertain the facts and bring
out more evidence to draw the factual matrix of the case and it is only thereafter that
arguments can be heard in this case.

192. It is also pertinent to note that the factual matrix which this Commission as well as the
Hon’ble High Court has taken cognizance of is drawn on the basis of information which
this Commission has called from the GNCTD suo moto in exercise of powers conferred
upon it by virtue of Section 146(2) of the RP Act, 1951 and not on the request of any
party as envisaged under Section 146(1) of the RP Act, 1951. It is to be noted that these
two sub-sections of Section 146 are enabling provisions which empower the Commission
to deal with two different contingencies and come into play in two different
circumstances. Had these documents been called at the instance of any of the parties of
the present Reference Case then the other party would have a right to cross-examine the
documents at the appropriate stage. However in the present case these documents were
called upon from the GNCTD in exercise of the suo moto power of the Commission and
thereafter the same were made available to all the parties. Moreover, in order to follow
Principles of Natural Justice in letter and spirit, multiple opportunities were accorded to
the Respondents to offer their comments on these documents. After receipt of these
documents the Respondents did not deny or challenge any single page from the 2500
pages of documents received from GNCTD and rather relied upon the same in their
Second Reply dated 24.10.2016. It is highly pertinent to note that the Respondents have
submitted in the said Second Reply dated 24.10.2016 that “even after the exhaustive

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 enquiry under taken by the Commission, nothing has come on record which could even
remotely suggest that any office of profit was held by the Respondents” and that the
Respondents “shall refer to the documents submitted by GNCTD to buttress their
arguments as the comprehensive details submitted by GNCTD proves beyond reasonable
doubt that no office of profit has been ever held by the Respondents”. It clearly shows
that the Respondents relied upon these documents and even stated that they will be used
to buttress their arguments at the stage of oral hearing. Even after the date of filing this
Second Reply and before the date of the ECI Opinion, i.e. 19.01.2018, the Respondents
have filed three Applications, one Written Submission and two Replies to Notices and in
none of these have they ever raised even a doubt on the veracity of the documents
submitted by the GNCTD. Moreover, in this period of more than one year from the date
when these documents were shared with the Respondents, i.e. 29.09.2016 to the date of
their reply to notice dated 02.11.2017, i.e. 20.11.2017 the Respondents never filed any
Application seeking to examine the author of any of the documents submitted by
GNCTD. Moreover, even when the Respondents submitted in their Reply dated
16.10.2017 that ‘at an appropriate stage the cross-examination of the Petitioner shall
become necessary’ they did not make a similar submission for examining the authors of
any of the documents. Therefore the prayer to call GNCTD Officers for proving
Government records and documents which GNCTD has submitted to the Commission
upon being called by the Commission in exercise of its power under Section 146(2) is
nothing but tactics employed to drag and delay this matter.

193. The direction of the Hon’ble High Court is for this Commission to hear the arguments of
the Respondents on the issue as to ‘what is meant by the term office of profit under the
Government’ and to then re-examine the factual matrix in light of the decision taken on
the legal issue to arrive at the final Opinion. The Respondents are therefore called upon
to address this Commission on this legal issue and to then elucidate upon the factual
matrix as per available records to explain as to how the Respondents cannot be said to
have occupied an ‘Office of Profit’ in the correct interpretation of the phrase in light of
the principles established by legal precedents. It is only logical that first the legal
question is to be settled and thereafter such legal principles are to be applied on the
factual matrix to ascertain whether the Respondents are disqualified for holding Office of
Profit and it is for this reason that the Hon’ble High Court has passed the order of
Remand in this line.

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194. It has also been observed that during the course of hearing for these Applications the
counsels for the Respondents submitted that their main argument in defense would be
that the Order of Appointment itself was illegal. In this context it is highly pertinent to
note that the Commission has held in its Order dated 23.06.2017 that de facto doctrine is
applicable in the facts and circumstances of the case and since the Respondents had in
fact held the office of Parliamentary Secretary, the illegality of their appointment order
cannot grant any immunity from the operation of constitutional provision for
disqualification for holding an ‘Office of Profit’ and this Order dated 23.06.2017 has
been upheld by the Hon’ble High Court in the judgment dated 23.03.2018. Therefore, the
Respondents shall refrain from arguing on this settled position in the course of their
arguments.

195. As rightly contended by Ld. Counsel Mr. Chaturvedi there are two ways to establish the
facts: a) with the Complaint; and b) with the documents furnished by the GNCTD – and
since the latter is available there is no need to establish the same by cross-examination of
the Petitioner on the complaint filed by him and no prejudice will be caused if this prayer
is declined. It is also pertinent to note the submission made by Ld. Counsel Mr.
Chaturvedi with respect to reimbursement of air ticket made to Respondent No. 8
wherein he has submitted that there is no question of admitting or denying that which is a
matter of record, which, in the present case, is the fact that reimbursement was made to
his client for attending the conference and it is an undisputed fact as it is borne out of the
records. It is highly appreciative that Mr. Chaturvedi has accepted the truthfulness and
reliability of Government records submitted by GNCTD. His submission that there is no
question of admitting or denying that which is borne out of the records is the logical
position and it applies to all the Respondents as the facts of the present case are all borne
out from the records of the documents submitted by GNCTD.

196. Having perused the Applications under consideration and having heard the arguments of
the counsels appearing for the Respondents as well as the Petitioner and in consideration
of the cases relied upon by the Ld. Counsels, this Commission is of the view that there is
no occasion and need for the Cross-Examination of the Petitioner as he is not a witness
in the present proceedings and the Respondents have failed to make out a case for calling
any witness as pleaded in their Applications. Therefore, this Commission dismisses the
Applications under consideration.

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