S. PRATAP SINGH v. THE STATE OF PUNJAB
Citation: [1964] 4 S.C.R. 733; 1963 INSC 189
Court: Supreme Court of India
Bench: S.K. DAS , K. SUBBA RAO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR
Judgment date:
Case summary
1963 INSC 189. Supreme Court of India judgment dated 1963-09-02. S. PRATAP SINGH v. THE STATE OF PUNJAB. Read the judgment and case details on LawSphereX.
Judgment text
4 S. C. R. SUPREME COURT REPORTS 733 S. PRATAP SINGH v. THE STATE OF PUNJAB (S. K. DAS, K. SOBBA RAO, RAGHUBAR DAYAL, N. RA- JAGOPALA AYYANGAR AND J. R. MuoHOLKAR, JJ. ) Punjab Civil Services (Punishment and Appeal) Rules, 1952, rr. 3, 26(d), 8, 15-Grant of leave-Power to revoke-Date of I. eave preparatory to retiren1ent-lf date of retirement-Conimuni-cation of revocation after retirement-When effective-Right to retire-Restriction on-Constitution of India, 1950, Arts. 19 and 23-V alzdity of r. 326( d). Tape Record of Conversations-ff legal evidence-Weight of. Government-Order of revocation of leave and suspe:is. ·on of Civil Servant-Potver exercised mala fide and on extraneous considerations-High Court-Jurisdiction to interfere under Art. 226 of the Constitution. The appellant \Vas a civil surgeon in the employ1nent of the State of Punjab having joined the Punja!. > Civil Medical Service in 1947.
In 1956 he was posted to jullunder where he remained till he proceeded on leave preparatory to retirement sometin1e in December 1960. His leave was sanctioned on December 18, 1960, and \Vas notified in the Punjab Gazette dated January 27, 1961. On June 3, 1961, the Governor of Punjab passed orders suspending the appellant \Vith im1nediate effect and revoking his leave as the Governn1ent had decided that a departmental enquiry be instituted against him under s. 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. The Governor further passed an order under r. 3. 26( d) by \vhich "A government servant under suspension on a charge of misconduct shall not be . . . . . . . . . . . . permitted to retire on his reaching the date of compulsory retiren1ent but should be retained in service until the enqui;y into the charge is concluded and a - final order is passed thereon. " The order under r. 3.
26(d) was that in view of the appellant's reaching the age of superannuation on June 16 1961 h. e should be retained in service beyond that date till the ~01nple~ tlon of the departmental enquiry. These orders reached the ap-pella. nt, ac~ording to . him, only on June 19, 1961, but they were published 10 the Pun1ab Governn1ent Gazette Extraordinary dated June 10, 1961. By a writ petition filed under Art. 226 of the Constitution of India before the High Court of Punjab, the appellant challenged the. leg~lity of the orders of suspension, revo-c~tlon of .
lea\:e, :etent1on 1n service after the date of superannua- ~1on an~ 1nstitutton of the departmental enquiry, on the grounds inter a/ta, ( 1) that the rules governing his service did not em-pow7r the Governor to pass the impugned orders, and (2) that the impugned orders were passed ma/a fide by or at the instance of the Chief Minister, who was in-charge of the department of Health and who 'vas personally hostile to him by reason of cer· tain incidents, and that the orders were promoted by the desire on the part of the Chief Minister to wreak personally his vengeance on the appellant. HELD : (i) Under r. 8. 15 of the Punjab Civil Services (Punishment and Appeal) Rules there is no restriction on the power of revocation of leave with respect to the time when it is to be exercised, and the authority empowered to grant leave has the dis· cretion to revoke it even after the officer to whon1 leave had been sanctioned had proceeded on leave.
(ii) The date from which a Government servant is on leave preparatory to retir. :n1ent cannot be treatCd as the date of his re· tirement from service, and an order of suspension of the Government servant during such leave is valid. (iii) Though the orders of suspension and revocation dated June 3, 1961, were actually com1nunicated to the appellant only after the date of his retirement, since he was on leave the said orders were effective frOm the 1noment they were issued. Bachhittar Singh v. State of Punjab, A. LR. 1963 S. C. 395 and State of . Punjab v. Sodhi Sukhdev Singh. [1961] 2 S. C. R. 371, dis-tinguished. (iv) The appe. llant had no absolute right to opt for retirement on his attain~ng the age of superannuation, that any such option was subject to r. 3. 26( d) which applied to him and that his case came under that rule as he was on the date of his compulsory retirement under suspension on charges of misconduct.
( v) Whenever any charge of misconduct is under enquiry by the Government, be it informally or formally, the Government is competent to suspend the Government servant and, if the requirements of the case require, to take action under s. 3. 26( d). (vi) The provisions of r. 3. 26( d) do not contravene Arts. 19 and 23 of the Constitution of India. (vii) Rendering of the tape recorded conversation can be legal evidence by ~ray of corroborating the state1nents of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who may depose that he overheard the conversation between the two persons and what they actually stated had been tape recorded. Weight to be given to such evidence will depend on the other factors which may be established in a particular case. Per Das, Subba Rao and Rajagopala Ayyangar, JJ.
-(i) Where an authority exercising a power has taken into account as a relevant factor so1nething which it could not properly take into account, the exercise of the power would be bad. Where the purposes sought to be achieved are mixed, some relevant and some alien to the purpose, the difficulty is resolved by finding the dominant purpose which impelled the action, and where; the power 1963 itself is conditioned by a purpose, the courts would invalidate the exercise of the power when an irrelevant purpose is proved to have S. Pratap Singh .. .. entered the mind of the authority . v. The State of (ii) The Court is not an appellate forum where the correct- Punjab ness of an order of Government could be canvassed and it has no jurisdiction to substitute its own vie\v as to the necessity or desirability of initiating disciplinary proceedings, for the entirety of the power, jurisdiction in that regard is vested in law in the Government.
The only question which could be considered by the court is whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the purpose for which the power was vested, or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the act is in excess ot the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court. (iii) It is not correct to say that mala fides in the sense of improper motive could be established only by direct evidence, that is, that it must be discernible from the order impugned or must be shown from the noting in the file which preceded that order. If bad faith would vitiate the order, the same can be de· duccd as a reasonable and inescapable inference from proved facts. Municipal Council of Sydney v. Cambell, [1925] A. C. 338, Short v.
Poole Corporation, [ 1926] 1 Ch. 66, Vatcher v. Paull, [1915] A. C. 372, Sadler v. Shefield Corporation, [1924] 1 Ch. 483, Earl Fitzwilliam v. Minister of T. &- C. Plonning, [1951] 2 K. B. 284 and General Assembly of Free Church v. Overatoun, [1904] A. C. 515, relied on. Per Dayal and Mudholkar, JJ. (dissenting).
On the facts, the dominant motive which induced the Government to take ac· tion against the appellant was not to take disciplinary proceedings against him for misconduct \Vhich it bona fide believed he had committed, but to wreak vengeance on him for incurring his wrath and for the discredit that he had brought on the Chief - Minister; the impugned orders were vitiated by mala fides, in that they were motivated by an improper purpose which was outside that for which the power of discretion was conferred on Government; and the said orders revoking the leave granted and placing the appellant under suspension and directing an enquiry into the charges against him, should be set aside. Quaere. whether the provision in Art.
310(1) of the Constitution of India that "members of a Civil Service of a State hold office during the pleasure of the Governor", conferred a power on the State Government to compel an officer to continue in service of the State against his will apart from service Rules which might ' govern the matter even after the age of superannuation \Vas reached. Crv1L APPELLATE JuRISDICTION : Civil Appeal No. 80 of 1963. Appeal from the judgment and order dated April 4, 1962, of the Punjab High Court in Civil Writ No. 961 of 1961. The appellant appeared in person. C. K. Daphtary, Attorney-General, Mohinder Singh Punnu, Deputy Advocate-General, Punjab and B. R. G. K. Achar for P. D. Menon, for the respondent. September 2, 1963. The judgment of S. K. Das, K. Subba Rao and N. Rajagopala Ayyangar, JJ. , was delivered by N. Rajagopala Ayyangar, JJ. The dissenting Opinion of Raghubar Dayal and J. R. Mudholkar, JJ. , was deli11ered by Raghubar Dayal, J. AYYANGAR, J.
-This appeal is against a judgment of the High Court, Punjab, dismissing a petition filed by the appellant in that Court under Art. 226 of the Constitution and has been preferred pursuant to a certificate of fitness granted under Art. 133(1) (c). The appellant was a Civil Surgeon in the employment of the State Government who had been granted leave preparatory to retirement, and subsequently, in June 1961, orders were passed by Government (1) revoking the leave he had originally been granted and recalling him to duty, (2) simultaneously placing him under suspension pending the result of an inquiry into certain charges of misconduct, and (3) ordering a departmental inquiry against . him. The legality of these orders was challenged by the appellant in tlie petition that he filed in the High Court. The petition was dismissed by the learned Judges, but on application by the appellant, he was granted a certificate of fitness on the strength of which he has filed the present appeal.
The facts of the case leading up to the appeal before us are set out by our learned Brother Dayal, J. in his judgment fully and in great detail and so we have thought it unneces-sary to cumber this ju himself had told him : 'In my opinion that matter was hushed up'. The appellant has, however, also urged certain matters as indicating the malice borne by the Chief Minister towards him and thus indirectly giving support to his allegation that the Chief Minister had personal grievances against him. The appellant's transfer from Jullunder to Amritsar was ordered in December 1960. Jullunder, according to the appellant's statement in Court, i~ a coveted station for Civil Surgeons. He liad over-stayed there the normal period of three years. His transfer cannot be attributed to malice of the Chief Minister, when an enquiry had been '( instituted against him in connection with a complaint regarding the discharge of his duties.
Transfer, in such circumstances, was the most natural order to be passed by the Head of a Department. It may be that for the con-venience of its officers transfers are usually ordered in March and April and are not ordered shortly before the period of retirement. But any transfer outside that period or sometime before retirement, for administrative reasons, cannot be said to be a transfer ordered ma/a fide. The appellant's l:irother-in-law, who was officiating in the Provincial Civil Service, Executive Branch, was ri:vert-ed to the lower cadre on November 22, 1960, the reversion being between the institution of a departmental enquiry against the appellant and the orders of his transfer. This is said to be evidence of the general ill-will which the Chief Minister bore against the appellant. It is alleged in the written statement that the reversion was on account of the unsatisfactory conduct and work of the appellant's brother.
We cannot take this reversion to be mala fide as there is nothing on the record that it has been so held in any proceedings which could have possibly been taken by the appellant's brother-in-law against his reversion. Subsequent cancellation of the reversion orders on his representation, as stated in Court by the appellant, does not, by itself point to reversion being made mala fide. The appellant preferred to take leave preparatory to retirement and, as already stated, such leave was sanctioned to him. He proceeded on 1eave some time in December 1%0. Subsequently, things happened which could have given cause to the Chief Minister for feeling aggriev- < ed with the appellant. The Blitz of January 14, 1961 pub-lished an article under the caption 'Punjab's latest scandal: The sewing machine of Kairon family'. According to this S. article, the Civil Surgeon paid the price for the sewing machine and supplied it to the Chief Minister's wife.
It also mentioned that the Roadways Official transported it. It de~cribed the appellant to be the henchman of the Chief Mini~ter and a handyman for his family members. It stated that the Civil Surgeon is said to have despatched several medicine parcels to the Chief Minister's wife by registered post and that he was asked to supply them out of the hospital stock. It referred to the Chief Minister's son having a garage in Jullunder and to the Boarding of the Manager of the Garage with the Civil Surgeon. It also mentioned about the recommendatory letters from the Chief Minister's ~ons, sister-in-law and brother to the Doctor. It referred to Dr. Dhillon's affair. Naturally, the Chief Minister could have taken this article to be inspired by the appellant and, more so when the appellant's wife published a letter in the Blitz dated March 18, 1%1, practically admitting what had been alleged in that article except such matters which went against her husband.
She stated that she sent parcels of medicines by registered post and other means to the wife of the Chief Minister and that the Garage Manager stayed with them as required by the Chief Minister's wife. Between January and March, several things happened which indicated to the appellant that the Government was taking action against him. On January 17, 1961, the appellant received a letter dated January 13, 1961, from the Inspector of Vigilance, District Jullunder, enquiring from him about the place where and the date when he could be contacted for ascertaining his view point on points relevant to the enquiry ordered by the Punjab Government. This was in connection with the enquiry instituted on October 29, 1960.
It is alJeged for the appellant that the Chief Minister could have seen the copy of the Blitz dated January 14 at Delhi on January 13, 1961 and that he then started vindictive proceedings against the petitioner and used the Government machinery in a malicious manner to satisfy his personal malice and vendetta. The implication is that it was on the Chief Minister's knowing of the article published in the Blitz dated January 14 that he directed the Vigilance Inspector to issue the letter of January 13 to the appellant for ascertaining the place and the date when he could interrogate him in connection with the enquiry. This is a far-fetched idea. The enquiry had been in progress since October 29 and it must have been in due ~ourse that the Vigilance Officer wrote the letter dated January 13 to the appellant. Whatever views the Vigilance Inspector expressed about the various charges framed against the appellant in the tape-recorded talk no.
16 on February 13, 1%1, even if they be his real views in the matter, is no index of the fact that the superior officers who had investigated the case had formed a similar opinion and that the action taken by the Government a few months later in formally framing charges with respect to those matters was actuated by malice. The letter, Annexure J, dated June 3, 1961 states · that the evidence brought on record was sufficiently strong to warrant serious action against him. Any views expressed by the Vigilance Inspector who had really no business to express them when he was deputed to get the explanation or the appellant's version about certain allegations against him, is not sufficient, in our opinion, to look at this assertion in the letter with suspicion.
In fact, if the Chief Minister had started the enquiry in October on account of malice and had prompted the Vigilance Inspector on January 13 as a result of the publication of an article in the Blitz of January J'), 1961, presuming that he had seen that copy of the Blitz at Delhi on January 13, the Chief Minister could have very well seen to the early submission of the police report making out a case against the appellant and would have taken action against the appellant much earlier than June 3, 1961, when special steps had to be taken to see that necessary legal action against the appellant is complete before his date of retirement on June 16, 1961. Surely, the Cliief Minister wuid have easily managed these matters if he were actuated by malice and had been taking keen personal interest simply with a view to wreak vengeance against the appellant who had the audacity to act against his wishes even though he had submitted to them for an appreciable time.
In February 1961, the appellant received a copy of the < remarks entered in his annual confidential file for the year April 1, 1959, to March 31, 1960: 'Professionally he is reported to be somewhat about average. Yet, there has been persistent complaints about his avarice and lack of integrity'. The appellant did not appear to have taken any action in connection with the adverse remarks communicated to him till June 29, 1961, except in so far that he asked the Director of Health Services about the period during which a representation against such remarks could be made. In his representation dated June 29, 1%1, which was submitted beyond the usual period for making representation, the appellant said: "I atn constrained to point out that these observations by Shri Kairon, Chief Minister (Govt. in the Health Deptt. ) do not reflect an honest opinion in the context of certain facts on record, a few of which are outlined below.
" and referred to the various matters stated by him in the petition. The written statement shows that these remarks were not made by the Chief Minister but were made by the Secretary in the Health Department. We do not know when these remarks were made. The mere fact that they were communicated in February 1961 does not mean that they were recorded near about that date. Annual remarks, in the nature of things, must be made after some appreciable time from the close of the year as they are based on the receipt of the remarks from the departmental heads, who take their own time in submitting such remarks. Even if they were made near about February 1%1, that would not show that they were made maliciously on account of the Chief Minister's ill-will as, by that time, the various complaints against the appellant which had come to the notice of the enquiring officer, would have also come to the notice of the Government.
The complaints, according to the charge-sheet framed against the appellant, mostly relate to the years 1959 and 1%0. The tape-recorded conversations between the appellant and the Chief Minister and his wife were played at a Press Conference on March 29, 1%1, at Chandigarh. This led to some move for an adjournment motion in the Punjab Legislative Assembly on March 30. In April 1961, the appellant's wife sent a pamphlet 'Acts of corruption by Shri Partap Sing Kairon and his 51-2 SC lnd;a'64 ; family members' to the Members of Parliament and other leading persons throughout the country. This conduct of the appellant's wife would have again furnished cause for grievance to the Chief Minister. The question, however, is wh~ther these acts of the appellant and his wife giving cause for grievance to the Chief Minister between January and A.
pril 1961 can be said to have led the Government to take the steps against the ap--pellant with regard to his suspension, revocation of leave, extension of service and institution of a formal departmental enquiry out of malice or that such steps were taken against him in due course. We are of opinion that the steps cannot be said to be taken mala fide merely because the appellant and his wife acted in a manner which could undoubtedly provide cause for grievance to the Chief Minister. Nothing is on record to indicate why the appellant and his wife felt so prompted as to have an inspired article printed in the Blitz of January 14 and to have the appellant's wife's letter published in the Blitz in March 1%1 and her pamphlets distributed all over the country.
Surely, the appellant and his wife cannot be said to have done this with the noble object of bringing the misdeeds of the Chief Minister of Punjab to public notice and thereby to cause a change for the better in the administration of the affairs in the Punjab. The appellant was not a free man. He was still in service, though on leave preparatory to retirement. He was to retire in June 1961 and therefore he had to observe the usual discipline enjoined on a public servant. His wife too was not to act in a manner in which a public servant's wife is not expected to act. It cannot be believed that the appellant did not know what his wife was doing. The conclusion is irresistable that the appellant and his wife rushed to the Press so prematurely, even if they could be said to be actuated with lauda~le.
motives of bringing im-provement in the administration of the State, to create a shield for the appellant in case the police investigation that was in progress against him culminated in the formulation of formal charges against him and in the instituting of a formal departmental enquiry against him. The design was on the part of the appellant and cannot be said to be on the part of the Chief Minister, who can be responsible for various orders of Government as the Minister-in-charge of the department and as head of the Administration. It has also been contended in connection with the alleged m'ala fides that in view of r. 8. 19 of the 1941 rules, the Government should have refused the leave in December 1960 if genuine complaints had been made against the appellant and investigation was proceeding on them. The leave was to be governed by the 1959 rules and r. 8. 19 in those rules did not make it incumbent on the Government to refuse leave to the appellant in December 1960.
The rule is : "Leave shall not be granted to a Government servant whom a competent authority has decided to dismiss, remove or compulsorily retire from Government ser- . ,, vice. Government had not arrived at any such decision and therefore could not have and was not bound to refuse leave by resorting to r. 8. 19. Even the rule as it stood in the 1941 rules could not have justified the Government resorting to it for refusing leave to the appellant. That rule was: "Leave should not be granted to a Government servant who is to be dismissed or removed from service for misconduct or general inefficiency, if such leave will have the effect of postponing the date of dismissal or removal, or to a Government servant whose conduct is at the time forming, or is in the near future, likely to form, the subject matter of departmental enquiry. " The rule was not mandatory. It was discretionary with the Government to grant leave or not.
The police was investi-gating into the complaint against the appellant in December 1960 and it would have been too much for the Government to form a definite opinion about the action to he taken against the appellant then. The grant of leave to the appellant in 1960 does not therefore indicate that the Government had not received any complaint against him by the time it granted him leave and that the Government's subsequent action against the appellant was mala fide. Another submission for the appellant to establish his case of mala fides against the respondent is that the Government having sanctioned him leave, need not have taken recourse to suspending him and revoking his leave, but could have taken adequate action against the appellant under r. 2. 2(b), Vol. II, 1941 rules, if he was found guilty of grave misconduct as a result of the departmental prncee-dings the Government was to institute against him.
The mere fact that Government took one type of action open to them and not the other, is no ground to hold the Gov, ernment action mala fide. Further, resort to r. 2. 2(b) could have been taken only if the appellant was found guilty of grave misconduct and it would have been always a debatable point whether the charges made out against him established grave misconduct or simple misconduct. Action under that rule can be taken only in limited circumstances. We are therefore of opinion that it is not established that the impugned orders were made by the Governor not with the ostensible object of a proper departmental enquiry against the appellant with respect to the complaints received against him, complaints found to have substance by the police on investigation but were made with the ulterior purpose of causing harassment and loss of reputation to the. appellant as he had been instrumental in making public allegations tending to bring the Chief Minister of the State into disrepute.
We therefore dismiss the appeal. BY COURT: In view of the opinion of the majority, the appeal is allowed. There will be no order as to costs here and in the High Court. Appeal allowed.
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