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Mr. K.K. Venugopal, the learned senior counsel appearing for the appellant submitted that the appellant not being a party to the Writ Petition no strictures could have been passed by the High Court without issuing notice to him and without hearing him on the subject. He further contended that in view of the relief sought for in the Writ Petition no question of animadverting to any conduct of the appellant in regard lo the transfer of Dr. Khalilullah from G.B. Pant Hospital as an integral part of the judgment of the Court would arise and, therefore, the so-called strictures were wholly uncalled for. The learned counsel also urged that the transfer of Dr. Khalilullah not being governed by any statute and being purely an administrative decision and the appellant having exercised his discretion in the matter, there was no justification for the Court to hold his discretion as illegal, irrational, arbitrary and malafide. According to Mr. Venugopal the decision of the appellant was his personal and had no connection with the request made by the Principal Secretary to the Prime Minister and the appellant having taken such decision bona fide the High Court should not have issued the strictures. According to Mr. Venugopal the appellant who was a seasoned bureaucrat having weighed the pros and cons of suspending and/or shifting a senior doctor of eminence and having come to the conclusion that great injustice would be caused if such hasty decision is taken and, therefore, suggested not to take any action until the CBI, after investigation, makes such prayer, the said decision cannot be characterized as an arbitrary decision and, therefore, the strictures made by the High Court in the judgment on question are wholly inappropriate uncalled for and should be expunged by this Court.

Mr. K.K. Venugopal, learned senior counsel had relied upon the decision of this Court in State of U.P. vs. Mohd. Naim(1964 (2) SCR 363) wherein this Court had observed that the Court would not be justified in passing strictures unless it was necessary for the disposal of the case to animadvert to those aspects in regard to which the strictures have been passed. But the aforesaid decision, in our considered opinion is of no assistance to the appellant in view of our earlier conclusion that the role of the appellant came under direct scrutiny of the Court to decide the question as to whether the relief sought for could be granted or not The next question that arises for consideration is whether the appellant not having been arrayed as a party respondent and the High Court not having issued any notice to him, was the High Court entitled to make such serious comments and strictures on the appellant. There cannot be any dispute with the proposition that no man should be condemned without having an opportunity of hearing. Mr. Venugopal, the learned senior counsel appearing for the appellant relied upon the decisions of this Court to the effect that when allegations of mala fide are made against a person then the said person should be impleaded as a party. The learned counsel placed reliance on the decision of this Court in State of Bihar vs. P.P. Sharma (1991 (2) SCR 1), Express Newspaper vs. Union of India(1986 (1) SCC 133), Ashok Kumar Yadav vs. State of Haryana (1985 (4) SCC 417), A.M. Mathur vs. Pramod Kumar (1990(2) SCC 533). in the last case as the person concerned who was the former Advocate General had not been made a party in the Courts below this Court entertained the Special Leave Petition filed by him and ultimately disposed of the same on merits. In the case in hand we have also entertained the Special Leave Petition filed by the Lt. Governor. Mr. Shanti Bhushan, learned senior counsel appearing for the respondent also did not raise any contention with regard to the maintainability of the application. When the orders passed by the appellant came under scrutiny of the Court and the circumstances under which the order had been passed would appear from the relevant discussion made by the different officers and the Court was examining the reasonableness and propriety of the orders passed by the appellant, any comments made by the Court without issuing notice to the appellant cannot be ipso facto expunged merely on the ground that the appellant had no opportunity of hearing. That apart the appellant has now approached this Court and apart from raising the legal contentions that the High Court did not issue any notice to him he has the full opportunity of indicating the circumstances under which he passed the order and those circumstances are now being scrutinized by this Court. In this view of the matter we are unable to persuade ourselves to agree with the submissions made by Mr. Venugopal, learned senior counsel appearing for the appellant that the remarks and the strictures given by the Court should be expunged on the sole ground that the appellant had not been given notice nor he had any opportunity of hearing before the High Court.

In course of his arguments Mr. Venugopal, learned senior counsel had advanced another reasoning in support of his prayer for expunction of the strictures made by the High Court, the same being that the notings in the departmental files should not be examined by the Court and on such notings the Court would not be entitled to comment upon the conduct of the officer who had submitted the notes. He further submitted that the basis of strictures passed by the High Court being the notes of the Secretary Health and Chief Secretary which was not agreed to by the Lt. Governor, the High Court was wholly unjustified in issuing the strictures in question. In support of this contention the learned counsel relied upon the decisions of this Court in Puranjit Singh vs. Union Territory of Chandigarh and others (1994 Suppl. (3) SCC 471), State of Bihar vs. Kripalu Shankar (1987 (3) SCC 34) and Sarwan Singh Lamba vs. Union of India(1995 (4) SCC 546 (CB). But the ratio of the aforesaid cases has to be understood in the relevant facts of the case and it cannot be of universal application. Where the relevant departmental files were produced before the Court by the government and the Court on scrutiny of the same came to the conclusion that the decision has not been taken fairly, then the Court would be entitled to comment on the role of such person who took the decision. As has been indicated earlier Dr. Khalilullah was continuing as the Director of the G.B. Pant Hospital notwithstanding different Enquiry Committees as well as the Comptroller and Auditor General of India had pointed out gross financial irregularities in the matter of purchase in the hospital in question. The Writ Petition had been filed in the Public interest for a direction that investigations be made by an appropriate Investigating Agency and action should be taken against the Director and he should be shifted from the place immediately. It is in this context that when the relevant file was produced indicating therein that the appellant who is the final authority in the matter had passed orders not to disturb said Dr. Khalilullah until CBI after enquiry recommends for his shifting, the said order together with all the antecedent orders of the subordinate authority was scrutinized by the Court. In such circumstances if the contention of Mr. Venugopal is accepted then no administrative authority and his conduct would come under the judicial scrutiny of the Court. That an administrative order is subjected to judicial review is by now the settled position and no longer remains res integra. This being the position we fail to appreciate the contentions of Mr. Venugopal that the notings in the file or the orders passed by the Secretary and Chief Secretary as well as the Governor should not have formed the basis of the strictures passed against the appellant.

Coming to the stricture 'a' we, however, find the materials on record do not justify to dub the decision of the Governor as mala fide and we, therefore, direct expunction of the word 'and mala fides' after the word 'arbitrariness' from the stricture 'a'.

So far as the stricture 'b' is concerned in our considered opinion, it was not necessary for the Court to hold that the Lt. Governor abused his power though the Court was justified in holding that the Governor acted in an arbitrary and unreasonable manner. As has been stated earlier the Court should refrain from using intemperate language as part of judicial discipline while examining the role and conduct of high constitutional functionaries. In the circumstances, we direct that the expression 'abused his power' be expunged from stricture 'b'.