Full Judgment Text
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CASE NO.:
Appeal (civil) 6963 2000
PETITIONER:
STATE OF PUNJAB
Vs.
RESPONDENT:
VK KHANNA & ORS.
DATE OF JUDGMENT: 30/11/2000
BENCH:
U.C.Banerjee, M.J.Rao
JUDGMENT:
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JUDGMENT
BANERJEE, J.
Leave granted. The concept of fairness in
administrative action has been the subject matter of
considerable judicial debate but there is total unanimity on
the basic element of the concept to the effect that the same
is dependant upon the facts and circumstances of each matter
pending scrutiny before the Court and no straight jacket
formula can be evolved therefor. As a matter of fact,
fairness is synonymous with reasonableness: And on the
issue of ascertainment of meaning of reasonableness, common
English parlance referred to as what is in contemplation of
an ordinary man of prudence similarly placed - it is the
appreciation of this common mans perception in its proper
perspective which would prompt the Court to determine the
situation as to whether the same is otherwise reasonable or
not. It is worthwhile to recapitulate that in a democratic
polity, the verdict of the people determines the continuance
of an elected Government a negative trend in the elections
brings forth a change in the Government it is on this
formula that one dominant political party overturns another
dominant political party and thereby places itself at the
helm of the affairs in the matter of the formation of a new
Government after the election. The dispute in the appeals
pertain to the last phase of the earlier Government and the
first phase of the present Government in the State of
Punjab: Whereas the former Chief Secretary of the State of
Punjab upon obtaining approval from the then Chief Minister
of Punjab initiated proceedings against two senior
colleagues of his in the Punjab State Administration but
with the new induction of Shri Prakash Singh Badal as the
Chief Minister of Punjab, not only the Chief Secretary had
to walk out of the administrative building but a number
seventeen officer in the hierarchy of officers of Indian
Administrative Service and working in the State of Punjab as
a bureaucrat, was placed as the Chief Secretary and within a
period of 10 days of his entry at the Secretariat, a
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notification was issued, though with the authority and
consent of the Chief Minister pertaining to cancellation of
two earlier notifications initiating a Central Bureau of
Investigation (CBI) enquiry - The charges being acquisition
of assets much beyond the known source of income and grant
of sanction of a Government plot to Punjab Cricket Control
Board for the purposes of Stadium at Mohali. A worthwhile
recapitulation thus depict that a Government servant in the
Indian Administrative Service being charged with acquiring
assets beyond the known source of income and while one
particular Government initiates an enquiry against such an
acquisition, the other Government within 10 days of its
installation withdraws the notification is this fair? The
High Court decried it and attributed it to be a motive
improper and malafide and hence the appeal before this
Court. Whereas fairness is synonymous with reasonableness
bias stands included within the attributes and broader
purview of the word malice which in common acceptation
means and implies spite or ill will. One redeeming
feature in the matter of attributing bias or malice and is
now well settled that mere general statements will not be
sufficient for the purposes of indication of ill will.
There must be cogent evidence available on record to come to
the conclusion as to whether in fact, there was existing a
bias or a malafide move which results in the miscarriage of
justice (see in this context Kumaon Mandal Vikas Nigam v.
Girija Shankar Pant & Ors: JT 2000 Suppl.II 206). In
almost all legal enquiries, intention as distinguished from
motive is the all important factor and in common parlance a
malicious act stands equated with an intentional act without
just cause or excuse. In the case of Jones Brothers
(Hunstanton) Ld. v. Stevens (1955 1 Q.B. 275) the Court
of Appeal has stated upon reliance on the decision of Lumley
v. Gye (2 E & B. 216) as below: For this purpose
maliciously means no more than knowingly. This was
distinctly laid down in Lumley v. Gye, where Crompton, J.
said that it was clear that a person who wrongfully and
maliciously, or, which is the same thing, with notice,
interrupts the relation of master and servant by harbouring
and keeping the servant after he has quitted his master
during his period of service commits a wrongful act for
which is responsible in law. Malice in law means the doing
of a wrongful act intentionally without just cause or
excuse: Bromage v. Prosser (1825 1 C. & P.673)
Intentionally refers to the doing of the act; it does not
mean that the defendant meant to be spiteful, though
sometimes, as, for instance to rebut a plea of privilege in
defamation, malice in fact has to be proved.
In Girija Shankar Pants case (supra) this Court
having regard to the changing structure of the society
stated that the modernisation of the society with the
passage of time, has its due impact on the concept of bias
as well. Tracing the test of real likelihood and reasonable
suspicion, reliance was placed in the decision in the case
of Parthasarthy (S. Parthasarthy v. State of Andhra
Pradesh: 1974 (3) SCC 459) wherein Mathew, J. observed:
16. The tests of real likelihood and reasonable
suspicion are really inconsistent with each other. We
think that the reviewing authority must make a determination
on the basis of the whole evidence before it, whether a
reasonable man would in the circumstances infer that there
is real likelihood of bias. The Court must look at the
impression which other people have. This follows from the
principle that justice must not only be done but seen to be
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done. If right minded persons would think that there is
real likelihood of bias on the part of an inquiring officer,
he must not conduct the enquiry; nevertheless, there must
be a real likelihood of bias. Surmise or conjecture would
not be enough. There must exist circumstances from which
reasonable men would think it probable or likely that the
inquiring officer will be prejudiced against the delinquent.
The Court will not inquire whether he was really prejudiced.
If a reasonable man would think on the basis of the existing
circumstances that he is likely to be prejudiced, that is
sufficient to quash the decision (see per Lord Denning, H.R.
in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon
and Others, etc. : (1968) 3 WLR 694 at 707). We should
not, however, be understood to deny that the Court might
with greater propriety apply the reasonable suspicion test
in criminal or in proceedings analogous to criminal
proceedings.
Incidentally, Lord Thankerton in Franklin v. Minister
of Town and Country Planning (1948 AC 87) opined that the
word bias is to denote a departure from the standing of
even-handed justice. Girja Shankars case (supra) further
noted the different note sounded by the English Courts in
the mann er following: 27. Recently however, the English
Courts have sounded a different note, though may not be
substantial but the automatic disqualification theory rule
stands to some extent diluted. The affirmation of this
dilution however is dependent upon the facts and
circumstances of the matter in issue. The House of Lords in
the case of Reg. v. Bow Street Metropolitan Stipendiary
Magistrate, Ex parte Pinochet Ugarte (No.2) [2000 (1) A.C.
119] observed:
..In civil litigation the matters in issue will
normally have an economic impact; therefore a judge is
automatically disqualified if he stands to make a financial
gain as a consequence of his own decision of the case. But
if, as in the present case, the matter at issue does not
relate to money or economic advantage but is concerned with
the promotion of the cause, the rationale disqualifying a
judge applies just as much if the judges decision will lead
to the promotion of a cause in which the judge is involved
together with one of the parties.
Lord Brown Wilkinson at page 136 of the report
stated:
It is important not to overstate what is being
decided. It was suggested in argument that a decision
setting aside the order of 25 November 1998 would lead to a
position where judges would be unable to sit on cases
involving charities in whose work they are involved. It is
suggested that, because of such involvement, a judge would
be disqualified. That is not correct, The facts of this
present case are exceptional, The critical elements are (1)
that A.I. was a party to the appeal; (2) that A.I. was
joined in order to argue for a particular result; (3) the
judge was a director of a charity closely allied to A.I.
and sharing, in this respect, A.I.’sobjects. Only in cases
where a judge is taking an active role as trustee or
director of a charity which is closely allied to and acting
with a party to the litigation should a judge normally be
concerned either to recuse himself or disclose the position
to the parties. However, there may well be other
exceptional cases in which the judge would be well advised
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to disclose a possible interest.
Lord Hutton also in Pinochets case (supra) observed:
there could be cases where the interest of the judge
in the subject matter of the proceedings arising from his
strong commitment to some cause or belief or his association
with a person or body involved in the proceedings could
shake public confidence in the administration of justice as
much as a shareholding (which might be small) in a public
company involved in the litigation.
28. Incidentally in Locabail (Locabail (U.K.) Ltd.
v. Bayfield Properties Ltd.: 2000 Q.B. 451), the Court of
Appeal upon a detail analysis of the oft cited decision in
Reg. v. Gough [(1993) A.C. 646] together with the Dimes
case, (3 House of Lords Cases 759): Pinochet case (supra),
Australian High Courts decision in the case of re J.R.L.,
Ex parte C.J.L.: (1986 (161) CLR 342) as also the Federal
Court in re Ebner (1999 (161) A.L.R. 557) and on the
decision of the Constitutional Court of Sourth Africa in
President of the Republic of South Africa v. South African
Rugby Football Union (1999 (4) S.A. 147) stated that it
would be rather dangerous and futile to attempt to define or
list the factors which may or may not give rise to a real
danger of bias. The Court of Appeal continued to the effect
that everything will depend upon facts which may include the
nature of the issue to be decided. It further observed:
By contrast, a real danger of bias might well be
thought to arise if there were personal friendship or
animosity between the judge and any member of the public
involved in the case; or if the judge were closely
acquainted with any member of the public involved in the
case, particularly if the credibility of that individual
could be significant in the decision of the case; or if, in
a case where the credibility of any individual were an issue
to be decided by the judge, he had in a previous case
rejected the evidence of that person in such outspoken terms
as to throw doubt on his ability to approach such persons
evidence with an open mind on any later occasion; or if on
any question at issue in the proceedings before him the
judge had expressed views, particularly in the course of the
hearing, in such extreme and unbalanced terms as to throw
doubt on his ability to try the issue with an objective
judicial mind (see Vakuta v. Kelly (1989) 167 C.L.R. 568);
or if, for any other reason, there were real ground for
doubting the ability of the judge to ignore extraneous
considerations, prejudices and predilections and bring an
objective judgment to bear on the issues before him. The
mere fact that a judge, earlier in the same case or in a
previous case, had commented adversely on a party witness ,
or found the evidence of a party or witness to be
unreliable, would not without more found a sustainable
objection. In most cases, we think, the answer, one way or
the other, will be obvious. But if in any case there is
real ground for doubt, that doubt should be resolved in
favour of recusal. We repeat: every application must be
decided on the facts and circumstances of the individual
case. The greater the passage of time between the event
relied on as showing a danger of bias and the case in which
the objection is raised, the weaker (other things being
equal) the objection will be.
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29. The Court of Appeal judgment in Locabail (supra)
though apparently as noticed above sounded a different note
but in fact, in more occasions than one in the judgment
itself, it has been clarified that conceptually the issue of
bias ought to be decided on the facts and circumstances of
the individual case a slight shift undoubtedly from the
original thinking pertaining to the concept of bias to the
effect that a mere apprehension of bias could otherwise be
sufficient.
The test. therefore, is as to whether there is a mere
apprehension of bias or there is a real danger of bias and
it is on this score that the surrounding circumstances must
and ought to be collated and necessary conclusion drawn
therefrom. In the event, however, the conclusion is
otherwise that there is existing a real danger of bias
administrative action cannot be sustained: If on the other
hand allegations pertain to rather fanciful apprehension in
administrative action, question of declaring them to be
unsustainable on the basis therefor would not arise. It is
in the same vein this Court termed it as reasonable
likelihood of bias in Rattan Lal Sharmas case (Rattan Lal
Sharma v. Managing Committee Dr. Hari Ram (Co-education)
Higher Secondary School & Ors. : 1993 (4) SCC 10) wherein
this Court was pleased to observe that the test is real
likelihood of bias even if such bias was, in fact, the
direct cause. In Rattan Lal Sharmas case (supra) real
likelihood of bias has been attributed a meaning to the
effect that there must be at least a substantial possibility
of bias in order to render an administrative action invalid.
Rattan Lal Sharmas case (supra) thus, in fact, has not
expressed any opinion which runs counter to that in Girja
Shankars case (supra) and the decision in the last noted
case thus follows the earlier judgment in Rattan Lals case
even though not specifically noticed therein. Before
adverting to the rival contentions as raised in the matter,
it would also be convenient to note the other perspective of
the issue of bias to wit: malafides. It is trite knowledge
that bias is included within the attributes and broader
purview of the word malice. It is at this juncture,
therefore, the relevancy of the factual details is otherwise
felt to assess the situation as to whether there is existing
cogent evidence of improper conduct and motive resultantly a
malafide move on the part of the appellants herein against
respondent No.1 V.K. Khanna. The records depict that
immediately before the departure of the earlier Ministry in
the State of Punjab and Shri Khanna being the Chief
Secretary of the State in terms of the specific orders of
the then Chief Minister referred two cases to the Central
Bureau of Investigation: The first being accumulation of
assets in the hands of Shri Bikramjit Singh, IAS being
disproportionate to the known source of income and secondly
allotment of land and release of funds to the Punjab Cricket
Association the Government, however, changed and soon
thereafter the petitioner was chargesheeted inter alia for
acting in a manner which cannot but be ascribed to be
malafide and in gross violation of the established norms and
procedure of the Government function contrary to the service
rules and in any event, lack of fair play and lack of
integrity with high moral as was expected of a senior civil
servant. BACKGROUND FACTS The charge-sheet, however, stands
challenged before the Central Administrative Tribunal,
Chandigarh Bench by Shri V.K. Khanna, the former Chief
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Secretary to the Punjab Government since 2nd July, 1996 and
continued to be so under the Government headed by Mrs.
Rajinder Kaur Bhattal as the Chief Minister. The Tribunal,
however, answered the issue against Shri Khanna upon due
reliance on the decision of this Court in the case of Union
of India & Anr. vs. Ashok Kacker [1995 SCC (L&S) 375]
wherein this court in paragraph 4 of the report was pleased
to observe: 4. Admittedly, the respondent has not yet
submitted his reply to the charge-sheet and the respondent
rushed to the Central Administrative Tribunal merely on the
information that a charge-sheet to this effect was to be
issued to him. The Tribunal entertained the respondents
application at that premature stage and quashed the
charge-sheet issued during the pendency of the matter before
the Tribunal on a ground which even the learned counsel for
the respondent made an attempt to support. The respondent
has the full opportunity to reply to the charge-sheet and to
raise all the points available to him including those which
are now urged on his behalf by learned counsel for the
respondent. In our opinion, this was not the stage at which
the Tribunal ought to have entertained such an application
for quashing the charge-sheet and appropriate course for the
respondent to adopt is to file his reply to the charge-sheet
and invite the decision of the disciplinary authority
thereon. This being the stage at which the respondent had
rushed to the Tribunal, we do not consider it necessary to
require the Tribunal at this stage to examine any other
point which may be available to the respondent or which may
have been raised by him.
It is on the basis of the aforesaid observations that
the Tribunal came to a finding that since Shri Khanna will
have full opportunity to reply to the charge-sheet and all
points are available be agitated before the Inquiry Officer,
it is not the stage at which the Tribunal would like to
quash the charge-sheet as it stands against him and the
appropriate course for him would be to file a reply to the
charge-sheet and invite the decision of the disciplinary
authority thereon. The Tribunal also recorded that during
the course of hearing before the Tribunal, it has been made
known by both the parties that the Inquiry Officer has
already been appointed by the State of Punjab and he
happened to be a retired Honble Judge of the High Court and
it is on this perspective the apprehensions of the applicant
Shri Khanna should be allayed and resultantly the Tribunal
dismissed the OA No.651/CH of 1997. The matter was
thereafter taken to the High Court and the High Court
recorded the core controversy in the matter to be as below:
Is the action of the respondents in issuing the impugned
charge-sheet to the petitioner like using a hammer to swat a
fly on his forehead? Are the respondents merely talking of
principles, but actually acting on interest?
The High Court came to a definite conclusion about
high- handed, arbitrary and mala-fide approach towards Shri
Khanna, being the respondent No.1 herein and answered both
the issues as raised in the affirmative and thus resultantly
the appeal before this Court by the grant of special leave.
Rival Contentions: The appellant, State of Punjab & Ors in
one singular voice deprecated the judgment under appeal as
wholly unsustainable since the same violates even the basic
tenets of law. Absence of malice has been the main thirst
of submissions in support of the appeal and adaptation of a
simple method of disciplinary inquiry is the key issue as
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urged by the appellants. Shri Khanna, respondent No.1, on
the other hand contended that the entire set of facts if
analysed in a proper perspective then and in that event
gross violation of basic tenets by reason of malice ipso
facto would be apparent enough to reach the same conclusion
as has the High Court. Shri Khanna alleges that the
issuance of the charge-sheet against him is the direct
outcome of the reference of the two cases to the CBI and is
overtly malafide. It would thus be convenient to assess
the facts pertaining to above-noted two cases at this
juncture. Reference of two cases to the CBI Brief facts
relating to the issuance of the two notifications to the CBI
are as below:- (a) Shri Khanna was appointed to the Indian
Administrative Service in the year 1963 and thus in the IAS
Cadre for the last 37 years during which however, Shri
Khanna was appointed as the Chief Secretary on July 2, 1996
by Shri Harcharan Singh Brar being the then Chief Minister
of the State of Punjab. Subsequently, Mrs. Bhattal
succeeded Shri Brar as the Chief Minister. It appears that
in the usual course on 6.2.1997, the Chief Minister asked
for two files pertaining to the Report sent to the
Government on 29.3.1996 by the Director General of Vigilance
Bureau concerning Shri Bikramjit Singh as also the file
pertaining to the allotment of 15 acres of Government land
by the Sports Department to the Punjab Cricket Association
in Mohali. Shri Khanna being the Chief Secretary pointed
out the factual position with his own observations and
forwarded the files to the Chief Minister on the same day
and thereupon the Chief Minister issued two several orders
on the same date. Before however, adverting to the orders
as passed by the Chief Minister, it is worthwhile noticing
the allegations levelled against Bikramjit Singh and in the
fitness of things, the report of the Vigilance Bureau of the
State of Punjab may be referred at this juncture, which in
fact probed the matter. The report records inter alia that
the officer had purchased land measuring about 15 acres in
village Wazidpur, District Ferozpur in 1987 and it has been
proved that the officer bought this land and accordingly the
land has been included in the assets of the officer.
Further the report depicts that the allegation as regards
the purchase of 10 acres land in Morinda, Bela and Jatana
and the allegations that the officer having a share in
Morinda Solvent Ltd. have been enquired into and found to
be false. The other allegation against the officer of
having one-fourth share in a house built on two-kanal plot
bearing No.110 South Model Gram in Ludhiana and the finding
of the Vigilance Bureau is that this property was acquired
by the officer through inheritance. The report of the
Vigilance Bureau further assessed the income of the officer
to Rs.31,51,302/- for the period from 1.1.1984 to 31.12.1993
whereas the expenditure was to the tune of Rs.34,27,437/-
thus showing an excess expenditure of Rs.3,42,765/-. The
Vigilance Bureau however recommended that since the
difference is around 10%, the same deserves to be ignored
and there is existing on record a recommendation from the
Vigilance Bureau that the complaint and the enquiry needed
to be dropped altogether. The record depicts that after
receipt of the report from the Vigilance Department, the
matter was discussed at the level of the Chief Secretary and
the Principal Secretary, Vigilance and certain
clarifications were asked for and while the matter was still
pending for consideration at the level as above, the Chief
Minister wanted to have a look at the file and as such asked
for the same on 6.2.1997. It is on this factual backdrop as
above the Chief Minister notes in the file as below: I
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have gone through the Enquiry Report of Vigilance Bureau as
well as other portions of the file. I am in agreement with
Chief Secretary that this case has not been properly probed.
Since officer is senior and influential, another enquiry by
the State machinery may not be appropriate. This case may,
therefore, be referred to the CBI for enquiry. Reference
may be made immediately. Sd/-
C.M./6.2.97 C.S.
And on the next date i.e. on 7.2.1997 records depict
a note of the Chief Secretary recording therein that upon
consultation with the Advocate General that it would only be
proper and appropriate to refer the matter to an independent
agency like CBI for investigation. A notification was
issued on 7.2.1997 under Section 6 of the Delhi Special
Police Establishment Act 1946 entrusting the case to the CBI
for investigation for an offence of having assets
dis-proportionate to the known source of income in this
case.. While the detail submission on this score would be
dealt with later but it would be convenient to note that the
learned Solicitor General with some amount of emphasis posed
a question as a part of his submission to the effect as to
why this hot haste? We however have not been able to
appreciate the submission. Vigilance Bureau reported in
March, 1996 about the factum of expenditure more than the
income but by reason of the smallness of the amount (though
over 3 lacs), the matter can be ignored and recommended, in
fact, that the enquiry proceedings be dropped against the
concerned officer: public official thus having admittedly,
expenditure more than income need not face any further
enquiry in the matter be that as it may, clarifications
were sought for as late as October, 1996 and in the context
of having further investigation by an organisation which is
known in the country to be fair and impartial but having
regard to the factum of ensuing elections in the event the
administrative expediency prompt the Chief Minister to take
a step urgently so that the matter can be enquired into in
detail, can any exception be taken by reason of the fact
that the actions were in very hot haste? Incidentally,
detailed submissions have been made as regards pre- dating
the notes so as to reach 7th February, 1997 when in fact,
the same was written on 8th February, 1997. We shall delve
into the matter as regards the pre-dating of notes but the
time lag between the two is just one day, the hastiness of
the decision does not alter the situation significantly. If
it is dated 8th even obviously it was done hastily but can
any exception be taken on that ground as the same being a
fraudulent move: the Vigilance Bureau of the State of
Punjab finds some acquisition of property and the
expenditure being more than income and in the event, the
Chief Minister administratively is desirous of having a
further probe in the matter, we suppose no inference can be
drawn as a malafide move therefrom: Administrative decision
is taken on the expediency of the situation urgently and not
otherwise. The answers to these questions raised above will
be made available in the later part of this judgment but for
the present it is significant to note that if hot haste is
to be attributed to Mr. V.K. Khanna, the same can also be
ascribed to Shri Mann, who succeeded Mr. Khanna as Chief
Secretary after the new Government took over. It has been
stated that the file pertaining to the matter in issue was
made available to Shri Mann only late in the evening on
23.2.1997 and a detailed note was prepared by the Chief
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Secretary Shri Mann on 25.2.1997: The same was placed
before the learned Advocate General on the same date and the
Advocate General also opined to rescind the notification
date 7.2.1997 since the same is not sound in law and based
on malafide considerations. Interestingly the note records
that the Government should rectify the mistakes in the
larger interest of justice and fair play. The records
further depict that the file was sent back to the Chief
Secretary on the same day and the latter sent the same to
the Chief Minister with a note to the following effect: I
endorse the view of the A.G. C.M. may kindly agree to the
proposal to rescind the notification in question and to
withdraw the case from the CBI.
Sd/-
(Mann)@@
IIIIII
C.S. 25/2 C.M.
The records further depict that the Chief Minister on
26th February, 1997 endorses the note of Chief Secretary
Shri Mann but also made a note addressed to the Principal
Secretary (Vigilance) to issue the order to rescind the
notification and it is only on 26th February that the
notification was issued upon preparation of a draft therefor
by the Principal Secretary, Vigilance. The noting of the
later on 26th February, 1997 is also rather significant, it
notes this may please be vetted immediately because
notification in extra-ordinary Gazette has to be issued
today. Subsequent confirmation of the notification being
issued and a note from the Chief Secretary records the same.
It is in this perspective Mr. Subramaniam, learned senior
counsel appearing for respondent No.1 with equal vehemence
contended as to the haste in which the Department acted.
Mr. Subramaniam, learned senior counsel, contended that on
25th of February, 1997 a rather longish and detailed note
has been prepared for Mr. Advocate Generals opinion and it
is on 25th of February that the opinion has been received
recording infraction of law without however any specific
mention and, thereafter, the file was placed before the
Chief Minister and on 26th of February, 1997 Chief Minister
signs the same and the notification is also issued on the
same date. We do find some justification in the comment of
Mr. Subramaniam, learned senior counsel for the respondent,
If hasty decision is a question of malafide motive on the
part of Shri V.K. Khanna, we wonder as to whether the same
can also be attributed to the appellants herein the answer
to this question would also be available in the later part
of this judgment. (b) The second notification pertains to
the allotment of land to the Punjab Cricket Association and
the note of the Chief Minister on 6th February, 1997 reads
as below: The illegal occupation of the Cricket
Association should be got vacated So far as the culpability
of the officers involved is concerned, considering that they
are senior officers and influential enough to interfere in
the conduct of an enquiry by a State Government Agency, this
case should be investigated by an independent agency like
the CBI to detect financial irregularities,
misappropriation, loss caused to the State Government and
any other illegal acts in the name of sports promotion
culpable under the existing laws. Sd/ C.M./6.2.97 C.S.
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It is in terms with the orders of the Chief Minister
dated 6th February, 1997 that two notifications were issued
as above. Before adverting to the contentions certain other
factual details are required to be noticed at this juncture:
Elections to the State Legislative Assembly were held on 7th
February, 1997 and votes were counted on 9th February, 1997.
The party in power at the Punjab Assembly however, having
lost the election, the Chief Minister Mrs. Bhattal resigned
from the office and Shri Prakash Singh Badal was sworn in as
the Chief Minister on 12th February, 1997. Immediately on
assumption of office, however, both S/Shri Mann and
Bikramjit Singh were appointed as the Chief Secretary and
the Principal Secretary to the Chief Minister respectively
in place of Shri V.K. Khanna and Shri S.S.Dawra with
immediate effect. Admittedly, Shri R.S. Mann belongs to
the 1965 batch in the service and by reason of the
appointment he has, as a matter of fact, superseded ten of
the officers in the State including Mr. V.K. Khanna this
was the noting of Ms. K. Sidhu in the file apropos Shri
Mann but so far as Bikramjit Singh is concerned, it has been
noted that one vigilance enquiry was pending against Shri
Bikramjit Singh this did not, however, impress the
authority and resultantly in spite of the noting as above,
both these two officers were appointed in the posts noted
above. Though Mr. Subramaniam has been very critical about
these appointment specially when an allegation of corruption
involving an officer of the Administrative Service, pending
further enquiry, we, however, do not wish to make any
comment thereon since the peoples representatives would be
the best person to judge the efficiency or otherwise of the
officers, in the event of their appointments in the high
posts in spite of their drawbacks being pointed out, it is
for the concerned authority to decide as to with whom the
State Administration ought to be better run and not for the
law courts to suggest, as such we are not making any
comments thereon save however that probably it would be
better if the notings would have been given its proper
weightage. Another significant feature on the factual score
is that the Central Bureau of Investigation registered two
cases on 25th February, 1997 being FIR Nos.7 and 8 against
Shri Bikramjit Singh and the second one pertaining to the
allotment of land to the Punjab Cricket Association and as
noticed above on 26th February itself notification was
issued rescinding the earlier notification thereby the
request to investigate on to the twin issues as noticed
above stood withdrawn. CHARGESHEET IMPUGNED The factual
score details out that on 24th April, 1997, impugned
chargesheet was issued and the petitioner was asked to
submit his reply within 21 days. Statement of imputation
will be appended though rather longish but shall have to be
appended in order to appreciate the issue of malafides as
raised by the respondent No.1 in his Writ Petition. The
same however, reads as below: Shri V.K. Khanna, IAS,
while posted as Chief Secretary to Government, Punjab,
issued two notifications in the Delhi Special Police
Establishment Act empowering the CBI to enquire into the two
matters viz.:- (i) Amassing assets disproportionate to the
known means of income by Shri Bikramjit Singh, IAS; and
(ii) Allotment of land and funds to the Punjab Cricket
Association.
The CBI registered FIRs in these two cases. In
processing these cases, Shri V.K. Khanna, IAS, acted in a
malafide manner and in gross violation of established norms
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and procedures of Government functioning and in utter
disregard of All India Service Rules, principles of
objectivity, fair play, integrity and the high morals
expected of a senior civil servant. 2. Shri VK Khanna,
IAS, processed the cases with undue hurry and undue
interest, not actuated by the nature of cases. This is
demonstrated by the following:- (i) Even though elections
were on and polling took place on 7th February and the then
C.M. was in her constituency, away from Chandigarh, most of
the action was completed on 6th February and on 7th February
which was a holiday. The papers traveled thrice between
Chandigarh and Lehragaga on Feburary 6. (ii) Neither in her
first note of 6th February nor in her second note of the
same day did the C..M. direct that the cases were to be
handled at breakneck speed. (iii) The statutory
notifications issued on 7th February were neither sent to
the L.R. as required by Rules of Business of Punjab
Government nor were they sent for gazetting as required by
law.
3. Shri V.K. Khanna, IAS, antedated and fabricated
the record. Some of the actions/noting, which is shown to
have been done on 6th and 7th February 1997, was actually
done on 8th February 1997. This is established by a fact
finding enquiry conducted by Shri Surjit Singh, IAS,
principal Secretary, Vigilance. The Notifications and the
letters addressed to the Director, CBI were issued and
forwarded to the Director, CBI any time after 8.2.1997 A.N.
and were predated as on 7.2.1997. 4. Shri V.K. Khanna,
IAS, with malicious intent kept the entire operation a
closely guarded secret until the CBI had completed all
formalities and had registered the FIRs. This is
demonstrated by the following facts/events:- (i) All papers
pertaining to these cases were taken away from the personal
staff of C.S. and were handled and retained entirely by
Shri Khanna himself including delivery of the Notification
and letters to CBI. (ii) He took away the files and
retained them till the night of 24th February, 1997 in one
case and 26th February, 1997 in the other case, whereas the
CBI registered cases on 25th February, 1997. (iii) He did
not mention anything about these two sensitive cases to the
new Chief Minister and Chief Secretary after formation of
the new Government, though he met them formally and
informally several times before handing over charge as the
Chief Secretary. (iv) When the file for appointment of Shri
Bikramjit Singh, IAS, as principal Secretary to Chief
Minister was put up to C.M. on 14.2.1997, while pendency of
Vigilance enquiries against him was referred to, no
reference whatsoever, was made to the most relevant fact
that less than a week earlier, a case of corruption against
him had been sent to CBI a fact which was known only to
Shri Khanna and which must have been very fresh in his mind
in view of the unusual interest taken in it by him. 5.
Shri V.K. Khanna, IAS, failed in the proper discharge of
his duties as Chief Secretary, when while putting up to C.M.
the file pertaining to the appointment of Shri Bikramjit
Singh as Principal Secretary to Chief Minister on 14.2.1997,
he did not record the important and most material fact that
a case of corruption against Shri Bikramjit Singh has been
referred to the CBI only a week earlier. 6. Shri V.K.
Khanna, IAS, falsely recorded in the files that the
Advocate-General had been consulted in these cases. In
fact, no such consultation took place. 7. Shri V.K.
Khanna, IAS, after handing over the charge as Chief
Secretary ton 14.2.1997 A.N. returned the two files on the
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above two cases on 15.2.1997 to an officer of the Vigilance
Department. The same day he summoned the two files without
authority and detained them for a long time with ulterior
motives. He recalled both the files on the plea that the
files being top secret in nature would be handed over to the
Additional Secretary Vigilance. However, the two files were
returned on 24th and 26th February 1997. He, therefore,
remained in unauthorised possession of these two files after
handing over charge as Chief Secretary. 8. Shri V.K.
Khanna, IAS, did not make any proper attempt to verify the
assertions and allegations in his note dated 6.2.1997 and in
the note of the then C.M. of the same date in the P.C.A.
case. No proper preliminary enquiry was conducted in the
matter nor was any opportunity to explain given to those who
might have been adversely affected by the decision. These
are the most elementary prerequisite to any such decision by
a civil servant. No serious effect was made to ascertain
the full facts. Whereas the record shows that the decision
to give land at nominal cost and the release of funds had
the clear and repeated approval of the Housing Board/PUDA,
Finance Department and the then C.M. and whereas the
Council of Ministers and even Vidhan Sabha had categorically
endorsed these decisions, none of these facts was brought on
the file. His entire conduct was malicious and premeditated
and amounted to total abuse of the authority vested in him.
9. Shri V.K. Khanna, IAS, in referring these cases to CBI
violated Election Code issued by Election Commission of
India. He also violated Government instructions issued by
himself as Chief Secretary on 10.2.1997 under which it was
stipulated that in view of impending change of Govt., no
important cases were to be disposed of by Secretaries to the
Government without shown them to the new Ministers who were
to take office shortly. That these two cases were important
is proved by the attention paid by Shri V.K. Khanna. In
fact, there was a clear intention on the part of Shri V.K.
Khanna to complete all action in these cases before the new
Ministry took office. Shri V.K. Khanna, further failed to
put up these cases for the information/approval of the new
Chief Minister till he handed over the charge as Chief
Secretary late on 14.2.1997. EVENTS THEREAFTER: Soon after
the issuance of the charge-sheet however, the Press reported
a statement of the Chief Minister on 27th April, 1997 that a
Judge of the High Court would look into the charges against
Shri V.K. Khanna this statement has been ascribed to be
malafide by Mr. Subramaniam by reason of the fact that even
prior to the expiry of the period pertaining to the
submission of reply to the chargesheet, this announcement
was effected that a Judge of the High Court would look into
the charges against the respondent No.1 Mr. Subramaniam
contended that the statement depicts malice and vendetta and
the frame of mind so as to humiliate the former Chief
Secretary. The time has not expired for assessment of the
situation as to whether there is any misconduct involved
if any credence is to be attached to the Press report, we
are afraid Mr. Subramaniams comment might find some
justification. The records further disclose that copies of
certain documntary evidence were sought for pertaining to
charge No.8 as regards the release of fund and approval of
the Housing Board and Punjab Urban Development Authority but
the same was not acceded to on the plea that the same is not
relevant to the chargesheet and it is only thereafter that
the Petitioner approached the Central Administrative
Tribunal for quashing of the chargesheet and as detailed
above having however, failed to obtain any relief, the
petitioner moved the High Court wherein the High Court set
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aside the chargesheet and quashed the proceedings against
the petitioner. CONTENTIONS; Re Chargesheet In support of
the Appeal both Mr. Rajinder Sachhar, Sr. Advocate and Mr.
Harish N. Salve, Solicitor General of India strongly
contended that propriety of the situation demanded
confirmation of the disciplinary proceedings rather than its
quashing by the High Court since, the issuance of
notification has been contrary to the rules of business.
Before delving into the contentions, we feel it proper to
note the general principles of law as recorded by the High
Court pertaining to discharge of duty of a civil servant.
The High Court observed: Indisputably, duty is like debt.
It must be discharged without delay or demur. A civil
servant must perform his duties honestly and to the best of
his ability. He must abide by the Rules. He should live by
the discipline of the service. He must act without fear or
favour. He must serve to promote public interest. He must
carry out the lawful directions given by a superior. In
fact, the Constitution of India has a chapter that
enumerates the Duties of the Citizens of this country.
Art.51-A contains a positive mandate. It requires every
citizen to strive towards excellence in all spheres of
individual and collective activity, so that the nation
constantly rises to higher levels of endeavour and
achievement. This provision can be the beacon light for
every citizen and the mantra for every civil servant. So
long as he performs this duty as imposed by the Constitution
and strives towards excellence, he has none and nothing to
fear. Even God would be by his side.
At the same time it is undeniably true that whenever
there is a dereliction in the performance of duties by the
civil servant, the State Government has the right to
intervene and punish the guilty. This is the undoubted
prerogative of the State. But, to borrow the words of
Professor Wade, this power has to be used for the public
good. The action of the authority must be fair and
reasonable. It should be bonafide. It should not be
arbitrary. It should not be based on extraneous
considerations. It should be for public good. Bias or
personal malice should not taint it. Bias is like a drop of
poison in a cup of pure milk. It is enough to ruin it. The
slightest bias would vitiate the whole action.
Bias admittedly negates fairness and reasonableness by
reason of which arbitrariness and malafide move creep in @@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
issuance of the two notifications assuming in hot haste but
no particulars of any malafides move or action has been
brought out on record on the part of Shri V.K. Khanna
while it is true that the notings prepared for Advocate
Generals opinion contain a definite remark about the
malafide move on the part of Shri V.K. Khanna yet there is
singular absence of any particulars without which the case
of malafides cannot be sustained. The expression malafide
has a definite significance in the legal phraseology and the
same cannot possibly emanate out of fanciful imagination or
even apprehensions but there must be existing definite
evidence of bias and actions which cannot be attributed to
be otherwise bonafide actions not otherwise bonafide,
however, by themselves would not amount to be malafide
unless the same is inaccompanymen with some other factors
which would depict a bad motive or intent on the part of the
doer of the act. It is in this sphere let us now analyse
the factual elements in slightly more detail the Chief
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Minister is desirous of having the files pertaining to two
of the senior officers of the administration and concerning
two specific instances in normal course of events, we
suppose the Chief Secretary has otherwise a responsibility
to put a note to the Chief Minister pertaining to the issue
and in the event the Chief Secretary informs the Chief
Minister through the note that there should be a further
probe in the matters for which the files have been asked
for, can it by itself smack of malafides? Personality clash
or personal enmity have not been disclosed neither even
there is existing any evidence therefor: so in the usual
course of events the Chief Secretary in the discharge of his
duty sent a note to the Chief Minister recording therein
that a further probe may be effected if so thought fit by
the Chief Minister and in the event the Chief Minister
agrees therewith and a probe is directed through an
independent and impartial agency can any exception be
taken therefor? Mr. Solicitor General answers the same
generally that it is the personal vendetta which has
prompted the Chief Secretary to initiate this move but
general allegation of personal vendetta without any definite
evidence therefor, cannot be said to be a sufficient
assertion worth acceptance in a court of law. There must be
a positive evidence available on record in order to decry an
administrative action on the ground of malafides and
arbitrariness. The ill will or spite must be well
pronounced and without which it would be not only unfair but
patently not in confirmity with the known principles of law.
On a scrutiny of the files as presented to court and the
evidence thereon, unfortunately, however, there is no
evidence apart from bare allegation of any spite or ill
will, more so by reason of the fact that the same involves
factual element, in the absence of which no credence can be
attributed thereto. Incidentally, be it noted that
submissions in support of the appeal have been rather
elaborate and in detail but a significant part of which
pertain to the issuance of the two notifications spoken
hereinabove: the High Court decried the action as being
tainted with malice and quashed the chargesheet as being
malafide. If initiation of a proceeding through CBI can be
termed to be a malafide act then what would it be otherwise
when Government acts rather promptly to rescind the
notifications can it be an action for administrative
expediency or is it an action to lay a cover for certain
acts and omissions?: We are not expressing any opinion but
in the normal circumstances what would be the reaction
pertaining to the issuance of withdrawal notoifications, the
answer need not be detailed out expressly but can be
inferred therefrom. The charge-sheet records that Shri
Khanna has acted in a malafide manner and in gross violation
of established norms and procedure of Government functioning
and in utter disregard of All India Service Rules,
principles of objectivity, fair play, integrity and the high
morals expected of a senior civil servant (emphasis
supplied). The notification pertains to acquisition of
assets disproportionate to the known source of income by a
civil servant and it is in processing these cases that the
aforesaid charge as emphasized has been leveled against Shri
V.K. Khanna, we, however, have not been able to appreciate
whether initiation of an enquiry against the civil servant,
would be in gross violation of established norms and
procedure of Government functioning. The processing was
further stated to be in utter disregard of All India Service
Rules, we are not aware neither any rules have been placed
before this Court wherein initiation of an enquiry for
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assets disproportionate to the known source of income can be
termed to be in disregard of the service rules or fair play,
integrity and morals: Do the service rules or concept of
fair play, integrity or morals expected of a senior civil
servant provide a prohibition for such an initiation or such
processing, if that is so, then, of course one set of
consequence would follow but if it is other way round then
and in that event, question of any violation or a malafide
move would not arise. The second charge is in regard to
undue hurry and undue interest not being actuated by the
nature of cases and as an illustration therefor, note of the
Chief Minister was taken recourse to the effect that there
was no direction in either of the notes that the cases were
to be handled at brake-neck speed. The note noted above,
however, records that the CBI enquiry be initiated and the
reference may be made immediately, the direction of the
Chief Minister that the recording of action immediately if
understood to mean undue haste and if acted accordingly then
again one set of consequence follow but in the normal course
of events, such a direction from the Chief Minister ought to
be adhered to with promptitude and no exception can thus be
taken in that regard. Shri V.K. Khanna was also said to
have faulted Government instructions under which it is
stipulated that in the event of any impending change, no
important decisions would be taken by the Secretaries
without having its seen by the new Ministers who were to
take office shortly. Shri Khanna has been charged of
failure to put up the cases for information to the Chief
Minister and allegations have been levelled that statutory
notification issued on 7.2.1997 were neither sent to the LR
as required by the rules of business of Punjab Government
nor were they sent for gazetting as required by law. Both
charges together however cannot be sustained at the same
time. If the Chief Secretary is not supposed to act by
reason of the impending change then he cannot possibly be
accused of not acting, as required by the rules of business
or as required by law. One of the basic charge of malafides
as ascribed by Mr. Solicitor General, is that the papers
pertaining to one of the cases was retained till the night
of 24th February, 1997 and till 26th February, 1997 in
another, and the same is unbecoming of the Chief Secretary
of the State, more so by reason of the fact that when a new
Secretary has already taken over charge. The issue
undoubtedly attracted some serious attention but the factum
of the respondent No.1 Shri Khanna not being in the city and
away in Delhi for placement in the Central Government by
reason of the attainment of necessary seniority would cast a
definite shadow on the seriousness of the situation. The
new Government was declared elected on 9th February, 1997,
obviously on a hint that the Chief Secretary may be removed
and be transferred, if there is any enquiry as regards the
placement and by reason wherefor a delay occurs for about
two weeks, in our view, no exception can be taken therefor
neither it calls for any further explanation. During the
course of submission, strong emphasis has been laid on a
linkage between the CBIs endeavour to initiate proceedings
and the retention of the file, however, does not stand any
factual justification since one of the files were returned
to the Chief Secretary on 24th February itself whereas CBI
lodged the FIR on 25th February, 1997. Mr. Subramaniam
however, contended that the contemporaneous noting which has
been produced in Court do not indicate any perturbation on
the part of the senior officers seeking to recover these
papers. Mr. Subramaniam contended that the anxiety of the
first respondent only was to see that the files be lodged in
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the custody of the responsible person in the administration
and the delay caused in that regard can hardly be said to be
self-serving or that he played any role in the CBI for
pursuing the investigation. We have dealt with the issue to
the effect that no exception can be taken as regard the
action of the Respondent No.1 As regards the allotment of
land to Punjab Cricket Association Mr. Solicitor General
contended that as a matter of fact, there was a total
disregard to ascertain the full facts and emphatic statement
has also been made during the course of hearing and which
finds support from the chargesheet that even the Assembly
had categorically endorsed the decision of grant of land at
nominal cost together with the release of funds. It is in
this context the reply affidavit filed by the first
respondent to the counter affidavit of the State Government
in the High Court is of some consequence and the relevant
extracts whereof are set out hereinbelow for appreciation of
the submissions made by the parties on that score, the same
reads as below: 7. The averments in Para No.7 of the W.S.
are denied as incorrect and those of petition are
reiterated. The petitioner submits that he thoroughly
examined the relevant record, cross- checked the facts and
exercised due care and caution while submitting the factual
report to the Chief Minister on 6.2.1997. Before submission
of the factual report to the Chief Minister, the petitioner
inter-alia found the following material on record: (i)
There was no Cabinet approval, mandatory under the Rules of
Business, for either construction of the Cricket Stadium or
the transfer of about 15 acres of land to the Punjab Cricket
Association, a private entity. Apparently Cabinet had been
deliberately and dishonestly bypassed by the Sports
Secretary, Sh. Bindra. (ii) Shri Bindras A.C.R. file
showed that he lacked integrity and he had abused his
official position to extort huge amounts of money from
Government companies under his charge as Secretary,
Industries. (iii) PSSIEC (Punjab Small Scale Industries and
Export Corporation) reported in writing that they paid Rs.2
lacs for laying the Cricket Pitch at Mohali. (iv) The note
dated 21.1.1997 of Chief Administrator PUDA brought out many
serious irregularities in regard to grant of funds for the
Cricket Stadium and the PCA Club. (v) It had also come to
the Petitioners notice that Sh. Bindra directed other
companies like Punjab Tractors Ltd., Punwire, PACL etc. not
to furnish any information to the Chief Secretary about
payments made by them to the Punjab Cricket Association.
(vi) The glaring fact that Sh. Bindra had transferred the
land to the Punjab Cricket Association at his own level,
without the approval of the Finance Department or any higher
authority like Minister or Chief Minister, even though the
approval of Council of Ministers was mandatory under the
rules. The Sports Department itself did not have any title
to the property. It still does not have it. (vii) The land
use was changed by the Housing Development Board from Sports
Complex/Cycle Velodrome to Cricket Stadium at Sh. Bindras
behest, following collusive and malafide inter-
departmental meetings with Sh. Mann. (viii) Housing Board
connived at serious encroachments made by the PCA which is
actually in occupation of about 20 acres, as against 10.5
acres, as against 10.5 acres mentioned in the decision of
the Governor-in-Council (order dated 29.4.91) which in any
case was not for a Cricket Stadium, but for a Sports
Complex/Velodrome. It is on this score Mr. Subramaniam for
respondent No.1 contended that the factual context as noted
hereinbefore prompted the Chief Secretary to submit the note
to the Chief Minister and the allegation of not assessing
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the factual situation in its entirety cannot be said to be
correct. While it is true that justifiability of the
charges at this stage of initiating a disciplinary
proceeding cannot possibly be delved into by any court
pending inquiry but it is equally well settled that in the
event there is an element of malce or malafide, motive
involved in the matter of issue of a charge-sheet or the
concerned authority is so biased that the inquiry would be a
mere farcical show and the conclusions are well known then
and in that event law courts are otherwise justified in
interfering at the earliest stage so as to avoid the
harassment and humiliation of a public official. It is not
a question of shielding any misdeed that the Court would be
anxious, it is the due process of law which should permeate
in the society and in the event of there being any
affectation of such process of law that law courts ought to
rise up to the occasion and the High Court in the contextual
facts has delved into the issue on that score. On the basis
of the findings no exception can be taken and that has been
the precise reason as to why this Court dealt with the issue
in so great a detail so as to examine the judicial propriety
at this stage of the proceedings. The High Court while
delving into the issue went into the factum of announcement@@
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