Holding

The Supreme Court held that no real danger of bias or malafide intent was established against the respondent, so the High Court’s finding of mala fide action was unsupported and the appeal was dismissed.

Summary

The former Chief Secretary of Punjab, V.K. Khanna, referred two cases to the CBI with the then Chief Minister’s approval; after a change of government the new administration withdrew the referrals and issued a charge‑sheet alleging malafide intent, bias and procedural violations. Khanna challenged the charge‑sheet before the Central Administrative Tribunal, which dismissed his plea as premature, and the Punjab High Court subsequently quashed the charge‑sheet, holding the action was arbitrary and mala fide. On appeal, the Supreme Court examined the meaning of bias, malice and mala fide in administrative law, emphasizing that a real danger of bias—not mere apprehension—must be shown and that malafide conduct requires positive evidence of ill will. Finding no cogent evidence of bias or malice in Khanna’s actions, the Court upheld the High Court’s decision and dismissed the appeal. The appeal was therefore dismissed without costs.

Issues considered

Whether the actions of the respondent Chief Secretary amounted to bias or malafide intent sufficient to invalidate the administrative action.
Whether the test for bias is a mere apprehension or a real danger of bias in administrative proceedings.
Whether the issuance of the charge‑sheet and the withdrawal of CBI referrals violated the Rules of Business or any statutory provisions.
Whether the High Court was justified in quashing the charge‑sheet on grounds of arbitrariness and mala fide conduct.

Legislation cited

Subjects

biasmalicemala fideadministrative lawdisciplinary proceedingsfairnessreasonablenessCentral Bureau of InvestigationCentral Administrative TribunalArticle 226Rules of Businessreal danger of biaspublic service

Judgment

A STATE OF PUNJAB
v.
V.K. KHANNA AND ORS.

NOVEMBER 30, 2000

B [M. JAGANNADHA RAO AND U.C. BANERJEE, JJ.)

Administrative Law:

"Bias" and "malice"-Tests to determine-Held: The test is whether
C there is a real danger of bias not a mere apprehension- 'Bias' is included
within a broader purview of 'malice'-Administrative action-'Bias'-Chief
Secretary referred two cases to CBI with prior approval of the then Chief
Minister-With the Change of Government new CM withdrew the cases and
Chief Secretary charged with ma/a fide, lack of fair play etc.-Notification
D alleged to be issued in undue haste-In spite of declaration of Election, Chief
Secretary alleged to have obtained approval with back date-Held: Issuance
of notification not in violation of Rules of Business-No evidence of ill will
or spite or personal vendetta-Hence, Chief Secretary is not guilty of ma/a
fide or malicious conduct.

E Constitution of India, 1950:

Article 226-Discip/inary proceedings-Initial stages of-Interference
with-Held: In the event of malice or ma/a fide motive or bias, court is
justified in interfering at the earliest stage.

F Words and Phrases:

"Bias", "malice" and "malafide "-Meaning of-In the context of
Administrative Law.

The respondent, a former state Chief Secretary, referred two cases in
G respect of his senior colleagues to the Central Bureau of Investigation (CBn
with the prior approval of the then Chief Minister. With the change in
Government, the new CM withdraw the said cases and charge-sheeted the
respondent with ma/a fide intention, lack of fair play etc.
The respondent filed an application before the Central Administrative
H Tribunal challenging the aforesaid charge-sheet, which was dismissed as being
200
STATE v. V.K. KHANNA 201

premature. However, the High Court allowed the appeal and held that the A
respondent was proceeded against in a high-handed, arbitrary and Mala fide
manner. Hence this appeal.

On behalf of the appellant it was contended that the respondent
processed the two cases with undue haste and undue interest not actuated by
the nature of cases; that the issuance of notifications referring the two cases B
to CBI was in violations of the Rules of Business; and that in spite of
declaration of elections the respondent obtained the approval of the then CM
with back date.

Dismissing the appeal, the Court

HELD: I.I. Whereas fairness is synonymous with reasonableness-
c
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 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 records to D
come to the conclusion as to whether in fact, there was existing a bias or a
mala fide move, which results in the miscarriage of justice. 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. 1204-H; 205-A, BJ E
Kumaon Manda/ Vikas Nigam v. Girija Shankar Pant JT. (2000) Suppl.
II 206; S.Parthasarthy v. State of Andhra Pradesh, 11974) 3 SCC 459; Jones
Brothers (Hunstanton) Ltd. v. Stevens, (1995) 1 QB 275; Lumlev v. Gve, 2 E
& B 216 and Franklin v. Minister of Town and Country Planning, (1948) AC
87, referred to. F
Bromage v. Prosser, (1825) IC & P 673; Metropolitan Properties Co.
(FGC) Ltd. v. Lannon, 11968) 3 WLR 694; R. v. Bow Street Metropolitan
Stipendiary Magistrate, Exparte Pinochet Ugarte, (No.2) [2000) 1 AC 119;
Locabail (UK) Ltd. v. Bayfield Properties ltd., (2000) QB 451; R. v. Gough,
(1993) AC 646; Dimes case 3 House of lords Cases 759; re JRL Ex Parle G
CJ/, (1986116 CLR 342; President of the Republic of South Africa v. South
African Rugby Football Union, (199) 4 SA 147 and Vakuta v. Kelly, (1989)
167 CLR 568, cited.

1.2. 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 H
202 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A surrounding circumstances must and ought to be collated and necessary
conclusion drawn therefrom. In the event, however, the conclusion is otherwise
that thue is existing a real danger of bias, administrative action cannot be
sustaio ,d, If on the other hand allegations pertain to rather fanciful
apprei'1ension in administrative action, question of declaring them to be
B unsustainable on the basis, therefore, would not arise. 1208-G, HI

Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-education)
Higher Secondary School, (1993] 4 SCC 10 and Kumaon Manda! Vikas
Nigan1 "· Girija Shankar Pant JT, (2000) Suppl. II 206, relied on.

2.1. Bias admittedly negates fairness and reasonableness by reason of
C which arbitrariness and mala fide move may creep in-issuance of the two
notifications assuming in hot haste but no particulars of any mala fide move
or action has been brought out on record on the part of the respondent. The
expression 'mala fide' has a definite significance in the legal phraseology
and the same cannot possibly emanate out of fanciful imagination or even
D apprehensions but there must be existing definite evidence of bias and actions
which cannot be attributed to be otherwise bona fide actions not otherwise
bona fide, however, by themselves would not amount to be mala fide unless the
same is in accompaniment with some other factors which would depict a bad
motive or intent on the part of the doer of the act. (221-B, C, D]

E 2.2. There must be a positive evidence available on record in order to
decry an administrative action on the ground of mala fide and arbitrariness.
The ill will or spite must be well pronounced and without which it would be
not only unfair but patently not in conformity with the known principles of
law. On a scrutiny of the files as presented to court and the evidence thereon,
F unfortunately, however, there is no evidence apart from a 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.
Initiation of an enquiry against the civil servant, would not be in gross violation
of the established norms and procedure of Government Functioning. Neither
the processing of the cases in utter disregard to the All India Service Rules
G nor initiation of an enquiry of assets disproportionate to the known source of
income is in disregard of the service rules or fair play, integrity and morals.
[222-A, B, F, GJ

3. 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
H of the Chief Minister was taken recourse to the effect that there was no
STATE v. V.K. KHANNA [BANERJEE, J.] 203
direction in either of the notes that the cases were to be bandied at 'break- A
neck' speed. The note, 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 follows but in the
normal course of events, such a direction from the Chief Minister ought to B
be adhered to with promptitude and no exception can thus be taken in that
regard. 1223-A, BJ

4. While it is true that justifiability of the charges at the 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 C
element of malice or mala fide 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 D
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. 1225-H; 226-A, BJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6963 of2000. E
From the Judgment and Order dated 22.12.98 of the Punjab and Haryana
High Court in C.W.P.No.8150of1998.

WITH

Civil Appeal No. 6994 of2000. F

Harish N. Salve, Solicitor General, P.P. Rao, Rajinder Sachhar, Gopal
Subramanium, D. S. Mehra, Mohinder Jeet Singh Sethi, Krishan Venugopal,
Ms. Jayshree Anand, Addi. Advocate General for Punjab, Rajiv Dutta, Kapil
Sharma, Uday Kumar, K.R. Sasiprabhu, Manish Garg, Dhirendra Negi, S. G
Awasthi, D.S. Negi, S.R. Setia, Yakesh Anand, Sanjeev Anand, Ms. Rekha
Panday, B.K. Prasad, P.B. Suresh, Ms. Sushma Suri and Vipin Nair for the
appearing parties.

The Judgment of the Court was delivered by

BANERJEE, J. Leave granted. H
204 SUPREME COURT REPORTS [2000] SCP!'. 5 S.C.R.

A 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
B 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 man's perception in its proper perspective which
would prompt the Court to determine the situation as to whether the same is
otherwise reasonable or not.
c 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
D 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
E 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,
F was placed as the Chief Secretary and within a period of I 0 days of his entry
at the Secretariat, a 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
G 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 rhat 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 I0 days of its installation withdraws
H the notification - is this fair? The High Court decried it and attributed it to
STATE v. V.K. KHANNA [BANERJEE, J.] 205
be a motive improper and ma/afide and hence the appeal before this Court. A

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 B
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 Manda/
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 C
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
(Huns/anion) Ltd. 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 D
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 E
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 IC. & 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." F
In Girija Shankar Pant 's 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 cif 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 G
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 H
206 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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 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
B 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
c to be prejudiced, that is sufficient to quash the decision (see per Lord
Denning, HR. 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."
D
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 Shankar's case
(supra) further noted the different note sounded by the English Courts in the
manner following:
E
"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
F Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugartl!
(No.2) (2000) I 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
G 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 judge's decision will lead to the promotion of a
cause in which the judge is involved together with one of the parties."
H Lord Brown -Wilkinson at page 136 of the report stated:
STATE v. V.K. KHANNA [BANERJEE, J.] 207
"It is important not to overstate what is being decided. It was A
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 B
case are exceptional. The critical elements are (I) 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. 's'objects. 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 C
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 to disclose a possible
interest."

Lord Hutton also in Pinochet's case (supra) observed: D
"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 E
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 Court's F
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.LR. 557) and on the decision of
the Constitutional Court of South Africa in President of the Republic ofSouth
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 G
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 H
208 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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
B terms as to throw doubt on his ability to approach such person's
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
c 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
D , 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
E 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."

29. The Court of Appeal judgment in Locabail (supra) though
F 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."
G
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
H is existing a real danger of bias administrative action cannot be sustained: If
STATE v. V,.K. KHANNA (BANERJEE, J.] 209
on the other hand allegations pertain to rather fanciful appret.ension in A
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 Sharma 's case (Rattan Lal Sharma v. Managing Committee
Dr. Hari Ram (Co-education)_Higher Secondary School & Ors., [1993] 4 SCC B
I 0, 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 Sharma 's
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 Sharma 's case (supra) thus, in C
fact, has not expressed any opinion which runs counter to that in Gilja
Shankar 's case (supra) and the decision in the last noted case thus follows
the earlier judgment in Rattan Lal's case even though not specifically noticed
therein.

Before adverting to the rival contentions as raised in the matter, it would D
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 E
evidence of improper conduct and motive resultantly a malajide move on the
part of the appellants herein against respondent No. I 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 F
in the hands of Shri Bikramjit Singh, !AS 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 G
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 H
210 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A Administrative Tribunal, Chandigarh Bench by Shri V.K. Khanna, the former
Chief 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
B & Anr. y. Ashok Kacker, [ 1995] sec (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 respondent's
c 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
D 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
E 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
F 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
G 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 Hon 'ble 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
H thereafter taken to the High Court and the High Court recorded the core
STATE v. V.K. KHANNA [BANERJEE, J.] 211
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?"
B
The High Court came to a definite conclusion about high- handed,
arbitrary and mala-fide approach towards Shri Khanna, being the respondent
No. I 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: c
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 D
of the appeal and adaptation of a simple method of disciplinary inquiry is the
key issue as urged by the appellants. Shri Khanna, respondent No. I, 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- E
sheet against him is the 'direct outcome of the reference of the two cases to
the CBI and is 'overtly ma/ajide'. 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
F
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 G
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 H
212 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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.
B 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
C 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 I 0 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. I I 0 South
D 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
E Vigilance Bureau however recommended that since the difference is around
I 0%, 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
F 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.

G It is on this factual backdrop as above the Chief Minister notes in the
file as below:

"I 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
H and influential, another enquiry by the State machinery may not be
STATE v. V.K. KHANNA [BANERJEE, J.) 213
appropriate. This case may, therefore, be referred to the CBI for enquiry. A
Reference may be made immediately."

Sd/-
c.s. C.M./6.2.97

And on the next date i.e. on 7.2.1997 records depict a note of the Chief B
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- C
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 D
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 E
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 eQsuing 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 F
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 G
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 orthe 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 H
214 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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
B 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 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
C the same is not sound in law and based on ma/ajide 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:

D "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)
E C.M. 25/2 c.s.
The records further depict that the Chief Minister on 26th February,
I 997 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
F 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
G same. It is in this perspective Mr. Subramaniam, learned senior counsel
appearing for respondent No. I 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 General's opinion and it is on 25th of
February that the opinion has been received recording infraction of Jaw
H without however any specific mention and, thereafter, the file was placed
STATE v. V.K. KHANNA [BANERJEE, J.) 215
before the Chief Minister and on 26th of February, 1997 Chief Minister signs A
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 malajide 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 B
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 C
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 D
the State Government and any other illegal acts in the name of sports
promotion culpable under the existing laws."

Sd/-
c.s. C.M./6.2.97
E
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 F
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 ofShri V.K. Khanna and Shri S.S.Dawra with immediate G
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 H
216 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 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 people's
representatives would be the best person to judge the efficiency or otherwise
B 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
C 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
D 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

E 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. I in his Writ Petition. The same
p however, reads as below:

"Shri V.K. Khanna, !AS, 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.:-
G (i) Amassing assets disproportionate to the known means of income
by Shri Bikramjit Singh, !AS; and

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

The CBI registered F!Rs in these two cases. In processing these
H cases, Shri V.K. Khanna, IAS, acted in a malafide manner and in gross
STATE v. V.K. KHANNA [BANERJEE, J.] 217

violation of established norms and procedures of Government A
functioning and in utter disregard of All India Service Rules, principles
of objectivity, fair play, integrity ana the high morals expected of a
senior civil servant.

2. Shri VK Khanna, !AS, processed the cases with undue hurry and
undue interest, not actuated by the nature of cases. This is B
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 travelled thrice C
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.
D
(iii) The statutory notifications issued on 7th February weJ"e 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, !AS, antedated and fabricated the record. Some
of the actions/noting, which is shown to have been done on 6th and E
7th February 1997, was actually done on 8th February 1997. This is
established by a fact finding enquiry conducted by Shri Surjit Singh,
!AS, 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. F
4. Shri V.K. Khanna, !AS, with malicious intent kept the entire operation
a closely guarded secret until the CBI had completed all formalities
and had registered the F!Rs. This is demonstrated by the following
facts/events:
r G
(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 H
218 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 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
B before handing over charge as the Chief Secretary.

(iv) When the file for appointment of Shri Bikramjit Singh, !AS, 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
C 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, !AS, failed in the proper discharge of his duties
D 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.

E 6. Shri V.K. Khanna, !AS, 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, !AS, after handing over the charge as Chief
Secretary on 14.2.1997 A.N. returned the two files on the above two
F 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·
G 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, !AS, did not make any proper attempt to verify
the assertions and allegations in his note dated 6.2.1997 and in the
H note of the then C.M. of the same date in the P.C.A. case. No proper
STATE v. V.K. KHANNA [BANERJEE, J.) 219

preliminary enquiry was conducted in the matter nor was any A
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 B
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. C
9. Shri V.K. Khanna, !AS, 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 D
Secre'taries 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/ E
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 p
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. I - Mr. G
Subramaniam contended that the statement depicts malice and vendetta and
the frame of mind so as to humiliate the former Chief Secretary. The time l:as
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. Subramaniam's comment might find some justification. H
220 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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
B 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 aside the chargesheet and quashed
the proceedings against the petitioner.

CONTENTIONS; Re Chargesheet
c 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.
D
Before delving into the contentions, we feel it proper to note that 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
E delay or demur. A civil servant must perform his duties ho!1estly 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.
F 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
G 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
H Government has the right to intervene and punish the guilty. This is
STATE v. V.K. KHANNA [BANERJEE, J.] 221
the undoubted prerogative of the State. But, to borrow the words of A
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 B
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 - issuance of the two notifications
assuming in hot haste but no particulars of any malafides move or action has C
been brought out on record on the part of Shri V.K. Khanna -while it is true

J that the notings prepared for Advocate General's 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 D
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. E

It is in this sphere let us now analyse the factual elements in slightly
more detail - the Chief 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 F
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 G
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 H
222 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 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 malajides
and arbitrariness. The ill will or spite must be well pronounced and without
B 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
bar-e 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
C 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 malajide. If initiation of a proceeding through CBI can
be termed to be a malajide act then what would it be otherwise when
Government acts rather promptly to rescind the notifications-can it be an
D actK>n 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 notifications, the answer need not be detailed out expressly but
can be inferred therefrom.
E
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
F 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 levelled 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
G 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 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
H servant provide a prohibition for such an initiation or such processing, if that
STATE v. V.K. KHANNA (BANERJEE, J.] 223
is so, then, of course one set of consequence would follow but if it is other A
way round then and in that event, question of any violation or a ma/afide
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 B
'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 C
can thus be taken in that regard.

J 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 D
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 E
is not supposed to act by reason of the impending change then he cannot
possibly be accused of not acting, as required by t.he rules of business or
as required by law.

One of the basic charge of malajides as ascribed by Mr. Solicitor
General, is that the papers pertaining to one of the cases was retained till the F
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
I 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. I Shri Khanna not being in the city and away in Delhi for G
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, ifthere
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 H
224 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A neither it calls for any further explanation.
During. the course of submission, strong emphasis has been laid on a
linkage between the CBI's 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
B 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 the custody of the
C 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. I
[
As regards the allotment of land to Punjab Cricket Association Mr.
D 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
E 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 herein below 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
F 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:
G
(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,
H
STATE v. V.K. KHANNA [BANERJEE, .I.] 225
Sh. Bindra. A
(ii) Shri Bindra's 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.
B
(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. I 997 of Chief Administrator PUDA brought
out many serious irregularities in regard to grant of funds for the C
Cricket Stadium and the 'PCA Club'.

(v) It had also come to the Petitioner's 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. D
(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 E
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.
Bindra's behest, following collusive and malafide "inter- p
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 G
not for a Cricket Stadium, but for a Sports Complex/Velodrome."

It is on this score Mr. Subramaniam for respondent No. I contended that
the factual context as noted hereinbefore prompted the Chief Secretar}:--to
submit the note to the Chief Minister and the allegation of not assessing the
factual situation in its entirety cannot be said to be correct. H
226 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 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
malice or ma/afide, 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
B 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
C 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.

D The High Court while delving into the issue went into the factum of
announcement of the Chief Minister in regard to appointment of an Inquiry
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
E 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
F called for. In the event upon deliberations and due considerations it is in the
affirmative-the inquiry follows but not otherwise and it is t,_.s rart of Service
Jurisprudence on which reliance was placed by Mr. Subramaniam and on that
score, strongly criticised the conduct of the respondents here and accuseo
them of being biased. We do find some justification in such a criticism upon
G 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
H available - can the action be said to be the resultant effect of the personal
STATE v. V.K. KHANNA [BANERJEE, J.] 227
vendetta or can any chargesheet be issued on the basis thereof, the answer A
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 B
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 accordance with
the known principles of law and attributed motive as regards initiation of the C
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 D
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 E
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 to cost.

V.S.S. Appeals dismissed.