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CASE NO.:

Appeal (civil) 6963 2000

PETITIONER:

STATE OF PUNJAB

Vs.

RESPONDENT:

VK KHANNA & ORS.

DATE OF JUDGMENT: 30/11/2000

BENCH:

U.C.Banerjee, M.J.Rao

JUDGMENT:

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JUDGMENT

BANERJEE, J.

Leave granted. The concept of fairness in

administrative action has been the subject matter of

considerable judicial debate but there is total unanimity on

the basic element of the concept to the effect that the same

is dependant upon the facts and circumstances of each matter

pending scrutiny before the Court and no straight jacket

formula can be evolved therefor. As a matter of fact,

fairness is synonymous with reasonableness: And on the

issue of ascertainment of meaning of reasonableness, common

English parlance referred to as what is in contemplation of

an ordinary man of prudence similarly placed - it is the

appreciation of this common mans perception in its proper

perspective which would prompt the Court to determine the

situation as to whether the same is otherwise reasonable or

not. It is worthwhile to recapitulate that in a democratic

polity, the verdict of the people determines the continuance

of an elected Government a negative trend in the elections

brings forth a change in the Government it is on this

formula that one dominant political party overturns another

dominant political party and thereby places itself at the

helm of the affairs in the matter of the formation of a new

Government after the election. The dispute in the appeals

pertain to the last phase of the earlier Government and the

first phase of the present Government in the State of

Punjab: Whereas the former Chief Secretary of the State of

Punjab upon obtaining approval from the then Chief Minister

of Punjab initiated proceedings against two senior

colleagues of his in the Punjab State Administration but

with the new induction of Shri Prakash Singh Badal as the

Chief Minister of Punjab, not only the Chief Secretary had

to walk out of the administrative building but a number

seventeen officer in the hierarchy of officers of Indian

Administrative Service and working in the State of Punjab as

a bureaucrat, was placed as the Chief Secretary and within a

period of 10 days of his entry at the Secretariat, a

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notification was issued, though with the authority and

consent of the Chief Minister pertaining to cancellation of

two earlier notifications initiating a Central Bureau of

Investigation (CBI) enquiry - The charges being acquisition

of assets much beyond the known source of income and grant

of sanction of a Government plot to Punjab Cricket Control

Board for the purposes of Stadium at Mohali. A worthwhile

recapitulation thus depict that a Government servant in the

Indian Administrative Service being charged with acquiring

assets beyond the known source of income and while one

particular Government initiates an enquiry against such an

acquisition, the other Government within 10 days of its

installation withdraws the notification is this fair? The

High Court decried it and attributed it to be a motive

improper and malafide and hence the appeal before this

Court. Whereas fairness is synonymous with reasonableness

bias stands included within the attributes and broader

purview of the word malice which in common acceptation

means and implies spite or ill will. One redeeming

feature in the matter of attributing bias or malice and is

now well settled that mere general statements will not be

sufficient for the purposes of indication of ill will.

There must be cogent evidence available on record to come to

the conclusion as to whether in fact, there was existing a

bias or a malafide move which results in the miscarriage of

justice (see in this context Kumaon Mandal Vikas Nigam v.

Girija Shankar Pant & Ors: JT 2000 Suppl.II 206). In

almost all legal enquiries, intention as distinguished from

motive is the all important factor and in common parlance a

malicious act stands equated with an intentional act without

just cause or excuse. In the case of Jones Brothers

(Hunstanton) Ld. v. Stevens (1955 1 Q.B. 275) the Court

of Appeal has stated upon reliance on the decision of Lumley

v. Gye (2 E & B. 216) as below: For this purpose

maliciously means no more than knowingly. This was

distinctly laid down in Lumley v. Gye, where Crompton, J.

said that it was clear that a person who wrongfully and

maliciously, or, which is the same thing, with notice,

interrupts the relation of master and servant by harbouring

and keeping the servant after he has quitted his master

during his period of service commits a wrongful act for

which is responsible in law. Malice in law means the doing

of a wrongful act intentionally without just cause or

excuse: Bromage v. Prosser (1825 1 C. & P.673)

Intentionally refers to the doing of the act; it does not

mean that the defendant meant to be spiteful, though

sometimes, as, for instance to rebut a plea of privilege in

defamation, malice in fact has to be proved.

In Girija Shankar Pants case (supra) this Court

having regard to the changing structure of the society

stated that the modernisation of the society with the

passage of time, has its due impact on the concept of bias

as well. Tracing the test of real likelihood and reasonable

suspicion, reliance was placed in the decision in the case

of Parthasarthy (S. Parthasarthy v. State of Andhra

Pradesh: 1974 (3) SCC 459) wherein Mathew, J. observed:

16. The tests of real likelihood and reasonable

suspicion are really inconsistent with each other. We

think that the reviewing authority must make a determination

on the basis of the whole evidence before it, whether a

reasonable man would in the circumstances infer that there

is real likelihood of bias. The Court must look at the

impression which other people have. This follows from the

principle that justice must not only be done but seen to be

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done. If right minded persons would think that there is

real likelihood of bias on the part of an inquiring officer,

he must not conduct the enquiry; nevertheless, there must

be a real likelihood of bias. Surmise or conjecture would

not be enough. There must exist circumstances from which

reasonable men would think it probable or likely that the

inquiring officer will be prejudiced against the delinquent.

The Court will not inquire whether he was really prejudiced.

If a reasonable man would think on the basis of the existing

circumstances that he is likely to be prejudiced, that is

sufficient to quash the decision (see per Lord Denning, H.R.

in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon

and Others, etc. : (1968) 3 WLR 694 at 707). We should

not, however, be understood to deny that the Court might

with greater propriety apply the reasonable suspicion test

in criminal or in proceedings analogous to criminal

proceedings.

Incidentally, Lord Thankerton in Franklin v. Minister

of Town and Country Planning (1948 AC 87) opined that the

word bias is to denote a departure from the standing of

even-handed justice. Girja Shankars case (supra) further

noted the different note sounded by the English Courts in

the mann er following: 27. Recently however, the English

Courts have sounded a different note, though may not be

substantial but the automatic disqualification theory rule

stands to some extent diluted. The affirmation of this

dilution however is dependent upon the facts and

circumstances of the matter in issue. The House of Lords in

the case of Reg. v. Bow Street Metropolitan Stipendiary

Magistrate, Ex parte Pinochet Ugarte (No.2) [2000 (1) A.C.

119] observed:

..In civil litigation the matters in issue will

normally have an economic impact; therefore a judge is

automatically disqualified if he stands to make a financial

gain as a consequence of his own decision of the case. But

if, as in the present case, the matter at issue does not

relate to money or economic advantage but is concerned with

the promotion of the cause, the rationale disqualifying a

judge applies just as much if the judges decision will lead

to the promotion of a cause in which the judge is involved

together with one of the parties.

Lord Brown Wilkinson at page 136 of the report

stated:

It is important not to overstate what is being

decided. It was suggested in argument that a decision

setting aside the order of 25 November 1998 would lead to a

position where judges would be unable to sit on cases

involving charities in whose work they are involved. It is

suggested that, because of such involvement, a judge would

be disqualified. That is not correct, The facts of this

present case are exceptional, The critical elements are (1)

that A.I. was a party to the appeal; (2) that A.I. was

joined in order to argue for a particular result; (3) the

judge was a director of a charity closely allied to A.I.

and sharing, in this respect, A.I.'sobjects. Only in cases

where a judge is taking an active role as trustee or

director of a charity which is closely allied to and acting

with a party to the litigation should a judge normally be

concerned either to recuse himself or disclose the position

to the parties. However, there may well be other

exceptional cases in which the judge would be well advised

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to disclose a possible interest.

Lord Hutton also in Pinochets case (supra) observed:

there could be cases where the interest of the judge

in the subject matter of the proceedings arising from his

strong commitment to some cause or belief or his association

with a person or body involved in the proceedings could

shake public confidence in the administration of justice as

much as a shareholding (which might be small) in a public

company involved in the litigation.

28. Incidentally in Locabail (Locabail (U.K.) Ltd.

v. Bayfield Properties Ltd.: 2000 Q.B. 451), the Court of

Appeal upon a detail analysis of the oft cited decision in

Reg. v. Gough [(1993) A.C. 646] together with the Dimes

case, (3 House of Lords Cases 759): Pinochet case (supra),

Australian High Courts decision in the case of re J.R.L.,

Ex parte C.J.L.: (1986 (161) CLR 342) as also the Federal

Court in re Ebner (1999 (161) A.L.R. 557) and on the

decision of the Constitutional Court of Sourth Africa in

President of the Republic of South Africa v. South African

Rugby Football Union (1999 (4) S.A. 147) stated that it

would be rather dangerous and futile to attempt to define or

list the factors which may or may not give rise to a real

danger of bias. The Court of Appeal continued to the effect

that everything will depend upon facts which may include the

nature of the issue to be decided. It further observed:

By contrast, a real danger of bias might well be

thought to arise if there were personal friendship or

animosity between the judge and any member of the public

involved in the case; or if the judge were closely

acquainted with any member of the public involved in the

case, particularly if the credibility of that individual

could be significant in the decision of the case; or if, in

a case where the credibility of any individual were an issue

to be decided by the judge, he had in a previous case

rejected the evidence of that person in such outspoken terms

as to throw doubt on his ability to approach such persons

evidence with an open mind on any later occasion; or if on

any question at issue in the proceedings before him the

judge had expressed views, particularly in the course of the

hearing, in such extreme and unbalanced terms as to throw

doubt on his ability to try the issue with an objective

judicial mind (see Vakuta v. Kelly (1989) 167 C.L.R. 568);

or if, for any other reason, there were real ground for

doubting the ability of the judge to ignore extraneous

considerations, prejudices and predilections and bring an

objective judgment to bear on the issues before him. The

mere fact that a judge, earlier in the same case or in a

previous case, had commented adversely on a party witness ,

or found the evidence of a party or witness to be

unreliable, would not without more found a sustainable

objection. In most cases, we think, the answer, one way or

the other, will be obvious. But if in any case there is

real ground for doubt, that doubt should be resolved in

favour of recusal. We repeat: every application must be

decided on the facts and circumstances of the individual

case. The greater the passage of time between the event

relied on as showing a danger of bias and the case in which

the objection is raised, the weaker (other things being

equal) the objection will be.

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29. The Court of Appeal judgment in Locabail (supra)

though apparently as noticed above sounded a different note

but in fact, in more occasions than one in the judgment

itself, it has been clarified that conceptually the issue of

bias ought to be decided on the facts and circumstances of

the individual case a slight shift undoubtedly from the

original thinking pertaining to the concept of bias to the

effect that a mere apprehension of bias could otherwise be

sufficient.

The test. therefore, is as to whether there is a mere

apprehension of bias or there is a real danger of bias and

it is on this score that the surrounding circumstances must

and ought to be collated and necessary conclusion drawn

therefrom. In the event, however, the conclusion is

otherwise that there is existing a real danger of bias

administrative action cannot be sustained: If on the other

hand allegations pertain to rather fanciful apprehension in

administrative action, question of declaring them to be

unsustainable on the basis therefor would not arise. It is

in the same vein this Court termed it as reasonable

likelihood of bias in Rattan Lal Sharmas case (Rattan Lal

Sharma v. Managing Committee Dr. Hari Ram (Co-education)

Higher Secondary School & Ors. : 1993 (4) SCC 10) wherein

this Court was pleased to observe that the test is real

likelihood of bias even if such bias was, in fact, the

direct cause. In Rattan Lal Sharmas case (supra) real

likelihood of bias has been attributed a meaning to the

effect that there must be at least a substantial possibility

of bias in order to render an administrative action invalid.

Rattan Lal Sharmas case (supra) thus, in fact, has not

expressed any opinion which runs counter to that in Girja

Shankars case (supra) and the decision in the last noted

case thus follows the earlier judgment in Rattan Lals case

even though not specifically noticed therein. Before

adverting to the rival contentions as raised in the matter,

it would also be convenient to note the other perspective of

the issue of bias to wit: malafides. It is trite knowledge

that bias is included within the attributes and broader

purview of the word malice. It is at this juncture,

therefore, the relevancy of the factual details is otherwise

felt to assess the situation as to whether there is existing

cogent evidence of improper conduct and motive resultantly a

malafide move on the part of the appellants herein against

respondent No.1 V.K. Khanna. The records depict that

immediately before the departure of the earlier Ministry in

the State of Punjab and Shri Khanna being the Chief

Secretary of the State in terms of the specific orders of

the then Chief Minister referred two cases to the Central

Bureau of Investigation: The first being accumulation of

assets in the hands of Shri Bikramjit Singh, IAS being

disproportionate to the known source of income and secondly

allotment of land and release of funds to the Punjab Cricket

Association the Government, however, changed and soon

thereafter the petitioner was chargesheeted inter alia for

acting in a manner which cannot but be ascribed to be

malafide and in gross violation of the established norms and

procedure of the Government function contrary to the service

rules and in any event, lack of fair play and lack of

integrity with high moral as was expected of a senior civil

servant. BACKGROUND FACTS The charge-sheet, however, stands

challenged before the Central Administrative Tribunal,

Chandigarh Bench by Shri V.K. Khanna, the former Chief

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Secretary to the Punjab Government since 2nd July, 1996 and

continued to be so under the Government headed by Mrs.

Rajinder Kaur Bhattal as the Chief Minister. The Tribunal,

however, answered the issue against Shri Khanna upon due

reliance on the decision of this Court in the case of Union

of India & Anr. vs. Ashok Kacker [1995 SCC (L&S) 375]

wherein this court in paragraph 4 of the report was pleased

to observe: 4. Admittedly, the respondent has not yet

submitted his reply to the charge-sheet and the respondent

rushed to the Central Administrative Tribunal merely on the

information that a charge-sheet to this effect was to be

issued to him. The Tribunal entertained the respondents

application at that premature stage and quashed the

charge-sheet issued during the pendency of the matter before

the Tribunal on a ground which even the learned counsel for

the respondent made an attempt to support. The respondent

has the full opportunity to reply to the charge-sheet and to

raise all the points available to him including those which

are now urged on his behalf by learned counsel for the

respondent. In our opinion, this was not the stage at which

the Tribunal ought to have entertained such an application

for quashing the charge-sheet and appropriate course for the

respondent to adopt is to file his reply to the charge-sheet

and invite the decision of the disciplinary authority

thereon. This being the stage at which the respondent had

rushed to the Tribunal, we do not consider it necessary to

require the Tribunal at this stage to examine any other

point which may be available to the respondent or which may

have been raised by him.

It is on the basis of the aforesaid observations that

the Tribunal came to a finding that since Shri Khanna will

have full opportunity to reply to the charge-sheet and all

points are available be agitated before the Inquiry Officer,

it is not the stage at which the Tribunal would like to

quash the charge-sheet as it stands against him and the

appropriate course for him would be to file a reply to the

charge-sheet and invite the decision of the disciplinary

authority thereon. The Tribunal also recorded that during

the course of hearing before the Tribunal, it has been made

known by both the parties that the Inquiry Officer has

already been appointed by the State of Punjab and he

happened to be a retired Honble Judge of the High Court and

it is on this perspective the apprehensions of the applicant

Shri Khanna should be allayed and resultantly the Tribunal

dismissed the OA No.651/CH of 1997. The matter was

thereafter taken to the High Court and the High Court

recorded the core controversy in the matter to be as below:

Is the action of the respondents in issuing the impugned

charge-sheet to the petitioner like using a hammer to swat a

fly on his forehead? Are the respondents merely talking of

principles, but actually acting on interest?

The High Court came to a definite conclusion about

high- handed, arbitrary and mala-fide approach towards Shri

Khanna, being the respondent No.1 herein and answered both

the issues as raised in the affirmative and thus resultantly

the appeal before this Court by the grant of special leave.

Rival Contentions: The appellant, State of Punjab & Ors in

one singular voice deprecated the judgment under appeal as

wholly unsustainable since the same violates even the basic

tenets of law. Absence of malice has been the main thirst

of submissions in support of the appeal and adaptation of a

simple method of disciplinary inquiry is the key issue as

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urged by the appellants. Shri Khanna, respondent No.1, on

the other hand contended that the entire set of facts if

analysed in a proper perspective then and in that event

gross violation of basic tenets by reason of malice ipso

facto would be apparent enough to reach the same conclusion

as has the High Court. Shri Khanna alleges that the

issuance of the charge-sheet against him is the direct

outcome of the reference of the two cases to the CBI and is

overtly malafide. It would thus be convenient to assess

the facts pertaining to above-noted two cases at this

juncture. Reference of two cases to the CBI Brief facts

relating to the issuance of the two notifications to the CBI

are as below:- (a) Shri Khanna was appointed to the Indian

Administrative Service in the year 1963 and thus in the IAS

Cadre for the last 37 years during which however, Shri

Khanna was appointed as the Chief Secretary on July 2, 1996

by Shri Harcharan Singh Brar being the then Chief Minister

of the State of Punjab. Subsequently, Mrs. Bhattal

succeeded Shri Brar as the Chief Minister. It appears that

in the usual course on 6.2.1997, the Chief Minister asked

for two files pertaining to the Report sent to the

Government on 29.3.1996 by the Director General of Vigilance

Bureau concerning Shri Bikramjit Singh as also the file

pertaining to the allotment of 15 acres of Government land

by the Sports Department to the Punjab Cricket Association

in Mohali. Shri Khanna being the Chief Secretary pointed

out the factual position with his own observations and

forwarded the files to the Chief Minister on the same day

and thereupon the Chief Minister issued two several orders

on the same date. Before however, adverting to the orders

as passed by the Chief Minister, it is worthwhile noticing

the allegations levelled against Bikramjit Singh and in the

fitness of things, the report of the Vigilance Bureau of the

State of Punjab may be referred at this juncture, which in

fact probed the matter. The report records inter alia that

the officer had purchased land measuring about 15 acres in

village Wazidpur, District Ferozpur in 1987 and it has been

proved that the officer bought this land and accordingly the

land has been included in the assets of the officer.

Further the report depicts that the allegation as regards

the purchase of 10 acres land in Morinda, Bela and Jatana

and the allegations that the officer having a share in

Morinda Solvent Ltd. have been enquired into and found to

be false. The other allegation against the officer of

having one-fourth share in a house built on two-kanal plot

bearing No.110 South Model Gram in Ludhiana and the finding

of the Vigilance Bureau is that this property was acquired

by the officer through inheritance. The report of the

Vigilance Bureau further assessed the income of the officer

to Rs.31,51,302/- for the period from 1.1.1984 to 31.12.1993

whereas the expenditure was to the tune of Rs.34,27,437/-

thus showing an excess expenditure of Rs.3,42,765/-. The

Vigilance Bureau however recommended that since the

difference is around 10%, the same deserves to be ignored

and there is existing on record a recommendation from the

Vigilance Bureau that the complaint and the enquiry needed

to be dropped altogether. The record depicts that after

receipt of the report from the Vigilance Department, the

matter was discussed at the level of the Chief Secretary and

the Principal Secretary, Vigilance and certain

clarifications were asked for and while the matter was still

pending for consideration at the level as above, the Chief

Minister wanted to have a look at the file and as such asked

for the same on 6.2.1997. It is on this factual backdrop as

above the Chief Minister notes in the file as below: I

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have gone through the Enquiry Report of Vigilance Bureau as

well as other portions of the file. I am in agreement with

Chief Secretary that this case has not been properly probed.

Since officer is senior and influential, another enquiry by

the State machinery may not be appropriate. This case may,

therefore, be referred to the CBI for enquiry. Reference

may be made immediately. Sd/-

C.M./6.2.97 C.S.

And on the next date i.e. on 7.2.1997 records depict

a note of the Chief Secretary recording therein that upon

consultation with the Advocate General that it would only be

proper and appropriate to refer the matter to an independent

agency like CBI for investigation. A notification was

issued on 7.2.1997 under Section 6 of the Delhi Special

Police Establishment Act 1946 entrusting the case to the CBI

for investigation for an offence of having assets

dis-proportionate to the known source of income in this

case.. While the detail submission on this score would be

dealt with later but it would be convenient to note that the

learned Solicitor General with some amount of emphasis posed

a question as a part of his submission to the effect as to

why this hot haste? We however have not been able to

appreciate the submission. Vigilance Bureau reported in

March, 1996 about the factum of expenditure more than the

income but by reason of the smallness of the amount (though

over 3 lacs), the matter can be ignored and recommended, in

fact, that the enquiry proceedings be dropped against the

concerned officer: public official thus having admittedly,

expenditure more than income need not face any further

enquiry in the matter be that as it may, clarifications

were sought for as late as October, 1996 and in the context

of having further investigation by an organisation which is

known in the country to be fair and impartial but having

regard to the factum of ensuing elections in the event the

administrative expediency prompt the Chief Minister to take

a step urgently so that the matter can be enquired into in

detail, can any exception be taken by reason of the fact

that the actions were in very hot haste? Incidentally,

detailed submissions have been made as regards pre- dating

the notes so as to reach 7th February, 1997 when in fact,

the same was written on 8th February, 1997. We shall delve

into the matter as regards the pre-dating of notes but the

time lag between the two is just one day, the hastiness of

the decision does not alter the situation significantly. If

it is dated 8th even obviously it was done hastily but can

any exception be taken on that ground as the same being a

fraudulent move: the Vigilance Bureau of the State of

Punjab finds some acquisition of property and the

expenditure being more than income and in the event, the

Chief Minister administratively is desirous of having a

further probe in the matter, we suppose no inference can be

drawn as a malafide move therefrom: Administrative decision

is taken on the expediency of the situation urgently and not

otherwise. The answers to these questions raised above will

be made available in the later part of this judgment but for

the present it is significant to note that if hot haste is

to be attributed to Mr. V.K. Khanna, the same can also be

ascribed to Shri Mann, who succeeded Mr. Khanna as Chief

Secretary after the new Government took over. It has been

stated that the file pertaining to the matter in issue was

made available to Shri Mann only late in the evening on

23.2.1997 and a detailed note was prepared by the Chief

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Secretary Shri Mann on 25.2.1997: The same was placed

before the learned Advocate General on the same date and the

Advocate General also opined to rescind the notification

date 7.2.1997 since the same is not sound in law and based

on malafide considerations. Interestingly the note records

that the Government should rectify the mistakes in the

larger interest of justice and fair play. The records

further depict that the file was sent back to the Chief

Secretary on the same day and the latter sent the same to

the Chief Minister with a note to the following effect: I

endorse the view of the A.G. C.M. may kindly agree to the

proposal to rescind the notification in question and to

withdraw the case from the CBI.

Sd/-

(Mann)@@

IIIIII

C.S. 25/2 C.M.

The records further depict that the Chief Minister on

26th February, 1997 endorses the note of Chief Secretary

Shri Mann but also made a note addressed to the Principal

Secretary (Vigilance) to issue the order to rescind the

notification and it is only on 26th February that the

notification was issued upon preparation of a draft therefor

by the Principal Secretary, Vigilance. The noting of the

later on 26th February, 1997 is also rather significant, it

notes this may please be vetted immediately because

notification in extra-ordinary Gazette has to be issued

today. Subsequent confirmation of the notification being

issued and a note from the Chief Secretary records the same.

It is in this perspective Mr. Subramaniam, learned senior

counsel appearing for respondent No.1 with equal vehemence

contended as to the haste in which the Department acted.

Mr. Subramaniam, learned senior counsel, contended that on

25th of February, 1997 a rather longish and detailed note

has been prepared for Mr. Advocate Generals opinion and it

is on 25th of February that the opinion has been received

recording infraction of law without however any specific

mention and, thereafter, the file was placed before the

Chief Minister and on 26th of February, 1997 Chief Minister

signs the same and the notification is also issued on the

same date. We do find some justification in the comment of

Mr. Subramaniam, learned senior counsel for the respondent,

If hasty decision is a question of malafide motive on the

part of Shri V.K. Khanna, we wonder as to whether the same

can also be attributed to the appellants herein the answer

to this question would also be available in the later part

of this judgment. (b) The second notification pertains to

the allotment of land to the Punjab Cricket Association and

the note of the Chief Minister on 6th February, 1997 reads

as below: The illegal occupation of the Cricket

Association should be got vacated So far as the culpability

of the officers involved is concerned, considering that they

are senior officers and influential enough to interfere in

the conduct of an enquiry by a State Government Agency, this

case should be investigated by an independent agency like

the CBI to detect financial irregularities,

misappropriation, loss caused to the State Government and

any other illegal acts in the name of sports promotion

culpable under the existing laws. Sd/ C.M./6.2.97 C.S.

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It is in terms with the orders of the Chief Minister

dated 6th February, 1997 that two notifications were issued

as above. Before adverting to the contentions certain other

factual details are required to be noticed at this juncture:

Elections to the State Legislative Assembly were held on 7th

February, 1997 and votes were counted on 9th February, 1997.

The party in power at the Punjab Assembly however, having

lost the election, the Chief Minister Mrs. Bhattal resigned

from the office and Shri Prakash Singh Badal was sworn in as

the Chief Minister on 12th February, 1997. Immediately on

assumption of office, however, both S/Shri Mann and

Bikramjit Singh were appointed as the Chief Secretary and

the Principal Secretary to the Chief Minister respectively

in place of Shri V.K. Khanna and Shri S.S.Dawra with

immediate effect. Admittedly, Shri R.S. Mann belongs to

the 1965 batch in the service and by reason of the

appointment he has, as a matter of fact, superseded ten of

the officers in the State including Mr. V.K. Khanna this

was the noting of Ms. K. Sidhu in the file apropos Shri

Mann but so far as Bikramjit Singh is concerned, it has been

noted that one vigilance enquiry was pending against Shri

Bikramjit Singh this did not, however, impress the

authority and resultantly in spite of the noting as above,

both these two officers were appointed in the posts noted

above. Though Mr. Subramaniam has been very critical about

these appointment specially when an allegation of corruption

involving an officer of the Administrative Service, pending

further enquiry, we, however, do not wish to make any

comment thereon since the peoples representatives would be

the best person to judge the efficiency or otherwise of the

officers, in the event of their appointments in the high

posts in spite of their drawbacks being pointed out, it is

for the concerned authority to decide as to with whom the

State Administration ought to be better run and not for the

law courts to suggest, as such we are not making any

comments thereon save however that probably it would be

better if the notings would have been given its proper

weightage. Another significant feature on the factual score

is that the Central Bureau of Investigation registered two

cases on 25th February, 1997 being FIR Nos.7 and 8 against

Shri Bikramjit Singh and the second one pertaining to the

allotment of land to the Punjab Cricket Association and as

noticed above on 26th February itself notification was

issued rescinding the earlier notification thereby the

request to investigate on to the twin issues as noticed

above stood withdrawn. CHARGESHEET IMPUGNED The factual

score details out that on 24th April, 1997, impugned

chargesheet was issued and the petitioner was asked to

submit his reply within 21 days. Statement of imputation

will be appended though rather longish but shall have to be

appended in order to appreciate the issue of malafides as

raised by the respondent No.1 in his Writ Petition. The

same however, reads as below: Shri V.K. Khanna, IAS,

while posted as Chief Secretary to Government, Punjab,

issued two notifications in the Delhi Special Police

Establishment Act empowering the CBI to enquire into the two

matters viz.:- (i) Amassing assets disproportionate to the

known means of income by Shri Bikramjit Singh, IAS; and

(ii) Allotment of land and funds to the Punjab Cricket

Association.

The CBI registered FIRs in these two cases. In

processing these cases, Shri V.K. Khanna, IAS, acted in a

malafide manner and in gross violation of established norms

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and procedures of Government functioning and in utter

disregard of All India Service Rules, principles of

objectivity, fair play, integrity and the high morals

expected of a senior civil servant. 2. Shri VK Khanna,

IAS, processed the cases with undue hurry and undue

interest, not actuated by the nature of cases. This is

demonstrated by the following:- (i) Even though elections

were on and polling took place on 7th February and the then

C.M. was in her constituency, away from Chandigarh, most of

the action was completed on 6th February and on 7th February

which was a holiday. The papers traveled thrice between

Chandigarh and Lehragaga on Feburary 6. (ii) Neither in her

first note of 6th February nor in her second note of the

same day did the C..M. direct that the cases were to be

handled at breakneck speed. (iii) The statutory

notifications issued on 7th February were neither sent to

the L.R. as required by Rules of Business of Punjab

Government nor were they sent for gazetting as required by

law.

3. Shri V.K. Khanna, IAS, antedated and fabricated

the record. Some of the actions/noting, which is shown to

have been done on 6th and 7th February 1997, was actually

done on 8th February 1997. This is established by a fact

finding enquiry conducted by Shri Surjit Singh, IAS,

principal Secretary, Vigilance. The Notifications and the

letters addressed to the Director, CBI were issued and

forwarded to the Director, CBI any time after 8.2.1997 A.N.

and were predated as on 7.2.1997. 4. Shri V.K. Khanna,

IAS, with malicious intent kept the entire operation a

closely guarded secret until the CBI had completed all

formalities and had registered the FIRs. This is

demonstrated by the following facts/events:- (i) All papers

pertaining to these cases were taken away from the personal

staff of C.S. and were handled and retained entirely by

Shri Khanna himself including delivery of the Notification

and letters to CBI. (ii) He took away the files and

retained them till the night of 24th February, 1997 in one

case and 26th February, 1997 in the other case, whereas the

CBI registered cases on 25th February, 1997. (iii) He did

not mention anything about these two sensitive cases to the

new Chief Minister and Chief Secretary after formation of

the new Government, though he met them formally and

informally several times before handing over charge as the

Chief Secretary. (iv) When the file for appointment of Shri

Bikramjit Singh, IAS, as principal Secretary to Chief

Minister was put up to C.M. on 14.2.1997, while pendency of

Vigilance enquiries against him was referred to, no

reference whatsoever, was made to the most relevant fact

that less than a week earlier, a case of corruption against

him had been sent to CBI a fact which was known only to

Shri Khanna and which must have been very fresh in his mind

in view of the unusual interest taken in it by him. 5.

Shri V.K. Khanna, IAS, failed in the proper discharge of

his duties as Chief Secretary, when while putting up to C.M.

the file pertaining to the appointment of Shri Bikramjit

Singh as Principal Secretary to Chief Minister on 14.2.1997,

he did not record the important and most material fact that

a case of corruption against Shri Bikramjit Singh has been

referred to the CBI only a week earlier. 6. Shri V.K.

Khanna, IAS, falsely recorded in the files that the

Advocate-General had been consulted in these cases. In

fact, no such consultation took place. 7. Shri V.K.

Khanna, IAS, after handing over the charge as Chief

Secretary ton 14.2.1997 A.N. returned the two files on the

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above two cases on 15.2.1997 to an officer of the Vigilance

Department. The same day he summoned the two files without

authority and detained them for a long time with ulterior

motives. He recalled both the files on the plea that the

files being top secret in nature would be handed over to the

Additional Secretary Vigilance. However, the two files were

returned on 24th and 26th February 1997. He, therefore,

remained in unauthorised possession of these two files after

handing over charge as Chief Secretary. 8. Shri V.K.

Khanna, IAS, did not make any proper attempt to verify the

assertions and allegations in his note dated 6.2.1997 and in

the note of the then C.M. of the same date in the P.C.A.

case. No proper preliminary enquiry was conducted in the

matter nor was any opportunity to explain given to those who

might have been adversely affected by the decision. These

are the most elementary prerequisite to any such decision by

a civil servant. No serious effect was made to ascertain

the full facts. Whereas the record shows that the decision

to give land at nominal cost and the release of funds had

the clear and repeated approval of the Housing Board/PUDA,

Finance Department and the then C.M. and whereas the

Council of Ministers and even Vidhan Sabha had categorically

endorsed these decisions, none of these facts was brought on

the file. His entire conduct was malicious and premeditated

and amounted to total abuse of the authority vested in him.

9. Shri V.K. Khanna, IAS, in referring these cases to CBI

violated Election Code issued by Election Commission of

India. He also violated Government instructions issued by

himself as Chief Secretary on 10.2.1997 under which it was

stipulated that in view of impending change of Govt., no

important cases were to be disposed of by Secretaries to the

Government without shown them to the new Ministers who were

to take office shortly. That these two cases were important

is proved by the attention paid by Shri V.K. Khanna. In

fact, there was a clear intention on the part of Shri V.K.

Khanna to complete all action in these cases before the new

Ministry took office. Shri V.K. Khanna, further failed to

put up these cases for the information/approval of the new

Chief Minister till he handed over the charge as Chief

Secretary late on 14.2.1997. EVENTS THEREAFTER: Soon after

the issuance of the charge-sheet however, the Press reported

a statement of the Chief Minister on 27th April, 1997 that a

Judge of the High Court would look into the charges against

Shri V.K. Khanna this statement has been ascribed to be

malafide by Mr. Subramaniam by reason of the fact that even

prior to the expiry of the period pertaining to the

submission of reply to the chargesheet, this announcement

was effected that a Judge of the High Court would look into

the charges against the respondent No.1 Mr. Subramaniam

contended that the statement depicts malice and vendetta and

the frame of mind so as to humiliate the former Chief

Secretary. The time has not expired for assessment of the

situation as to whether there is any misconduct involved

if any credence is to be attached to the Press report, we

are afraid Mr. Subramaniams comment might find some

justification. The records further disclose that copies of

certain documntary evidence were sought for pertaining to

charge No.8 as regards the release of fund and approval of

the Housing Board and Punjab Urban Development Authority but

the same was not acceded to on the plea that the same is not

relevant to the chargesheet and it is only thereafter that

the Petitioner approached the Central Administrative

Tribunal for quashing of the chargesheet and as detailed

above having however, failed to obtain any relief, the

petitioner moved the High Court wherein the High Court set

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aside the chargesheet and quashed the proceedings against

the petitioner. CONTENTIONS; Re Chargesheet In support of

the Appeal both Mr. Rajinder Sachhar, Sr. Advocate and Mr.

Harish N. Salve, Solicitor General of India strongly

contended that propriety of the situation demanded

confirmation of the disciplinary proceedings rather than its

quashing by the High Court since, the issuance of

notification has been contrary to the rules of business.

Before delving into the contentions, we feel it proper to

note the general principles of law as recorded by the High

Court pertaining to discharge of duty of a civil servant.

The High Court observed: Indisputably, duty is like debt.

It must be discharged without delay or demur. A civil

servant must perform his duties honestly and to the best of

his ability. He must abide by the Rules. He should live by

the discipline of the service. He must act without fear or

favour. He must serve to promote public interest. He must

carry out the lawful directions given by a superior. In

fact, the Constitution of India has a chapter that

enumerates the Duties of the Citizens of this country.

Art.51-A contains a positive mandate. It requires every

citizen to strive towards excellence in all spheres of

individual and collective activity, so that the nation

constantly rises to higher levels of endeavour and

achievement. This provision can be the beacon light for

every citizen and the mantra for every civil servant. So

long as he performs this duty as imposed by the Constitution

and strives towards excellence, he has none and nothing to

fear. Even God would be by his side.

At the same time it is undeniably true that whenever

there is a dereliction in the performance of duties by the

civil servant, the State Government has the right to

intervene and punish the guilty. This is the undoubted

prerogative of the State. But, to borrow the words of

Professor Wade, this power has to be used for the public

good. The action of the authority must be fair and

reasonable. It should be bonafide. It should not be

arbitrary. It should not be based on extraneous

considerations. It should be for public good. Bias or

personal malice should not taint it. Bias is like a drop of

poison in a cup of pure milk. It is enough to ruin it. The

slightest bias would vitiate the whole action.

Bias admittedly negates fairness and reasonableness by

reason of which arbitrariness and malafide move creep in @@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

issuance of the two notifications assuming in hot haste but

no particulars of any malafides move or action has been

brought out on record on the part of Shri V.K. Khanna

while it is true that the notings prepared for Advocate

Generals opinion contain a definite remark about the

malafide move on the part of Shri V.K. Khanna yet there is

singular absence of any particulars without which the case

of malafides cannot be sustained. The expression malafide

has a definite significance in the legal phraseology and the

same cannot possibly emanate out of fanciful imagination or

even apprehensions but there must be existing definite

evidence of bias and actions which cannot be attributed to

be otherwise bonafide actions not otherwise bonafide,

however, by themselves would not amount to be malafide

unless the same is inaccompanymen with some other factors

which would depict a bad motive or intent on the part of the

doer of the act. It is in this sphere let us now analyse

the factual elements in slightly more detail the Chief

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Minister is desirous of having the files pertaining to two

of the senior officers of the administration and concerning

two specific instances in normal course of events, we

suppose the Chief Secretary has otherwise a responsibility

to put a note to the Chief Minister pertaining to the issue

and in the event the Chief Secretary informs the Chief

Minister through the note that there should be a further

probe in the matters for which the files have been asked

for, can it by itself smack of malafides? Personality clash

or personal enmity have not been disclosed neither even

there is existing any evidence therefor: so in the usual

course of events the Chief Secretary in the discharge of his

duty sent a note to the Chief Minister recording therein

that a further probe may be effected if so thought fit by

the Chief Minister and in the event the Chief Minister

agrees therewith and a probe is directed through an

independent and impartial agency can any exception be

taken therefor? Mr. Solicitor General answers the same

generally that it is the personal vendetta which has

prompted the Chief Secretary to initiate this move but

general allegation of personal vendetta without any definite

evidence therefor, cannot be said to be a sufficient

assertion worth acceptance in a court of law. There must be

a positive evidence available on record in order to decry an

administrative action on the ground of malafides and

arbitrariness. The ill will or spite must be well

pronounced and without which it would be not only unfair but

patently not in confirmity with the known principles of law.

On a scrutiny of the files as presented to court and the

evidence thereon, unfortunately, however, there is no

evidence apart from bare allegation of any spite or ill

will, more so by reason of the fact that the same involves

factual element, in the absence of which no credence can be

attributed thereto. Incidentally, be it noted that

submissions in support of the appeal have been rather

elaborate and in detail but a significant part of which

pertain to the issuance of the two notifications spoken

hereinabove: the High Court decried the action as being

tainted with malice and quashed the chargesheet as being

malafide. If initiation of a proceeding through CBI can be

termed to be a malafide act then what would it be otherwise

when Government acts rather promptly to rescind the

notifications can it be an action for administrative

expediency or is it an action to lay a cover for certain

acts and omissions?: We are not expressing any opinion but

in the normal circumstances what would be the reaction

pertaining to the issuance of withdrawal notoifications, the

answer need not be detailed out expressly but can be

inferred therefrom. The charge-sheet records that Shri

Khanna has acted in a malafide manner and in gross violation

of established norms and procedure of Government functioning

and in utter disregard of All India Service Rules,

principles of objectivity, fair play, integrity and the high

morals expected of a senior civil servant (emphasis

supplied). The notification pertains to acquisition of

assets disproportionate to the known source of income by a

civil servant and it is in processing these cases that the

aforesaid charge as emphasized has been leveled against Shri

V.K. Khanna, we, however, have not been able to appreciate

whether initiation of an enquiry against the civil servant,

would be in gross violation of established norms and

procedure of Government functioning. The processing was

further stated to be in utter disregard of All India Service

Rules, we are not aware neither any rules have been placed

before this Court wherein initiation of an enquiry for

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assets disproportionate to the known source of income can be

termed to be in disregard of the service rules or fair play,

integrity and morals: Do the service rules or concept of

fair play, integrity or morals expected of a senior civil

servant provide a prohibition for such an initiation or such

processing, if that is so, then, of course one set of

consequence would follow but if it is other way round then

and in that event, question of any violation or a malafide

move would not arise. The second charge is in regard to

undue hurry and undue interest not being actuated by the

nature of cases and as an illustration therefor, note of the

Chief Minister was taken recourse to the effect that there

was no direction in either of the notes that the cases were

to be handled at brake-neck speed. The note noted above,

however, records that the CBI enquiry be initiated and the

reference may be made immediately, the direction of the

Chief Minister that the recording of action immediately if

understood to mean undue haste and if acted accordingly then

again one set of consequence follow but in the normal course

of events, such a direction from the Chief Minister ought to

be adhered to with promptitude and no exception can thus be

taken in that regard. Shri V.K. Khanna was also said to

have faulted Government instructions under which it is

stipulated that in the event of any impending change, no

important decisions would be taken by the Secretaries

without having its seen by the new Ministers who were to

take office shortly. Shri Khanna has been charged of

failure to put up the cases for information to the Chief

Minister and allegations have been levelled that statutory

notification issued on 7.2.1997 were neither sent to the LR

as required by the rules of business of Punjab Government

nor were they sent for gazetting as required by law. Both

charges together however cannot be sustained at the same

time. If the Chief Secretary is not supposed to act by

reason of the impending change then he cannot possibly be

accused of not acting, as required by the rules of business

or as required by law. One of the basic charge of malafides

as ascribed by Mr. Solicitor General, is that the papers

pertaining to one of the cases was retained till the night

of 24th February, 1997 and till 26th February, 1997 in

another, and the same is unbecoming of the Chief Secretary

of the State, more so by reason of the fact that when a new

Secretary has already taken over charge. The issue

undoubtedly attracted some serious attention but the factum

of the respondent No.1 Shri Khanna not being in the city and

away in Delhi for placement in the Central Government by

reason of the attainment of necessary seniority would cast a

definite shadow on the seriousness of the situation. The

new Government was declared elected on 9th February, 1997,

obviously on a hint that the Chief Secretary may be removed

and be transferred, if there is any enquiry as regards the

placement and by reason wherefor a delay occurs for about

two weeks, in our view, no exception can be taken therefor

neither it calls for any further explanation. During the

course of submission, strong emphasis has been laid on a

linkage between the CBIs endeavour to initiate proceedings

and the retention of the file, however, does not stand any

factual justification since one of the files were returned

to the Chief Secretary on 24th February itself whereas CBI

lodged the FIR on 25th February, 1997. Mr. Subramaniam

however, contended that the contemporaneous noting which has

been produced in Court do not indicate any perturbation on

the part of the senior officers seeking to recover these

papers. Mr. Subramaniam contended that the anxiety of the

first respondent only was to see that the files be lodged in

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the custody of the responsible person in the administration

and the delay caused in that regard can hardly be said to be

self-serving or that he played any role in the CBI for

pursuing the investigation. We have dealt with the issue to

the effect that no exception can be taken as regard the

action of the Respondent No.1 As regards the allotment of

land to Punjab Cricket Association Mr. Solicitor General

contended that as a matter of fact, there was a total

disregard to ascertain the full facts and emphatic statement

has also been made during the course of hearing and which

finds support from the chargesheet that even the Assembly

had categorically endorsed the decision of grant of land at

nominal cost together with the release of funds. It is in

this context the reply affidavit filed by the first

respondent to the counter affidavit of the State Government

in the High Court is of some consequence and the relevant

extracts whereof are set out hereinbelow for appreciation of

the submissions made by the parties on that score, the same

reads as below: 7. The averments in Para No.7 of the W.S.

are denied as incorrect and those of petition are

reiterated. The petitioner submits that he thoroughly

examined the relevant record, cross- checked the facts and

exercised due care and caution while submitting the factual

report to the Chief Minister on 6.2.1997. Before submission

of the factual report to the Chief Minister, the petitioner

inter-alia found the following material on record: (i)

There was no Cabinet approval, mandatory under the Rules of

Business, for either construction of the Cricket Stadium or

the transfer of about 15 acres of land to the Punjab Cricket

Association, a private entity. Apparently Cabinet had been

deliberately and dishonestly bypassed by the Sports

Secretary, Sh. Bindra. (ii) Shri Bindras A.C.R. file

showed that he lacked integrity and he had abused his

official position to extort huge amounts of money from

Government companies under his charge as Secretary,

Industries. (iii) PSSIEC (Punjab Small Scale Industries and

Export Corporation) reported in writing that they paid Rs.2

lacs for laying the Cricket Pitch at Mohali. (iv) The note

dated 21.1.1997 of Chief Administrator PUDA brought out many

serious irregularities in regard to grant of funds for the

Cricket Stadium and the PCA Club. (v) It had also come to

the Petitioners notice that Sh. Bindra directed other

companies like Punjab Tractors Ltd., Punwire, PACL etc. not

to furnish any information to the Chief Secretary about

payments made by them to the Punjab Cricket Association.

(vi) The glaring fact that Sh. Bindra had transferred the

land to the Punjab Cricket Association at his own level,

without the approval of the Finance Department or any higher

authority like Minister or Chief Minister, even though the

approval of Council of Ministers was mandatory under the

rules. The Sports Department itself did not have any title

to the property. It still does not have it. (vii) The land

use was changed by the Housing Development Board from Sports

Complex/Cycle Velodrome to Cricket Stadium at Sh. Bindras

behest, following collusive and malafide inter-

departmental meetings with Sh. Mann. (viii) Housing Board

connived at serious encroachments made by the PCA which is

actually in occupation of about 20 acres, as against 10.5

acres, as against 10.5 acres mentioned in the decision of

the Governor-in-Council (order dated 29.4.91) which in any

case was not for a Cricket Stadium, but for a Sports

Complex/Velodrome. It is on this score Mr. Subramaniam for

respondent No.1 contended that the factual context as noted

hereinbefore prompted the Chief Secretary to submit the note

to the Chief Minister and the allegation of not assessing

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the factual situation in its entirety cannot be said to be

correct. While it is true that justifiability of the

charges at this stage of initiating a disciplinary

proceeding cannot possibly be delved into by any court

pending inquiry but it is equally well settled that in the

event there is an element of malce or malafide, motive

involved in the matter of issue of a charge-sheet or the

concerned authority is so biased that the inquiry would be a

mere farcical show and the conclusions are well known then

and in that event law courts are otherwise justified in

interfering at the earliest stage so as to avoid the

harassment and humiliation of a public official. It is not

a question of shielding any misdeed that the Court would be

anxious, it is the due process of law which should permeate

in the society and in the event of there being any

affectation of such process of law that law courts ought to

rise up to the occasion and the High Court in the contextual

facts has delved into the issue on that score. On the basis

of the findings no exception can be taken and that has been

the precise reason as to why this Court dealt with the issue

in so great a detail so as to examine the judicial propriety

at this stage of the proceedings. The High Court while

delving into the issue went into the factum of announcement@@

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of the Chief Minister in regard to appointment of an Inquiry@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

Officer to substantiate the frame of mind of the authorities

and thus depicting bias What bias means has already been

dealt with by us earlier in this judgment, as such it does

not require any further dilation but the factum of

announcement has been taken note of as an illustration to a

mindset viz.: the inquiry shall proceed irrespective of the

reply Is it an indication of a free and fair attitude

towards the concerned officer? The answer cannot possibly

be in the affirmative. It is well settled in Service

Jurisprudence that the concerned authority has to apply its

mind upon receipt of reply to the charge-sheet or show-cause

as the case may be, as to whether a further inquiry is

called for. In the event upon deliberations and due

considerations it is in the affirmative the inquiry

follows but not otherwise and it is this part of Service

Jurisprudence on which reliance was placed by Mr.

Subramaniam and on that score, strongly criticised the

conduct of the respondents here and accused them of being

biased. We do find some justification in such a criticism

upon consideration of the materials on record. Admittedly,

two enquiries were floated through CBI but purity and

probity being the key words in public service and in the

event a civil servant is alleged to have assets

dis-proportionate to his income or in the event, there was

parting of a huge property in support of which adequate data

was not available can the action be said to be the

resultant effect of the personal vendetta or can any

chargesheet be issued on the basis thereof, the answer

cannot possibly be but in the negative. The contextual

facts depict that there is a noting by an official in the

administration that certain vigilance matters are pending as

against one of Secretaries but that stands ignored. We have

dealt with this aspect of the matter in detail herein before

in this judgment thus suffice it to note that further effort

on the part of Shri Khanna in bringing to notice to the

Chief Minister would not have resulted any further

development and in that perspective the conduct of Shri

Khanna can not be faulted in any way. These are the

instances which the High Court ascribed to be not in

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accordance with the known principles of law and attributed

motive as regards initiation of the chargesheet. OPINION OF

THE COURT As noticed above malafide intent or biased

attitude cannot be put on a straight jacket formula but

depend upon facts and circumstances of each case and in that

perspective judicial precedents would not be of any

assistance and as such we refrain from further dealing with

various decisions cited from the Bar since facts are

otherwise different in each of the decisions. On a perusal

of the matter and the records in its entirety, we cannot but

lend concurrence to the findings and observations of the

High Court. The judgment under appeals cannot be faulted in

any way whatsoever and in that view of the matter these

appeals fail and are dismissed without however any order as