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

- **Citation:** [2000] Supp. 5 S.C.R. 200
- **Court:** Supreme Court of India
- **Decided:** 2000-11-30
- **Case number:** Civil Appeal No. 6963 of2000
- **Bench:** M. Jagannadha Rao, U.C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-v-k-khanna-and-ors-17567
- **Pages:** 28

## Headnote

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
c
HELD: I.I. Whereas fairness is synonymous with reasonablenessbias 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 bi

## Text

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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
c
HELD: I.I. Whereas fairness is synonymous with reasonablenessbias 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.
Harish N. Salve, Solicitor General, P.P. Rao, Rajinder Sachhar, Gopal
Subramanium, D. S. Mehra, Mohinder Jeet Singh Sethi, Krishan Venugopal,
F
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 I 0 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
A
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SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
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
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
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."
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:
"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
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
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."
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:
"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
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
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 of South
Africa v. South African Rugby Football Union, (1999) 4 S.A. 147 stated that
D
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F
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
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SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
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
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
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
, 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 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:
c
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"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
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
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
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 chargesheet 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?"
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:
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.
B
c
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
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
F
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."
c.s.
Sd/-
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."
E
C.M.
Sd/-
(Mann)
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 extraordinary 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."
c.s.
Sd/-
C.M./6.2.97
It is in terms with the orders of the Chief Minister dated 6th February,
1997 that two notifications were issued as above.