Vijayalakshmi Shanmugam v. Chief Secretary Fort St.George, Chennai

Public Department (Buildings) Fort Saint George Chennai-93. Miss.J.Jayalalithaa The Hon'ble Chief Minister State of Tamil Nadu Fort Saint George Chennai-94. Justice Mr.S.Thangaraj (Retd.) No.2040, Vasanth Colony Anna Nagar West Chennai-40.. RespondentsPetition under Article 226 of the Constitution of India, prayingfor the issue of a Writ of Certiorari, calling for the records of the1st respondent in G.O.Ms.No.530, Public Department (Buildings) dated22.06.2011, constituting the one-man commission of inquiry headed bythe 4th respondent for inquiring into the irregularities in theconstruction of the new Secretariat complex, Omandurar Governmentestate, Chennai-2 and quash the same.For Petitioner:: Mr.R.ViduthalaiSenior Counsel forMr.M.DhandapaniFor Respondents::Mr.A.NavaneethakrishnanAdvocate General assisted byMr.R.VijayakumarAddl. Government PleaderORDER D.MURUGESAN, J.Both the writ petitions question the G.O.Ms.No.530, Public(Buildings) Department dated 22.6.2011 appointing a Commission ofInquiry to inquire into the causes and circumstances leading tocertain alleged irregularities in the construction of the NewSecretariat Complex in Omandurar Government Estate, Chennai. TheNotification directed to be published in the said Government Orderreads as under:- “WHEREAS, it has been brought to the noticeof the Government that there has been certainalleged irregularities like excess expenditure,irregularities causing loss to the exchequer,whether all statutory approvals AND WHEREAS, the Government of Tamil Naduis of the opinion that it is necessary toappoint a Commission of Inquiry for the purposeof making an inquiry into a definite matter ofpublic importance hereinafter specified; NOW THEREFORE, in exercise of the powersconferred by sub-section (1) of Section 3 of theCommissions of Inquiry Act, 1952 (Central Act LXof 1952), the Governor of Tamil Nadu hereby https://hcservices.ecourts.gov.in/hcservices/ appoints a Commission of Inquiry consisting of asingle member, namely, Hon'ble Justice ThiruS.Thangaraj, Retired Judge of Madras High Court. 3. The terms of reference of the Commissionof Inquiry shall be as follows, namely:- a. To inquire into the causes andcircumstances leading to the allegedirregularities like excess expenditure,irregularities causing loss to the exchequer,whether all statutory approvals and clearanceswere obtained, inordinate delay and deficiencyin standards of construction in the constructionof New Secretariat Complex at OmandurarGovernment Estate, Chennai-2; b. To inquire whether there was any lapseor abuse of position on the part of theGovernment Officials/Public Servants; c. if such allegations are proved true, thento suggest suitable ways and means to preventsuch recurrences in future; and d. To make appropriate recommendations as thecommission deems fit. 4. The Commission will complete itsinquiry and submit its report to the Governmentwithin a period of three months from the date ofpublication of this Notification in the TamilNadu Government Gazette. 5. AND WHEREAS, the Government of Tamil Naduare of the opinion, having regard to the natureof the inquiry to be made by the said Commissionof Inquiry and other circumstances of the case,that all the provisions of sub-sections (2),(3), (4) and (5) of Section 5 of the Commissionsof Inquiry Act, 1952 (Central Act LX of 1952)shall be made applicable to the said Commissionof Inquiry. 6. NOW THEREFORE, in exercise of thepowers conferred by sub-section (1) of Section 5of the Commissions of Inquiry Act, 1952 (CentralAct LX of 1952), the Governor of Tamil Naduhereby directs that all the provisions of thesaid sub-sections (2), (3), (4) and (5) of thesaid Section 5 of the said Act shall apply tothe said Commission of Inquiry.”2. The following are some of the facts, as culled out from thepetitions, leading to the present litigation. The LegislativeAssembly Complex at Fort Saint George was constructed by the EastIndia Company in the year 1640 AD. After independence, the buildingwas used as the Legislative Assembly with its administrative wing.The D.M.K. political party formed the Government in the year 2006 andthe Government identified the Omandurar Government Estate as the https://hcservices.ecourts.gov.in/hcservices/ venue for the construction of New Secretariat and LegislativeAssembly complex. The building was constructed in two blocks, namely,Block-A measuring 9.3 lakh sq.ft., consisting of 700 rooms to housethe assembly hall, rooms for Hon'ble Ministers, opposition leaders,Chief Secretary and all other Secretaries apart from a hall for theLegislative Council with a parking facility for 100 cars. Block-B,Administrative Wing, is an eight-storeyed building measuring 7.43lakh sq.ft., including a convention hall with a seating capacity of1200, guest house of 50 suites apart from the multi-level car parkingfacility for 700 cars. The New Secretariat complex was madeoperational till 13.3.2010. 3. After the A.I.A.D.M.K. political party won the generalelections held during May, 2011, it was decided to use theLegislative Assembly complex at Fort Saint George instead of the NewSecretariat Complex at Omandurar Government Estate. Accordingly, theassembly sessions are being held in the Legislative Assembly complexat Fort Saint George from May, 2011. Thereafter, by the impugnedorder, the Government has appointed a Commission of Inquiry.4. The petitioner in W.P.No.18277 of 2011 belongs to “IndiaAgainst Corruption” movement. It is her specific grievance thatthough monumental corruption and violation of statute need to beprobed and in that context the Government is entitled to appoint aCommission of Inquiry, nevertheless, the Hon'ble Mr.JusticeS.Thangaraj, a retired Judge of this Court, ought not to have beenappointed as the one-man Commission of Inquiry to probe the allegedirregularities. According to the petitioner, the learned Judge passedan order in criminal revision petition in favour of the present ChiefMinister and the said order was taken to the Supreme Court and waserased. The retired Judge had enjoyed a jaunt in Malaysia on thehospitality of a goonda detainee facing multiple cheating casesalong with a practising lawyer sometime during the year 2000. Hence,he should not have been appointed as the one-man Commission ofInquiry. It is the further grievance of the petitioner that theconsent of the Hon'ble Chief Justice of the Madras High Court was notobtained before appointing the retired Judge as the one-manCommission of Inquiry. She would also aver that the address of theretired 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 ofLegislative Assembly and a former Minister for Education, hasquestioned the impugned Government Order on two grounds, that thepresent Chief Minister who appointed one-man commission of inquiry isbiased against the D.M.K. Government and particularly against theformer Chief Minister. His further grievance is that the issue ofGovernment Order at the instance of the present Chief Minister ismala fide only to wreak political vengeance. The order is unfair,arbitrary, unconstitutional and suffers from malice in law. It isalso his grievance that for issuing the Government Order, nomaterials were available before the Government. 6. Mr.Manikandan Vathan Chettiar, learned counsel for thepetitioner in W.P.No.18277 of 2011 has reiterated the grounds raised https://hcservices.ecourts.gov.in/hcservices/ in the affidavit filed in support of the writ petition.Mr.R.Viduthalai, learned senior counsel for the petitioner inW.P.No.18883 of 2011, apart from the averments made in the affidavit,would submit that there were no materials for passing the impugnedGovernment Order and in the absence of materials, the impugned orderis unsustainable and is liable to be set aside. He would furthersubmit that the results of the general election were announced on13.5.2011 and even before the Hon'ble Chief Minister assumed charge,she made an announcement on 15.5.2011 to the effect that a policydecision had been taken that the New Secretariat complex would not beused to hold the assembly sessions. Such an announcement wouldindicate the arbitrary exercise of power by the Hon'ble ChiefMinister. 7. On the other hand, Mr.A.Navaneethakrishnan, learned AdvocateGeneral appearing for the State has submitted that there were enoughmaterials available with the Government before the impugned order waspassed. He would also submit that considering those materials only,the Government decided to constitute the Commission of Inquiry onlyto inquire into those facts and submit a report with itsrecommendations to the Government. There is absolutely no force inthe contentions of the petitioners as to the malice action of theGovernment in setting up the Commission of Inquiry. According to thelearned Advocate General, it is totally unsustainable to plead biason the Hon'ble Chief Minister in appointing Justice S.Thangaraj(Retd.) to head the one-man Commission of Inquiry. The allegationthat the order in the criminal revision petition having been erasedby the Apex Court and thereby he cannot be appointed is also withoutsubstance, as the learned Judge had passed the order in the course ofhis judicial functions and it was only argued before the Apex Courtthat number of witnesses had been examined and therefore quashing ofthe proceedings was bad. Nevertheless, the Apex Court had onlypermitted the respondent therein to withdraw the criminal revisionpetition filed before the High Court and in that view of the matteronly, the Apex Court held that the order in the criminal revisionpetition would stand erased. Hence, the challenge to the appointmentof one-man commission has to be rejected. So far as the contentionof Mr.Manikandan Vathan Chettiar, learned counsel for the petitionerin W.P.No.18277 of 2011 as to the jaunt of the learned Judge toMalaysia is concerned, the learned Advocate General would submit thatit is only an allegation and even after the report of his foreigntrip, the learned Judge had discharged his judicial functions andmerely because of the report, it cannot be said that he ought not tohave been appointed as one-man commission to have a fair enquiry. 8. After considering the averments in the affidavits of both thepetitioners, the counter affidavit of the first respondent-ChiefSecretary to Government and the submissions made by the respectivelearned counsel for the petitioners and the learned Advocate General,the following questions emerge for our consideration:(i) Whether the Government should consult the Hon'bleChief Justice of Madras High Court before appointing a retiredJudge of this Court as the one-man Commission of Inquiry?(ii) Whether the impugned order is bad for non-applicationof mind when it refers to a wrong address of the appointee ofone-man Commission of Inquiry? https://hcservices.ecourts.gov.in/hcservices/ (iii) Whether the Government should have materials beforetaking a decision to appoint the Commission of Inquiry andwhether on the ground that there were no materials available onthe date when such commission of inquiry was appointed, theGovernment Order would be bad?(iv) Whether the one-man Commission of Inquiry, namely,the retired Judge of this Court is biased and consequentlythere is a reasonable apprehension as to a fair enquiry?(v) Whether the Government Order is bad on the ground thatit suffers from arbitrariness, unfairness and malice in law?9. Point No.(i): In terms of sub-section (1) of Section 3 of theCommissions of Inquiry Act, 1952, the appropriate Government may, ifit is of opinion that it is necessary so to do, by a notification inthe Official Gazette, appoint a Commission of Inquiry for the purposeof making an inquiry into any definite matter of public importance.Sub-section (2) of Section 3 contemplates that the Commission mayconsist of one or more members appointed by the appropriateGovernment and sub-section (3) of Section 3 contemplates that theappropriate Government may, at any stage of an inquiry by theCommission, fill any vacancy which may have arisen in the office of amember of the Commission. That provision does not contemplate anyprior consultation by the Government with the Hon'ble Chief Justiceof the High Court before appointing a retired Judge of the HighCourt. In fact, the said provision does not even require that only aretired Judge of the High Court should be appointed, as thediscretion to appoint a Commission of Inquiry is vested only with theappropriate Government. Hence, the contention that the Governmentshould consult the Chief Justice of the High Court before appointingthe retired Judge as a Commission of Inquiry is not well founded, asthe question of concurrence would arise only if the statute containsa provision to that effect. It is also the contention ofMr.Manikandan Vathan Chettiar, learned counsel for the petitioner inW.P.No.18277 of 2011 that such consultation is only a long standingconvention, though the provisions of the Commissions of Inquiry Actdo 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 VathanChettiar that wrong address of the one-man commission was shown inthe notification and therefore the impugned order is bad for nonapplication of mind. However, it is the explanation of the firstrespondent that the address of the one-man commission was obtainedfrom the Registry and therefore only a mistake had crept in. Evenassuming that the said explanation is not accepted, the questionstill remains to be considered is as to whether merely because theaddress of the one-man commission was wrongly mentioned in thenotification, it would invalidate the very Government Order on theground of non application of mind. We find no force in the saidsubmission, since the question of non application of mind can beapplied only with reference to the irregularities etc., referred toin the Government Order and not otherwise, that too on the groundthat the address has been wrongly mentioned in the impugnedGovernment Order. Hence, the challenge to the impugned order on theground of non-application of mind is liable to be rejected andaccordingly the same is rejected. https://hcservices.ecourts.gov.in/hcservices/

11. Point No.(iii): The power of the Government to set up aCommission of Inquiry and the consequential role of the commission ofinquiry came up for consideration before the Apex Court. In thejudgment in Shri Ram Krishna Dalmia etc., v. Shri JusticeS.R.Tendolkar and others etc., AIR 1958 SC 538, it has been heldthat Parliament has made a law with respect to inquiry and has leftsuch discretion to the appropriate Government to set up a Commissionof Inquiry under certain circumstances referred to in Section 3 ofthe Commissions of Inquiry Act. It has been also observed that thecommission should merely to investigate and record its findings andrecommendations without having any power to enforce them. 12. Nevertheless, the question is as to whether such power toappoint a Commission of Inquiry could be made without there being anymaterials brought before it or no information was made available andin the event there are no materials or information, can it be saidthat such action of the Government in appointing a Commission ofInquiry is bad on the ground of arbitrariness? This question wasagain considered in the very same judgment in Shri Ram Krishna Dalmiaetc., wherein the Apex Court in paragraphs 9 & 16 held as follows:“9........ Aninquiry necessarily involvesinvestigation into facts and necessitatesthe collection ofmaterial facts from theevidence adduced before or brought to thenotice of the person or body conducting theinquiry and the recording of its findings onthose facts in its report cannot but beregarded as ancillary to the inquiry itself,for the inquiry becomes useless unless thefindings of the inquiring body aremade availableto the Government which set up the inquiry. Itis, in our judgment, equally ancillary that theperson or body conducting the inquiry shouldexpress its own view on the facts found by itfor the consideration of the appropriateGovernment in order to enable it to take suchmeasure as it may think fit to do. The wholepurpose of setting up of a Commission of Inquiryconsisting of experts will be frustrated and theelaborate process of inquiry will be deprived ofits utility if the opinion and the advice of theexpert body as to the measures the situationdisclosed calls for cannot be placed before theGovernment for consideration notwithstanding thatdoing so cannot be to the prejudice of anybodybecause it has no force of its own. In our viewthe recommendations of a Commission of Inquiryare of great importance to the Government in orderto enable it to make up its mind as to whatlegislative or administrative measures should beadopted to eradicate the evil found or toimplement the beneficial objects it has inview.....16......It is true that the notification https://hcservices.ecourts.gov.in/hcservices/ primarily or even solely affects the petitionersand their companies but it cannot be overlookedthat Parliament having left the selectiveapplication of the Act to the discretion of theappropriate Government, the latter must ofnecessity take its decision on the materialsavailable to it and the opinion it forms thereon.The appropriate Government cannot in such mattersbe expected to sit down and hold a judicialinquiry into the truth of the materials broughtbefore it, and examine the informants on oath inthe presence of the parties who are or may belikely to be affected by its decision. In mattersof this kind the appropriate Government has ofnecessity to act upon the information available toit. It is the best judge of the reliability of itssource of information and if it acts in good faithon the materials brought to its notice andhonestly comes to the conclusion that the act andconduct of the petitioners and the affairs oftheir companies constitute a definite matter ofpublic importance calling for an inquiry with aview to devise measures for preventing therecurrence of such evil, this Court, not being inpossession of all the facts will, we apprehend, beslow to adjudge the executive action to be bad andillegal. We are not unmindful of the fact that avery wide discretionary power has been conferredon the Government and, indeed, the contemplationthat such wide powers in the hands of theexecutive may in some cases be misused or abusedand turned into an engine of oppression has causedconsiderable anxiety in our mind. Nevertheless,the bare possibility that the powers may bemisused or abused cannot per se induce the courtto deny the existence of the powers....” 12A. Subsequently, quoting the above judgment with approval, theApex Court in P.V.Jagannath Rao and others v. State of Orissa andothers, AIR 1969 SC 215 held that the dominant purpose of setting upthe Commission of Inquiry was to promote measures for maintainingpurity and integrity of the administration in the political life ofthe State. It was also held that the existence of political rivalryis not in itself sufficient to hold that the appointment ofCommission of Inquiry is illegal. 12B. In Baliram Waman Hiray v. Justice B.Lentin, (1988) 4 SCC419, the Apex Court held that the Commission of Inquiry is only afact finding body and it is not a Court to adjudicate upon thematter. 12C. In P.Janardhana Reddy v. State of Andhra Pradesh, (2001) 6SCC 50, the Apex Court reiterated the same view by holding that theappointment of a Commission is a matter of discretion of theGovernment, as the Commission does not adjudicate on any matter andits report has no value, except giving advice and providing guidance https://hcservices.ecourts.gov.in/hcservices/ to Government. 13. As the role of the Commission of Inquiry is only toinvestigate and record its findings and recommendations withouthaving any power to enforce them, such an inquiry or report cannot belooked upon as a judicial inquiry. Nevertheless, invoking theprovisions of Section 3 of the Commissions of Inquiry Act forappointing a Commission of Inquiry cannot be arbitrary or for thatmatter, unsupported by prima facie materials. In the event astatutory authority exercises the power conferred by a statuteunsupported by materials, it would amount to a mala fide exercise ofpower in the eye of law or in other words, exercise of power by astatutory authority other than a purpose for which it was intended bythe Legislature. Whether the exercise of power by a statutoryauthority is arbitrary and unsupported by materials or mala fidedepends upon the facts of each case. 13A. In State of Madhya Pradesh v. Arjun Singh, AIR 1993 SC1239, the Apex Court was considering a notification of the Governmentof Madhya Pradesh dated 29.3.90, wherein and whereby the scope of thecommission of inquiry already notified was expanded. On the facts ofthe case, the Apex Court held that there was no relevant materialbefore the State Government for expanding the scope of inquiry underthe original reference and consequently interfered with that portionof the notification expanding the scope of earlier reference withoutmaterials. 14. On the facts of the present case, the impugned notificationwas issued on the ground that it was brought to the notice of theGovernment that there had been certain irregularities like excessexpenditure, causing loss to the exchequer, non-obtaining of allstatutory approvals and clearances, inordinate delay and deficiencyin standards of construction.15. The relevant files were produced before us and we perused thesame only to find out as to whether any materials were available withthe Government before issuing the impugned Government Order. We makeit clear that these materials are considered only for the purpose ofconsidering the challenge to the impugned Government Order on theground that on the date of passing of the impugned order, there wereno materials before the Government and we refer to those materials inthis 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 complexfor the Tamil Nadu Legislative Assembly in Omandurar GovernmentEstate and accorded administrative sanction for an estimated cost ofRs.200 crores. By a subsequent Government Order in G.O.Ms.No.316,Public Works (H1) Department dated 25.10.2008, having regard to theletter of the Chief Engineer (Buildings), Public Works Departmentdated 20.10.2008, the Government accorded a revised administrativesanction for Rs.425.57 crores. Thereafter, under various GovernmentOrders, the Government sanctioned funds under various heads towardsthe cost of interior decoration, furnitures, etc. The attention ofthe Government was also drawn that nearly Rs.624 crores was spent onthe construction of New Secretariat complex. https://hcservices.ecourts.gov.in/hcservices/

17. The report of the Comptroller and Auditor General of Indiafor the year ended 31 March 2010 as to the civil work opined that thework of construction of the temporary dome was entrusted to a firmwithout calling for tenders at a cost of Rs.3.28 crore and theconstruction of the temporary dome proved wasteful. The report alsopointed out that as per the original agreement, the length of pileswas to be measured for payment purposes from the top of the pile shoeto the bottom of the pile cap. However, while changing the design ofthe pile foundation, the nomenclature of the work was changed in thesupplementary agreement to effect payment for the length of the pileup to the natural ground level instead of up to the bottom of thepile cap, which resulted in the over payment to the contractor forthe portion of the pile length over the bottom of pile cap level tothe tune of Rs.2.46 crore. In D.O. Letter dated 31.8.2010, theDeputy Accountant General (Works), Office of the Principal AccountantGeneral (Civil Audit), Tamil Nadu and Puducherry, Chennai had calledfor remarks in regard to the planning aspect pointing out that therewere deviations from standard guidelines for procurement ofarchitectural services and consequent avoidable expenditure, lack ofplanning, non-inclusion of a penal clause in the RFP / agreement torestrict uneconomical design/defective design, inadequate planning inconstruction of public plaza circle, avoidable expenditure due toengagement of separate consultant for environmental impact AssessmentStudies and failure to include Green Building concept in the scope ofconsultant. In regard to the funding pattern, release andutilization aspect, it was pointed out that there were inadequateperformance guarantee and undue benefit to contractor due to advancepayment of material cost. In regard to the execution aspect, it waspointed out that there were delay in completion of work andinadequate planning resulting in wasteful expenditure, avoidableexpenditure due to change of design, over payment to the contractordue to change in specification, undue benefit of Firm-A due to non-usage of MS liners, avoidable liability towards procurement of FacadeAccess System, avoidable expenditure on procurement of ExcessTransformer and avoidable expenditure due to non-utilisation of FlyAsh Bricks. By Letter No.31484/Y1/2010-1 dated 30.11.2010, thePrincipal Secretary to Government, Public Works Department, whileaddressing the Deputy Accountant General (Works), Office of thePrincipal Accountant General (Civil Audit), Chennai, had offered hisremarks to each of the above and requested to drop the report. 18. His Excellency the Governor of Tamil Nadu made his address onthe floor of the assembly on 3.6.2011 indicating the decision of theGovernment to constitute a Commission of Inquiry headed by a retiredJudge of the High Court into the alleged irregularities like excessexpenditure, inordinate delay and deficiency in standards ofconstruction. On the basis of the above materials, the files wereplaced before the Cabinet, which approved for the constitution of theCommission of Inquiry to inquire into the alleged irregularities likeexcess expenditure, inordinate delay and deficiency in standards ofconstruction and on that basis a decision was taken for appointingone-man Commission of Inquiry on 17.6.2011. Consequent upon the saiddecision, the impugned Government Order came to be issued. ThisCourt, in exercise of power of judicial review, could only find outas to whether any materials were available before the Government andthose materials were taken into consideration before a commission of https://hcservices.ecourts.gov.in/hcservices/ inquiry is constituted. Power of judicial review cannot be extendedto find out as to the sufficiency of materials. These materials, inour opinion, would suffice for the Government to exercise the powerunder Section 3 of the Commissions of Inquiry Act for constitutingthe commission and as such the impugned order of the Government isnot bad. Hence, point no.(iii) is answered accordingly. 19. Point Nos.(iv) & (v): We pass on to the next question as towhether the member of the one-man Commission of Inquiry is biased.Before adverting to the facts put forth on the ground of bias, wewould like to refer to some of the judgments on the issue. TheShorter Oxford Dictionary states that “bias” is an oblique orslanting line. The meaning of the word has also developed over thelast 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 theword “bias” should be confined to its proper sphere. Its propersignificance, in my opinion, is to denote a departure from thestandard of even-handed justice which the law requires from those whooccupy judicial office or those who are commonly regarded as holdinga quasi-judicial office, such as an arbitrator.” Bias may begenerally defined as partiality or preference which is not founded onreason and is actuated by self-interest-whether pecuniary orpersonal. It means an operative prejudice, whether conscious orunconscious, in relation to a party or an issue. Such an operativeprejudice may be a result of a preconceived opinion or apredisposition or a predetermination to decide the case in aparticular manner, so much so that it does not leave the mind open. 20. The question of bias put forth against a Judicial Officer ora Member of Tribunal who discharges judicial or quasi-judicialfunction, came up for consideration before the Courts. In Manak Lalv. Dr.Prem Chand Singhvi and others, AIR 1957 SC 425, while applyingthe principle of “nemo debet esse judex in causa propria sua”, theApex Court held as follows:“.....It is well settled that every memberof a tribunal that is called upon to try issuesin judicial or quasi-judicial proceedings must beable to act judicially; and it is of the essenceof judicial decisions and judicial administrationthat judges should be able to act impartially,objectively and without any bias. In such casesthe test is not whether in fact a bias hasaffected the judgment; the test always is andmust be whether a litigant could reasonablyapprehend that a bias attributable to a memberof the tribunal might have operated against himin the final decision of the tribunal. It is inthis sense that it is often said that justicemust not only be done but must also appear to bedone. As Viscount Cave L. C. has observed inFrom United Brewerses Co. v. Bath Justices (1)"this rule has been asserted not only in the caseof Courts of Justices and other judicialtribunals but in the case of authorities which, https://hcservices.ecourts.gov.in/hcservices/ though in no sense to be called Courts, have toact as judges of the rights of others.” 20A. In International Airport Authority of India v. K.D.Bali andanother, AIR 1988 SC 1099, the Apex Court held as follows:“6. The purity of administration requiresthat the party to the proceedings should not haveapprehension that the authority is biased and islikely to decide against the party. But we agreewith the learned Judge of the High Court that itis equally true that it is not every suspicionfelt by a party which must lead to the conclusionthat the authority hearing the proceedings isbiased. The apprehension must be judged from ahealthy, reasonable and average point of view andnot on mere apprehension of any whimsical person.”21. In State of West Bengal v. Shivanand Pathak, (1998) 5 SCC513, the Apex Court held as follows:“23. All judicial functionaries havenecessarily to have an unflinching character todecide a case with an unbiased mind. Judicialproceedings are held in open court to ensuretransparency. Access to judicial record by way ofinspection by the litigant or his lawyer and thefacility of providing certified copies of thatrecord are factors which not only ensuretransparency but also instil and inspireconfidence in the impartiality of the courtproceedings.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 aparticularmanner, so much so that suchpre-disposition does not leave the mindopen to conviction. It is, in fact, a conditionof mind, which sways judgments and renders theJudge unable to exercise impartially in aparticular case.26. Bias has many forms. It may be pecuniarybias, personal bias, bias as to subject-matter indispute, or policy bias etc. In the instant case,we are not concerned with any of these forms ofbias. We have to deal, as we shall presently see,a new form of bias, namely, bias on account ofjudicial 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 ofadministering justice should be bold and feelfearless while acting judicially and givingexpression to his views and constructing hisjudgment or order. It should be no deterrent toformation and expression of an honest opinion andacting thereon so long as it is within four- https://hcservices.ecourts.gov.in/hcservices/ corners of law that any action taken by asubordinate judicial officer is open to scrutinyin judicial review before a superior forum withwhich its opinion may not meet approval and thesuperior court may upset his action or opinion.The availability of such fearlessness isessential for the maintenance of judicialindependence.” 23. A reading of the above judgments would show that the Courtshave approached the concept of bias or the reasonable apprehension ofbias put forth against a Presiding Officer of a Court or Tribunal whois expected to discharge his functions judicially or quasi-judically,as the case may be.24. Coming up to the situation where there is a reasonablesuspicion of bias or a real likelihood of bias, the Apex Court hasconsidered the said issue in very many judgments. In S.Parthasarthyv. State of Andhra Pradesh, (1974) (3) SCC 459, the Apex Courtheld as follows:“16. The tests of real likelihood andreasonable suspicion are really inconsistent witheach other. We think that the reviewing authoritymust make a determination on the basis of thewhole evidence before it, whether a reasonableman would in the circumstances infer that thereis real likelihood of bias. The Court must lookat the impression which other people have. Thisfollows from the principle that justice must notonly be done but seen to be done. If right mindedpersons would think that there is real likelihoodof bias on the part of an inquiring officer, hemust not conduct the enquiry; nevertheless, theremust be a real likelihood of bias. Surmise orconjecture would not be enough.” Quoting the above judgment with approval, the Apex Court in State ofPunjab v. V.K.Khanna and others, (2001) 2 SCC 330, held as follows:“The test. therefore, is as to whether there is amere apprehension of bias or there is a realdanger of bias and it is on this score that thesurrounding circumstances must and ought to becollated and necessary conclusion drawntherefrom. In the event, however, theconclusion is otherwise that there is existing areal danger of bias, administrative action cannotbe sustained. If on the other hand allegationspertain to rather fanciful apprehension inadministrative action, question of declaring themto be unsustainable on the basis therefor wouldnot arise.” 25. In Jiwan K.Lohia v. Durga Dutt Lohia, (1992) 1 SCC 56, theApex Court, while upholding the decision of High Court while removingan arbitrator appointed by the court on the ground of bias, observedthat with regard to bias the test that has to be applied is not https://hcservices.ecourts.gov.in/hcservices/ whether in fact bias has affected the judgment but whether thelitigant could reasonably apprehend that a bias attributable mighthave operated against him in the final decision. Therefore, the realtest of “real likelihood of bias” is whether a reasonable man, inpossession of relevant information, would have thought that bias waslikely or whether the authority concerned was likely to be disposedto decide the matter in a particular way. In Ganga Bai Charities v.Commissioner of Income Tax, (1992) 3 SCC 690, while considering thecase of a lawyer who acted as a special counsel for the departmentand also defended the department with his opinion that the assesseetrust was not entitled to tax exemption, later on, when the saidlawyer was elevated as a Judge of the High Court and seven yearslater, the Judge heard and decided the same point on a referenceagainst the trust. None of the parties brought this aspect to thenotice of the Judge. On appeal, the Apex Court held that there wasno real likelihood of bias, since the opinion had been given sevenyears ago and the Judge may not have remembered the routine opiniongiven as a busy lawyer after a long lapse of time. See also RamanandPrasad 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, theApex Court held as follows:“The contention that the combination ofinvestigative and adjudicative functionsnecessarily creates an unconstitutional risk ofbias in administrative adjudication has a muchmore difficult burden of persuasion to carry. Itmust overcome a presumption of honesty andintegrity in those serving as adjudicators; andit must convince that, under a realisticappraisal of psychological tendencies and humanweakness, conferring investigative andadjudicative powers on the same individual posessuch a risk of actual bias or prejudgment thatthe practice must be forbidden if the guaranteeof due process is to be adequately implemented. It is also true that the Government on whomthe duty to decide the dispute rests, issubstantially a party to the dispute but if theGovernment or the authority to whom the power isdelegated acts judicially in approving ormodifying the scheme, the approval ormodification is not open to challenge on apresumption of bias. The Minister or the officerof the Government who is invested with the powerto hear objections to the scheme is acting in hisofficial capacity and unless there is reliableevidence to show that he is biased, his decisionwill 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 haveto take into consideration the humanpossibilities and ordinary course of humanconduct. But there must be a real likelihood ofbias and not a mere suspicion of bias before the https://hcservices.ecourts.gov.in/hcservices/ proceedings can be quashed on the ground that theperson conducting the proceedings is disqualifiedby bias.”27. However, the question remains to be considered is whetherthe issue of bias is applicable in equal force against the nominee ofone-man Commission of Inquiry, when such commission is expected onlyto investigate and submit its recommendations on the basis of thefacts and materials collected by the commission before the Governmentfor its consideration. As has been held by the Apex Court, thecommission of inquiry is only a fact finding body and it has no powerto take a decision of its own on the basis of the materials collectedby it. In these circumstances, the allegations of bias as has beenheld by the Courts in various judgments cannot be equally madeapplicable to a case of commission of inquiry. Nevertheless, keepingthe law in mind, though the appropriate Government is empowered toappoint a Commission of Inquiry to probe into the allegedirregularities, it is expected to do so only on justifiable groundssupported by materials and the action should not be arbitrary or malafide. To that extent, a reasonable man could also expect that thecommission should act in a fair manner and in the event there is anapprehension of bias, the appointment of one-man commission ofinquiry can be questioned. 28. As the issue of bias depends upon the facts of each case, weare inclined to consider the averments made by the petitionersagainst the inquiry by a retired Judge of this Court who has beenappointed as the Commission of Inquiry. According to the petitionerin W.P.No.18277 of 2011, the one-man Commission appointed by theimpugned order had passed an order in criminal revision petition infavour of the present Chief Minister and the said order was erased bythe Apex Court. In the judgment in State of Tamil Nadu v. SelviJ.Jayalalitha, (2000) 9 SCC 444, the Apex Court was considering anappeal arising out of an order in criminal revision petition passedby the Hon'ble Mr.Justice S.Thangaraj (Retd.) quashing the chargesagainst Selvi J.Jayalalitha. At the time when the validity of theorder was considered, the Apex Court was told that the trial hadreached almost a final stage of prosecution evidence, as only a fewmore witnesses remained to be examined and in the said circumstances,the Court ultimately allowed the respondent therein to withdraw thecriminal revision petition filed before the High Court withoutprejudice to her rights to raise all the contentions before the trialCourt 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 TamilNadu on 18.4.2000, he frankly conceded that theoffence under Section 420 of the Indian PenalCode cannot be charged against the respondent onthe facts of this case. However, learned SeniorCounsel addressed detailed arguments regardingsustainability of the other offences included inthe charge framed against the respondent, andseriously attacked the reasons of the learnedSingle Judge of the Madras High Court in theimpugned order. Shri Sushil Kumar, learned Senior https://hcservices.ecourts.gov.in/hcservices/ Counsel who argued for the respondent defendedthe order. We are told that the impugned orderwas passed by the High Court when the trial Courthas reached almost the final stage of prosecutionevidence, as only a few more witnesses remainedto be examined. When we expressed to Shri SushilKumar that it was not proper for the Single Judgeto have expressed final opinion on the merits ofthe legal interpretations regarding the pointsraised, when the trial has reached such a stage,learned Senior Counsel wanted time to getinstructions as to whether the petitions filed bythe respondent to discharge the accused can bewithdrawn without prejudice to her rights toraise all the contentions in the trial courtafresh. We granted time till today.3. Learned counsel for the respondent nowseeks permission to withdraw the criminalrevision petitions filed in the High Court(Crl.Revision Complaints Nos.406 of 1998, 606 and930 of 1999) without prejudice to her rights toraise all the contentions in the trial courtafresh. In fact an application has been filed onbehalf of the respondent seeking permission towithdraw, unconditionally, criminal revisionpetitions numbered as above filed before the HighCourt of Madras. That application will be onrecord. We order that the above revisionpetitions filed in the High Court would standdismissed as withdrawn. However, we permit therespondent to raise all contentions which shethinks necessary before the trial court at thefinal stage. We, therefore, declare that theimpugned common judgment dated 13.1.2000 passedby the High Court of Madras will stand erased.If the trial court is to decide any questionswhich have been dealt with in the impugnedjudgment, the same shall be decided as though theHigh Court has not pronounced any opinion on suchquestions thus far. The trial court will nowproceed to conclude the trial and dispose of itin accordance with law as expeditiously aspossible.4. These appeals are disposed ofaccordingly.“ 29. A Judge is expected to consider the facts of the case anddetermine the same in accordance with law. Hon'ble Mr.JusticeS.Thangaraj (Retd.), while considering the revision petitions whereinthe charges were questioned, on applying his judicial mind, came tothe conclusion that the charges were liable to be quashed. For suchfinding, the learned Judge had gone into the merits of the case,which normally the court, while considering an application forquashing the charges, should not resort to in detail, as the court isexpected to consider only as to whether a prima facie case was madeout for quashing the charges. When the finding on merits was brought https://hcservices.ecourts.gov.in/hcservices/ to the notice of the Apex Court, the Court allowed the revisionpetition itself to be withdrawn. As the finding on merits wasrendered by the learned Judge and the entire issue were to be triedbefore the trial court and having regard to the liberty given to therespondent therein to raise all the contentions in the trial courtafresh, the Apex Court erased the order passed by the learned Judgeon 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 Judgein favour of Selvi J.Jayalalitha, who is the present Chief Minister,the learned Judge is biased. Such an argument cannot be advanced onthe basis of the judgment rendered by the Courts. A judgment shouldbe looked into as one passed by the Court and not by an individualJudge. Rendering justice through judgment is the normal judicialfunction performed by a Judge. The act of a Judge while discharginghis function cannot be termed to be a malice action in law merelybecause the judgment so rendered is quashed, reversed or altered bythe superior Court. The views of a Judge may differ and in case wherethe views, findings or conclusions, as the case may be, of a Judgeare not acceptable to the appellate Court, those views, findings orconclusions including the judgment are set aside or erased. By thatprocess, it cannot be inferred that the Judge who rendered thejudgment is biased in favour of whom the judgment was rendered. Inthe event such an argument is accepted, that will not be inconsonance to the hierarchy in the judicial system providingappellate/revision/review jurisdiction. The word “erased” used by theApex Court is heavily relied upon by Mr.Manikandan Vathan Chettiar tocontend that it must be presumed to indict the learned Judge. In ouropinion, such an argument cannot be accepted in the absence of anyspecific finding against the learned Judge himself and merely becausethe superior Court erased the order, by any stretch of imagination,it cannot be considered to be a judgment against the particularJudge, as the finding of the superior Court is only in respect of theorder and not against the Judge. A judicial act involves an exerciseof discretion or unbiased decision by a Court or Judge. Judgmentsare the dicta or sayings of the law and are received as truth,Judicia Sunt Tan Quam Juris Dicta. Unless there are justifiablematerials, the Court cannot presume that the Judge is biased. Hence,the contention that the nominee of one-man Commission is biasedcannot be accepted and the same is rejected. 31. It is the further contention of Mr.Manikandan VathanChettiar that the learned Judge had enjoyed a jaunt in Malaysia onthe hospitality of a goonda detainee facing multiple cheating casesalong with a practising lawyer sometime during the year 2000. We maypoint out that this allegation has been made on the basis of anewspaper report. In our opinion, the said allegation cannot ipsofacto be considered till such time it is proved in the manner knownto law, especially when a charge is levelled as to the integrity ofthe learned Judge. We are also informed that the learned Judge hadfunctioned as a Judge of this Court and discharged his judicialfunctions even after the said report. Hence, the said contentionalso is unacceptable and the same is rejected. For all these reasons,we are not inclined to accept the contentions of Mr.Manikandan VathanChettiar that the member of one-man commission of inquiry is biased https://hcservices.ecourts.gov.in/hcservices/ and he should not have been appointed as such. 32. Mr.R.Viduthalai, learned senior counsel for the petitionerin W.P.No.18883 of 2011 would submit that the one-man commission ofinquiry appointed by the impugned order cannot be sustained on theground that the retired Judge is politically biased and his action ismalice in law. The question of bias on the ground of politicalrivalry came up for consideration before the Apex Court inP.V.Jagannath Rao and others v. State of Orissa and others, AIR 1969SC 215. In that case, the question posed before the Apex Court was asto whether the power so exercised by the State Government was aliento the statute and whether the notification of the Government was notin public interest but for a collateral purpose, namely, to get ridof the political opponents to drive them out of the political life.The averment on the ground that the Government Order has been issuedonly on political rivalry has to be proved by acceptable evidence.It is the contention of the petitioner that the present ChiefMinister decided to construct a New Secretariat complex in her tenurebetween 2001 and 2006 and the orders for such construction nearSholinganallur village, the premises of Queen Mary's college bydemolishing the existing building did not fructify due to wideagitation by various sections of the public. Only for that reason,the decision taken by the subsequent Government in the year 2006 toconstruct a New Secretariat complex in Omandurar Government Estatehas not been liked by the present Chief Minister and therefore theappointment of one-man commission of inquiry is only a politicalrivalry. From the affidavit, it is seen that there had been attemptsmade by the then A.I.A.D.M.K. Government to construct a Secretariatcomplex in its tenure between 2001 and 2006 and it did notmaterialise. Merely because of the said reason, can it be said thatthe decision of the subsequent Government to construct theSecretariat complex has not been liked by the present Chief Minister.As we have pointed out already, when there are prima facie materialsavailable before the Government for ordering the one-man Commissionof Inquiry, the relevant test would be only as to the availability ofmaterial and not the fact that the attempts made by the presentGovernment to construct a Secretariat complex had failed earlier.That apart, "malice in law" means, evil intent on the part of aperson who commits wrongful acts injurious to others. It could bealso termed to be one of ill-will, animosity, malevolence, rancour orgrudge Malice in its legal sense means malice such as may be assumedfrom doing of a wrongful act intentionally but without just cause orexcuse or for want of reasonable or probable cause. To put itotherwise, malice can be termed to be a conscious, intentionalcommission of a wrongful act without any justification or consciousviolation of law that injures another without a just cause or excuseor probable or reasonable cause. Nevertheless, all wrongful acts,though intentional, would not constitute malice, unless it isestablished by the person pleading the same that the act was actuatedby malice. Keeping in mind the above basic principles as to maliceor malice in law, the facts of the present case must be considered.As we have pointed out already, at the time when the one-mancommission of inquiry was constituted, there were materials availablebefore the Government and hence the Government had a just cause orreasonable cause for exercising its discretion in appointing the one- https://hcservices.ecourts.gov.in/hcservices/ man commission of inquiry. In fact, for exercise of such discretion,it would be sufficient for the Government to have a probable causesupported by materials. Accordingly, the submission as to thequestion of malice in law has no substance on the facts of thepresent case. The power of review as to the challenge to thecommission of inquiry is limited to the question as to whether thereare materials for the Government to order such a commission and forthat matter, whether the decision of the Government is arbitrary andmala fide. Insofar as the appointment of the member to head theCommission of Inquiry is concerned, the question of bias has to belooked into on the facts and circumstances of each case. In thiscase, as we have answered both the questions in the negative, thechallenge to the impugned order on the ground of malice in law has tobe 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 listfor pronouncement, Mr.R.Vijayakumar, learned Additional GovernmentPleader made a mention before this Court on 30.11.2011 that Hon'bleMr.Justice S.Thangaraj (Retd.) resigned on account of his ill-health.Hence, we directed the Government to file an affidavit to thateffect. Accordingly, the affidavit of the Chief Secretary, State ofTamil Nadu dated 30.11.2011 is filed today. In paragraph 3 of theaffidavit, it is stated that the second respondent tendered hisresignation on 22.11.2011 on medical grounds and his resignation wasaccepted by the Government.34.When the above affidavit was brought to the notice of boththe respective counsel namely, Mr.Manikandan Vathan Chettiar andMr.R.Viduthalai, learned Senior Counsel, they submitted that the writpetitions should be disposed of on merits, in spite of the subsequentevent.35.We have considered the above submissions. The Apex Court inN. Kannadasan v. Ajoy Khose (2009 (7) SCC 1) while consideringsimilar situation, proceeded to pronounce the judgment, even afternoticing that the appellant therein had offered his resignation andin the absence of a prayer for withdrawal of Special Leave Petition. 36. Since both the petitioners requested this court to pronouncethe judgment on merits, notwithstanding the fact that Hon'bleMr.Justice S.Thangaraj (Retd.) had resigned, we proceeded to deliverthe judgment as notified today.37. For the foregoing discussions and reasons, we find no meritin the challenge to the impugned Government Order at the instance ofboth the petitioners. Accordingly, W.P.No.18883 of 2011 is dismissed.Insofar as W.P.No.18277 of 2011 is concerned, the same is dismissedto the extent of challenge to the appointment of Honble Mr.Justice https://hcservices.ecourts.gov.in/hcservices/ S.Thangaraj (Retd.) as one man commission and partly allowed to theextent of the prayer for direction to appoint an individual toconduct the enquiry. Accordingly, we only observe that the respondentState is at liberty to appoint yet another individual as one-mancommission, if they so desire. Consequently, M.P.Nos.2 of 2011 arealso dismissed. No costs. ss/TrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Chief Secretary State of Tamil Nadu Fort Saint George Chennai 600 0092. The Secretary to Government Public Department (Buildings) Fort Saint George Chennai 600 009+3ccs to The Government Pleader High court, madras(Sr.73964,73868,73866) Order in W.P.Nos.18277 & 18883 of 2011JSV(CO)rvr15/12/2011