Madras High Court
Dr.C.Vijayabaskar vs The State Of Tamil Nadu on 20 January, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
2025:MHC:151
W.P(MD)No.4379 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 03.01.2025
PRONOUNCED ON : 20 .01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P(MD)No.4379 of 2023
and
W.M.P(MD)Nos.4113, 4114 & 4115 of 2023
Dr.C.Vijayabaskar ... Petitioner
Vs
The State of Tamil Nadu,
Represented by its Chief Secretary,
Fort St. George,
Chennai – 600 001. ... Respondent
PRAYER: Writ Petition filed under Article 226 of Constitution of
India, to issue a writ of Certiorari, to call for the records pertaining
to the impugned G.O in G.O.No.SS.II/500-4/2022 dated 17.10.2022
of the respondent/Chief Secretary, Government of Tamil Nadu and
quash the same insofar as the petitioner is concerned.
For Petitioner : Mr.N.Nithyaesh Natraj
for Mr.Vaibhav R.Venkatesh
For Respondent : Mr.Veera Kathiravan
Additional Advocate General
Assisted by
Mr.D.Gandhi Raj
Special Government Pleader
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1/32
W.P(MD)No.4379 of 2023
ORDER
This Writ Petition has been filed by the petitioner
challenging the Hon'ble Thiru.Justice A.Arumughaswamy
Commission of Inquiry report dated 23.08.2022 insofar as the
petitioner is concerned in paragraph Nos.39.1 to 39.7 and 47.28
thereby the petitioner was found fault with and suggested for
investigation is to be ordered.
2.The petitioner is the former Health Minister of the
State of Tamil Nadu. He was Minister under the regime of 'the late
Chief Minister of Tamil Nadu Selvi.J.Jayalalithaa' (in short
hereinafter referred to as 'the late Chief Minister of Tamil Nadu').
While she was functioning as a Chief Minister, she fell ill and was
admitted into a private hospital on 22.09.2016. While she was
taking treatment, she died on 05.12.2016. The respondent passed
an order in G.O.Ms.No.817, Public (S.C) Department dated
25.09.2017 thereby appointing the Commission to inquire into the
demise of the late Chief Minister of Tamil Nadu headed by 'the
Hon'ble Thiru.Justice A.Arumughaswamy' (in short hereinafter
referred to as 'the Commission'), former Judge of this Court.
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Further, another Government Order passed in G.O.Ms.No.829, Public
(S.C) Department, dated 27.09.2017, thereby ordered the
Commission to inquire into the circumstances and situation leading
to the hospitalization of the late Chief Minister of Tamil Nadu on
22.09.2016 and subsequent treatment provided till her unfortunate
demise on 05.12.2016. In pursuant to the said Government Orders,
the Commission assumed charge on 30.09.2017 and had examined
151 witnesses as Commission Witnesses in which the petitioner was
examined as Commission Witness No.146 on 21.01.2019. After
completion of the enquiry, the Commission submitted a report on
23.08.2022. Aggrieved by the recommendations/observations and
findings of the Commission's report insofar as the petitioner is
concerned, the Commission's report is under challenge in this Writ
Petition.
3.The learned counsel appearing for the petitioner would
submit that the petitioner was examined as a Commission Witness
ie., C.W.146. However, the findings and observations of the
Commission's report prejudicially affected his reputation and caused
serious prejudice in the minds of the general public. It is a complete
violation of mandatory statutory provisions of the Commissions of
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Inquiry Act, 1952 (in short hereinafter referred to as 'the Act,
1952') and the Commissions of Inquiry (Central) Rules, 1972 (in
short hereinafter referred to as 'the Rules, 1972). In order to
proceed against the person whose reputation will likely be affected
as a result of inquiry before it, a notice in terms of Section 8B of the
Act, 1952 will have to be mandatorily issued to such person. Further
Section 8C of the Act, 1952 embodies the principles of natural
justice. The Commission failed to issue notice to the petitioner in
terms of Section 8B of the Act, 1952 and the petitioner was not
given an opportunity of hearing as contemplated under Section 8C
of the Act, 1952. Therefore, suggesting to conduct an investigation
is wholly without jurisdiction of the Commission and
recommendation for initiation of appropriate action cannot be
sustained that too without giving reasonable opportunity to adduce
evidence on behalf of the petitioner. Further, the Commission came
to the conclusion without any material and on the deposition of the
petitioner itself concluded that the petitioner was found fault with
and investigation is to be ordered. In fact, the private hospital in
which the late Chief Minister of Tamil Nadu was admitted for
treatment filed an application to constitute a Medical Board in A.No.
213 of 2022. It was not considered and the Hon'ble Supreme Court
of India passed an order in SLP Civil No.10189-10190 of 2019,
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requesting the Director, All India Institute of Medical Sciences
(AIIMS), New Delhi to nominate a panel of Doctors, specialists in
the fields of treatment of the ailments as suffered by the late Chief
Minister of Tamil Nadu. Further, directed the Commission to furnish
all medical records to the Medical Board to participate in all further
proceedings of the Commission. However, the Commission had
chosen to negate the report submitted by the AIIMS Medical Board
on specious and vague pleas.
4.As per the report of the Commission, only two persons
were arrayed as respondents and the petitioner is arrayed as a
witness to the Commission. Nowhere the petitioner was arrayed as
a respondent during the course of enquiry by the Commission. In
fact, the counsel for the Commission had taken out an application in
A.No.214 of 2018 sought for leave from the Commission to proceed
as against the then Chief Secretary and Health Secretary as
respondents 3 and 4 in the proceedings. The said application was
deferred and no specific order was passed to make them as
respondents. However, no application was made to array the
petitioner herein as a respondent in the main proceedings.
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5.In order to maintain the Writ Petition against the
Commission's report, the learned counsel appearing for the
petitioner relied upon the Judgment of the Hon'ble Supreme Court
of India reported in 2003 (8) SCC 361 in the case of State of
Bihar Vs. Lal Krishna Advani and others, in which, the Hon'ble
Supreme Court of India held that even though the report of a
Commission appointed under the Act, 1952 is only recommendatory
in nature, an aggrieved person is entitled to challenge the same in
the manner known to law, if the report adversely affects and
prejudice his reputation. It is also followed by the High Court of
Punjab and Haryana at Chandigarh reported in 2019 SCC Online P
& H 1162 in the case of Bhupindar Singh Hooda Vs. State of
Haryana and others and quashed the report of the Commission on
the ground of non-observance with the mandatory procedure
stipulated under Section 8B of the Act, 1952. He further submitted
that the petitioner was not served with any notice under Section 8B
of the Act, 1952 and not even sought to be impleaded as a
respondent. He was issued summons to depose as the Commission
Witness and on the deposition, the Commission found fault with the
petitioner and suggested for investigation is to be ordered. It is a
clear violation of its fundamental right as guaranteed under Article
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21 of the Constitution of India. In pursuant to the report, the
Government passed an order in G.O.No.SS.II/500-4/2022, dated
17.10.2022 thereby recording that it was decided to initiate
appropriate action on the Commission of Inquiry report's
recommendations against certain individuals, after obtaining the
considered opinion of the legal experts. Therefore the Writ Petition
is very much maintainable.
6.The respondent filed a counter-affidavit and
Mr.Veera Kathiravan, learned Additional Advocate General appearing
for the respondent raised preliminary objections that the Writ
Petition itself is not maintainable and submitted that the petitioner is
a sitting MLA and former Minister of the State of Tamil Nadu and as
such it has to be posted before the Special Bench constituted for
hearing the cases relating to the cases involving the sitting for
former M.Ps and M.L.As. The Commission was held at Chennai and
the report was submitted at Chennai. The Commission conducted an
enquiry as ordered by the Government in G.O.Ms.No.817, Public
(S.C) Department, dated 25.09.2017, at Chennai. In pursuant to
the Commission’s report no action has been taken so far and as
such the Writ Petition itself is premature in nature. The
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Commission's report is only a suggestion and as such the petitioner
does not require any audience before the Commission.
7.The Constitutional Bench of the Hon’ble Supreme
Court of India reported in AIR 1958 SC 538 in the case of Shri
Ram Krishna Dalmia Vs. Shri Justice S.R.Tendolkar and
others held that the Commission has no power of adjudication in
the sense of passing an order which can be enforced proprio vigore.
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 some action being taken. It 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.
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8.He also relied upon the Judgment of the Full Bench of
this Court reported in 2006 (4) L.W 560 in the case of
P.P.M.Thangaiah Nadar Firm and others Vs. The Government
of Tamil Nadu and others in which the Full Bench of this Court
held that the report of a Commission of Inquiry is not binding on the
State which constitutes such Commission of Inquiry nor its findings
are binding on those against whom any recommendation is made.
The conclusions of a Commission of Inquiry are not admissible in a
Court of law, in a criminal case or even in a civil case. Such
conclusions are merely advisory in nature.
9.The Judgment of the Hon'ble Supreme Court of India
reported in 2003 (8) SCC 361 in the case of State of Bihar Vs.
Lal Krishna Advani and others and the Judgment of the
Constitutional Bench of the Hon’ble Supreme Court of India reported
in AIR 1958 SC 538 in the case of Shri Ram Krishna Dalmia Vs.
Shri Justice S.R.Tendolkar and others are followed by the High
Court of High Court of Punjab and Haryana at Chandigarh reported
in (2019) 2 RCR (Cri) 165 in the case of Charanjit Singh and
others Vs. State of Punjab and others wherein held that the
proceedings before the Commission cannot be equated with a
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regular trial though rules of natural justice would be reasonably
applicable in the proceedings before the Commission. Even failure to
provide an opportunity of cross examination would not vitiate the
process as proceedings are purely fact finding in nature.
10.The petitioner was summoned as a Commission
Witness and examined on 21.01.2019 as C.W.146. He was given
adequate and reasonable opportunity before taking decision to give
evidence. After the conclusion of enquiry, the Commission filed its
report on 23.08.2022 and recorded the role played by the petitioner
and others in taking a decision to give treatment in the Apollo
Hospital and not taking steps to take treatment in abroad. He also
interprets the provisions under Sections 8B and 8C of the Act, 1952
differently that if at any stage of the inquiry, the Commission
considers it necessary to inquire into the conduct of any person or is
of the opinion that the reputation of any person is likely to be
prejudicially affected by the inquiry, the Commission shall give to
that person a reasonable opportunity of being heard in the inquiry
and to produce evidence in his defence. Accordingly, the petitioner
was given an opportunity to let in evidence. Therefore he prayed for
dismissal of the Writ Petition.
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11.Heard Mr.N.Nithyaesh Natraj, learned counsel
appearing for the petitioner and Mr.Veera Kathiravan, learned
Additional Advocate General appearing for the respondent and
perused the materials available on record.
12.On perusal of the materials available on record, the
following two points arise for consideration:
(i) Whether the Writ Petition is
maintainable or not.
(ii) The findings of the Commission's report
against the petitioner can be interfered with or not.
13.The petitioner is a member of the Legislative
Assembly and former Health Minister of the State of Tamil Nadu.
The respondent passed an order in G.O.Ms.No.817, Public (S.C)
Department dated 25.09.2017, thereby appointing the Commission
to enquire into the demise of the late Chief Minister of Tamil Nadu
on 05.12.2016. Further the respondent issued another Government
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Order in G.O.Ms.No.829, Public (S.C) Department, dated
27.09.2017, thereby ordered the Commission to inquire into the
circumstances and situation leading to the hospitalization of the late
Chief Minister of Tamil Nadu on 22.09.2016 and subsequent
treatment provided till her unfortunate demise on 05.12.2016.
Accordingly, the Commission had proceeded with the enquiry and
examined 151 witnesses in which the petitioner was summoned and
examined as C.W.146 on 21.01.2019. After completion of inquiry,
the Commission submitted a report on 23.08.2022. The petitioner
challenged the suggestions and conclusions in so far as the
petitioner is concerned in paragraph Nos.39.1 to 39.7 and 47.28 of
the Commission's report.
14.It is relevant to extract the portion of the
Commission's report impugned in this Writ Petition in paragraph
Nos.39.1 to 39.7 as follows:
“39.1.C.W.146 - Dr.C.Vijayabaskar, stated
that, on information, that the late C.M. was admitted in
the hospital on 22.9.2016, he came from his native
place and reached the Hospital in the morning of
23.9.2016.
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39.2. The Secretary, Health Department,
was assisting him in bringing the AIIMS Doctors. When
he was asked if the Secretary, Health Department, had
given anything in writing for convening the Cabinet
meeting, he answered that question would not be
applicable to him. It is wrong to state that the Apollo
Doctors had given treatment to late C.M., only after
due consultation with him, the Secretary, Health
Department, the Chief Secretary and R.1. Apollo
Hospital never personally disclosed anything to him.
When asked as to whether the Apollo Hospital Doctors
unanimously decided, he answered "yes, they had".
When asked if his Secretary had written a letter to the
AIIMS, mentioning the names of Doctors, without
mentioning the need for a Cardiac Surgeon, he stated
that he knew that he had written a letter requesting that
a Medical Team should be constituted to treat Amma.
When asked, if she had a setback in her health
condition due to perforation in her heart on that night,
he replied that he only knew about the setback caused
and the reasons were unknown to him. When he was
asked whether was aware of her heart vegetation and
perforation, since it was not informed in the Apollo
briefing, he stated that, as mentioned earlier, he did not
remember it.
39.3.C.W. 146-Dr.Vijayabaskar, Health
Minister, in his evidence for a query, answered that he
was aware of the telephonic conversation with
Dr.Stuart Russel and Dr.Samin Sharma who came from
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USA and Dr.Rajeev Soman, who came from Bombay.
For these questions, however, he pleaded ignorance
about the opinion given by them. When he was asked
even when Sasikala was not present at the time of
briefings, how she was aware of the late C.M.'s health
condition, he stated that the question may be confined
to himself. When questioned about the signature put by
the Chief Secretary and Sasikala during the procedural
aspects for late C.M., he pleads ignorance. Regarding
the treatment given to late C.M. he would say that it
was decided only by the Apollo Hospital. He has
spoken about the treatment given to late C.M, in an
evasive and Illusive manner.
39.4. Dr.Richard Beale is a Doctor for
sepsis and critical care. It is evident that he is not a
Cardiac Surgeon. The AIIMS Doctors did not give any
treatment to her. If it is true that they only supervised
the treatment given by the Apollo Doctors, why were
they giving treatment jointly as a treating team? When
asked if AIIMS Doctors did not prescribe even a single
medicine to her, he pleaded ignorance. Dr.Soman
arrived at Apollo as a Consultant Doctor to give
treatment to Late C.M., but he did not know about his
suggestion that an angiogram should be performed for
her. When asked, he said that he came back from
Thanjavur Election only after the perforation in the
heart valve of Late C.M. was diagnosed. When asked as
to when he came to know about the recommendation for
an angiogram, since he went for election work for a
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long period, he said it was not known to him. He did
not see the visit of Dr.Soman, who had not participated
in the briefings. He does not know of the fact that
Dr.Samin Sharma and Dr.Stuart Russell stated that
angio should be performed for her. He knew that
Dr.Stuart Russell was consulted through video
conference in the Hospital. He only knew that Dr.Samin
Sharma came in connection with the treatment.
39.5. When asked about his opinion of
late C.M. being taken by Air Ambulance and Dr.
Richard Beale also having stated that he was also ready
to accompany her in the air Ambulance and admitted in
his Hospital itself at London, he answered that he,
Senior Minister Hon'ble Thiru O.P.S., and Hon'ble
Dr.Thambidural were eager in taking her abroad and
giving her the best treatment. But, as both the AIIMS
Doctors and Apollo Doctors, stated that they were
giving proper treatment to her and there was
improvement, and there was no necessity for abroad
treatment, this option was dropped. Dr.Richard Beale
stated that, if she had been taken abroad for treatment,
she would have been only under the control of the
Doctors, unlike others. He also stated that though
summons were served to him three times and when he
was ready to appear, it was adjourned and due to this
news in the media, it caused stigma in his political
career. He took it as his duty to come and adduce
evidence before the Commission, whenever summoned,
he cooperated, but such kind of questions caused him
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much hardship. When questioned, if she was taken
abroad for treatment, whether he considered it as a
disgrace to the Indian Doctors, he affirmed that he did
not consider it to be so.
39.6. When asked for his opinion when
the former Chief Minister Dr.M.G.Ramachandran was
admitted in the same Apollo Hospital in 1984 and the
former Prime Minister Tmt. Indira Gandhi arranged to
send him abroad for treatment, and, at that time when
one Dr.K.Mani, the then Apollo Doctor stated that, for
kidney failure, the act of taking him abroad, would
reflect on the reputation of the Indian Doctors much,
Tmt. Indira Gandhi diplomatically replied 'one had to
see the issue from the patient's point of view as well',
which was published in "India Today" on 15.11.1984,
he stated that he did not know about it. He does not
know the details about the former Chief Secretary and
R.1 putting 20 signatures in the Hospital forms for Late
C.M. He does not know, if the Secretary, Health
Department was aware of this fact. When asked about
the question of the possibility to convene a Cabinet
meeting for deciding to take her abroad for treatment, if
both of them informed about this to his Government, he
pleaded ignorance and stated that he cannot give his
opinion in this regard.
39.7. It is surprising that being the Health
Minister, he did not take the necessary and proper
initiative to take late C.M. abroad for treatment. Even
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though C.W.146-Health Minister is a qualified doctor
and is capable of understanding the clinical condition
of the patient, the medical terms, the procedures
proposed and done, etc., it is astonishing that he did not
apply his mind and prudence to the lifesaving
suggestions of Dr.Richard Beale regarding abroad
treatment and that of Dr.Stuart Russell, Dr.Samin
Sharma, Dr.Rajeev Soman and C.W.120 regarding the
exigency, safety, importance and advantages of doing
an angiogram to find out not only the invisible defects
but also to treat her well. More surprising is that in the
witness box, for a question put to gain information
regarding the treatment he stated that he was not
available or that he does not remember, but would un-
mistakenly add that Apollo Doctors were giving the best
treatment. In short, he was the main tool used by R.1
and Apollo Doctors to thwart the attempts of taking late
C.M. abroad and manage her in Apollo Hospitals itself
till the doomsday of the late C.M., who had no solid
relative for support. It will not be too much, if it is
recorded that R.2 treatment regarding failure to take
angio was well planned and rightly executed, by R.1.,
C.W.99-Dr.Y.V.C. Reddy, C.W.106-Dr.Babu Abraham,
C.W.17-Dr.Sivakumar, C.W.136-Health Secretary and
C.W.146-Health Minister.”
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Accordingly the Commission found fault with the petitioner. Further,
the Commission made observations against the petitioner and it
would prejudicially affected his reputation and cause a serious
prejudice among the general public.
15.It is also relevant to extract the conclusion portion of
the Commission's report impugned in this Writ Petition in paragraph
No.47.28 as follows:
“47.28. From all these aspects, the
Commission concludes that R.1-V.K.Sasikala, C.W.17-
K.S.Sivakumar, C.W.136-Dr.J.Radhakrishnan, then Health
Secretary and C.W.146-Dr.C.Vijayabaskar, then Health
Minister have to be found fault with and investigation is to
be ordered.”
On the basis of his own evidence, the Commission made
observations and also found fault with the petitioner and suggested
for investigation is to be ordered.
16.Admittedly the petitioner was examined as
Commission Witness No.146 ie., C.W.146. He was served with a
summon for his appearance before the Commission of Inquiry as
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the Commission Witness to give his evidence in terms of reference
of the Commission of Inquiry on three occasions ie., 12.12.2018,
26.12.2018 and 11.01.2019. Accordingly, the petitioner had
appeared and deposed before the Commission.
17.The specific contention of the learned counsel
appearing for the petitioner is that it is a clear violation of principles
of natural justice since the observations and suggestions made by
the Commission without giving an opportunity of hearing to the
petitioner as contemplated under Section 8B and 8C of the Act,
1952. It is relevant to extract the provisions under Section 8B of the
Act, 1952 hereunder:
“8B.Persons likely to be prejudicially affected
to be heard.- If, at any stage of the inquiry, the
Commission.-
(a) considers it necessary to inquire into the
conduct of any person; or
(b) is of opinion that the reputation of any
person is likely to be prejudicially affected by the inquiry,
the Commission shall give to that person a reasonable
opportunity of being heard in the inquiry and to produce
evidence in his defence:
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Provided that nothing in this Section shall apply
where the credit of a witness is being impeached.”
18.It is also necessary to extract the provisions under
Section 8C of the Act, 1952 hereunder which further embodies the
principles of natural justice:
“8C.Right of cross-examination and
representation by legal practitioner.- The appropriate
Government, every person referred to in Section 8B
and, with the permission of the Commission, any other
person whose evidence is recorded by the
Commission.-
(a) may cross-examine a witness other
than a witness produced by it or him;
(b) may address the Commission; and
(c) may be represented before the
Commission by a legal practitioner or, with the
permission of the Commission, by any other person.”
19.Thus it is clear that if the persons likely to be
prejudicially affected are to be heard if at any stage of the inquiry,
the Commission shall give a reasonable opportunity of being heard
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in the enquiry and also to produce evidence in his defence.
Admittedly, the petitioner was not served any notice under Section
8B of the Act, 1952. Therefore it is clear statutory violation and
violation of principles of national justice enshrined under the
Constitution of India. In fact, the counsel for the Commission had
taken out an application in A.No.214 of 2018 to proceed as against
the Chief Secretary and Health Secretary by issuance of notice
under Section 8B of the Act, 1952. However, the Commission did
not pass any orders in the application. Therefore the Commission
fully aware of the fact that if any opinion of the Commission would
likely to be prejudice the person, the Commission shall have to give
reasonable opportunity of being heard in the Inquiry to the said
person.
20.It is also necessary to extract the provisions under
Section 5(2) of the Rules, 1972 hereunder:
“5.Procedure of Inquiry.- (2) A Commission
shall, as soon as may be after its appointment -
(a) issue a notice to every person, who in its
opinion should be given an opportunity of being heard
in the inquiry, to furnish to the Commission a statement
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relating to such matters as may be specified in the
notice;
(b) issue a notification, to be published in
such manner as it may deem fit, inviting all persons
acquainted with the subject matter of the inquiry to
furnish to the Commission a statement relating to such
matters as may be specified in the notification.”
21.Thus, it is clear that Rule 5(2) of the Rules, 1972 has
also been violated since no notice was issued to the petitioner in
terms of the said rule asking him to show cause as to why he should
not be proceeded against after giving him sufficient opportunity to
respond to the allegations and the specific charge against him.
Further, the materials being used against the petitioner was also not
given to the petitioner and he was never given an opportunity to
rebut the same.
22.In fact, the Hon'ble Supreme Court of India passed
an order in SLP Civil No.10189-10190 of 2019, requesting the
Director, All India Institute of Medical Sciences (AIIMS), New Delhi
to nominate a panel of Doctors, specialists in the fields of treatment
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of the ailments as suffered by the late Chief Minister of Tamil Nadu.
Further, directed the Commission to furnish all medical records to
the Medical Board to participate in all further proceedings of the
Commission. In terms of Section 5B of the Act, 1952, the
Commission is empowered to appoint its own expert if it deems fit
to advise and assist the Commission, having specialised knowledge
in the inquiry. If the Commission so felt that it wanted the
assistance of any other expert having specialised knowledge in the
field of medicine, then it ought to have constituted its own expert
committee exercising its power under Section 5B of the Act, 1952, if
at all it decided not to accept the recommendation of the AIIMS
Board. However, the Commission, instead of exercising its powers
under Section 5B of the Act, 1952, has simply chosen to negate the
report submitted by the AIIMS Board on specious and vague pleas.
23.In this regard, the learned counsel appearing for the
petitioner relied upon the Judgment of the Hon'ble Supreme Court
of India reported in 2003 (8) SCC 361 in the case of State of
Bihar Vs. Lal Krishna Advani and others, wherein the Hon'ble
Supreme Court of India held as follows:
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“10.It is then submitted by Shri Dwivedi that
the Commission was appointed to inquire as to whether the
riots "were pre-planned and, if so, the elements responsible
for the same". The Commission was also required to
recommend measures for preventing such recurrences.
Therefore, the terms of the Reference were quite wide and
the anxiety of the Government was only to identify the
elements behind such disturbances and to take sufficient
measure to prevent recurrence in future. The Commission
was not inquiring into the conduct of the respondent no.1 in
particular. These were some general observations touching
the matter under reference to the Commission. In this
connection, relying upon a decision reported in 1977(4)
SCC p.608, State of Karnataka vs. Union of India & Anr., a
seven Judge bench judgment, referred to the observations
made in paragraph 77 to say that the scope of such
inquiries is wide enough to cover anything reasonably
related to the matter under inquiry. It is further submitted in
reference to observations made in paragraphs 184 and 186
of the aforesaid decision that the function of the
Commission is purely fact-finding and its pronouncement is
neither binding nor a definitive judgment. The Commission
is required to submit its report, which may or may not be
accepted by the appointing authority. It is further submitted
that the stage for any grievance arrives when in
consideration of the report the authority decides to take any
action not otherwise. The Commission has no power of
adjudication in the sense of passing an order which can be
enforced. A reference has also been made to a case reported
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in AIR 1956 SC page 66, Brijnandan Sinha Vs. Jyoti
Narain, a Division Bench Judgment, to indicate that report
made by the Commissioner under the Public Servants
(Inquiries) Act (37 of 1850) is merely expression of his
opinion and it lacks both finality and authoritativeness. The
learned counsel has then referred to 1959 SCR page 279,
Shri Ram Krishna Dalmia Vs. Shri Justice S.R.Tendolkar &
Ors., a Constitution Bench Judgement, to submit that the
recommendations of Commission of Inquiry are not
enforceable proprio vigore. It is not an adjudication. It is
merely a recommendation of the Commission. On the basis
of the decisions referred to above, much stress has been
given on the point that this was not the stage for respondent
no.1 to have approached the Court raising any grievance in
respect of some observations made here and there while
inquiring into the Bhagalpur communal riots, its reasons
and to recommend measures to check such recurrences in
future.
11.We have already observed that had it been
only a question of any adverse action being taken against
the person against whom some adverse finding has been
recorded, the contention of the learned counsel for the
appellant may perhaps would have been entertainable. The
Government actually takes action or it does not or the fact
that the report is yet to be considered from that angle,
cannot be a reason to submit that it won't be appropriate
stage to approach the Court. There may be occasions where
after consideration of report the government may not decide
to take any action against the person concerned yet the
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observation and remarks may be such which may play upon
the reputation of the person concerned and this aspect of the
matter has been fully taken care of under clause (b) of
Section 8B of the Act. It is not, therefore, necessary that one
must wait till a decision is taken by the Government to take
action against the person after consideration of the report.
We have already dealt with the point about the right to have
and protect one's reputation. We, therefore, find no force in
the submission that the respondent no.1 had approached the
Court at pre-mature stage. No other point has been urged
on behalf of the appellant. In our view, the judgment of the
High Court calls for no interference.”
24.Thus the principles of natural justice were got
inducted in the shape of a statutory provision. It is thus incumbent
upon the Commission to give an opportunity to a person, before any
comment is made or opinion is expressed which is likely to
prejudicially affect that person. Needless to emphasize that failure
to comply with the principles of natural justice renders the action
non-est as well as the consequences thereof. Further, the decision
relied upon by the learned Additional Advocate General reported in
AIR 1958 SC 538 in the case of Shri Ram Krishna Dalmia Vs.
Shri Justice S.R.Tendolkar and others also referred and held
that the Government actually takes action or it does not or the fact
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that the report is yet to be considered from that angle, cannot be a
reason to submit that it won't be the appropriate stage to approach
the Court. There may be occasions where after consideration of the
report the Government may decide not to take any action against
the person concerned yet the observation and remarks may be such
which may play upon the reputation of the person concerned and
this aspect of the matter has been fully taken care of under Section
8B of the Act, 1952. Therefore no need to wait till a decision is
taken by the Government on the Commission’s report. In fact in the
case on hand, after the Commission report dated 23.08.2022, the
respondent passed a Government order in
G.O.No.SS.II/500-4/2022, dated 17.10.2022, thereby ordering that
it was decided to initiate appropriate action on the Commission of
Inquiry report recommendations against certain individuals, after
obtaining the considered opinion of the legal experts. Therefore it is
further cause of action for the petitioner to approach this Court by
way of this Writ Petition. Therefore this Writ Petition is very much
maintainable.
25.Further the Judgments relied upon by the learned
Additional Advocate General are not applicable to the case on hand
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on the sole ground that all the Judgments were held on different
sets of facts and in fact challenge was made against the Act and the
subsequent notifications. Section 8B of the Act, 1952 was inserted
by the Amended Act 79 of 1971. The intention of the legislature that
it is necessary to issue notice to a person whose conduct the
Commission considers necessary to inquire into during the course of
the inquiry or whose reputation is likely to be prejudicially affected
by the inquiry. It also provides that such a person would have a
reasonable opportunity of being heard and to adduce evidence in his
defence. Therefore, the contention of the learned Additional
Advocate General that the Writ Petition itself is not maintainable and
it is premature cannot be accepted because no action pursuant to
the report was initiated against the petitioner is concerned, it is not
necessary for the petitioner to wait till certain action is initiated by
the respondent considering the Commission's report where the
observations made against the reputation of the petitioner that too
without giving an opportunity of hearing to explain his conduct as
contemplated under Section 8B of the Act, 1952. In fact,
subsequent to the Commission's report, the respondent issued
G.O.No.SS.II/500-4/2022, dated 17.10.2022, thereby ordering that
it was decided to initiate appropriate action, after obtaining the legal
opinion. Therefore it cannot be said that this Writ Petition is a
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premature one. Therefore it would be open for the petitioner to
move the Court for deletion of such remarks made against him on
the sole ground of violation of principles of natural justice.
Admittedly the petitioner was not served with any notice under
Section 8B of the Act, 1952. Though all the respondents before the
Commission were given opportunity of hearing and also to cross
examine the witnesses, the petitioner was not given an opportunity
of hearing and also to cross examine the witnesses as contemplated
under Sections 8B and 8C of the Act, 1952 which is mandatory in
nature. The petitioner was not arrayed as a respondent and only
two witnesses were arrayed as respondents.
26.In view of the above, this Court finds infirmity in the
Commission’s report dated 23.08.2022 in so far as the observations
and suggestions made against the petitioner in paragraph Nos.39.1
to 39.7 and 47.28 is concerned and the consequence
G.O.No.SS.II/500-4/2022, dated 17.10.2022 thereby ordered to
initiate appropriate action as against the petitioner after obtaining
legal opinion cannot be sustained and the same are liable to be
quashed.
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27.Accordingly, the Commission’s report dated
23.08.2022 in so far as the observations and suggestions made
against the petitioner in paragraph Nos.39.1 to 39.7 and 47.28 is
concerned and the consequence G.O.No.SS.II/500-4/2022, dated
17.10.2022 are quashed and the Writ Petition is allowed. There shall
be no order as to costs. Consequently, connected Miscellaneous
Petitions are closed.
.01.2025
NCC : Yes
Index : Yes
Internet : Yes
ps
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To
The Chief Secretary,
State of Tamil Nadu,
Fort St. George,
Chennai – 600 001.
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G.K.ILANTHIRAIYAN, J.
ps
Pre-Delivery Order made in
.01.2025
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