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PETITIONER: SHRI P.K. DAVE

       Vs.

RESPONDENT: PEOPLES UNION OF CIVIL LIBERTIESDELHI) & ORS.

DATE OF JUDGMENT:       10/05/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) AGRAWAL, S.C. (J)

CITATION:  1996 SCC  (4) 262        JT 1996 (5)   381  1996 SCALE  (4)652

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      Leave granted.      This Appeal  by Special  Leave has  been filed  by Shri P.K. Dave,  Lt. Governor  of Delhi seeking expunction of the following strictures  made against him by the Division Bench of Delhi High Court in its judgment dated 26.5.1995 in Civil Writ Petition  No. 3032 of 1994. The strictures sought to be expunged are :      "(a)  We   would  hold   that   the      decision  of   the  Lt.   Governor,      Delhi, not to initiate disciplinary      action against respondent no. 2 and      not to  shift him  from the post of      Director, G.B.  Pant  Hospital,  is      vitiated       by       illegality,      irrationality,  arbitrariness   and      malafides and hence it has no legal      sanction.    It     is     declared      accordingly.      (b)  In   fact  by   rejecting  the      suggestion of the Secretary and the      Chief  Secretary  to  transfer  Dr.      Khalilullah the  Lt. Governor acted      in an  arbitrary  and  unreasonable      manner and abused his power.      (c) The  Lt. Governor overruled and      rejected  the   suggestion  of  the      Secretary and  the Chief  Secretary      in an  arbitrary  and  unreasonable      manner. No  fair  minded  authority      could have  rejected the suggestion      in the given circumstances.      (d)  In   these  circumstances  the      learned counsel for the petitioners

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    is justified  in alleging  that the      decision not  to take  disciplinary      action against  Dr. Khalilullah and      not to  shift him  from the post of      Director of  G.B. Pant Hospital was      not taken  by the  Lt. Governor  on      his own and that it was dictated by      someone else,  that is,  Shri  A.N.      Verma who  is stated  to be a close      friend and  personal patient of Dr.      Khalilullah."      The Writ  Petition in  question had  been filed  by the Peoples Union  of Civil  Liberties and  Delhi  Medicos’  and Scientists’   Front   alleging   massive   financial   fraud perpetrated by  the Director of G.B. Pant Hospital involving more than  Rs. 39  crores and the loss thereby caused to the public exchequer. One Dr. A. Khalilullah was the Director of G.B.  Pant  Hospital  who  was  alleged  to  have  committed financial fraud.  The prayer  in the  Writ Petition was that the said Dr. Khalilullah should be immediately suspended and a regular  criminal case  should be  registered against  him under the provisions of Prevention of Corruption Act and the Authorities should  recover from him the public money wasted on  account   of  the  alleged  culpable  act  of  said  Dr. Khalilullah. In  the proceedings  the appellant had not been arrayed as a party respondent but the State of Delhi through the Chief  Secretary and  Union of  India through Secretary, Ministry of  Health had  been arrayed  as party  respondents apart from  Dr. Khalilullah,  the then Director of G.B. Pant Hospital. The applicants had alleged that certain complaints had been received by the Department of Revenue(Intelligence) against  the   financial  irregularities  committed  by  Dr. Khalilullah  and  on  receipt  of  such  complaints  various searches have  been conducted  in the  premises  of  several suppliers of  hospital equipments  of G.B. Pant Hospital. In course of  search several  articles were  seized and several incriminating documents  have also been seized. Notices also have been  issued  to  the  suppliers  as  well  as  to  the authorities. But  the Delhi  Administration had  appointed a Committee to  investigate into  the matter which is commonly known as  ’Arora Committee’.  The said Committee had clearly found  several   irregularities  to  the  extent  that  even machines and equipments imported for G.B. Pant Hospital have never been  brought to  the hospital  and are still lying in the cellars  duly packed  for  years  together.  The  report further indicated  that some  of the  machines purchased for G.B. Pant  Hospital from  the Government  funds  were  found installed  in   a  private  hospital  like  Batra  Hospital. Notwithstanding the  aforesaid report of the Arora Committee no action  has  been  taken  against  Dr.  Khalilullah.  The Collector  of   Customs  had   imposed  penalty  on  several suppliers for  alleged irregularities  committed by them. In June 1993  the Comptroller  and Auditor  General of India in his report  to the  Union of  India  devoted  to  the  gross financial malpractices  in the  G.B. Pant  Hospital and when the report was placed in Parliament the Delhi Administration appointed another  Committee under  the Chairmanship  of Dr. A.K. Gupta,  Dean of  Maulana Azad  Medical  College.  Gupta Committee also  submitted its report in October 1993 and the Committee found gross financial irregularities to the extent that the equipments worth Rs. 17 crores were unaccounted and 228 files  relating to  purchase of  equipments were missing from the official records. It is on the basis of that report when  the  Health  Secretary  to  the  Government  of  Delhi Administration had recommended suspension of Dr. Khalilullah

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or his  shifting from G.B. Pant Hospital so that appropriate enquiry can be made in a congenial atmosphere, no action was taken against  him.  It  was  also  alleged  that  said  Dr. Khalilullah while continuing as the Director of the Hospital is destroying  the original  record to wipe off the evidence and, therefore,  the applicants  prayed for  the  relief  as already stated.  The respondents before the High Court filed their counter  affidavits denying  the allegations  made and opposing the  relief sought  for. The  respondent no.  2 Dr. Khalilullah himself  in his affidavit denied the allegations and contended that he has no role in the so-called financial irregularities and  though fraud  had been  committed by the officers below  him he  had no  knowledge of  it nor  had he given any  consent to  it. He  had further  stated that this application which is in nature of Public Interest Litigation had been filed at the behest or one Dr. Anoop Safaya. In the rejoinder filed  by the  respondents it  was further averred that no  action was taken against Dr. Khalilullah because of unusual interest  shown by  the Principal  Secretary to  the Prime Minister  and it  is because  of him  the  Union  Home Secretary had  addressed a  letter to  the Chief  Secretary, Delhi Administration  not to  precipitate action against Dr. Khalilullah and  it is  because of  this external  pressure, against the  public interest,  the appellant  did not accept the recommendations  of the  Health Secretary  to the  Delhi Administration  as   well  as  the  Chief  Secretary,  Delhi Administration  and   allowed   the   continuance   of   Dr. Khalilullah as  the Director of G.B. Pant Hospital. The High Court ultimately  considered all  the relevant documents and came  to   the  conclusion   that  the  matter  relating  to initiation of  disciplinary action  against Dr.  Khalilullah did  not  receive  a  proper  and  fair  consideration  and, therefore, the  authority competent  to take the decision in the matter  should  consider  and  decide  the  question  in accordance with  law. Further  in view  of  the  allegations about missing of purchase files and destruction of evidence, the attempts to cover up the fraud, the possible involvement of  Dr.   Khalilullah  himself   in   the   fraud,   pending investigation into  the irregularities, the continued damage that could  be done  to a  fair and proper investigation and the need  for maintaining  public confidence  in the matter, since  the   authorities  concerned   were  indifferent  and irresponsible in  their  attitude  on  account  of  external pressure the  Court directed that Dr. Khalilullah should not be allowed to function as Director of G.B. Pant Hospital and he should forthwith relinquish his office as Director of the Hospital and  shall hand  over charge to the seniormost Head of the Department in the Hospital. We are not concerned with the legality  of the  aforesaid directions  in  the  present case. Suffice  it to  mention that Dr. Khalilullah had moved this Court by way of Special Leave Petition and the same was disposed of  by order  dated 5th  June, 1995  directing  the Central Government to take a decision and submit a report as to  initiation   of  any  disciplinary  action  against  Dr. Khalilullah by  June 15,  1995 and since no interim stay was granted in  respect of the High Court judgment the order had to be  complied with.  But in the judgment in question since role  of  the  appellant  came  up  for  consideration  more particularly his inaction in not shifting Dr. Khalilullah as Director  of   G.B.  Pant   Hospital   notwithstanding   the recommendation of  the Health  Secretary and Chief Secretary to Delhi  Administration the  aforesaid strictures  had been passed  by   the  High   Court  which  the  appellant  wants expunction.      Mr.  K.K.   Venugopal,  the   learned  senior   counsel

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appearing for the appellant submitted that the appellant not being a  party to the Writ Petition no strictures could have been passed  by the High Court without issuing notice to him and without hearing him on the subject. He further contended that in  view of  the relief sought for in the Writ Petition no question of animadverting to any conduct of the appellant in regard  lo the transfer of Dr. Khalilullah from G.B. Pant Hospital as  an integral  part of  the judgment of the Court would arise  and, therefore,  the so-called  strictures were wholly uncalled for. The learned counsel also urged that the transfer of  Dr.  Khalilullah  not  being  governed  by  any statute and  being purely an administrative decision and the appellant having  exercised his  discretion in  the  matter, there was  no  justification  for  the  Court  to  hold  his discretion as  illegal, irrational,  arbitrary and malafide. According to Mr. Venugopal the decision of the appellant was his personal  and had no connection with the request made by the Principal  Secretary  to  the  Prime  Minister  and  the appellant having  taken such  decision bona  fide  the  High Court should  not have  issued the  strictures. According to Mr. Venugopal  the appellant  who was  a seasoned bureaucrat having weighed  the  pros  and  cons  of  suspending  and/or shifting a  senior doctor of eminence and having come to the conclusion that  great injustice  would be  caused  if  such hasty decision  is taken  and, therefore,  suggested not  to take any  action until  the CBI,  after investigation, makes such prayer, the said decision cannot be characterized as an arbitrary decision  and, therefore,  the strictures  made by the High  Court in  the  judgment  on  question  are  wholly inappropriate uncalled  for and  should be  expunged by this Court.      Mr. Shanti  Bhushan, learned  senior counsel  appearing for the  Peoples Union  of Civil Liberties at whose instance the High  Court has  passed the  order, on  the  other  hand submitted, that  for granting  the relief sought for against Dr. Khalilullah  the Court  had  no  other  option  than  to examine the  order of  the appellant who had directed not to shift Dr. Khalilullah and not to suspend him until CBI makes recommendation. And  therefore, the  role of  appellant  was very much  under scrutiny  of the  Court. Mr. Shanti Bhushan further  urged  that  no  doubt  the  order  passed  by  the appellant was in discharge of  his administrative  function, but  the learned counsel contended  that when  a public  authority discharges his public  function and  duty and a complaint is made by an individual in  respect of  same, the  Court would  be  fully entitled to  investigate and  find out whether the power has been to  exercised in  a fair  and honest mannar or has been exercised on account of certain external pressure and if the Court come  to the  conclusion that  the power  has not been exercised honesty  and fairly  then there  would be no other alternative with  the Court than to interfere with the order and to  pass the  order in accordance with law. According to Mr. Shanti  Bhushan from  the note  sheet which  was  placed before the  Court it  is apparent that the appellant who was earlier apprised  about the  matter by  the Health Secretary had possibly  agreed and  pursuant to  which  the  Secretary Health, Delhi  Administration put  up the  note but when the matter was made known before final decision was taken, it is the intervention  of the  Principal Secretary  to the  Prime Minister which  resulted in  the order  of the appellant and therefore the  appellant did  not pass  the same  fairly and honestly as  a seasoned  bureaucrat but on the other hand on account of  external pressure  and pursuant  to the  request made by  Shri Verma,  the Principal  Secretary to  the Prime

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Minister. According  to Mr. Shanti Bhushan in view of series of  enquiry   reports   alleging   large   scale   financial irregularities by  Dr. Khalilullah,  no reasonable man could have allowed  Dr. Khalilullah  to continue  on the  post  of Director and  it had  been revealed  that several  important files have been destroyed and the remaining files would also have been  destroyed. In  this view of the matter, according to Mr.  Shanti Bhushan  complaint by  the  Lt.  Governor  is wholly  unjustified.   So  far  as  non-impleadment  cf  the appellant in  the Writ  Petition is  concerned,  Mr.  Shanti Bhushan  urged   that  the   Court  has   not   taken   into consideration any  other material  than the  relevant  files which have  been produced  for  inspection  and  the  entire comments are  based upon  the notes  and  orders  passed  by different authorities  and, therefore,  no prejudice  can be said to  have been  suffered by the appellant by not getting any opportunity  of hearing  in the  Writ  Proceeding.  That apart in  the application  filed for  expunction he had full opportunity to  explain in  this Court  and yet  nothing has been indicated  and, therefore the so called strictures made by the  High Court should not be expunged. Lastly Mr. Shanti Bhushan urged  that in  the  recent  past  while  the  other constitutional functionaries have not been able to discharge their constitutional  obligations for  one reason  or  other this is  the only wing i.e. the judicial wing which has been able to  discharge  its  constitutional  obligation  to  the satisfaction of the society at large and the public at large has the  full confidence  on the  judicial  system  and  any interference with  the observations/strictures  made in  the circumstances of  this case  would be  a blow  to the public confidence and  accordingly no intervention by this Court is called for.      In view  of the  submissions made  at the Bar the first question that  arises for  consideration is whether the role of the  appellant was  at all necessary to be scrutinized by the Court  in granting  the relief  sought for.  As has been stated earlier  the Peoples’  Union of  Civil Liberties  had filed an application as a Public Interest Litigation and the entire grievance  was that  notwithstanding gross  financial irregularities committed  by Dr.  Khalilullah no  action  is being taken  and on  the other hand he is being shielded and in the  process he  is obliterating the evidence in the case by destroying  the  relevant  files.  That  there  has  been serious financial  irregularities in  the matter of purchase of instruments  to the  tune of  crores of  rupees cannot be disputed in  view of  the two reports of the two Committees. The reports,  however, did  not specify  the actual role and responsibility of  Dr. Khalilullah  who was  the Head of the Hospital and,  therefore, it  became imperative  to find out the involvement  of said Dr. Khalilullah and taking suitable action against him. It is in this context when the Secretary Medical Shri  R.S. Sethi  submitted  the  proposal,  he  had suggested the course of action to be taken in the matter for the approval  of the Lt. Governor. Clause V of the said note may be extracted hereinbelow in extenso:-      I  would  strongly  recommend  that      Dr.Khalilullah  should   be  placed      under  suspension   or  immediately      shifted from  G.B. Pant Hospital as      available evidence  shows  that  he      has  played   a   major   role   in      defrauding  that  Government.  This      step would  also facilitate  a fair      and impartial enquiry/investigation      by the  Crime Branch.  Also, we may

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    initiate  disciplinary  proceedings      for  imposition  of  major  penalty      against him. I am told that a large      number of  doctors  and  professors      are reluctant  to speak out so long      as  Dr.  Khalilullah  continues  in      G.B. Pant  Hospital.  In  fact,  we      have to  act firmly  now after what      has  been   revealed  otherwise  we      would be  sending wrong  signals to      other Hospitals/Institutions."      Thus the  Secretary came  to the  conclusion  that  Dr. Khalilullah had  played  a  major  role  in  defrauding  the Government  and,   therefore,  he  should  be  suspended  or immediately shifted  from G.B.  Pant  Hospital  which  would facilitate a fair and impartial enquiry/investigation by the Crime C.  He had  also indicated that doctors and professors are reluctant  to speak so long as Dr. Khalilullah continues in G.B. Pant Hospital. It also transpires from the note that before sending proposal he had discussed the matter with the Lt. Governor.  The Chief  Secretary Shri  Takkar also agreed with the  Secretary (Medical) that it is necessary to remove Dr. Khalilullah from his present position in the interest of holding a  fair and  proper enquiry  into the scandal but he did not  agree with  the  suggestion  of  the  Secretary  to suspend him and, on the other hand, he suggested transfer of Dr. Khalilullah  from G.B.  Pant Hospital. But when the file was placed before the appellant he did not agree with either of the  suggestions and on the other hand passed orders that until CBI  makes a  suggestion after  enquiring  either  for suspending or  shifting of  Dr.  Khalilullah  he  cannot  be shifted. It  is on  account of  the aforesaid  order of  the appellant that  Dr. Khalilullah was permitted to continue as the Director  of the  G.B. Pant  Hospital. In  the aforesaid premises the  role of  the appellant came directly under the scrutiny of  the Court  when a  complaint was  made  by  the petitioners in  the Writ  Petition and  relief to  shift Dr. Khalilullah from  G.B. Pant Hospital was sought for. We are, therefore, of  the view  that the role of the appellant came under direct  scrutiny of  the Court while deciding the Writ Petition in question.      Mr. K.K.  Venugopal, learned  senior counsel had relied upon the  decision of  this Court in State of U.P. vs. Mohd. Naim(1964 (2)  SCR 363) wherein this Court had observed that the Court  would not  be  justified  in  passing  strictures unless it  was necessary  for the  disposal of  the case  to animadvert  to   those  aspects   in  regard  to  which  the strictures have  been passed. But the aforesaid decision, in our considered  opinion is of no assistance to the appellant in view  of our  earlier conclusion  that the  role  of  the appellant came  under direct scrutiny of the Court to decide the question  as to  whether the  relief sought for could be granted or not      The next  question that  arises  for  consideration  is whether the  appellant not  having been  arrayed as  a party respondent and  the High  Court not having issued any notice to him,  was the  High Court  entitled to  make such serious comments and  strictures on  the appellant.  There cannot be any dispute  with the  proposition that  no  man  should  be condemned without  having an  opportunity  of  hearing.  Mr. Venugopal, the  learned senior  counsel  appearing  for  the appellant relied  upon the  decisions of  this Court  to the effect that when allegations of mala fide are made against a person then  the said person should be impleaded as a party. The learned  counsel placed reliance on the decision of this

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Court in  State of  Bihar vs.  P.P. Sharma (1991 (2) SCR 1), Express Newspaper   vs.  Union of  India(1986 (1)  SCC 133), Ashok Kumar  Yadav vs.  State of Haryana (1985 (4) SCC 417), A.M. Mathur  vs. Pramod Kumar (1990(2) SCC 533). in the last case as  the person  concerned who  was the  former Advocate General had  not been  made a party in the Courts below this Court entertained  the Special  Leave Petition  filed by him and ultimately  disposed of  the same on merits. In the case in hand  we have also entertained the Special Leave Petition filed by  the Lt.  Governor.  Mr.  Shanti  Bhushan,  learned senior counsel  appearing for  the respondent  also did  not raise any  contention with  regard to the maintainability of the application.  When the  orders passed  by the  appellant came under scrutiny of the Court and the circumstances under which the  order had  been  passed  would  appear  from  the relevant discussion  made by  the different officers and the Court was  examining the reasonableness and propriety of the orders passed  by the  appellant, any  comments made  by the Court without issuing notice to the appellant cannot be ipso facto expunged  merely on  the ground that the appellant had no opportunity  of hearing. That apart the appellant has now approached this  Court and  apart  from  raising  the  legal contentions that  the High Court did not issue any notice to him  he   has  the   full  opportunity   of  indicating  the circumstances under  which he  passed the  order  and  those circumstances are  now being  scrutinized by  this Court. In this view  of the matter we are unable to persuade ourselves to agree with the submissions made by Mr. Venugopal, learned senior counsel  appearing for the appellant that the remarks and the  strictures given by the Court should be expunged on the sole ground that the appellant had not been given notice nor he had any opportunity of hearing before the High Court.      In course  of  his  arguments  Mr.  Venugopal,  learned senior counsel  had advanced another reasoning in support of his prayer for expunction of the strictures made by the High Court, the  same being  that the notings in the departmental files should  not be  examined by  the  Court  and  on  such notings the  Court would not be entitled to comment upon the conduct of  the officer  who had  submitted  the  notes.  He further submitted that the basis of strictures passed by the High Court being the notes of the Secretary Health and Chief Secretary which  was not  agreed to by the Lt. Governor, the High Court  was wholly unjustified in issuing the strictures in question.  In support  of  this  contention  the  learned counsel relied  upon the decisions of this Court in Puranjit Singh vs.  Union Territory  of Chandigarh  and others  (1994 Suppl. (3)  SCC 471),  State of  Bihar vs.  Kripalu  Shankar (1987 (3)  SCC 34)  and Sarwan  Singh  Lamba  vs.  Union  of India(1995 (4)  SCC 546 (CB). But the ratio of the aforesaid cases has to be understood in the relevant facts of the case and  it  cannot  be  of  universal  application.  Where  the relevant departmental  files were  produced before the Court by the government and the Court on scrutiny of the same came to the  conclusion that  the decision  has  not  been  taken fairly, then  the Court  would be entitled to comment on the role of  such person  who took  the decision.  As  has  been indicated earlier  Dr. Khalilullah  was  continuing  as  the Director of the G.B. Pant Hospital notwithstanding different Enquiry Committees  as well  as the  Comptroller and Auditor General  of   India  had   pointed   out   gross   financial irregularities in  the matter of purchase in the hospital in question. The  Writ Petition  had been  filed in  the Public interest for  a direction  that investigations be made by an appropriate Investigating  Agency and action should be taken against the Director and he should be shifted from the place

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immediately. It  is in  this context  that when the relevant file was  produced indicating therein that the appellant who is the  final authority  in the matter had passed orders not to disturb  said Dr.  Khalilullah until  CBI  after  enquiry recommends for  his shifting,  the said  order together with all the  antecedent orders  of the subordinate authority was scrutinized by  the Court.  In  such  circumstances  if  the contention  of   Mr.   Venugopal   is   accepted   then   no administrative authority  and his  conduct would  come under the judicial  scrutiny of  the Court. That an administrative order is  subjected to judicial review is by now the settled position and  no longer  remains res integra. This being the position we  fail  to  appreciate  the  contentions  of  Mr. Venugopal that  the notings in the file or the orders passed by the Secretary and Chief Secretary as well as the Governor should not  have formed  the basis  of the strictures passed against the appellant.      Then  the   most  crucial   question  that  arises  for consideration is  whether in  the facts and circumstances of the case  the Court  was justified in passing the strictures which have already been enumerated, and if not, then whether this Court  would be entitled to expunge the same. The power to expunge  any remark  made by  a Court in a judgment is an extraordinary power  and can  be exercised only when a clear case is  made out.  It is  also a  cardinal principle that a judge should  take special care in making disparaging remark against a  person or  authority whose  conduct comes  in for consideration before  him in  any case  to be decided by him and should  not make any uncalled for remarks which would be against the  judicial discipline.  If the  relief sought for can be given to the applicant without dubbing the conduct of the person  concerned to  be mala fide then the Court should refrain from  coming to any conclusion on mere assertions in as much  as  the  allegations  of  mala  fides  have  to  be specifically made  and would  have to  be established by the person who seeks relief on that ground. To avoid harsh words and intemperate  language and  to have  self-restraint is  a part of judicial training of a judge and, therefore, a judge should  be  extremely  careful  while  commenting  upon  the conduct  of   another  individual   particularly  when  that individual is  not before  the Court.  Bearing in  mind  the aforesaid principle we would now examine the strictures made by the Court against the appellant Mr. Dave.      At the  outset we  have no  hesitation to  come to  the conclusion on  going through  the  notes  of  the  Secretary Health and  modified by  the Chief  Secretary as well as the order of  the appellant Shri Dave that the said order cannot be said  to be  reasonably arrived  at by  a man  with  vast administrative experience.  The operative  part of the order of the  appellant indicates that he was not willing to agree with the  suggestion of the Chief Secretary even to transfer Dr. Khalilullah  from his  position as Director of G.B. Pant Hospital so  as to  have a  fair and  proper enquiry  solely because of  the fact  that Dr.  Khalilullah happens  to be a nationally recognized  specialist and had been honoured with Padma  Shree   and  Padma   Bhushan.  It   is   the   common administrative practice  that no enquiry into the conduct of the Head  of an Organization can be impartially made so long he is  allowed to  continue as the Head of the Organization. In the  case in  hand the  notes of  the  Secretary  clearly indicated that  several important  files have been destroyed in the  meantime and  the doctors and other employees of the hospital are  reluctant to  speak against Dr. Khalilullah so long as  he continues  as the  Director of the Hospital. The Chief Secretary having considered the notes of the Secretary

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had, therefore,  suggested that  Dr. Khaliluilah  should  be transferred from  his position  in the interest of holding a fair and  proper enquiry  into the  scandal. We  are afraid, that if  a  nationally  recognized  specialist  having  been honoured with Padma Shree and Padma Bhushan gets involved in financial irregularities  and an  enquiry becomes imperative then administrative  exigencies did require for his shifting from the place.      The order  of the  appellant not  to shift  him  solely because he  was a  doctor of  national  repute  and  certain awards  have   been  given  to  him  does  not  reflect  the consideration of  the kinds of good administration. It is in this context  the last part of the order of the Lt. Governor assumes great significance which may be quoted in extenso :- <sls>      " I  have explained  the  facts  of  the  case  and  my decision to  Principal Secretary  to the  Prime Minister and requested him  to assist us in convincing the CBI to take up the case expeditiously." <sle>      The chronology  of events would indicate that the Gupta Committee   report    indicating   large   scale   financial irregularities in the matter of purchase in the hospital was given  in   October  1993.   The  Health  Secretary  to  the Government of Delhi Administration discussed the matter with the Lt.  Governor and then put up his notes with suggestions for approval  of the Chief Secretary and the Lt. Governor on 16.11.93. The  Chief Secretary though did not approve of the suggestion of  the Secretary  to suspend Dr. Khalilullah but agreed with  the  alternative  suggestion  to  transfer  Dr. Khalilullan for  enabling the Investigating Agency to hold a fair  and  impartial  enquiry  into  the  scandal.  The  Lt. Governor, however,  disapproved the  suggestion of the Chief Secretary and  held that  no action  need be taken. The High Court, therefore,  was confronted  with the  question as  to whether the  Lt. Governor  properly applied  his mind to all the relevant  aspects  and  whether  ultimate  decision  was honest, uninfluenced by any extraneous consideration. It may be noticed  that immediately  after the  Secretary (Medical) Shri R.S.  Sethi put  up his  notes dated  16th of November, 1993, suggesting  suspension of  Dr. Khalilullah  or atleast his shifting  from the  G.B. Pant  Hospital Shri  Amar  Nath Verma, Principal  Secretary to  the Prime  Minister directed the Special  Secretary Shri  Satyam in  the Ministry of Home Affairs to pre-empt the Delhi Administration from taking any action against  Dr. Khalilullah  and the  Special  Secretary then talked  to Shri  Sethi, the Secretary (Medical) as well as Shri  R.K. Takker, Chief Secretary. Telephonic discussion of Shri Verma, Principal Secretary to the Prime Minister and Shri Satyam,  the Special  Secretary to the Ministry of Home Affairs was  on 19th  November, 1993  on which date the file had left  the table  of the Secretary Health and had reached the Chief  Secretary. Shri  Verma  had  not  chosen  to  put anything on record as to where from he could learn about the proposed action  suggested by the Secretary Shri Sethi. Said Shri  Verma   not  being   satisfied  with   the  telephonic discussion he  had with  Shri Satyam on the 19th, called him again on  20th November, 1993 and directed him to advise the Delhi Administration  in writing so that no action should be taken in  the case.  Shri Satyam,  therefore, telephonically apprised the  Lt. Governor  and sent  a D.O.  letter to  the Chief Secretary.  It is,  therefore, crystal  clear that the appellant did  not take  the decision  of his own but on the other hand  was influenced  by the instruction of Shri Verma the Principal  Secretary to  the Prime  Minister. But  since

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Shri Verma’s  conduct is  not directly under our scrutiny in the present  case we  do not think it necessary to focus our attention on  that any  more. Suffice  it to  say that it is because of  the instruction of Shri Verma that the appellant passed the  order not  even to  shift Dr. Khalilullah and in his order  also indicated that he had explained the facts to Principal Secretary  to the Prime Minister. In the aforesaid premises it  is difficult for us to accept the submission of Shri Venugopal,  learned senior  counsel for  the  appellant that the  decision was  his own  and not  on any  extraneous consideration. The  High Court, therefore did not commit any error in  coming to  the conclusion about the impropriety of the decision  and in fact it was influenced by someone else. Therefore, the  strictures mentioned  in ’d’  sought  to  be expunged  has   been  justifiably   made  and  no  case  for expunction has  been made  out, but  the word  ’dictated’ is probably not appropriate. We accordingly modify the same by replacing the word ’dictated’ by ’influenced’.      Coming to  the stricture  ’a’  we,  however,  find  the materials on  record do  not justify  to dub the decision of the  Governor   as  mala  fide  and  we,  therefore,  direct expunction of  the word  ’and mala  fides’  after  the  word ’arbitrariness’ from the stricture ’a’.      So far  as  the  stricture  ’b’  is  concerned  in  our considered opinion,  it was  not necessary  for the Court to hold that the Lt. Governor abused his power though the Court was justified  in holding  that the  Governor  acted  in  an arbitrary  and  unreasonable  manner.  As  has  been  stated earlier the  Court should  refrain  from  using  intemperate language as  part of judicial discipline while examining the role and  conduct of  high constitutional  functionaries. In the circumstances, we direct that the expression ’abused his power’ be expunged from stricture ’b’.      So far  as stricture  ’c’ is  concerned we  see nothing therein  which   can  be   said  to  be  objectionable  and, therefore, the prayer for expunction stands rejected.      With  the  aforesaid  observations  the  appeal  stands disposed of.