Madras High Court
P.A.Josseph vs The State Of Tamil Nadu on 12 April, 2023
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W.P. SR No.42341/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 12.04.2023
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. SR NO.42341 OF 2023
P.A.Josseph .. Petitioner
- Vs -
1. The State of Tamil Nadu
Rep. by its Chief Secretary
Secretariat Buildings
Fort St. George
Chennai 600 009.
2. The State of Tamil Nadu
Rep. by its Principal Secretary
Health & Family Welfare Department
Secretariat Buildings
Fort St. George, Chennai 600 009. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of mandamus directing the respondents to consider
the petitioner’s representation dated 26.12.2022 send to 1st and 2nd
respondent and received by them on 30.12.2022 and further prosecution by
the State Government may be done by appointing the Hon’ble Judge of
1
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Madras High Court and initiate action in this regard and pass appropriate
orders thereon within a stipulated time.
For Petitioner : Mr.D.BabuVaradharajan
For Respondents : Mr. R.Shanmugasundaram, AG,
Assisted by P.Muthukumar, GP &
Mr. K.M.D.Muhilan, AGP
Mr. Vijay Narayan – Amicus Curiae
Mr. P.H. Arvind Pandian – Amicus Curiae
ORDER
By the writ petition, the petitioner seeks the appointment of a Hon’ble
Judge of this Court by the State Government on the basis of the petitioner’s
representation dated 26.12.2022 and to initiate appropriate action on the
basis of the report submitted in regard to the death of the former Chief
Minister of Tamil Nadu in pursuance to the report submitted by the Justice
A.Arumughaswamy Commission of Enquiry.
2. Consequent upon the filing of the petition, the Registry, having
entertained a doubt with regard to the maintainability of the petition, had
returned the papers back to the petitioner by raising the following queries :-
“As per averments of affidavit and the representation
of petition dated 26.12.2022, it may be clarified the locus
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W.P. SR No.42341/2023
standi of the petitioner to file this writ petition under
individual capacity.
2. Cause title needs revision or it may be clarified for
arraying the Chief Secretary as a party as 1st respondent.”
3. In response to the said queries, the petitioner has answered the
queries accordingly :-
“a) As far as the locus standi is concerned, the
petitioner has averred in paragraph 2 of the affidavit that
the petitioner participated in the enquiry commission and
was examined as P.W.4.
b) As the implementation of the Commission relates to
multiple departments, the common head, i.e., The Chief
Secretary is arrayed as a party. Moreover, the
representation was addressed to the Chief Secretary.
Returns 1, 2, 3, 4 and 5 returns complied with by filing
requisite documents in typed set of papers.”
4. However, not satisfied with the reply filed by the petitioner and still
doubting the maintainability of the writ petition, upon directions, the Registry
has placed the papers before this Court.
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W.P. SR No.42341/2023
5. When the matter is taken up for hearing, learned counsel appearing
for the petitioner submits that the relief sought for by the petitioner is in
larger public interest, as it pertained to the report with regard to the death of
the former Chief Minister of Tamil Nadu, who had passed away under
mysterious circumstances. The petitioner, being a public spirited person and
also being a witness during the enquiry constituted to ascertain the truth of
the matter, and an ardent follower of the former Chief Minister, has not only
locus, but is also entitled to pursue the matter based on the report submitted
by the enquiry commission which was constituted to find the truth with regard
to the death of the State Head. It is the further submission of the learned
counsel that once a report is filed by the Enquiry Commission, it is the duty of
the State Government to act on the said report and take the required action,
but the State Government is maintaining silence on the said report without
taking any action to bring the offenders to justice, who were instrumental in
the death of the former Chief Minister. Therefore, only for the purpose of
taking proper action on the report, the petitioner had sent the representation,
which has not evoked any response, which resulted in the filing of the present
writ petition.
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W.P. SR No.42341/2023
6. It is the further submission of the learned counsel that the petition
not only being maintainable, but the relief sought for, being in larger public
interest, the State is duty bound to act on the said report and keeping silence
without taking any action portrays not only a wrongful image of the
Government, but is also making a mockery of the citizens, denying the right of
the citizens to know the truth, which is impermissible.
7. The only ground on which the petitioner claims that he has locus
standi to file the present petition is that he was a witness before the Enquiry
Commission, which was constituted to probe the death of the former Chief
Minister of Tamil Nadu.
8. Since the issue has a public outlook, in that the Commission of
Enquiry was pressed into service on the basis of the Commission of Inquiries
Act by the State in respect of the death of the former Chief Minister, then
sitting Chief Minister of the State of Tamil Nadu, this Court, appointed
Mr.Vijay Narayan, Senior Counsel and Mr.P.H.Arvind Pandian, Senior Counsel,
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as Amicus Curiae to assist this Court, in addition to hearing the arguments of
Mr.R.Shanmugasundaram, learned Advocate General.
9. While the learned Advocate General countered the submissions
raised on behalf of the petitioners with regard to taking action on the basis of
the report submitted by the Justice Arumughaswamy Commission, further
submitted that it is within the prerogative of the Government, on the analysis
of the report, to satisfy itself before proceeding to take any action against any
person and no individual or a citizen can force the Government to act on the
report. Even if the petitioner is a witness in the enquiry, merely because of his
stature as a witness would not give him any locus to question the act of the
Government to initiate any action against anyone on the basis of his
understanding of the report.
10. Learned Amicus submitted that it is within the prerogative of the
Government to appoint Enquiry Commission under the Commission of
Inquiries Act to conduct an enquiry and submit a report. However, the report
has no statutory force and it is a mere recommendation by the Commission to
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the Government as to the findings that were arrived at by the Commission on
analysing the evidence that were available before it. Merely because the
report has been filed, no individual can force the Government to act on the
said report and it is always open to the Government to act on the report in the
manner known to law, if anything of value transpires from the said report
upon getting proper legal advice. When the report has no statutory force, no
person, including the petitioner, on the mere strength that he has been a
witness, can force the Government to act on the report and this Court also
cannot issue any directions to the Government to proceed in any manner with
the findings recorded by the Commission as the said report has no statutory
force and the findings cannot have any binding nature.
11. In this regard, learned Amicus placed reliance upon the decision of
the Constitution Bench of the Apex Court in Ram Krishna Dalmia – Vs –
Justice S.R.Tendolkar (AIR 1958 SC 538).
12. This Court gave its careful consideration to the submissions
advanced by the learned counsel on either side and the learned Amicus.
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13. The entire State of Tamil Nadu was grief stricken on the passing of
its leader Dr.Selvi J.Jayalalitha, who was undergoing treatment for certain
ailments. The passing away of the leader was not only sudden, but had an
impact on the lives of very many individuals, as the individual had instilled
herself in many a person’s heart not only by her on-screen appearance, but
also by her administrative ability and agility. The above facts cannot be
denied by anyone. However, her untimely death was a blow not only to her
party, but also for the entire State of Tamil Nadu and had huge ramifications
in politics. To offset the imbalance in the law and order situation that had
engulfed the State, the Government stepped in to appoint an Enquiry
Commission, by invoking its powers under the Commission of Inquiry Act and,
accordingly, Hon’ble Mr. Justice A.Arumughaswamy, Retired Judge of this
Court was appointed to conduct the enquiry.
14. No doubt, the petitioner was a person, who had been called as a
witness in the enquiry, as he was actively involved in politics, being the
President of J.Jayalalitha Followers Party. The Inquiry Commission, after a full-
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fledged and detailed enquiry, submitted its report to the Government, which
has since been accepted and the report has been published. It is only based
on the said report, the petitioner wants action to be taken.
15. The locus, even according to the petitioner, is on the basis of him
being called a witness in the inquiry. True it is that the petitioner was called a
witness in the inquiry, but that alone will not suffice for this Court to give any
direction as sought for by the petitioner, as this Court is guided by the statute
and anything, which does not have a statutory force, cannot be directed to be
enforced by the Government.
16. The Apex Court, in Dalmia’s case had occasion to deal with the
power and scope of the findings of Commission of Inquiry and the
enforceability of the said findings as also the width of the enquiry vis-à-vis a
judicial proceedings and it was in the said context, the Constitution Bench held
as under :-
“8. While we find ourselves in partial agreement with the
actual conclusion of the High Court on this point, we are, with
great respect, unable to accept the line of reasoning advanced
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by learned counsel for the petitioners, which has been accepted
by the High Court for more reasons than one. In the first place
neither Parliament nor the Government has itself undertaken
any inquiry at all. Parliament has made a law with respect to
inquiry and has left it to the appropriate Government to set up
a Commission of Inquiry under certain circumstances referred
to in S.3 of the Act. The Central Government, in its turn, has, in
exercise of the powers conferred on it by the Act, set up this
Commission. It is, therefore, not correct to say that Parliament
or the Government itself has undertaken to hold any inquiry. In
the second place the conclusion that the last portion of cl. (10)
is bad because it signifies that Parliament or the Government
had usurped the functions of the judiciary appears to us, with
respect, to be inconsistent with the conclusion arrived at in a
later part of the judgment that as the Commission can only
make recommendations which are not enforceable proprio
vigore there can be no question of usurpation of judicial
functions. As has been stated by the High Court itself in the
latter part of its judgment, the only power that the Commission
has is to inquire and make a report and embody therein its
recommendations. The Commission has no power of
adjudication in the sense of passing an order which can be
enforced propriovigore. A clear distinction must, on the
authorities, be drawn between a decision which, by itself, has
no force and no penal effect and a decision which becomes
enforceable immediately or which may become enforceable by
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some action being taken. Therefore, as the Commission we are
concerned with is merely to investigate and record its findings
and recommendations without having any power to enforce
them, the inquiry or report cannot be looked upon as a judicial
inquiry in the sense of its being an exercise of judicial function
properly so called and consequently the question of usurpation
by Parliament or the Government of the powers of the judicial
organs of the Union of India cannot arise on the facts of this
case and the elaborate discussion of the American authorities
founded on the categorical separation of powers expressly
provided by and under the American Constitution appears to us,
with respect, wholly inappropriate and unnecessary and we do
not feel called upon, on the present occasion, to express any
opinion on the question whether even in the absence of a
specific provision for separation of powers in our Constitution,
such as there is under the American Constitution, some such
division of powers-legislative, executive and judicial-is,
nevertheless implicit in our Constitution. In the view we have
taken it is also not necessary for us to consider whether, had
the Act conferred on the appropriate Government power to set
up a Commission of Inquiry with judicial powers, such law could
not, subject, of course, to the other provisions of the
Constitution, be supported as a law made under some entry in
List I or List III authorising the setting up of courts read with
these two entries, for a legislation may well be founded on
several entries.”
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W.P. SR No.42341/2023
(Emphasis
Supplied)
17. The report, which is the subject matter of the present case,
squarely falls within the ratio laid down in the aforesaid case and, therefore,
the said report, which has been placed before the Government has no
statutory force. It is merely a report, in and by which certain findings have
been given. The said report cannot form the basis for any judicial direction to
the Government. It is for the Government to accept and act on the report,
provided the Government is satisfied with the findings rendered therein. As
held by the Apex Court in Dalmia’s case, the Commission is merely to
investigate and record its findings and recommendations without having any
power to enforce them, the said report cannot be held to have the force of a
judicial inquiry in exercise of a judicial function, which alone can be held to be
enforceable. The aforesaid decision is squarely attracted to the case on hand,
as in the present case, the State Government has merely constituted the
Commission and it is for the Government to act on the said report, if it deems
necessary, based on the findings rendered therein. It is left to the wisdom of
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the appropriate authority to act on the report and this Court cannot give any
affirmative direction in this regard.
18. Further, it is to be pointed out that the death of any national leader
is a sensational news, be it for the media or for the public and more so for the
party cadres who have political affiliation to the said party. But any order that
is prayed for before this Court should be an enforceable order, which alone
can be directed by this Court and not all reports can be directed to be
enforced. In the present case, the findings of the report are sought to be
enforced, as it pertains to the death of the former Chief Minister. It is the
duty of all the citizens, more particularly her followers not to smudge her
image in any form, even be it in the form of a fact finding enquiry regarding
her death, more so, when an enquiry had been completed resulting in a
report, which is seized of by the Government. It is within the domain of the
Government to act on the report, in all its wisdom and this Court cannot be a
party to an act, which does not have statutory force. Further, this Court
cannot be a party to an act, which would besmirch the former Chief Minister
in the absence of the said findings not being statutorily enforceable.
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19. Definitely, the Government, in its wisdom, would proceed further in
the matter in accordance with law and it is not for this Court to give any
affirmative direction, which is not in accordance with law. The mere suspicion
of the petitioner on the basis of some findings rendered in the enquiry, which
report does not have any statutory force, cannot be the basis for seeking a
direction from this Court to pass orders on the representation, and this Court,
through its power under Article 226 cannot force the Government to do
something, which is not approved by law. The act of the petitioner in filing the
present petition is wholly misconceived and this petition cannot be
maintained, even premising that the petitioner was a witness in the enquiry
and, therefore, he has locus to file the present petition. If this petition is
taken on file on the above contentions, this Court will be flooded with
petitions of this nature, on the very same issue, and would be setting a bad
precedent in matters of this nature, as anybody would then come before this
Court with such petitions seeking directions, which cannot be granted under
the inherent jurisdiction of this Court.
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20. For the reasons aforesaid, the binding precedent in Dalmia’s case
clearly points this Court to the unerring conclusion that this petition is not
maintainable and, therefore, this petition is rejected in the SR stage itself.
21. This Court places on record its appreciation for the assistance
rendered by the learned Amicus at such short notice.
12.04.2023
Index : Yes / No
GLN
M.DHANDAPANI, J.
GLN
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W.P. SR No.42341/2023
W.P. SR NO.42341 OF 2023
12.04.2023
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