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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:

L.....I.........T.......T.......T.......T.......T.......T..J

     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@@                                       JJJJJJJJJJJJJJJJJJJJJJ 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