SH. P.K. DAVEversusPEOPLES UNION OF CIVIL LIBERTIES (DELHI) AND ORS.

A                       SH. P.K. DAVE
                               v.
       PEOPLES UNION OF CIVIL LIBERTIES (DELHI) AND ORS.                               -
                                   MAY 10, 1996

B                [S.C. AGRAWAL AND G.B. PATTANAlK, JJ.J

          Co11stitutio11 of India, 1950 : Articles 32, 136, and 226.

           Strictures-&punction of-Alleged commission of gross financial ir-
C   regularities by Director of Govemment Hospitaf-Lt. Govemor of Administra-
    tion refused lo swpend him or even shift him at the instance of Principal
    Secretary to the Prime Minister-Writ petition filed in High Court for his
    swpension and institution of criminal case agai11st him-High Court passed
    st1ictures agai11st Lt. Govemor obseiving his decision as illegal, i1rational,
    unreasonable, arbitrary, ma/a fide, abuse of power and dictated by Principal
D   Secretwy-Held : ma/a fides against constitutional functionaTy-Attribution
    of-Should be avoided unless a clear case was made out and if relief sought
    for could be granted without such attribution-Strictures justified except words
    'niala [ides', 'abuse of power' and 'dictated'-Hence, these words ex-
    punged-Judicial strictures.
E
           Strictures passed by High Cowt-Against person neither arrayed as
    party respondent nor afforded opportunity of hearing-E:xpunction of-Held:
    by itself not sufficient to expunge strictures when material on record justified
    such strictures.

F          St1ictures passed hy High Court-Against Govemment authority-On
    the basis of scmtiny of notings in office files-Held: such strictures could not
    be e:ipunged merely on this ground.

           Certain complaints had been received by the Department of Revenue
    (Intelligence) against the financial irregularities committed by the Direc-
G   tor of a Government Hospital. On receipt o[ such complaints various
    searches were conducted and several incriminating documents were seized.
  Tuo committees appointed by the Administration also confirmed the
  financial irregularities. The Health Secretary to the Administration after
  apprising the appellant-Lt. Governor about the matter had put up a note
H stating that the said Director had played a major role in defrauding the
                                      770
     P.K. DAVE v. PEOPLES UNION OF CIVIL LIBERTIES DELHI                  771

Government and recommended his suspension or his shifting from the               A
Hospital which would facilitate a fair and impartial enquiry/investigation by
the crime branch. TI1e Chief Secretary did not agree mth the suggestion to
suspend the Director but agreed mth the alternate suggestion to transfer him.
Immediately after the Health Secretary had put up his note the Principal
Secretary to the Prime Minister directed the Special Secretary in the Ministry
                                                                                 B
of Home Affairs to pre-empt the Administration from taking any action
against the said Director. The Special Secretary then talked to the Health
Secretary as well as the Chief Secretary of the Administration. Pursuant to
the further direction of the Principal Secretary to the PM to advise the
Administration in writing that no action should be taken in the case, the
Special Secretary telephonically apprised the appellant-Lt. Governor and then    C
sent a DO Letter to the Chief Secretary. TI1e appellant did not agree mth the
suggestions of the Health Secretary and the Chief Secretary and passed orders
that until CBI made a suggestion after enquiring either for suspending or
shifting the Director he could not be shifted. Accordingly the Director was
permitted to continue in his oflice.
                                                                                 D
      The respondent filed a \.\Tit petition as public interest litigation
before the High Court alleging massive financial fraud perpetrated by the
Director of the Hospital involving more than Rs. 39 crores and the loss
thereby caused to the public exchequer. The grievance was that no action
was being taken and on the other hand he was being shielded and in the           E
process he was obliterating the evidence by destroying the relevant tiles. It
was therefore prayed that he should be immediately suspended and a
regular criminal case should be registered against him under the Preven-
tion of Corruption Act, 1947 and the authorities should recover from him
the public money wasted on account of the alleged culpabale act. In the
                                                                                 F
proceedings the appellant-Lt. Governor had not been arrayed as a party
respondent but the State through the Chief Secretary and the Union of
India through Secretary, Ministry of Health had been arrayed as party
respondent apart from the said Director.


       The High Court in its judgment made certain strictures against the G
appellant-Lt. Governor obsen'ing his decision not to initiate disciplinary
action against the said Director and not to shift him from his oflice,
overruling the suggestions of the Health Secretary and the Chief Secretary,
was not his own but was dictated by the Principal Secretary to the Prime
l\tfini~ter and was thus illegal irrational, unreasonable, arbitrary, 111alafide H
    772                    SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A and abuse of power. The appellant-Lt. Governor filed appeal by s pedal
    leave before this Court seeking expunction of the aforesaid strictures made
    against him by the High Court.

          Disposing of the appeal, this Court

B         HELD : 1. The role of the appellant-Lt. Governor came under direct
    scrutiny of the Court while deciding the writ petition in question. Therefore,
    it was necessary for the High Court to scrutinise the role of the appellant
    in granting relief sought for by the petitioner in the writ petition. [781-B-C]

          State of U.P. v. Mohd. Naim, [1964] 2 SCR 363, held inapplicable.
c
         2. When the orders passed by the appellant came under scrutiny of
  the Court and the circumstances under which the order had been passed
  would appear from the relevant discussion made by the different officers
  and the Court was examining the reasonableness and propriety of the
D orders passed by the appellant, any comments made by the court without
  issuing notice to the appellant cannot be ipso facto expunged· merely on the
  ground that the appellant had nu opportunity of hearing. That apart the
  appellant has now approached this Court and apart from raising the legal
  contentions that the High Court did not issue any notice to him he has the
E full opportunity of indicating the circumstances under which he passed the
  order and those circumstances are now being scrutinised· by this Court. It
  is, therefore, not possible to accept the contention that the remarks and
  the strictures given by the Court should be expunged on the sole ground
  that the appellant had not been given notice nor he had any opportunity
  of hearing before the High Court. [781-H; 782-A-C]
F
          State of Bihm· v. P.P. Shanna, [1991] 2 SCR 1; Express Newspaper v.
    Union of India, [1986] 1SCC133;Aslwk Kumar Yadav v. State of Hmyana,
    [1985] 4 SCC 417 and A. M. Mathur v. Pramod Kumar, [1990] 2 SCC 533,
    referred to.

G          3. It is not possible to accept the contention that the notings in the
    departmental files should nut be examined by the Court and on such
    outings the court would not be entitled to comment upon the conduct of
    the officer who had submitted the notes. Where the relevant departmental
    files were produced before the Court by the government and the Court on
H scrutiny of the same came to the conclusion that the decision has not been
      P.K. DAVE v. PEOPLES UNION OF CIVIL LIBERTIES DELHI                 773

taken fairly, then the Court would be entitled to comment on the role of A
such person who took the decision. If the contention of the appellant is
accepted no administrative authority and his conduct would come under
the judicial scrutiny of the Court. That an administrative order is sub-
jected to judicial review is by uow the settled position and no longer
remains res integra. [782-D·G; 783-B-C]
                                                                                 B
      Puiunjit Singh v. Union Tenit01)' of Chandigarh and Others, [1994]
Suppl. 3 SCC 471; State of Bihar v. Kripalu Shankar, [1987] 3 SCC 34 and
Sarwan Singh Lamba v. Union of India, (1995] 4 SCC 546 (CB), held
inapplicable.
                                                                                 c
      4.1. It is crystal clear that the appellant did not take the decision of
his mm but on the other hand was inlluenced by the instruction of the
Principal Secretary to the Prime Minister. The High Court, therefore, did
not commit any error in coming to the conclusion about the impropriety
of the decision and in fact it was inlluenced by someone else. Therefore, D
the strictures sought to be expunged has been justifiably made and no case
for expunction has been made out, but the word 'dictated' is probably not
appropriate. Therefore, the same is modified by replacing the word
'dictated' by 'influenced'. Further, the materials on record do not justify
to dub the decision of the Lt. Governor as ma/a fide and, therefore,
exp unction of the word 'mala fide' is directed. Further, it was not necessary E
for the Court to hold that the Lt. Governor abused his power though the
Court was justified in holding that the Lt. Governor acted in an arbitrary
and unreasonable manner. It is, therefore, directed that the expression
'abused his power' be expunged from the stricture. [785-F-G; 786-A-D]
                                                                                 F
      4.2. The power to expunge any remark made by a Court in a judg·
ment is an extraordinary power and can be exercised only when a clear
case is made out. It is also a cardinal principle that a judge should take
special care in making disparaging remark against a person or authority
whose conduct comes in for consideration before him in any case to be
decided by him and should not make any un-called for remarks which G
wo.uld be against judicial discipline. If the relief sought for can be given to
the applicant without dubbing the conduct of the person concerned to be
niala fide then the Court should refrain from coming to any conclusion on
mere assertions in as much as the aJlegations of mala tides have to be
specifically made and would have to be established by the person who seeks H
    774                    SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A relief on that ground. To avoid harsh words and intemperate language and
    to have self-restraint is a part of judicial training of a judge and, therefore,
    a judge should be extremely careful while commenting upon the conduct
    of another individual particularly when that individual is not before the
    Court. [783-E-G]

B           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8242 of
    1996.

          From the Judgment and Order dated 26.5.95 of the Delhi High Court
    in C.W. No. 3032 of 1994.

c           K.K. Venugopal, Ms. A. Subhashini, A. Ranganadhan for the Appel-
    !ant.

       Shanti Bhushan, Ms. Savera Singha, Prashant Bhushan, S. Srinivasan,
  K.K. Laroia, Lakshmi Raman Singh and Ms. Kamini Jaiswal for the
D Respondents.
            The Judgment of the Court was delivered by

            PAITANAIK, J. Leave granted.

E         This Appeal by Special Leave has been filed by Shri P.K. Dave, Lt.
    Governor of Delhi seeking expunction of the following strictures made
    against him by the Division Bench of Delhi High Court in its judgment
    dated 26.5.1995 in Civil Writ Petition No. 3032 of 1994. The strictures
    sought to be expunged are :

F                 "(a) We would hold that the decision of the Lt. Governor,
              Delhi, not to initiate disciplinary action against respondent no. 2
              and not to shift him from the post of Director, G.B. Pant Hospital,
              is vitiated by illegality, irrationality, arbitrariness and ma/afides and
              hence it has no legal sanction. It is declared accordingly.
G                 (b) In fact by rejecting the suggestion of the Secretary and the
              Chief Secretary to transfer Dr. Khalilullah the Lt. Governor acted
              in an arbitrary and unreasonable manner and abused his power.

                  (c) The Lt. Governor overruled and rejected the suggestion of
H              the Secretary and the Chief Secretary in an arbitrary and un-
         P.K. DAVE,. PEOPLES UNION OF CIVIL LIBERTIES DELHI IPAITANAIK, J.J   775

            reasonable manner. No fair minded authority could have rejected A
            the suggestion in the given circumstances.

                (d) In these circumstances the learned counsel for the
            petitioners is justified in alleging that the decision not to take
•           disciplinary action against Dr. Khalilullah and not to shift him from
            the post of Director of G.B. Pant Hospital was not taken by the
                                                                                    B
            Lt. Governor on his own and that it was dictated by someone else,
            that is, Shri AN. Verma who is stated to be a close friend and
            personal patient of Dr. Khalilullah."

          The Writ Petition in question had been filed by the Peoples Union C
    of Civil Liberties and Delhi Medicos' and Scientists' Front alleging massive
    financial fraud perpetrated by the Director of G.B. Pant Hospital involving
    more than Rs. 39 crores and the loss thereby cause to the public exchequer.
    One Dr. A Khalilullah was the Director of G.B. Pant Hospital who was
    alleged to have committed financial fraud. The prayer in the Writ Petition D
    was that the said Dr. Khalilullah should be immediately suspended and a
    regular criminal case should be registered against him under the provisions
    of Prevention of Corruption Act and the Authorities should recover from
    him the public money wasted on account of the alleged culpable act of said
    Dr. Khalilullah. In the proceedings the appellant had not been arrayed as
    a party respondent but the State of Delhi through the Chief Secretary and E
    Union of India through Secretary, Ministry of Health had been arrayed as
    party respondents apart from Dr. Khalilullah, the then Director of G.B.
    Pant Hospital. The applicants had alleged that certain complaints had been
    received by the Department of Revenue (Intelligence) against the financial
    irregularities committed by Dr. Khalilullah and on receipt of such com- F
    plaints various searches have been conducted in the premises of several
    suppliers of hospital equipments of G.B. Pant Hospital. In course of search
    several articles were .seized and several incriminating documents have also
    been seized. Notices also have been issued to the suppliers as well as to
    the authorities. But the Delhi Administration had appointed a Committee
    to investigate into the matter which is commonly. know as 'Arora G
    Committee'. The said Committee had clearly found several irregularities to
    the eJttent that even machines and equipments imported for G.B. Pant
    Hospital have never been brought to the hospital and are still lying in the
    cellars duly packed for years together .. The report further indicated that
    some of the machines purchased for G.B. Pant Hospital from the Govern- H
    776                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A mcnt funds were found installed in a private hospital like Batra Hospital.
  Notwithstanding the aforesaid report qf the Arora Committee no action
  has been taken against Dr. Khalilullah. The Collector of Customs had
  imposed penalty on several suppliers for alleged irregularities committed
                                                                                  ".'
  by them. In June 1993 the Comptroller and Auditor General of India in
B his report to the Union of India devoted to the gross financial malpractices
  in the G.B. Pant Hospital and when the report was placed in Parliament
  the Delhi Administration appointed another Committee under the Chair-
  manship of Dr. A.K. Gupta, Dean of Maulana Azad Medical College.
  Gupta Committee also submitted its report in October 1993 and the
  Committee found gross financial irregularities to the extent that the equip-
C ments worth Rs. 17 crores were unaccounted and 228 files relating to
  purchase of equipments were missing from the official records. It is on the
  basis of that report when the Health Secretary to the Government of Delhi
  Administration had recommended suspension of Dr. Khalilullah or his
  shifting from G.B. Pant Hospital so that appropriate enquiry can be made
D in a congenial atmosphere, no action was taken against him. It was also
  alleged that siaid Dr. Khalilullah while continuing as the Director of the
  Hospital is destroying the original record to wipe off the evidence and,
  therefore, the applicants prayed for the relief as already stated. The
  respondents before the High Court filed their counter affidavits denying
E the allegations made and opposing the relief sought for. The respondent
  no. 2 Dr. Khalilullah himself in his affidavit denied the allegations and
  contended that he has no role i;, the so-called financial irregularities and
  thougi1 fraud had been committed by the officers below him he had no
  knowledge of it nor had he given any consent to it. He had further stated
  that this application which is in nature of Public Interest Litigation had
F
  been filed at the behest of one Dr. Anoop Safaya. In the rejoinder filed by
  the respondents it was further averred that no action was taken against Dr.
  Khalilullah because of unusual interest shown by the Principal Secretary to
  the Prime Minister and it is because of him the Union Home Secretary had
  addressed a letter to the Chief Secretary, Delhi Administration not to
G precipitate action against Dr. Khalilullah and it is because of this external
  pressure, against the public interest, the appellant did not accept the
  recommendations of the Health Secretary to the Delhi Administration as
  well as the Chief Secretary, Delhi Administration and allowed the con-
  tinuance of Dr. Khalilullah as the Director of G.B. Pant Hospital. The High
H Court ultimately considered all the relevant documents and came to the
         P.K DAVE--. PF.DPLES UNION OF CIVIL LIBERTIES DELHI [PA ITANAIK J. [   777

    conclusion that the matter relating to initiation of disciplinary action A
    against Dr. Khalilullah did not receive a proper and fair consideration and,
    therefore, the authority competent to take the decision in the matter should
    consider and decide the question in accordance with law. Further in view
    of the allegations about missing of purchase files and destruction of
    evidence, the attempts to cover up the fraud, the possible involvement of B
    Dr. Khalilullah himself in the fraud,. pending investigation into the ir-
    regularities, the continued damage that could be done to a fair and proper
    investigation and the need for maintaining public confidence in the matter,
    since the authorities concerned were indifferent and irresponsible in their
    attitude on account of external pressure the Court directed that Dr.
    Khalilullah should not be allowed to function as Director of G.B. Pant C
    Hospital and he should forthwith relinquish his office as Director of the
    Hospital and shall hand over charge to the seniormost Head of the Depart-
    ment in the Hospital. We are not concerned with the legality of the
    aforesaid directions in the present ease. Suffice it to mention that Dr.
    Khalilullah had moved this Court by way of Special Leave Petition and the D
    same was disposed of by order dated 5th June, 1995 directing the Central
    Government to take a decision and submit a report as to initiation of any
    disciplinary action against Dr. Khalilullah by June 15, 1995 and since no
    interim stay was granted in respect of the High Court judgment the order
    had to be complied with: But in the judgment in question since role of the
    appellant came up for consideration more particularly his inaction in not E
    shifting Dr. Khalilullah as Director of G.B. Pant Hospital notwithstanding
    the recommendation of the Health Secretary and Chief Secretary to Delhi
    Administration the aforesaid strictures had been passed by the High Court
    which the appellant wants expunction.
                                                                                      F
           Mr. K.K. Venugopal, the learned senior counsel appearing for the

1   appellant submitted that the appellant not being a party to the Writ

-   Petition no strictures could have been passed by the High Court without
    issuing notice to him and without hearing him on the subject. He further
    contended that in view of the relief sought for in the Writ Petition no
    question of animadverting to any conduct of the appellant in regard to the G
    transfer of Dr. Khalilullah from G.B. Pant Hospital as an integral part of
    the judgment of the Court would arise and, therefore, the so-called stric-
    tures were wholly uncalled for. The learned counsel also urged that the
    transfer of Dr. Khalilullah not being governed by any statute and being
    purely an administrative decision and the appellant having exercised his H
    778                   SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A   discretion in the matter, there was no justification for the Court to hold his
    discretion as illegal, irrational, arbitrary and malafide. According to Mr.
    Venugopal the decision of the appellant was his personal and had no              •
    connection with the request made by the Principle Secretary to the Prime
    Minister and the appellant having taken such decision bona fide the High
B   Court should nut have issued the strictures. According to Mr. Venugopal
    the appellant who was a seasoned bureaucrat having weighed the pros and
    cons of suspending and/or shifting a senior doctor of eminence and having
    come to the conclusion that great injustice would be caused if such hasty
    decision is taken and, therefore, suggested not to take any action until the
    CBI, after investigation, makes such prayer, the said decision cannot be
C   characterised as an arbitrary .decision and, therefore, the strictures made
    by the High Court in the judgment in question are wholly inappropriate
    uncalled for and should be expunged by this Court.

         Mr. Shanti Bhushan, learned senior counsel appearing for the
D Peoples Union of Civil Liberties at whose instance the High Court has
  passed the order, on the other hand submitted, that for granting the relief
  sought for against Dr. Khalilullah the Court had no other option than to
  examine the order of the appellant who had directed not to shift Dr.
  Khalilullah and not to suspend him until CBI makes recommendation. And
  therefore, the role of appellant was very much under scrutiny of the Court.
E Mr. Shanti Bhushan further urged that no doubt the order passed by the
  appellant was in discharge of his administrative function, but the learned
  counsel contended that when a public authority discharges his public
  function and duty and a complaint is made by an individual in respect of
  same, the Court would be fully entitled to investigate and find out whether
F the power has been exercised in a fair and honest manner or has been
  exercised on account of certain external pressure and if the Court come to
  the conclusion that the power has not been exercised honestly and fairly
  then there would be no other alternative with the Court than to interfere
  with the order and to pass the order in accordance with law. According to
  Mr. Shanti Bhushan from the note sheet which was placed before the Court
G it is apparent that the appellant who was earlier apprised about the matter
  by the Health Secretary had possibly agreed and pursuant to which the
  Secretary Health, Delhi Administration put up the note but when the
  matter was made known before final decision was taken, it is the interven-
  tion of the Principal Secretary to the Prime Minister which resulted in the
H order of the appellant and therefore, the appellant did not pass the same
     P.K. DAVh PEOPLES UNION OF CIVIL LIBERTIES DELHI IPATTANAIK, J.]   779

fairly and honestly as a seasoned bureaucrat but on the other hand on A
account '.lf external pressure and pursuant to the request made by Shri
Verma, the Principal Secretary to the Prime Minister. According to Mr.
Shanti Bhushan in view of series of enquiry reports alleging large scale
financial irregularities by Dr. Khalilullah, no. reasonable man could have
allowed Dr. Khalilullah to continue on the post of Director and it had been
revealed that sever.al in1portant files have been destroyed and the remain-
                                                                              B
ing files would also have been destroyed. In this view of the matter,
according to Mr. Shanti Bhushan complaint by the Lt. Governor is wholly
unjustified. So far as non-impleament of the appellant in the Writ Petition
is concerned, Mr. Shanti Bhushan urged that the Court has not taken into
consideration any other material than the relevant files which have been      c
produced for inspection and the entire comments are based upon the notes
and orders passed by different authorities and, therefore, no prejudice can
be said to have been suffered by the appellant by not getting any oppor-
tunity of hearing in the Writ Proceeding. That apart in the application filed
for expunction he had full opportunity to explain in this Court and yet D
nothing has been indicated and, therefore the so called strictures made by
the High Court should not be expunged. Lastly Mr. Shanti Bhushan urged
that in the recent past while the other constitutional functionaries have not
been able to discharge their constitutional obligations for one reason or
other this is the only wing i.e. the judicial wing which has been able to
discharge its constitutional obligation to the satisfaction of the society at E
large and the public at large has the full confidence on the judicial system
and any interference with the observations/strictures made in the cir-
cumstances of this case would be a blow to the public confidence and
accordingly no intervention by this Court is called for.
                                                                              F
     In view of the submissions made at the Bar the first question that
arises for consideration is whether the role of the appellant was at all
necessary to be scrutinised by the Court in granting the relief sought for.
As has been stated earlier the Peoples' Union of Civil Liberties had filed
an application as a Public Interest Litigation and the entire grievance was
that not\vithstanding gross financial irregularities co111mitted by Dr. G
Khalilullah no action is being taken and on the other )iand he is being
shielded and in the process he is oblitrating the evidence in the case by
destroying the relevant files. That there has been serious financial :fr-
regularities in the matter of purchase of instruments to the tune of criires
of rupees cannot be disputed in view of the two reports of the two H
    780                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A Committees. The reports, however, did not specify the actual role and
    responsibility of Dr. Khalilullah who was the Head of the Hospital and,
    therefore, it became imperative to find out the involvement of said Dr.
    Kbalilullah and taking suitable action against him. It is in this context when
                                                                                     -
    the Secretary Medical Shri R. S. Sethi submitted the proposal, he had
    suggested the course of action to be taken in the matter for the approval
B   of I.he Lt. Governor. Clause V of the said note may be extracted herein-
    belo\v in extenso :

             "I would strongly recommend that Dr. Kbalilullah should be placed
             under suspension or immediately shifted from G.B. Pant Hospital
c            as available evidncce shows that he has played a major role in
             defrauding the Government. This step woud also facilitate a fair
             and impartial enquiry/investigation by the Crime Branch. Also, we
             may initiate disciplinary proceeings for imposition of major penalty
             against him. I am told that a large number of doctors and profes-
             sors are reluctant to speak out so long as Dr. Kbalilullah continues
D            in G .B. Pant Hospital. In fact, we have to act firmly now after what
             has been revealed otherwise we would be sending wrong signals
             to other Hospitals/Institutions."

          Thus the Secretary came to the conclusion that Dr. Kbalilullah had
E   played a major role in defrauding the Government and, therefore, he
    should be suspended or immediately shifted from G .B. Pant Hospital which
    would facilitate a fair and impartial enquiry/investigation by the Crime
    Branch. He had also indicated that doctors and professors are reluctant to
    speak so long as Dr. Khalilullah continues in G .B. Pant Hospital. It also
F   transpires from the note that before sending proposal he had discussed the
    matter with the Lt. Governor. The Chief Secretary Shri Takkar also agreed
    with the Secretary (Medical) that it is necessary to remove Dr. Kbalilullah
    from his present position in the interest of holding a fair and proper
    enquiry into the scandal but he did not agree with the suggestion of the
    Secretary to suspend him and, on the other hand, he suggested transfer of
G   Dr. Khalilullah from G.B. Pant Hospital. But when the file was placed
    before the appellant he did not agree with either of the suggestions and on
                                                                                     '•
    the other hand passed orders that until CBI makes a suggestion after
    enquiring either for suspending or shifting of Dr. Khalilullah he cannot be
    shifted. It is on account of the aforesaid order of the appellant that Dr.
H   Kbalilullah was permitted to continue as the Director of the G.B. Pant
     P.K. DAVh PEOPLES UNION OF CIVlL UBERTlES DELHI [PAlTANAIK. J.]   781

Hospital. In the aforesaid premises the role of the appellant came directly A
under the secrutiny of the Court when a complaint was made by the
petitioners in the Writ Petition and relief to shift Dr. Khalilullah from G.B.
Pant Hospital was sought for. We are, therefore, of the view that the role
of the appellant came under direct scrutiny of the Court while deciding the
Writ Petition in question.
                                                                              B
       Mr. K.K. Venugopal, learned senior counsel had relied upon the
decision of this Court in State of U.P. v. Mohd. Naim, [1964] 2 SCR 363
wherein this Court had observed that the Court would not be justified in
passing strictures unless it was necessary for the disposal of the case to
animadvert to those aspects in regard to which the strictures have been       C
passed. But the aforesaid decision, in our considered opinion is of no
assistance to the appellant in view of our earlier conclusion that the role
of the appellant came under direct scrutiny of the Court to decide the
question as to whether the relief sought for could be granted or not?
                                                                              D
       The next question that arises for consideration is whether the appel-
lant not having been arrayed as a party respondent and the High Court not
having issued any notice to him, was the High Court entitled to make such
serious comments and strictures on the appellant. There cannot be any
dispute with the proposition that no man should' be condemned without
having an opportunity of hearing. Mr. Venugopal, the learned senior E
counsel appearing for the appellant relied upon the decisions of this Court
to the effect that when allegations of mala fide are made against a person
then the said person should be impleaded as a party. The learned counsel
placed reliance on the decision of this Court in State of Bihar v. P.P.
Shamia, [1991] 2 SCR 1, Express New;paper v. Union of India , [1986] 1 F
SCC 133; Ashok Kumar Yadav v. State of Haryana, [1985] 4 SCC 417 and
A.M Mathur v. Pramod Kumar, [1990] 2 SCC 533. In the last case as the
person concerned who was the former Advocate General had not been
made a party in the Courts before this Court entertained the Special Leave
Petition filed by him and ultimately disposed of the0 same on merits. In the
case in hand we have also entertained the Special Leave Petition filed by G
the Lt. Governor. Mr. Shanti Bushan, learned senior counsel appearing for
the respondent also did not raise any contention with regard to the main-
tainability of the application. When the orders passed by the appellant
came under scrutiny of the Court and the circumstances under which the
order had been passed would appear from the relevant discussion made H
    782                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A by the different officers and the Court was examining the reasonableness
    and propriety of the orders passed by the appellant, any comments made
    by the Court without issuing notice to the appellant cannot be ipso facto
    expunged merely on the b'fOund that the appellant had no opportunity of
    hearing. That apart the appellant has now approached this Court and apart
    from raising the legal contentions that the High Court did not issue any
B   notice to him he has the full opportunity of indicating the circumstances
    under which he passed the order and those circumstances are now being
    scrutinised by this Court. In this view of the matter we are unable to
    persuade ourselves to agree with the submissions made by Mr. Venugopal,
    learned senior counsel appearing for the appellant that the remarks and
C   the strictures given by the Court should be expunged on the sole ground
    that the appellant had not been given notice nor he had any opportunity
    of hearing before the High Court.

          In course of his arguments Mr. Venugopal, learned senior counsel
D had advanced another reasoning in support of his prayer for expunction of
  the strictures made by the High Court, the same being that the notings in
  the departmental files should not be examined by the Court and on such
  notings the Court would not be entitled to comment upon the conduct of
  the officer who had submitted the notes. He further submitted that the
  basis of strictures passed by the High Court being the notes of the
E Secretary Health and Chief Secretary which was not agreed to by the Lt.
  Governor, the High Court was wholly unjustified in issuing the strictures
  in question. In support of this contention the learned counsel relied upon
  the decisions of this Court in Pltranjit Singh v. Union Tenitory of Chandigarh
  and others, [1994] Suppl. 3 SCC 471; State of Bihar v. Kripalu Shankar,
F [1987[ 3 SCC 34 and Sa1Wan Singh Lamba v. Union of l!ldia, [1995] 4 SCC
  546 (CB). But the ratio of the aforesaid cases has to be understood in the
  relevant facts of the case and it cannot be of universal application. Where
  the relevant departmental files were produced before the Court by the
  government and the Court on scrutiny of the same came to the conclusion
  that the decision has not been taken fairly, then the Court would be entitled
G to comment on the rol~ of such person who took the decision. As has been
  indicated earlier Dr. Khalilullah was continuing as the Director of the G.B.
  Pant Hospital notwithstanding different Enquiry Committees as well as
  Comptroller and Auditor General of India pointed out gross financial
  irregularities in the matter of purchase in the hospital in question. The Writ
H Petition had been filed in the Public Interest for a direction that investiga-
      P.K. DAVE>. PEOPLES UNION OF CIVIL LIBERTIES DELIII [PATTANAIK. J.[   783

 tions be made by an appropriate Investigating Ager.cy and action should          A
 be taken against the Director and he should be shifted from the place
 immediately. It is in this context that when the relevant file was produced
·indicating therein that the appellant who is the final authority in the matter
 had passed orders not to disturb said Dr. Khalilullah until CBI after
 enquiry recommends for his shifting, the said order together with all the
                                                                                  B
 antecedent orders of the subordinate authority was scrutinised by the
 Court. In such circumstances if the contention of Mr. Venugopal is ac-
 cepted then no administrative authority and his conduct would come under
 the judicial scrutiny of the Court. That an administrative order is subjected
 to judicial review is by now the settled position and no longer remains res
 i11tegra. This being the position we fail to appreciate the contentions of Mr.   c
 Venugopal that the notings in the file or the orders passed by the Secretary
 and Chief Secretary as well as the Governor should not have formed the
 basis of the strictures passed against the appellant.

       Then the most crucial question that arises .for consideration is           D
 whether in the facts and circumstances of the case the Court was justified
 in passing the strictures \Vhich have already been enumerated, and if not,
 then whether this Court would be entitled to expunge the same. The power
to expunge any remark made by a Court in a judgment is an extraordinary
po\ver and can be exerci.i;;ed only \Vhen a clear case is n1ade out. It is also
a cardinal principle that a judge should take special care in making              E
disparaging remark against a person or authority \Vhose conduct comes in
for consideration before him in any case to be decided by him and should
not make any un-called for remarks which would be against the judicial
discipline. If the relief sought for can be given lo the applicant without
dubbing the conduct of the person concerned lo be ma/a fide then the
                                                                                  F
Court should refrain from coming to any conclusion on mere assertions in
as much as the allegations of ma/a fides have to be specifically made and
would have to be established by the person who seeks relief on that ground.
To avoid harsh words and intemperate language and lo have self-restraint
is a part of judicial training of a judge and, therefore, a judge should be
extremely careful while commenting upon the conduct of another in-                G
dividual particularly when that individual is not before the Court. Bearing
in mind the aforesaid principle we would now examine the strictures made
by the Court against the appellant Mr. Dave.

      At the outset we have no hesitation to come to the conclusion on H
    784                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A going through the notes of the Secretary Health and modified by the Chief
    Secretary as well as the order of the appellant Shri Dave that the said order
    cannot be said to be reasonably arrived at by a man with vast administrative
    experience. The operative part of the order of the appellant indicates that
    he was not willing to agree with the suggestion of.the Chief Secretary even
    to transfer Dr. Khalilullah from his position as Director of G.B. Pant
B   Hospital so as lo have a fair and proper enquiry SGlely because of the fact
    that Dr. Khalilullah happens to be a nationally recognised specialist and
    had been honoured with Padma Shrce and Padma Bhushan. It is the
    common administrative practice that no enquiry into the conduct of the
    Head of an Organisation can be impartially made so long he is allowed to
C   continue as the Head of the Organisation. In the case in hand the notes of
    the Secretary clearly indicated that several important files have been
    destroyed in the meantime and the doctors and other employees of the
    hospital are reluctant to speak against Dr. Khalilullah so long as he
    continues as the Director of the Hospital. The Chief Secretary having
D   considered the notes of the Secretary had, therefore, suggested that Dr.
    Khalilullah should be transferred from his position in the interest of
    holding a fair and proper enquiry into the scandal. We are afraid, that if
    a nationally recognised specialist having been honoured with Padma Shree
    and Padma Bhushan gets involved in financial irregularities and an enquiry
    becomes imperative then administrative exigencies did require for his
E   shifting from the place.

           The order of the appellant not to shift him solely because he was a
    doctor of national repute and certain awards have been given to him does
    nol reflect that consideration of the kinds of good administration. It is in
    this context the last part of the order of the Lt. Governor assumes great
F   significance which may be quoted in extenso :

                  "! have explained the facts of the case and my decision to
             Principal Secretary lo the Prime Minister and requested him lo
             assi.st u~ in convincing the CBI to take up the case expe<litiously.n
G
         The chronology of events would indicate that the Gupta Committee
    report indicating large scale financial irregularities in the matter of pur-
    chase in the hospital was given in October 1993. The Health Secretary to
    the Government of Delhi Administration discussed the matter with the Lt.
H   Governor and then put up his notes with suggestions for approval of the
     P.K. DAVE>. PEOPLES UNION OF CIVIL LIBERTIES DELHI [PATTANAIK, J.I   785

Chief Secretary and the· Lt. Governor on 16.11.93. the Chief Secretary A
though did not approve of the suggestion of the Secretary to suspend Dr.
 Khalilull1ah but agreed with the alternative suggestion to transfer Dr.
Khalilullah for enabling the Investigating Agency to hold a fair and impar-
tial enquiry into the scandal. The Lt. Governor, however, disapproved the
suggestion of the Chief Secretary and held that no action need be taken.
                                                                              B
The High Court, therefore, was confronted with the question as to whether
the Lt. Governor properly applied his mind to all the relevant aspects and
whether ultimate decision was honest, uninfluenced by any extraneous
consideration. It may be noticed that immediately after the Secretary
(Medical) Shri R.S. Sethi put up his notes dated 16th of November, 1993,
suggesting suspension of Dr. Khalilullah or atleast his shifting from the C
G.B. Pant Hospital Shri Amar Nath Verma, Principal Secretary to the
Prime Minister directed the Special Secretary Shri Satyam in the Ministry
of Home Affairs to pre-empt the Delhi Administration from taking any
action against Dr. Khalilullah and the Special Secretary then talked to Shri
Sethi, the Secretary (Medical) as well as Shri R.K. Takker, Chief Secretary. D
Telephonic discussion of Shri Verma, Principal Secretary to the Prime
Minister and Shri Satyam, the Special Secretary to the ministry of Home
Affairs was on 19th November, 1993 on which date the file had left the
table of the Secretary Health and had reached the Chief Secretary. Shri
Verma had not chosen to put anything on record as to where from he could E
learn about the proposed action suggested by the Secretary Shri Sethi. Said
Shri Verma not being satisfied with the telephonic discussion he had with
Shri Satyam on the 19th, called him again on 20th November, 1993 and
directed him to advise the Delhi Administration in writing so that no action
should be taken in the case. Shri Satyam, therefore, telephonically apprised
the Lt. Governor and sent a D.O. Letter to the Chief Secretary. It is,
                                                                              F
therefore, crystal clear that the appellant did not take the decision of his
own but on the other hand was influenced by the instruction of Shri Verma
the Principal Secretary to the Prime Minister. But since Shri Verma's
conduct is not directly under our scrutiny in the present case \Ve do not
think it necessary to focus our attention on that any more. Suffice it to say G
that it is because of the instruction of Shri Verma that the appellant passed
the order not even to shift Dr. Khalilullah and in his order also indicated
that he had explained the facts to the Principal Secretary to the Prime
Minister. In the aforesaid premises it is difficult for us to accept the
submission of Shri Venugopal, learned senior counsel for the appellant that H
    786                     SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A the decision was his own and not on any extraneous consideration. The
    High Court, therefore did not commit any error in coraing to the con-
    clusion about the impropriety of the decision and in fact it was influenced
    by someone else. Therefore, the strictures mentioned in 'd' sought to be
    expunged has been justifiably made and no case for expunction has been
    made out, but the word 'dictated' is probably not appropriate. We accord-
B   ingly modify the same by replacing the word 'dictated' by 'influenced'.

           Coming to the stricture 'a' we, ho\vever, find the materials on record
    do not justify lo dub the decision of the Governor as mala fide and we,
    therefore, direct expunction of the word 'and mala [ides ' after the word
    'arbitrariness' from the stricture 'a'.
c
          So far as the stricture 'b' is concerned in our considered opinion, it
    was not necessary for the Court to hold that the Lt. Governor abused his
    power though Court was justified in holding that the Governor acted in an
    arbitrary and unreasonable manner. As has been stated earlier the Court
D   should refrain from using intemperate language as part of judicial dis-
    cipline \vhile examining the role and con<luct of high constitutional
    functionaries. In the circumstances, \VC direct that the expression 'abused
    his power' be expunged from stricture 'b'.

             So far as stricture 'C' is concerned \VC see nothing therein which can
E be said to be objectionable and, therefore, the prayer for expunetion stands
    rejected.

             With the aforesaid observations the appeal stands disposed of.

    V.S.S.                                                    Appeal disposed of.




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