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CASE NO.: Special Leave Petition (civil)  24295 of 2004

PETITIONER: University of Kerala

RESPONDENT: Council, Principals’ Colleges, Kerala  & Ors

DATE OF JUDGMENT: 09/04/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

I.A. NO. 6 OF 2007 IN SPECIAL LEAVE PETITION (CIVIL) 24295 OF 2004

Dr. ARIJIT PASAYAT, J.

                The State of Orissa has filed this I.A. for modification of  the Order dated 27.11.2006. By the said order, this Court had  directed that in no case a sitting Judge of any High Court shall  continue as a Commission. It was however made clear that the  order shall not  operate in cases where the inquiry is at the fag  end, i.e. only where the report is to be submitted.

In support of the application, learned counsel for the  State submitted that a sitting Judge was appointed at the  request of the State Government considering the "serious  problem" highlighted in the letter of the Chief Minister  addressed to the Chief Justice of the High Court.  Though  initially Chief Justice of the High Court had not acceded to the  request of the State Government to appoint a sitting Judge as  a Commission, purportedly considering the "seriousness of the  problem" he suggested name of a sitting Judge to act as a  Commission.  It was, however, stated that the Commission  shall hold sittings and enquiries only on Saturdays and  Sundays and other High Court’s holidays without interference  with the normal work of the High Court. Accordingly, Justice  A.S. Naidu was appointed as the Commission.  It was   submitted that the Commission was expected to throw light on  various aspects which would help the State Government to  address to the larger issues on industrialization, displacement  and rights of citizens, in particular tribals.

Mr. Gopal Subramanium , learned A.S.G. submitted that  the State Government’s application is clearly not acceptable,   it is thoroughly misconceived.  This Court in its order dated  27.11.2006 clearly indicated as to why sitting Judges should  not act as Commission.

At this juncture it would be appropriate to take note of  what has been stated by this Court in T.Fenn Walter and  Others v. Union of India and Ors.    (2002 (6) SCC 184).  Though learned counsel for the applicant - State submitted  that in terms of paragraph 16(1) of the judgment, appointment

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of a sitting Judge as Commission is permissible, it has to be  noted that the same has to be read along with paragraph 14 of  the judgment.  The said paragraph reads as follows: "Quite often sitting Judges are appointed as Inquiry  Commissions.  Generally it may not create any  difficulty, if the inquiry itself can be conducted  without prejudice to other judicial work as a judge  of the superior court. However, the appointment of  Judges to head or chair a Commission of Inquiry or  to perform other non-judicial work would create  unnecessary burden on the Judges and it would  affect the administration of justice. The       work of  these Commissions takes considerable time and  there are several instances where the work of the  Commission continued for years. If a sitting Judge  is appointed, considerable time is lost and the  Judge would not be in a position to attend to his  regular judicial work. In view of the mounting  arrears of cases in superior courts, it would be  difficult to lend services of a Judge for such  commission work. Moreover, the report of the  Commission of Inquiry is often stated to have only  recommendatory value and the opinions expressed  therein are not binding on the Government. Quite  often the reports of the Commission are ignored and  no follow-up actions are being taken by the  Government. In some matters, when political issues  are also involved, even impartiality and objectivity of  the Court may sometimes be questioned due to  some extraneous and oblique motives. The public  image and prestige of the Court as guardian of the  Constitution and rule of law has to be maintained.  It is desirable that the Judges are not subjected to  unwanted criticism on account of appointment as  Inquiry Commission. The image and the authority of  the Court, which is of utmost importance, has to be  upheld. Justice Harlan F. Stone in a letter as far  back as in 1953 wrote: "It has been a long tradition  of our Court that its members do not serve on  committees or   perform other services not having a  direct relationship to the work of the Court." [ Law  Review (Vol. 87, 1953-54)] Keeping in view all these  aspects, the appointment of a sitting Judge as a  Commission of Inquiry has to be made only on rare  occasions if it becomes necessary for the paramount  national interest of the country."                                         (underlined for emphasis)

From a reading of the letters of the Chief Minister and the  Chief Justice it no where appears that either the State  Government or the Chief Justice considered the matter to be  of "paramount national interest" to warrant appointment of a  sitting Judge of a High Court as Commission.  All that has  been stated by the Chief Minister and the Chief Justice is  about the "seriousness of the problem".  

Even the notification dated 4th February, 2006 does not  indicate it to be of paramount national interest. It only states  as follows:                 "The Orissa Gazette       Extraordinary         Published by Authority  No. 127, Cuttack, Thursday, February 9, 2006/Magha 20, 1927 HOME (SPECIAL SECTION) DEPARTMENT NOTIFICATION

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The 4th February 2006

S.R. No. 20/2006\027Whereas it has been reported to  the State Government that there had been a police  firing on the 2nd January 2006 at Kalinga Nagar,  Jajpur district, leading to the death of 12 persons.   One Police Hawaldar had also died otherwise.

2. And whereas the State Government are deeply  concerned about the incident of firing and are of the  opinion that, this being  a matter of public importance,  should be inquired into by a Commission of Inquiry  under the Commission of Inquiry, Act, 1952.

3. Now therefore, in exercise of the powers conferred  by section 3 read with sub-section (1) of section 5 of  the said Act, the State Government do hereby appoint  a Commission of Inquiry consisting of Hon’ble Shri  Justice A. Suryanarayan Naidu, a sitting Judge of  Orissa High Court,  to inquire into and report in  respect of the following matters, within six months  from the date of publication of this notification in the  Orissa Gazette, namely :-

(i)     Analysis of the Sequence of events and  circumstances leading to the police firing at  Kalinga Nagar on the 2nd January 2006.

(ii)    Whether the measures taken, the quantum of  force used in anticipating, preventing  and  handling situations were adequate, inadequate  or in excess of’ requirement and the  responsibility for such acts of commission or  omission.

(iii)   The role, conduct and responsibility of the  organizations, group of individuals or reasons if  any, in influencing, precipitating or escalating  the incident;  and

(iv) Any other matter connected with or incidental  thereto as the Commission may consider appropriate  .

4. Further, the State Government are of the opinion  that having regard to the nature of inquiry to be  made and the other circumstances pertaining to the  incident,  it would be appropriate that the provisions  of sub-sections (2), (3), (4) & (5) of Section 5 of the  said Act should apply to the conduct of this inquiry,  by the Commission.  Therefore, the State Government  directs that the aforesaid provisions shall apply,  accordingly.   5. The headquarters of the Commission shall be at  Cuttack. However the Commission may hold the  inquiry in Kalinga Nagar or any other place also as  may be considered necessary by them for the  purpose.

(No. 632/C) By order of the Governor SANTOSH KUMAR Principal Secretary to Government"

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Though it was strenuously urged by the learned counsel  for the applicant - State that the Commission was only  permitted to work on holidays that really is of no consequence.   As noted in T. Fenn Walter’s case (supra) the considerations  have to be of several aspects including the determinative  "paramount national interest" angle.  That does not appear to  be a factor considered when the request was made for  appointment of a sitting Judge as the commission and the  reply of the Chief Justice of the High Court accepting the  prayer. It could not be shown to us as to how the issues being  enquired into by the Commission are of paramount national  interest.  Further the stand that the Commission was required  to give recommendation on various other aspects like  industrialization etc. is really of no consequence.  It is not     known as to on what basis a sitting Judge appointed as a  Commission, can throw light on the broader issues like  industrialization etc. In any event, the parameters of enquiry  do not include these aspects.   

The I.A. is sans merit, deserves dismissal, which we  direct.