Indian Kanoon - Search engine for Indian Law

L.....I.........T.......T.......T.......T.......T.......T..J JUDGMENT BANERJEE, J.

Leave granted. 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 mans perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. 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 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 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 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 that 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 10 days of its installation withdraws the notification is this fair? The High Court decried it and attributed it to be a motive improper and malafide and hence the appeal before this Court. 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 (see in this context Kumaon Mandal 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 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 (Hunstanton) Ld. 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 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 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 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.

Sd/-

(Mann)@@ IIIIII C.S. 25/2 C.M. The records further depict that the Chief Minister on 26th February, 1997 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 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 same. It is in this perspective Mr. Subramaniam, learned senior counsel appearing for respondent No.1 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 Generals opinion and it is on 25th of February that the opinion has been received recording infraction of law without however any specific mention and, thereafter, the file was placed before the Chief Minister and on 26th of February, 1997 Chief Minister signs 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 malafide 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 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 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 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:

Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and malafide move creep in @@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ issuance of the two notifications assuming in hot haste but no particulars of any malafides 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 Generals 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 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 notoifications, the answer need not be detailed out expressly but can be inferred therefrom. 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 leveled 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. 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 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 is not supposed to act by reason of the impending change then he cannot possibly be accused of not acting, as required by the rules of business or as required by law. One of the basic charge of malafides as ascribed by Mr. Solicitor General, is that the papers pertaining to one of the cases was retained till the 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 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.1 Shri Khanna not being in the city and away in Delhi for 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, if there 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 neither it calls for any further explanation. During the course of submission, strong emphasis has been laid on a linkage between the CBIs 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 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 cost together with the release of funds. It is in this context the reply 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 hereinbelow 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 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: (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, Sh. Bindra. (ii) Shri Bindras 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. (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 21.1.1997 of Chief Administrator PUDA brought out many serious irregularities in regard to grant of funds for the Cricket Stadium and the PCA Club. (v) It had also come to the Petitioners 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.

(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 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. 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 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. The High Court while delving into the issue went into the factum of announcement@@ JJJJJJJJJJJJJJJJJJJJJJ of the Chief Minister in regard to appointment of an Inquiry@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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. 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 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 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