TMI Blog2000 (11) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... ratic polity, the verdict of the people determines the continuance of an elected Government a negative trend in the elections brings forth a change in the Government it is on this formula that one dominant political party overturns another dominant political party and thereby places itself at the helm of the affairs in the matter of the formation of a new Government after the election. The dispute in the appeals pertain to the last phase of the earlier Government and the first phase of the present Government in the State of Punjab: Whereas the former Chief Secretary of the State of Punjab upon obtaining approval from the then Chief Minister of Punjab initiated proceedings against two senior colleagues of his in the Punjab State Administration but with the new induction of Shri Prakash Singh Badal as the Chief Minister of Punjab, not only the Chief Secretary had to walk out of the administrative building but a number seventeen officer in the hierarchy of officers of Indian Administrative Service and working in the State of Punjab as a bureaucrat, was placed as the Chief Secretary and within a period of 10 days of his entry at the Secretariat, a notification was issued, though with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust cause or excuse: Bromage v. Prosser (1825 1 C. P.673) Intentionally refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved. In Girija Shankar Pants case (supra) this Court having regard to the changing structure of the society stated that the modernisation of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test of real likelihood and reasonable suspicion, reliance was placed in the decision in the case of Parthasarthy (S. Parthasarthy v. State of Andhra Pradesh: 1974 (3) SCC 459) wherein Mathew, J. observed: 16. The tests of real likelihood and reasonable suspicion are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct, The facts of this present case are exceptional, The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'sobjects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest. Lord Hutton also in Pinochets case (supra) observed: there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty witness , or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be. 29. The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient. The test. therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soon thereafter the petitioner was chargesheeted inter alia for acting in a manner which cannot but be ascribed to be malafide and in gross violation of the established norms and procedure of the Government function contrary to the service rules and in any event, lack of fair play and lack of integrity with high moral as was expected of a senior civil servant. BACKGROUND FACTS The charge-sheet, however, stands challenged before the Central Administrative Tribunal, Chandigarh Bench by Shri V.K. Khanna, the former Chief Secretary to the Punjab Government since 2nd July, 1996 and continued to be so under the Government headed by Mrs. Rajinder Kaur Bhattal as the Chief Minister. The Tribunal, however, answered the issue against Shri Khanna upon due reliance on the decision of this Court in the case of Union of India Anr. vs. Ashok Kacker [1995 SCC (L S) 375] wherein this court in paragraph 4 of the report was pleased to observe: 4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wered both the issues as raised in the affirmative and thus resultantly the appeal before this Court by the grant of special leave. Rival Contentions: The appellant, State of Punjab Ors in one singular voice deprecated the judgment under appeal as wholly unsustainable since the same violates even the basic tenets of law. Absence of malice has been the main thirst of submissions in support of the appeal and adaptation of a simple method of disciplinary inquiry is the key issue as urged by the appellants. Shri Khanna, respondent No.1, on the other hand contended that the entire set of facts if analysed in a proper perspective then and in that event gross violation of basic tenets by reason of malice ipso facto would be apparent enough to reach the same conclusion as has the High Court. Shri Khanna alleges that the issuance of the charge-sheet against him is the direct outcome of the reference of the two cases to the CBI and is overtly malafide. It would thus be convenient to assess the facts pertaining to above-noted two cases at this juncture. Reference of two cases to the CBI Brief facts relating to the issuance of the two notifications to the CBI are as below:- (a) Shri Khann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ignored and there is existing on record a recommendation from the Vigilance Bureau that the complaint and the enquiry needed to be dropped altogether. The record depicts that after receipt of the report from the Vigilance Department, the matter was discussed at the level of the Chief Secretary and the Principal Secretary, Vigilance and certain clarifications were asked for and while the matter was still pending for consideration at the level as above, the Chief Minister wanted to have a look at the file and as such asked for the same on 6.2.1997. It is on this factual backdrop as above the Chief Minister notes in the file as below: I have gone through the Enquiry Report of Vigilance Bureau as well as other portions of the file. I am in agreement with Chief Secretary that this case has not been properly probed. Since officer is senior and influential, another enquiry by the State machinery may not be appropriate. This case may, therefore, be referred to the CBI for enquiry. Reference may be made immediately. Sd/-C.M./6.2.97 C.S. And on the next date i.e. on 7.2.1997 records depict a note of the Chief Secretary recording therein that upon consultation with the Advocate Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the expediency of the situation urgently and not otherwise. The answers to these questions raised above will be made available in the later part of this judgment but for the present it is significant to note that if hot haste is to be attributed to Mr. V.K. Khanna, the same can also be ascribed to Shri Mann, who succeeded Mr. Khanna as Chief Secretary after the new Government took over. It has been stated that the file pertaining to the matter in issue was made available to Shri Mann only late in the evening on 23.2.1997 and a detailed note was prepared by the Chief Secretary Shri Mann on 25.2.1997: The same was placed before the learned Advocate General on the same date and the Advocate General also opined to rescind the notification date 7.2.1997 since the same is not sound in law and based on malafide considerations. Interestingly the note records that the Government should rectify the mistakes in the larger interest of justice and fair play. The records further depict that the file was sent back to the Chief Secretary on the same day and the latter sent the same to the Chief Minister with a note to the following effect: I endorse the view of the A.G. C.M. may kindly agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, loss caused to the State Government and any other illegal acts in the name of sports promotion culpable under the existing laws. Sd/ C.M./6.2.97 C.S. It is in terms with the orders of the Chief Minister dated 6th February, 1997 that two notifications were issued as above. Before adverting to the contentions certain other factual details are required to be noticed at this juncture: Elections to the State Legislative Assembly were held on 7th February, 1997 and votes were counted on 9th February, 1997. The party in power at the Punjab Assembly however, having lost the election, the Chief Minister Mrs. Bhattal resigned from the office and Shri Prakash Singh Badal was sworn in as the Chief Minister on 12th February, 1997. Immediately on assumption of office, however, both S/Shri Mann and Bikramjit Singh were appointed as the Chief Secretary and the Principal Secretary to the Chief Minister respectively in place of Shri V.K. Khanna and Shri S.S.Dawra with immediate effect. Admittedly, Shri R.S. Mann belongs to the 1965 batch in the service and by reason of the appointment he has, as a matter of fact, superseded ten of the officers in the State including Mr. V.K. Khanna this w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two cases. In processing these cases, Shri V.K. Khanna, IAS, acted in a malafide manner and in gross violation of established norms and procedures of Government functioning and in utter disregard of All India Service Rules, principles of objectivity, fair play, integrity and the high morals expected of a senior civil servant. 2. Shri VK Khanna, IAS, processed the cases with undue hurry and undue interest, not actuated by the nature of cases. This is demonstrated by the following:- (i) Even though elections were on and polling took place on 7th February and the then C.M. was in her constituency, away from Chandigarh, most of the action was completed on 6th February and on 7th February which was a holiday. The papers traveled thrice between Chandigarh and Lehragaga on Feburary 6. (ii) Neither in her first note of 6th February nor in her second note of the same day did the C..M. direct that the cases were to be handled at breakneck speed. (iii) The statutory notifications issued on 7th February were neither sent to the L.R. as required by Rules of Business of Punjab Government nor were they sent for gazetting as required by law. 3. Shri V.K. Khanna, IAS, antedated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place. 7. Shri V.K. Khanna, IAS, after handing over the charge as Chief Secretary ton 14.2.1997 A.N. returned the two files on the above two cases on 15.2.1997 to an officer of the Vigilance Department. The same day he summoned the two files without authority and detained them for a long time with ulterior motives. He recalled both the files on the plea that the files being top secret in nature would be handed over to the Additional Secretary Vigilance. However, the two files were returned on 24th and 26th February 1997. He, therefore, remained in unauthorised possession of these two files after handing over charge as Chief Secretary. 8. Shri V.K. Khanna, IAS, did not make any proper attempt to verify the assertions and allegations in his note dated 6.2.1997 and in the note of the then C.M. of the same date in the P.C.A. case. No proper preliminary enquiry was conducted in the matter nor was any opportunity to explain given to those who might have been adversely affected by the decision. These are the most elementary prerequisite to any such decision by a civil servant. No serious effect was made to ascertain the full facts. Whereas the record shows that the decision to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not acceded to on the plea that the same is not relevant to the chargesheet and it is only thereafter that the Petitioner approached the Central Administrative Tribunal for quashing of the chargesheet and as detailed above having however, failed to obtain any relief, the petitioner moved the High Court wherein the High Court set aside the chargesheet and quashed the proceedings against the petitioner. CONTENTIONS; Re Chargesheet In support of the Appeal both Mr. Rajinder Sachhar, Sr. Advocate and Mr. Harish N. Salve, Solicitor General of India strongly contended that propriety of the situation demanded confirmation of the disciplinary proceedings rather than its quashing by the High Court since, the issuance of notification has been contrary to the rules of business. Before delving into the contentions, we feel it proper to note the general principles of law as recorded by the High Court pertaining to discharge of duty of a civil servant. The High Court observed: Indisputably, duty is like debt. It must be discharged without delay or demur. A civil servant must perform his duties honestly and to the best of his ability. He must abide by the Rules. He should live by the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccompanymen with some other factors which would depict a bad motive or intent on the part of the doer of the act. It is in this sphere let us now analyse the factual elements in slightly more detail the Chief Minister is desirous of having the files pertaining to two of the senior officers of the administration and concerning two specific instances in normal course of events, we suppose the Chief Secretary has otherwise a responsibility to put a note to the Chief Minister pertaining to the issue and in the event the Chief Secretary informs the Chief Minister through the note that there should be a further probe in the matters for which the files have been asked for, can it by itself smack of malafides? Personality clash or personal enmity have not been disclosed neither even there is existing any evidence therefor: so in the usual course of events the Chief Secretary in the discharge of his duty sent a note to the Chief Minister recording therein that a further probe may be effected if so thought fit by the Chief Minister and in the event the Chief Minister agrees therewith and a probe is directed through an independent and impartial agency can any exception be taken therefor? Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the civil servant, would be in gross violation of established norms and procedure of Government functioning. The processing was further stated to be in utter disregard of All India Service Rules, we are not aware neither any rules have been placed before this Court wherein initiation of an enquiry for assets disproportionate to the known source of income can be termed to be in disregard of the service rules or fair play, integrity and morals: Do the service rules or concept of fair play, integrity or morals expected of a senior civil servant provide a prohibition for such an initiation or such processing, if that is so, then, of course one set of consequence would follow but if it is other way round then and in that event, question of any violation or a malafide move would not arise. The second charge is in regard to undue hurry and undue interest not being actuated by the nature of cases and as an illustration therefor, note of the Chief Minister was taken recourse to the effect that there was no direction in either of the notes that the cases were to be handled at brake-neck speed. The note noted above, however, records that the CBI enquiry be initiated and the reference ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, does not stand any factual justification since one of the files were returned to the Chief Secretary on 24th February itself whereas CBI lodged the FIR on 25th February, 1997. Mr. Subramaniam however, contended that the contemporaneous noting which has been produced in Court do not indicate any perturbation on the part of the senior officers seeking to recover these papers. Mr. Subramaniam contended that the anxiety of the first respondent only was to see that the files be lodged in the custody of the responsible person in the administration and the delay caused in that regard can hardly be said to be self-serving or that he played any role in the CBI for pursuing the investigation. We have dealt with the issue to the effect that no exception can be taken as regard the action of the Respondent No.1 As regards the allotment of land to Punjab Cricket Association Mr. Solicitor General contended that as a matter of fact, there was a total disregard to ascertain the full facts and emphatic statement has also been made during the course of hearing and which finds support from the chargesheet that even the Assembly had categorically endorsed the decision of grant of land at nominal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Velodrome to Cricket Stadium at Sh. Bindras behest, following collusive and malafide inter- departmental meetings with Sh. Mann. (viii) Housing Board connived at serious encroachments made by the PCA which is actually in occupation of about 20 acres, as against 10.5 acres, as against 10.5 acres mentioned in the decision of the Governor-in-Council (order dated 29.4.91) which in any case was not for a Cricket Stadium, but for a Sports Complex/Velodrome. It is on this score Mr. Subramaniam for respondent No.1 contended that the factual context as noted hereinbefore prompted the Chief Secretary to submit the note to the Chief Minister and the allegation of not assessing the factual situation in its entirety cannot be said to be correct. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malce or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the personal vendetta or can any chargesheet be issued on the basis thereof, the answer cannot possibly be but in the negative. The contextual facts depict that there is a noting by an official in the administration that certain vigilance matters are pending as against one of Secretaries but that stands ignored. We have dealt with this aspect of the matter in detail herein before in this judgment thus suffice it to note that further effort on the part of Shri Khanna in bringing to notice to the Chief Minister would not have resulted any further development and in that perspective the conduct of Shri Khanna can not be faulted in any way. These are the instances which the High Court ascribed to be not in accordance with the known principles of law and attributed motive as regards initiation of the chargesheet. OPINION OF THE COURT As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decisions cited from the Bar since facts are otherwise differen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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