ROBINSON Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) THE petitioner, an advocate, has approached this Court with the prayer that the Order, dated August 24, 2002 by which the 2nd respondent was appointed to enquire into the boat accident at Kumarakom be quashed. A few facts as relevant for the decision of this case may be briefly noticed.
(2.) ON July 27, 2002, a boat accident had occurred. A number of precious human lives were lost. Various kinds of allegations were made. It was inter alia alleged that the personnel posted at the site were not careful. The boat was not being properly maintained. The legal heirs of the deceased were entitled to compensation. Taking into consideration the people's demand the Government had decided to order a judicial inquiry. It had, thus, issued the impugned order to appoint the second respondent as a Commission of inquiry into the matter. Specific terms of reference was also notified vide notification, dated August 29, 2002. A copy is at Ext. P3.
The petitioner alleges that the second respondent, while functioning as a judge of this Court, had expressed an opinion vide judgment dated September 8,1998 in O. P. No. 3227/1998 that a retired judge should not accept any appointment after demitting the office. On the basis of this judgment, the petitioner maintains that the second respondent was not entitled to accept the appointment. It has also been alleged that the government had appointed several Commissions of Inquiry periodically. Their opinion is not binding. No action is taken in pursuance to the reports. Thus, the petitioner prays that the impugned notification be quashed.
A counter-affidavit has been filed on behalf of the state Government. It has been inter alia averred that it was after consideration of the relevant facts that a decision for a judicial inquiry was taken. It is the desire of the Government to know "the circumstances that led to the boat accident near Kumarakom on 27th July 2002". It has also been pointed out that the Commissioner was unable to submit its report expeditiously as delay had occurred in providing the requisite facilities to it. On these premises, the respondent maintains that the impugned notification is legal and valid.
(3.) LEARNED Counsel for the parties have been heard. On behalf of the petitioner, Mr. Vellayani Sundararaju has contended that the impugned notification violates Art. 220 of the Constitution. It is contrary to the judicial opinion expressed by the second respondent. The appointment of the commission shall serve no public interest. The opinion is not binding. Thus, the impugned notification should be quashed.
On behalf of the respondents, Mr. Roy Chacko, the senior Government Pleader, has contended that the Government is interested in ascertaining the cause of the accident. Thus, it had considered it appropriate to appoint a retired judge to hold an enquiry. Appropriate action shall be taken on the receipt of the report. On behalf of the second respondent, Mr. Thottathil Radhakrishnan has submitted that the impugned notification does not violate Art. 220 of the Constitution in any form. The personal opinion expressed by the second respondent in the course of a judgment cannot form the basis for the judicial review of a purely administrative order. In any event, the opinion as expressed by the learned judge had been overruled by a Division bench vide its judgment, dated October 24,1998 in W. A. No. 2114/1998. Thus, the very basis on which the notification is sought to be challenged does not exist.;
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