2000 Supreme(SC) 1919

2000(8) Supreme 105
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
M. Jagannadha Rao, Umesh C. Banerjee, JJ.
State of Punjab -Appellants
versus
V.K. Khanna & Ors. -Respondents
Civil Appeal No. 6963 of 2000
(Arising out of SLP (C) No. 6173 of 1999)
Sardar Prakash Singh Badal -Appellant
versus
V.K. Khanna & Ors. -Respondents
Civil Appeal No. 6964 of 2000
(Arising out of SLP (C) No. 6237 of 1999)
Decided on 30-11-2000
Counsel for the Parties :
For the Appearing Parties : Harish N. Salve, Solicitor General, P.P. Rao, Rajinder Sachhar, Gopal Subramanium, D.S. Nehra, Mohinder Jeet Singh Sethi, Sr. Advocates, Krishan Venugopal, (Ms. Jayshree Anand), Addl. Advocate General for Punjab, Rajiv Dutta, Kapil Sharma, Uday Kumar, K.R. Sasiprabhu, Manish Garg, Dhirendra Negi, S. Awasthi, D.S. Negi, S.R. Setia, Yakesh Anand, Sanjeev Anand, Ms. Rekha Pandey, B.K. Prasad, P.B. Suresh, Ms. Sushma Puri, Vipin Nair, Advocates.

IMPORTANT POINTS
1. While it is true that justifiability of 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 element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official.
2. There must be a positive evidence available on record in order to decry an administrative action on the ground of malafides and arbitrariness. The ill will or spite must be well pronounced and without which it would be not only unfair but patently not in confirmity with the known principles of law.
3. 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; the test is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained : If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise.

Headnote:Service Law-Disciplinary action-Fairness of administrative action-Test to determine reasonableness or otherwise of action-Bias and Malice-Mere indication of ill will not sufficient to attribute bias or malice-Test is whether there is mere apprehension of bias or there is a real danger of bias-In case of real danger of bias administrative action cannot be sanctioned-Disciplinary action against Ex Chief Secretary to State Government-Show cause notice issued and on same day C.M. s press report that a High Court Judge would enquire into allegation-Charges that Ex Chief Secretary initiated CBI enquiry in hot haste against his colleague in allegation of corruption-Now Government rescinding notification for CBI enquiry and appointing officer under cloud as Principal Secretary-Action by Ex Chief Secretary on facts biased CBI enquiry initiated as directed by Ex Chief Minister on basis of Vigilance Bureau report-Action taken by Ex Chief Secretary could not be said to be biased, malicious nor could be said to be resultant effect of personal vendetta-There is an element of malice or mala fide motive in issuing charge sheet against Ex Chief Secretary-Enquiry would be mere farcial show-High Court justified in interfering with show cause notice and quashing same to avoid harassment and humiliation of a public official.

       The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependant upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefor. As a matter of fact fairness is synonymous with reasonableness : And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common 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. (Para 2)

       Whereas fairness is synonymous with reasonableness - bias stands included within the attributes and broader purview of the word malice which in common acceptation means and implies spite or ill will . One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a malafide move which results in the miscarriage of justice. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained : If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise. (Paras 5 & 8)

       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 mala fides move or action has been brought out on record on the part of Shri V.K. Khanna - while it is true that the notings prepared for Advocate 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 imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bonafide - actions not otherwise bonafide, however, by themselves would not amount to be malafide unless the same is inaccompanymen with some other factors which would depict a bad motive or intent on the part of the doer of the act. It is in this sphere let us now analyse the factual elements in slightly more detail - the Chief Minister is desirous of having the files pertaining to two of the senior officers of the administration and concerning two specific instances in normal course of events, we suppose the Chief Secretary has otherwise a responsibility to put a note to the Chief Minister pertaining to the issue and in the event the Chief Secretary informs the Chief Minister through the note that there should be a further probe in the matters for which the files have been asked for, can it by itself smack of malafides? Personality clash or personal enmity have not been disclosed neither even there is existing any evidence therefor: so in the usual course of events the Chief Secretary in the discharge of his duty sent a note to the Chief Minister recording therein that a further probe may be effected if so thought fit by the Chief Minister and in the event the Chief Minister agrees therewith and a probe is directed through an independent and impartial agency - can any exception be taken therefor? Mr. Solicitor General answers the same generally that it is the personal vendetta which has prompted the Chief Secretary to initiate this move but general allegation of personal vendetta without any definite evidence therefor, cannot be said to be a sufficient assertion worth acceptance in a court of law. There must be a positive evidence available on record in order to decry an administrative action on the ground of malafides and arbitrariness. The ill will or spite must be well pronounced and without which it would be not only unfair but patently not in confirmity with the known principles of law. On a scrutiny of the files as presented to court and the evidence thereon, unfortunately, however, there is no evidence apart from bare allegation of any spite or ill will, more so by reason of the fact that the same involves factual element, in the absence of which no credence can be attributed thereto. Incidentally, be it noted that submissions in support of the appeal have been rather elaborate and in detail but a significant part of which pertain to the issuance of the two notifications spoken hereinabove : the High Court decried the action as being tainted with malice and quashed the chargesheet as being malafide. If initiation of a proceeding through CBI can be termed to be a malafide act then what would it be otherwise when Government acts rather promptly to rescind the notifications - can it be an action for administrative expedi ency or is it an action to lay a cover for certain acts and omissions? The charge-sheet records that Shri Khanna has acted in a malafide manner and in gross violation of established norms and procedure of Government functioning and in utter disregard of All India Service Rules, principles of objectivity, fair play, integrity and the high morals expected of a senior civil servant (emphasis supplied). The notification pertains to acquisition of assets disproportionate to the known source of income by a civil servant and it is in processing these cases that the aforesaid charge as emphasized has been 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 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 may be made immediately , the direction of the Chief Minister that the recording of action immediately if understood to mean undue haste and if acted accordingly then again one set of consequence follow but in the normal course of events, such a direction from the Chief Minister ought to be adhered to with promptitude and no exception can thus be taken in that regard. (Paras 27, 28 & 29)

       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 malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings. (Para 35)

       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 announcement has been taken note of as an illustration to a mindset viz. : the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record. Admittedly, two enquiries were floated through CBI but purity and probity being the key words in public service and in the event a civil servant is alleged to have assets dis-proportionate to his income or in the event, there was parting of a huge property in support of which adequate data was not available - can the action be said to be the resultant effect of the personal vendetta or can any chargesheet be issued on the basis thereof, the answer cannot possibly be but in the negative. The contextual facts depict that there is a noting by an official in the administration that certain vigilance matters are pending as against one of Secretaries but that stands ignored. We have dealt with this aspect of the matter in detail herein before in this judgment thus suffice it to note that further effort on the part of Shri Khanna in bringing to notice to the Chief Minister would not have resulted any further development and in that perspective the conduct of Shri Khanna can not be faulted in any way. These are the instances which the High Court ascribed to be not in accordance with the known principles of law and attributed motive as regards initiation of the chargesheet. 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. (Paras 36, 37 & 40)