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[Cites 18, Cited by 1]

Madras High Court

Vijayalakshmi Shanmugam vs Chief Secretary on 1 December, 2011

Author: D.Murugesan

Bench: D.Murugesan, K.K.Sasidharan

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:    01.12.2011

CORAM

THE HONOURABLE MR.JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

W.P.Nos.18277 & 18883 of 2011

W.P.No.18277 of 2011

Vijayalakshmi Shanmugam				..	Petitioner 

-vs-

1. Chief Secretary
    Fort St.George, Chennai

2. Justice (Retd.) S.Thangaraj
    NCB 28, PSK Raja Salai, Chennai-28

3. Ms.Jayalalitha Jayaram
    Chief Minister, Poes Gardens
    Chennai							..	Respondents

	Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records and quashing the impugned G.O.Ms.No.530 dated 22.6.11 appointing the 2nd respondent as the one-man Commission, as being arbitrary, mala fide and violative of section 3(1) of the Central Act 60 of 1952 and consequently direct the 1st respondent to appoint an untainted and non-partisan individual to conduct the inquiry contemplated in the said G.O., after legislative clearance.

		For Petitioner		::  	Mr.Manikandan Vathan Chettiar

		For Respondents		::	Mr.A.Navaneethakrishnan
							Advocate General assisted by
							Mr.S.Venkatesh, Govt. Pleader

W.P.No.18883 of 2011

Thangam Thennarasu					..	Petitioner 

-vs-

1. The Chief Secretary
    State of Tamil Nadu
    Fort Saint George
    Chennai-9

2. The State of Tamil Nadu
    rep by its Secretary
    Public Department (Buildings)
    Fort Saint George
    Chennai-9

3. Miss.J.Jayalalithaa
    The Hon'ble Chief Minister
    State of Tamil Nadu
    Fort Saint George
    Chennai-9

4. Justice Mr.S.Thangaraj (Retd.)
    No.2040, Vasanth Colony
    Anna Nagar West
    Chennai-40						..     Respondents

	Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the 1st respondent in G.O.Ms.No.530, Public Department (Buildings) dated 22.06.2011, constituting the one-man commission of inquiry headed by the 4th respondent for inquiring into the irregularities in the construction of the new Secretariat complex, Omandurar Government estate, Chennai-2 and quash the same.

		For Petitioner		::  	Mr.R.Viduthalai
							Senior Counsel for
							Mr.M.Dhandapani

		For Respondents		::	Mr.A.Navaneethakrishnan
							Advocate General assisted by
							Mr.R.Vijayakumar
							Addl. Government Pleader

ORDER

D.MURUGESAN, J.

Both the writ petitions question the G.O.Ms.No.530, Public (Buildings) Department dated 22.6.2011 appointing a Commission of Inquiry to inquire into the causes and circumstances leading to certain alleged irregularities in the construction of the New Secretariat Complex in Omandurar Government Estate, Chennai. The Notification directed to be published in the said Government Order reads as under:-

WHEREAS, it has been brought to the notice of the Government that there has been certain alleged irregularities like excess expenditure, irregularities causing loss to the exchequer, whether all statutory approvals AND WHEREAS, the Government of Tamil Nadu is of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making an inquiry into a definite matter of public importance hereinafter specified;
NOW THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952), the Governor of Tamil Nadu hereby appoints a Commission of Inquiry consisting of a single member, namely, Hon'ble Justice Thiru S.Thangaraj, Retired Judge of Madras High Court.
3. The terms of reference of the Commission of Inquiry shall be as follows, namely:-
a. To inquire into the causes and circumstances leading to the alleged irregularities like excess expenditure, irregularities causing loss to the exchequer, whether all statutory approvals and clearances were obtained, inordinate delay and deficiency in standards of construction in the construction of New Secretariat Complex at Omandurar Government Estate, Chennai-2;
b. To inquire whether there was any lapse or abuse of position on the part of the Government Officials/Public Servants;
c. if such allegations are proved true, then to suggest suitable ways and means to prevent such recurrences in future; and d. To make appropriate recommendations as the commission deems fit.
4. The Commission will complete its inquiry and submit its report to the Government within a period of three months from the date of publication of this Notification in the Tamil Nadu Government Gazette.
5. AND WHEREAS, the Government of Tamil Nadu are of the opinion, having regard to the nature of the inquiry to be made by the said Commission of Inquiry and other circumstances of the case, that all the provisions of sub-sections (2), (3), (4) and (5) of Section 5 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952) shall be made applicable to the said Commission of Inquiry.
6. NOW THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 5 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952), the Governor of Tamil Nadu hereby directs that all the provisions of the said sub-sections (2), (3), (4) and (5) of the said Section 5 of the said Act shall apply to the said Commission of Inquiry.

2. The following are some of the facts, as culled out from the petitions, leading to the present litigation. The Legislative Assembly Complex at Fort Saint George was constructed by the East India Company in the year 1640 AD. After independence, the building was used as the Legislative Assembly with its administrative wing. The D.M.K. political party formed the Government in the year 2006 and the Government identified the Omandurar Government Estate as the venue for the construction of New Secretariat and Legislative Assembly complex. The building was constructed in two blocks, namely, Block-A measuring 9.3 lakh sq.ft., consisting of 700 rooms to house the assembly hall, rooms for Hon'ble Ministers, opposition leaders, Chief Secretary and all other Secretaries apart from a hall for the Legislative Council with a parking facility for 100 cars. Block-B, Administrative Wing, is an eight-storeyed building measuring 7.43 lakh sq.ft., including a convention hall with a seating capacity of 1200, guest house of 50 suites apart from the multi-level car parking facility for 700 cars. The New Secretariat complex was made operational till 13.3.2010.

3. After the A.I.A.D.M.K. political party won the general elections held during May, 2011, it was decided to use the Legislative Assembly complex at Fort Saint George instead of the New Secretariat Complex at Omandurar Government Estate. Accordingly, the assembly sessions are being held in the Legislative Assembly complex at Fort Saint George from May, 2011. Thereafter, by the impugned order, the Government has appointed a Commission of Inquiry.

4. The petitioner in W.P.No.18277 of 2011 belongs to India Against Corruption movement. It is her specific grievance that though monumental corruption and violation of statute need to be probed and in that context the Government is entitled to appoint a Commission of Inquiry, nevertheless, the Hon'ble Mr.Justice S.Thangaraj, a retired Judge of this Court, ought not to have been appointed as the one-man Commission of Inquiry to probe the alleged irregularities. According to the petitioner, the learned Judge passed an order in criminal revision petition in favour of the present Chief Minister and the said order was taken to the Supreme Court and was erased. The retired Judge had enjoyed a jaunt in Malaysia on the hospitality of a goonda detainee facing multiple cheating cases along with a practising lawyer sometime during the year 2000. Hence, he should not have been appointed as the one-man Commission of Inquiry. It is the further grievance of the petitioner that the consent of the Hon'ble Chief Justice of the Madras High Court was not obtained before appointing the retired Judge as the one-man Commission of Inquiry. She would also aver that the address of the retired Judge in the one-man commission has been wrongly notified, showing the total non-application of mind by the first respondent-Chief Secretary before issuing the impugned Government Order.

5. The petitioner in W.P.No.18883 of 2011, the present Member of Legislative Assembly and a former Minister for Education, has questioned the impugned Government Order on two grounds, that the present Chief Minister who appointed one-man commission of inquiry is biased against the D.M.K. Government and particularly against the former Chief Minister. His further grievance is that the issue of Government Order at the instance of the present Chief Minister is mala fide only to wreak political vengeance. The order is unfair, arbitrary, unconstitutional and suffers from malice in law. It is also his grievance that for issuing the Government Order, no materials were available before the Government.

6. Mr.Manikandan Vathan Chettiar, learned counsel for the petitioner in W.P.No.18277 of 2011 has reiterated the grounds raised in the affidavit filed in support of the writ petition. Mr.R.Viduthalai, learned senior counsel for the petitioner in W.P.No.18883 of 2011, apart from the averments made in the affidavit, would submit that there were no materials for passing the impugned Government Order and in the absence of materials, the impugned order is unsustainable and is liable to be set aside. He would further submit that the results of the general election were announced on 13.5.2011 and even before the Hon'ble Chief Minister assumed charge, she made an announcement on 15.5.2011 to the effect that a policy decision had been taken that the New Secretariat complex would not be used to hold the assembly sessions. Such an announcement would indicate the arbitrary exercise of power by the Hon'ble Chief Minister.

7. On the other hand, Mr.A.Navaneethakrishnan, learned Advocate General appearing for the State has submitted that there were enough materials available with the Government before the impugned order was passed. He would also submit that considering those materials only, the Government decided to constitute the Commission of Inquiry only to inquire into those facts and submit a report with its recommendations to the Government. There is absolutely no force in the contentions of the petitioners as to the malice action of the Government in setting up the Commission of Inquiry. According to the learned Advocate General, it is totally unsustainable to plead bias on the Hon'ble Chief Minister in appointing Justice S.Thangaraj (Retd.) to head the one-man Commission of Inquiry. The allegation that the order in the criminal revision petition having been erased by the Apex Court and thereby he cannot be appointed is also without substance, as the learned Judge had passed the order in the course of his judicial functions and it was only argued before the Apex Court that number of witnesses had been examined and therefore quashing of the proceedings was bad. Nevertheless, the Apex Court had only permitted the respondent therein to withdraw the criminal revision petition filed before the High Court and in that view of the matter only, the Apex Court held that the order in the criminal revision petition would stand erased. Hence, the challenge to the appointment of one-man commission has to be rejected. So far as the contention of Mr.Manikandan Vathan Chettiar, learned counsel for the petitioner in W.P.No.18277 of 2011 as to the jaunt of the learned Judge to Malaysia is concerned, the learned Advocate General would submit that it is only an allegation and even after the report of his foreign trip, the learned Judge had discharged his judicial functions and merely because of the report, it cannot be said that he ought not to have been appointed as one-man commission to have a fair enquiry.

8. After considering the averments in the affidavits of both the petitioners, the counter affidavit of the first respondent-Chief Secretary to Government and the submissions made by the respective learned counsel for the petitioners and the learned Advocate General, the following questions emerge for our consideration:

(i) Whether the Government should consult the Hon'ble Chief Justice of Madras High Court before appointing a retired Judge of this Court as the one-man Commission of Inquiry?
(ii) Whether the impugned order is bad for non-application of mind when it refers to a wrong address of the appointee of one-man Commission of Inquiry?
(iii) Whether the Government should have materials before taking a decision to appoint the Commission of Inquiry and whether on the ground that there were no materials available on the date when such commission of inquiry was appointed, the Government Order would be bad?
(iv) Whether the one-man Commission of Inquiry, namely, the retired Judge of this Court is biased and consequently there is a reasonable apprehension as to a fair enquiry?
(v) Whether the Government Order is bad on the ground that it suffers from arbitrariness, unfairness and malice in law?

9. Point No.(i): In terms of sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952, the appropriate Government may, if it is of opinion that it is necessary so to do, by a notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. Sub-section (2) of Section 3 contemplates that the Commission may consist of one or more members appointed by the appropriate Government and sub-section (3) of Section 3 contemplates that the appropriate Government may, at any stage of an inquiry by the Commission, fill any vacancy which may have arisen in the office of a member of the Commission. That provision does not contemplate any prior consultation by the Government with the Hon'ble Chief Justice of the High Court before appointing a retired Judge of the High Court. In fact, the said provision does not even require that only a retired Judge of the High Court should be appointed, as the discretion to appoint a Commission of Inquiry is vested only with the appropriate Government. Hence, the contention that the Government should consult the Chief Justice of the High Court before appointing the retired Judge as a Commission of Inquiry is not well founded, as the question of concurrence would arise only if the statute contains a provision to that effect. It is also the contention of Mr.Manikandan Vathan Chettiar, learned counsel for the petitioner in W.P.No.18277 of 2011 that such consultation is only a long standing convention, though the provisions of the Commissions of Inquiry Act do not require such consultation as a pre-condition for appointment. Hence, point no.(i) is answered accordingly.

10. Point No.(ii): It is the contention of Mr.Manikandan Vathan Chettiar that wrong address of the one-man commission was shown in the notification and therefore the impugned order is bad for non application of mind. However, it is the explanation of the first respondent that the address of the one-man commission was obtained from the Registry and therefore only a mistake had crept in. Even assuming that the said explanation is not accepted, the question still remains to be considered is as to whether merely because the address of the one-man commission was wrongly mentioned in the notification, it would invalidate the very Government Order on the ground of non application of mind. We find no force in the said submission, since the question of non application of mind can be applied only with reference to the irregularities etc., referred to in the Government Order and not otherwise, that too on the ground that the address has been wrongly mentioned in the impugned Government Order. Hence, the challenge to the impugned order on the ground of non-application of mind is liable to be rejected and accordingly the same is rejected.

11. Point No.(iii): The power of the Government to set up a Commission of Inquiry and the consequential role of the commission of inquiry came up for consideration before the Apex Court. In the judgment in Shri Ram Krishna Dalmia etc., v. Shri Justice S.R.Tendolkar and others etc., AIR 1958 SC 538, it has been held that Parliament has made a law with respect to inquiry and has left such discretion to the appropriate Government to set up a Commission of Inquiry under certain circumstances referred to in Section 3 of the Commissions of Inquiry Act. It has been also observed that the commission should merely to investigate and record its findings and recommendations without having any power to enforce them.

12. Nevertheless, the question is as to whether such power to appoint a Commission of Inquiry could be made without there being any materials brought before it or no information was made available and in the event there are no materials or information, can it be said that such action of the Government in appointing a Commission of Inquiry is bad on the ground of arbitrariness? This question was again considered in the very same judgment in Shri Ram Krishna Dalmia etc., wherein the Apex Court in paragraphs 9 & 16 held as follows:

9........ An inquiry necessarily involves investigation into facts and necessitates the collection of material facts from the evidence adduced before or brought to the notice of the person or body conducting the inquiry and the recording of its findings on those facts in its report cannot but be regarded as ancillary to the inquiry itself, for the inquiry becomes useless unless the findings of the inquiring body are made available to the Government which set up the inquiry. It is, in our judgment, equally ancillary that the person or body conducting the inquiry should express its own view on the facts found by it for the consideration of the appropriate Government in order to enable it to take such measure as it may think fit to do. The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own. In our view the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view.....
16......It is true that the notification primarily or even solely affects the petitioners and their companies but it cannot be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial inquiry into the truth of the materials brought before it, and examine the informants on oath in the presence of the parties who are or may be likely to be affected by its decision. In matters of this kind the appropriate Government has of necessity to act upon the information available to it. It is the best judge of the reliability of its source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance calling for an inquiry with a view to devise measures for preventing the recurrence of such evil, this Court, not being in possession of all the facts will, we apprehend, be slow to adjudge the executive action to be bad and illegal. We are not unmindful of the fact that a very wide discretionary power has been conferred on the Government and, indeed, the contemplation that such wide powers in the hands of the executive may in some cases be misused or abused and turned into an engine of oppression has caused considerable anxiety in our mind. Nevertheless, the bare possibility that the powers may be misused or abused cannot per se induce the court to deny the existence of the powers.... 12A. Subsequently, quoting the above judgment with approval, the Apex Court in P.V.Jagannath Rao and others v. State of Orissa and others, AIR 1969 SC 215 held that the dominant purpose of setting up the Commission of Inquiry was to promote measures for maintaining purity and integrity of the administration in the political life of the State. It was also held that the existence of political rivalry is not in itself sufficient to hold that the appointment of Commission of Inquiry is illegal.

12B. In Baliram Waman Hiray v. Justice B.Lentin, (1988) 4 SCC 419, the Apex Court held that the Commission of Inquiry is only a fact finding body and it is not a Court to adjudicate upon the matter.

12C. In P.Janardhana Reddy v. State of Andhra Pradesh, (2001) 6 SCC 50, the Apex Court reiterated the same view by holding that the appointment of a Commission is a matter of discretion of the Government, as the Commission does not adjudicate on any matter and its report has no value, except giving advice and providing guidance to Government.

13. As the role of the Commission of Inquiry is only to investigate and record its findings and recommendations without having any power to enforce them, such an inquiry or report cannot be looked upon as a judicial inquiry. Nevertheless, invoking the provisions of Section 3 of the Commissions of Inquiry Act for appointing a Commission of Inquiry cannot be arbitrary or for that matter, unsupported by prima facie materials. In the event a statutory authority exercises the power conferred by a statute unsupported by materials, it would amount to a mala fide exercise of power in the eye of law or in other words, exercise of power by a statutory authority other than a purpose for which it was intended by the Legislature. Whether the exercise of power by a statutory authority is arbitrary and unsupported by materials or mala fide depends upon the facts of each case.

13A. In State of Madhya Pradesh v. Arjun Singh, AIR 1993 SC 1239, the Apex Court was considering a notification of the Government of Madhya Pradesh dated 29.3.90, wherein and whereby the scope of the commission of inquiry already notified was expanded. On the facts of the case, the Apex Court held that there was no relevant material before the State Government for expanding the scope of inquiry under the original reference and consequently interfered with that portion of the notification expanding the scope of earlier reference without materials.

14. On the facts of the present case, the impugned notification was issued on the ground that it was brought to the notice of the Government that there had been certain irregularities like excess expenditure, causing loss to the exchequer, non-obtaining of all statutory approvals and clearances, inordinate delay and deficiency in standards of construction.

15. The relevant files were produced before us and we perused the same only to find out as to whether any materials were available with the Government before issuing the impugned Government Order. We make it clear that these materials are considered only for the purpose of considering the challenge to the impugned Government Order on the ground that on the date of passing of the impugned order, there were no materials before the Government and we refer to those materials in this order only for prima facie consideration to answer the issue.

16. The Government issued G.O.Ms.No.209, Public Works (H1) Department dated 4.7.2007 directing the construction of a new complex for the Tamil Nadu Legislative Assembly in Omandurar Government Estate and accorded administrative sanction for an estimated cost of Rs.200 crores. By a subsequent Government Order in G.O.Ms.No.316, Public Works (H1) Department dated 25.10.2008, having regard to the letter of the Chief Engineer (Buildings), Public Works Department dated 20.10.2008, the Government accorded a revised administrative sanction for Rs.425.57 crores. Thereafter, under various Government Orders, the Government sanctioned funds under various heads towards the cost of interior decoration, furnitures, etc. The attention of the Government was also drawn that nearly Rs.624 crores was spent on the construction of New Secretariat complex.

17. The report of the Comptroller and Auditor General of India for the year ended 31 March 2010 as to the civil work opined that the work of construction of the temporary dome was entrusted to a firm without calling for tenders at a cost of Rs.3.28 crore and the construction of the temporary dome proved wasteful. The report also pointed out that as per the original agreement, the length of piles was to be measured for payment purposes from the top of the pile shoe to the bottom of the pile cap. However, while changing the design of the pile foundation, the nomenclature of the work was changed in the supplementary agreement to effect payment for the length of the pile up to the natural ground level instead of up to the bottom of the pile cap, which resulted in the over payment to the contractor for the portion of the pile length over the bottom of pile cap level to the tune of Rs.2.46 crore. In D.O. Letter dated 31.8.2010, the Deputy Accountant General (Works), Office of the Principal Accountant General (Civil Audit), Tamil Nadu and Puducherry, Chennai had called for remarks in regard to the planning aspect pointing out that there were deviations from standard guidelines for procurement of architectural services and consequent avoidable expenditure, lack of planning, non-inclusion of a penal clause in the RFP / agreement to restrict uneconomical design/defective design, inadequate planning in construction of public plaza circle, avoidable expenditure due to engagement of separate consultant for environmental impact Assessment Studies and failure to include Green Building concept in the scope of consultant. In regard to the funding pattern, release and utilization aspect, it was pointed out that there were inadequate performance guarantee and undue benefit to contractor due to advance payment of material cost. In regard to the execution aspect, it was pointed out that there were delay in completion of work and inadequate planning resulting in wasteful expenditure, avoidable expenditure due to change of design, over payment to the contractor due to change in specification, undue benefit of Firm-A due to non-usage of MS liners, avoidable liability towards procurement of Facade Access System, avoidable expenditure on procurement of Excess Transformer and avoidable expenditure due to non-utilisation of Fly Ash Bricks. By Letter No.31484/Y1/2010-1 dated 30.11.2010, the Principal Secretary to Government, Public Works Department, while addressing the Deputy Accountant General (Works), Office of the Principal Accountant General (Civil Audit), Chennai, had offered his remarks to each of the above and requested to drop the report.

18. His Excellency the Governor of Tamil Nadu made his address on the floor of the assembly on 3.6.2011 indicating the decision of the Government to constitute a Commission of Inquiry headed by a retired Judge of the High Court into the alleged irregularities like excess expenditure, inordinate delay and deficiency in standards of construction. On the basis of the above materials, the files were placed before the Cabinet, which approved for the constitution of the Commission of Inquiry to inquire into the alleged irregularities like excess expenditure, inordinate delay and deficiency in standards of construction and on that basis a decision was taken for appointing one-man Commission of Inquiry on 17.6.2011. Consequent upon the said decision, the impugned Government Order came to be issued. This Court, in exercise of power of judicial review, could only find out as to whether any materials were available before the Government and those materials were taken into consideration before a commission of inquiry is constituted. Power of judicial review cannot be extended to find out as to the sufficiency of materials. These materials, in our opinion, would suffice for the Government to exercise the power under Section 3 of the Commissions of Inquiry Act for constituting the commission and as such the impugned order of the Government is not bad. Hence, point no.(iii) is answered accordingly.

19. Point Nos.(iv) & (v): We pass on to the next question as to whether the member of the one-man Commission of Inquiry is biased. Before adverting to the facts put forth on the ground of bias, we would like to refer to some of the judgments on the issue. The Shorter Oxford Dictionary states that bias is an oblique or slanting line. The meaning of the word has also developed over the last four centuries to include more relevant meanings like predisposition towards, prejudice and unfavourably inclined. Lord Thankerton in the English case of Franklin v. Minister of Town & Country Planning stated that I would not wish that the use of the word bias should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. Bias may be generally defined as partiality or preference which is not founded on reason and is actuated by self-interest-whether pecuniary or personal. It means an operative prejudice, whether conscious or unconscious, in relation to a party or an issue. Such an operative prejudice may be a result of a preconceived opinion or a predisposition or a predetermination to decide the case in a particular manner, so much so that it does not leave the mind open.

20. The question of bias put forth against a Judicial Officer or a Member of Tribunal who discharges judicial or quasi-judicial function, came up for consideration before the Courts. In Manak Lal v. Dr.Prem Chand Singhvi and others, AIR 1957 SC 425, while applying the principle of nemo debet esse judex in causa propria sua, the Apex Court held as follows:

.....It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. As Viscount Cave L. C. has observed in From United Brewerses Co. v. Bath Justices (1) "this rule has been asserted not only in the case of Courts of Justices and other judicial tribunals but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others. 20A. In International Airport Authority of India v. K.D.Bali and another, AIR 1988 SC 1099, the Apex Court held as follows:
6. The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party. But we agree with the learned Judge of the High Court that it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person.

21. In State of West Bengal v. Shivanand Pathak, (1998) 5 SCC 513, the Apex Court held as follows:

23. All judicial functionaries have necessarily to have an unflinching character to decide a case with an unbiased mind. Judicial proceedings are held in open court to ensure transparency. Access to judicial record by way of inspection by the litigant or his lawyer and the facility of providing certified copies of that record are factors which not only ensure transparency but also instil and inspire confidence in the impartiality of the court proceedings.
25. Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case.
26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.

22. In the matter of 'K' A Judicial Officer, AIR 2001 SC 972, the Apex Court held as follows:

7. A judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. It should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it is within four-corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence.

23. A reading of the above judgments would show that the Courts have approached the concept of bias or the reasonable apprehension of bias put forth against a Presiding Officer of a Court or Tribunal who is expected to discharge his functions judicially or quasi-judically, as the case may be.

24. Coming up to the situation where there is a reasonable suspicion of bias or a real likelihood of bias, the Apex Court has considered the said issue in very many judgments. In S.Parthasarthy v. State of Andhra Pradesh, (1974) (3) SCC 459, the Apex Court held as follows:

16. The tests of real likelihood and reasonable suspicion are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. Quoting the above judgment with approval, the Apex Court in State of Punjab v. V.K.Khanna and others, (2001) 2 SCC 330, held as follows:
The test. therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias, administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise.

25. In Jiwan K.Lohia v. Durga Dutt Lohia, (1992) 1 SCC 56, the Apex Court, while upholding the decision of High Court while removing an arbitrator appointed by the court on the ground of bias, observed that with regard to bias the test that has to be applied is not whether in fact bias has affected the judgment but whether the litigant could reasonably apprehend that a bias attributable might have operated against him in the final decision. Therefore, the real test of real likelihood of bias is whether a reasonable man, in possession of relevant information, would have thought that bias was likely or whether the authority concerned was likely to be disposed to decide the matter in a particular way. In Ganga Bai Charities v. Commissioner of Income Tax, (1992) 3 SCC 690, while considering the case of a lawyer who acted as a special counsel for the department and also defended the department with his opinion that the assessee trust was not entitled to tax exemption, later on, when the said lawyer was elevated as a Judge of the High Court and seven years later, the Judge heard and decided the same point on a reference against the trust. None of the parties brought this aspect to the notice of the Judge. On appeal, the Apex Court held that there was no real likelihood of bias, since the opinion had been given seven years ago and the Judge may not have remembered the routine opinion given as a busy lawyer after a long lapse of time. See also Ramanand Prasad Singh v. Union of India, (1996) 4 SCC 64; Jasvinder Singh v. State Bank of J & K, (2003) 2 SCC 132.

26. In Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, the Apex Court held as follows:

The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individual poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government. In deciding the question of bias, the judges have to take into consideration the human possibilities and ordinary course of human conduct. But there must be a real likelihood of bias and not a mere suspicion of bias before the proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by bias.

27. However, the question remains to be considered is whether the issue of bias is applicable in equal force against the nominee of one-man Commission of Inquiry, when such commission is expected only to investigate and submit its recommendations on the basis of the facts and materials collected by the commission before the Government for its consideration. As has been held by the Apex Court, the commission of inquiry is only a fact finding body and it has no power to take a decision of its own on the basis of the materials collected by it. In these circumstances, the allegations of bias as has been held by the Courts in various judgments cannot be equally made applicable to a case of commission of inquiry. Nevertheless, keeping the law in mind, though the appropriate Government is empowered to appoint a Commission of Inquiry to probe into the alleged irregularities, it is expected to do so only on justifiable grounds supported by materials and the action should not be arbitrary or mala fide. To that extent, a reasonable man could also expect that the commission should act in a fair manner and in the event there is an apprehension of bias, the appointment of one-man commission of inquiry can be questioned.

28. As the issue of bias depends upon the facts of each case, we are inclined to consider the averments made by the petitioners against the inquiry by a retired Judge of this Court who has been appointed as the Commission of Inquiry. According to the petitioner in W.P.No.18277 of 2011, the one-man Commission appointed by the impugned order had passed an order in criminal revision petition in favour of the present Chief Minister and the said order was erased by the Apex Court. In the judgment in State of Tamil Nadu v. Selvi J.Jayalalitha, (2000) 9 SCC 444, the Apex Court was considering an appeal arising out of an order in criminal revision petition passed by the Hon'ble Mr.Justice S.Thangaraj (Retd.) quashing the charges against Selvi J.Jayalalitha. At the time when the validity of the order was considered, the Apex Court was told that the trial had reached almost a final stage of prosecution evidence, as only a few more witnesses remained to be examined and in the said circumstances, the Court ultimately allowed the respondent therein to withdraw the criminal revision petition filed before the High Court without prejudice to her rights to raise all the contentions before the trial Court afresh. The Apex Court in fact passed the following order:

1. Leave granted.
2. When we heard Shri Shanti Bhushan, learned Senior Counsel for the State of Tamil Nadu on 18.4.2000, he frankly conceded that the offence under Section 420 of the Indian Penal Code cannot be charged against the respondent on the facts of this case. However, learned Senior Counsel addressed detailed arguments regarding sustainability of the other offences included in the charge framed against the respondent, and seriously attacked the reasons of the learned Single Judge of the Madras High Court in the impugned order. Shri Sushil Kumar, learned Senior Counsel who argued for the respondent defended the order. We are told that the impugned order was passed by the High Court when the trial Court has reached almost the final stage of prosecution evidence, as only a few more witnesses remained to be examined. When we expressed to Shri Sushil Kumar that it was not proper for the Single Judge to have expressed final opinion on the merits of the legal interpretations regarding the points raised, when the trial has reached such a stage, learned Senior Counsel wanted time to get instructions as to whether the petitions filed by the respondent to discharge the accused can be withdrawn without prejudice to her rights to raise all the contentions in the trial court afresh. We granted time till today.
3. Learned counsel for the respondent now seeks permission to withdraw the criminal revision petitions filed in the High Court (Crl.Revision Complaints Nos.406 of 1998, 606 and 930 of 1999) without prejudice to her rights to raise all the contentions in the trial court afresh. In fact an application has been filed on behalf of the respondent seeking permission to withdraw, unconditionally, criminal revision petitions numbered as above filed before the High Court of Madras. That application will be on record. We order that the above revision petitions filed in the High Court would stand dismissed as withdrawn. However, we permit the respondent to raise all contentions which she thinks necessary before the trial court at the final stage. We, therefore, declare that the impugned common judgment dated 13.1.2000 passed by the High Court of Madras will stand erased. If the trial court is to decide any questions which have been dealt with in the impugned judgment, the same shall be decided as though the High Court has not pronounced any opinion on such questions thus far. The trial court will now proceed to conclude the trial and dispose of it in accordance with law as expeditiously as possible.
4. These appeals are disposed of accordingly.

29. A Judge is expected to consider the facts of the case and determine the same in accordance with law. Hon'ble Mr.Justice S.Thangaraj (Retd.), while considering the revision petitions wherein the charges were questioned, on applying his judicial mind, came to the conclusion that the charges were liable to be quashed. For such finding, the learned Judge had gone into the merits of the case, which normally the court, while considering an application for quashing the charges, should not resort to in detail, as the court is expected to consider only as to whether a prima facie case was made out for quashing the charges. When the finding on merits was brought to the notice of the Apex Court, the Court allowed the revision petition itself to be withdrawn. As the finding on merits was rendered by the learned Judge and the entire issue were to be tried before the trial court and having regard to the liberty given to the respondent therein to raise all the contentions in the trial court afresh, the Apex Court erased the order passed by the learned Judge on 13.1.2000.

30. It is the contention of Mr.Manikandan Vathan Chettiar, learned counsel that in view of the order passed by the learned Judge in favour of Selvi J.Jayalalitha, who is the present Chief Minister, the learned Judge is biased. Such an argument cannot be advanced on the basis of the judgment rendered by the Courts. A judgment should be looked into as one passed by the Court and not by an individual Judge. Rendering justice through judgment is the normal judicial function performed by a Judge. The act of a Judge while discharging his function cannot be termed to be a malice action in law merely because the judgment so rendered is quashed, reversed or altered by the superior Court. The views of a Judge may differ and in case where the views, findings or conclusions, as the case may be, of a Judge are not acceptable to the appellate Court, those views, findings or conclusions including the judgment are set aside or erased. By that process, it cannot be inferred that the Judge who rendered the judgment is biased in favour of whom the judgment was rendered. In the event such an argument is accepted, that will not be in consonance to the hierarchy in the judicial system providing appellate/revision/review jurisdiction. The word erased used by the Apex Court is heavily relied upon by Mr.Manikandan Vathan Chettiar to contend that it must be presumed to indict the learned Judge. In our opinion, such an argument cannot be accepted in the absence of any specific finding against the learned Judge himself and merely because the superior Court erased the order, by any stretch of imagination, it cannot be considered to be a judgment against the particular Judge, as the finding of the superior Court is only in respect of the order and not against the Judge. A judicial act involves an exercise of discretion or unbiased decision by a Court or Judge. Judgments are the dicta or sayings of the law and are received as truth, Judicia Sunt Tan Quam Juris Dicta. Unless there are justifiable materials, the Court cannot presume that the Judge is biased. Hence, the contention that the nominee of one-man Commission is biased cannot be accepted and the same is rejected.

31. It is the further contention of Mr.Manikandan Vathan Chettiar that the learned Judge had enjoyed a jaunt in Malaysia on the hospitality of a goonda detainee facing multiple cheating cases along with a practising lawyer sometime during the year 2000. We may point out that this allegation has been made on the basis of a newspaper report. In our opinion, the said allegation cannot ipso facto be considered till such time it is proved in the manner known to law, especially when a charge is levelled as to the integrity of the learned Judge. We are also informed that the learned Judge had functioned as a Judge of this Court and discharged his judicial functions even after the said report. Hence, the said contention also is unacceptable and the same is rejected. For all these reasons, we are not inclined to accept the contentions of Mr.Manikandan Vathan Chettiar that the member of one-man commission of inquiry is biased and he should not have been appointed as such.

32. Mr.R.Viduthalai, learned senior counsel for the petitioner in W.P.No.18883 of 2011 would submit that the one-man commission of inquiry appointed by the impugned order cannot be sustained on the ground that the retired Judge is politically biased and his action is malice in law. The question of bias on the ground of political rivalry came up for consideration before the Apex Court in P.V.Jagannath Rao and others v. State of Orissa and others, AIR 1969 SC 215. In that case, the question posed before the Apex Court was as to whether the power so exercised by the State Government was alien to the statute and whether the notification of the Government was not in public interest but for a collateral purpose, namely, to get rid of the political opponents to drive them out of the political life. The averment on the ground that the Government Order has been issued only on political rivalry has to be proved by acceptable evidence. It is the contention of the petitioner that the present Chief Minister decided to construct a New Secretariat complex in her tenure between 2001 and 2006 and the orders for such construction near Sholinganallur village, the premises of Queen Mary's college by demolishing the existing building did not fructify due to wide agitation by various sections of the public. Only for that reason, the decision taken by the subsequent Government in the year 2006 to construct a New Secretariat complex in Omandurar Government Estate has not been liked by the present Chief Minister and therefore the appointment of one-man commission of inquiry is only a political rivalry. From the affidavit, it is seen that there had been attempts made by the then A.I.A.D.M.K. Government to construct a Secretariat complex in its tenure between 2001 and 2006 and it did not materialise. Merely because of the said reason, can it be said that the decision of the subsequent Government to construct the Secretariat complex has not been liked by the present Chief Minister. As we have pointed out already, when there are prima facie materials available before the Government for ordering the one-man Commission of Inquiry, the relevant test would be only as to the availability of material and not the fact that the attempts made by the present Government to construct a Secretariat complex had failed earlier. That apart, "malice in law" means, evil intent on the part of a person who commits wrongful acts injurious to others. It could be also termed to be one of ill-will, animosity, malevolence, rancour or grudge Malice in its legal sense means malice such as may be assumed from doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. To put it otherwise, malice can be termed to be a conscious, intentional commission of a wrongful act without any justification or conscious violation of law that injures another without a just cause or excuse or probable or reasonable cause. Nevertheless, all wrongful acts, though intentional, would not constitute malice, unless it is established by the person pleading the same that the act was actuated by malice. Keeping in mind the above basic principles as to malice or malice in law, the facts of the present case must be considered. As we have pointed out already, at the time when the one-man commission of inquiry was constituted, there were materials available before the Government and hence the Government had a just cause or reasonable cause for exercising its discretion in appointing the one-man commission of inquiry. In fact, for exercise of such discretion, it would be sufficient for the Government to have a probable cause supported by materials. Accordingly, the submission as to the question of malice in law has no substance on the facts of the present case. The power of review as to the challenge to the commission of inquiry is limited to the question as to whether there are materials for the Government to order such a commission and for that matter, whether the decision of the Government is arbitrary and mala fide. Insofar as the appointment of the member to head the Commission of Inquiry is concerned, the question of bias has to be looked into on the facts and circumstances of each case. In this case, as we have answered both the questions in the negative, the challenge to the impugned order on the ground of malice in law has to be rejected and the same is accordingly rejected. Hence, point nos.(iv) & (v) are answered accordingly.

33.At the time we made the judgment ready and was about to list for pronouncement, Mr.R.Vijayakumar, learned Additional Government Pleader made a mention before this Court on 30.11.2011 that Hon'ble Mr.Justice S.Thangaraj (Retd.) resigned on account of his ill-health. Hence, we directed the Government to file an affidavit to that effect. Accordingly, the affidavit of the Chief Secretary, State of Tamil Nadu dated 30.11.2011 is filed today. In paragraph 3 of the affidavit, it is stated that the second respondent tendered his resignation on 22.11.2011 on medical grounds and his resignation was accepted by the Government.

34.When the above affidavit was brought to the notice of both the respective counsel namely, Mr.Manikandan Vathan Chettiar and Mr.R.Viduthalai, learned Senior Counsel, they submitted that the writ petitions should be disposed of on merits, in spite of the subsequent event.

35.We have considered the above submissions. The Apex Court in N. Kannadasan v. Ajoy Khose (2009 (7) SCC 1) while considering similar situation, proceeded to pronounce the judgment, even after noticing that the appellant therein had offered his resignation and in the absence of a prayer for withdrawal of Special Leave Petition.

36. Since both the petitioners requested this court to pronounce the judgment on merits, notwithstanding the fact that Hon'ble Mr.Justice S.Thangaraj (Retd.) had resigned, we proceeded to deliver the judgment as notified today.

37. For the foregoing discussions and reasons, we find no merit in the challenge to the impugned Government Order at the instance of both the petitioners. Accordingly, W.P.No.18883 of 2011 is dismissed. Insofar as W.P.No.18277 of 2011 is concerned, the same is dismissed to the extent of challenge to the appointment of Honble Mr.Justice S.Thangaraj (Retd.) as one man commission and partly allowed to the extent of the prayer for direction to appoint an individual to conduct the enquiry. Accordingly, we only observe that the respondent State is at liberty to appoint yet another individual as one-man commission, if they so desire. Consequently, M.P.Nos.2 of 2011 are also dismissed. No costs.

ss/Tr To

1. The Chief Secretary State of Tamil Nadu Fort Saint George Chennai 600 009

2. The Secretary to Government Public Department (Buildings) Fort Saint George Chennai 600 009