S. Pratap Singh Vs. The State of
Punjab  INSC 186 (2 September 1963)
02/09/1963 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA DAS, SUDHI RANJAN SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 72 1964 SCR (4) 733
R 1965 SC 596 (11) R 1967 SC 295 (58,60) R
1968 SC 147 (6) R 1970 SC 214 (14) R 1971 SC 530 (233,234,235,387) R 1971
SC1162 (18,19,20) R 1972 SC1004 (54) R 1973 SC 157 (21) R 1975 SC 550 (9) R
1976 SC1207 (357) R 1976 SC1737 (6) RF 1977 SC 629 (16) R 1979 SC 220 (24) R
1982 SC1043 (15) R 1986 SC 3 (145) R 1986 SC 872 (118,126) RF 1991 SC2160 (20)
RF 1992 SC 604 (112)
Punjab Civil Services (Punishment and appeal)
Rules, 1952, rr. 3, 26(d), 8, 15--Grant of leave-Power to revoke-Date of leave
preparatory to retirement--If date of retirement--Communication of revocation
after retirementWhen effective-Right to retire--Restriction on-Constitution of
India, 1950, Arts. 19 and 23-Validity of r. 326(d).
Tape Record of Conversations-If legal
evidence-Weight of Government-Order of revocation of leave and suspension of
Civil Servant-Powerexercised mala fide and on extraneous considerations-High
Court-Jurisdiction to interfere under Art. 226 of the Constitution.
The appellant was a civil surgeon in the
employment of the State of Punjab having joined the Punjab Civil Medical
Service in 1947. In 1956 he was posted to Jull under where he remained till he
proceeded on leave preparatory to retirement sometime in December 1960. His
leave was sanctioned on December 18, 1960, and was notified in the Punjab
Gazette dated January 27, 1961. On June 3, 1961, the Governor of Punjab passed
orders suspending the appellant with immediate effect and revoking his leave as
the Government 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 which "A
government servant under suspension on a charge of misconduct shall not be ............
permitted to retire on his reaching the date of compulsory retirement but
should be retained in service until the enquiry 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,
he should be retained in service beyond that date till the completion of the
departmental enquiry. These orders reached the appellant, according to him,
only on June 19, 1961, but they were published in the Punjab Government 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 legality of the orders of suspension, revocation of leave,
retention in service after the date of superannuation and institution of the
departmental enquiry, on the grounds inter alia, (1) that the rules governing
his service did not empower the Governor to pass the impugned orders, and (2)
that the impugned orders were passed mala fide by or at the instance 734 of the
Chief Minister, who was in-charge of the department of Health and who was
personally hostile to him by reason of certain 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 discretion to revoke it even
after the officer to whom leave had been sanctioned had proceeded on leave,
(ii)The date from which a Government servant is on leave preparatory to
retirement cannot be treated as the date of his retirement 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 communicated to the appellant only
after the date of his retirement, since he was on leave the said orders were
effective from the moment they were issued.
Bachhittar Singh v. State of Punjab, A.I.R.
1963 S.C. 395 and State of Punjab v. Sodhi Sukhdev Singh,  2 S.C.R.
(iv)The appellant had no absolute right to
opt for retirement on his attaining 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 way of corroborating the statements 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 bad 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 something which it could not properly take info 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 735 dominant purpose which impelled the action, and
where the power itself is conditioned by a purpose, the courts would invalidate
the exercise of the power when an irrelevant purpose is proved to have entered
the mind of the authority.
(ii)The Court is not an appellate forum where
the correctness of an order of Government could be canvassed and it has no
jurisdiction to substitute its own view 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
veste d, 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 of 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 deduced as a reasonable and inescapable inference
from proved facts.
Municipal Council of Sydney v. Cambell,
 A.C. 338, Short v. Poole Corporation  1 Ch. 66, Vatcher v. Paull,
 A.C. 372, Sadler v. Shefield Corporation, [19241 1 Ch. 483, Earl
Fitzwilliam v. Minister of T. & C. Planning, 119511 2 K. B. 284 and General
Assembly of Free Church v. Overatoun,  A.C. 515, relied on.
Per Dayal and Mudholkar, JJ. (dissenting). On
the facts, the dominant motive which induced the Government to take action
against the appellant was not to take disciplinary proceedings against him for
misconduct which 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 was reached.
CIVIL 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 delivered 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 the 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
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 unnecessary to cumber this
judgment with them. Two points were urged before us by the appellant who argued
the case in person and presented the facts and the law with commend737 able
clarity and moderation. The first of them was that every one of the impugned
orders of June 1961 (a) recalling him from the leave previously granted, (b)
placing him under suspension pending an inquiry, and (c) starting an inquiry
against him were illegal for the reason that such action on the part of
Government was contrary to and not permitted by the relevant Service Rules
applicable to him. The second ground of challenge was that these orders,
assuming them to be within the power of Government on a proper interpretation
of the rules were passed mala fide, by or at the instance of the Chief
Minister, Punjab, who was personally hostile to him by reason of certain
incidents and circumstances which he set out and that the impugned orders were
prompted by the desire on the part of the Chief Minister to wreak personally
his vengeance on the appellant.
The relevant rules on the topic as well as
their interpretation have all been dealt in the judgment of Dayal, J., and we
agree in the main with his conclusion that the orders impugned were not beyond
the power of the Government. We should, however, add that we should not be
taken to have accepted the interpretation which Dayal, J., has placed on each
one of the several rules which he has considered.
Besides, we should not be taken to have
acceded to the submission of the learned Attorney-General who appeared for the
respondent-State, that the provision in Art. 310(1) of the Constitution 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 was reached,
or where he was employed for a defined term, even after the term of his
appointment was over. We consider that to construe the expression "the
pleasure of the Governor" in that manner would be patently unwarranted
besides being contrary to what this Court said in State of Bihar v. Abdul
Majid(1). In the view which we have taken on the second ground of challenge to
the orders of Government we have not considered it necessary to examine in
detail the several rules to which our attention was drawn or their proper
We shall now proceed to deal with the second
point (1)  S.C.R. 786 at p. 799.
738 urged before us viz., that the order was
passed mala fide and so could not be allowed to stand. Before entering into the
details of the allegations made, the evidence in their support and the
inferences to be drawn there from, we consider it useful to state the
principles underlying this branch of the law. The Service Rules which are
statutory vest the power to pass the impugned orders on the Government. The
expression 'Government' in the context is the functionary within the State who
is vested with executive power in the relevant field. Of course, the
Constitution vests the executive power in a State in the Governor but he is
constitutionally directed to act on the aid and advice of his Ministers. In the
case before us it is common ground that it was the Chief Minister who was in-charge
of the Health Department in which the appellant was employed and it was'
therefore the Chief Minister as the Minister in-charge of that portfolio who
initiated these proceedings though the formal orders of the Ministry were
issued by the Secretaries etc. of the Department in the name of the Governor.
For the purposes of the present controversy the functionary who took action and
on whose instructions the action was taken against the appellant was
undoubtedly the Chief Minister and if that functionary was actuated by mala
fides in taking that action it is clear that such action would be vitiated.
In this context it is necessary to add that
though the learned Attorney-General at first hinted that he would raise a legal
contention, that even if mala fides were established against the Chief Minister
still the impugned orders could not be set aside, he did not further pursue the
matter, but proceeded, if we may say so rightly, to persuade us that mala fides
was not made out by the evidence on record. Such an argument, if right, would
mean that even fraud or corruption, leaving aside mala fides, would not be
examinable by a Court and would not vitiate administrative orders. As Lord
Denning said in Lazarus Estates, Ltd. v. Beasley(1) "No judgment of a
court, no order of a Minister, can be allowed to stand if it has been obtained
by fraud." In the circumstances we do not consider it necessary to deal
with this aspect more fully or in greater detail. If this were put aside, the
second ground of attack on the orders may be viewed from two related
aspects--of ultra vires (1) 1. All E.R. 341, 345.
739 pure and simple and secondly as an
infraction of the rule that every power vested in a public body or authority
has to be used honestly, bona fide and reasonably, though the two often slide
into each other. Thus Sir Lyman Duff, speaking in Municipal Council of Sydney
v. Campbell(1) in the context of an allegation that the statutory power vested
in a municipal corporation to acquire property had been used in bad faith which
was held to have been proved stated :
"A body such as the Municipal Council of
Sydney, authorised to take land compulsorily for specified purposes, will not
be permitted to exercise its powers for different purposes, and if it attempts
to do so, the Courts will interfere. As Lord Loreburn said, in Marquess of
Clanricarde v. Congested Districts Board (79 J.P. 481) :
"Whether it does so or not is a question
of fact." Where the proceedings of the Council are attacked upon this
ground, the party impeaching those proceedings must, of course, prove that the
Council, though professing to exercise its powers for the statutory purpose, is
in fact employing them in furtherance of some ulterior object." Similarly,
in Short v. Poole Corporation(") Pollock M. R. observed :
"The appellants (represented before the
Court by Maugham K. C.-afterwards Lord Maugham) do not contest the proposition
that where an authority is constituted under statute to carry out statutory
powers with which it is entrusted, . . ... . if an attempt is made to exercise
those powers corruptly-as under the influence of bribery, or mala fide-for some
improper purpose, such an attempt must fail.
It is null and void see Reg. v. Governors of
Darlington School (6 Q.B. 682, 715)." In, the same case Warrington, L.T.,
said "No public body can be regarded as having statutory authority to act
in bad faith or from corrupt motives and any action purporting to be that of
the body, but proved to be committed in bad faith or from corrupt (1) 
(2)  1 Ch. 66, 85.
740 motives, would certainly be held to be
inoperative. It may be also possible to prove that an act of the public body,
though performed in good faith and without the taint of corruption, was so
clearly founded on alien and irrelevant grounds as to be outside the authority
conferred upon the body, and therefore inoperative. It is difficult to suggest
any act which would be held ultra vires under this head, though performed bona
fide,' (Vide pages 90-91)." It was really the first aspect of ultra vires
that was stressed by Lord Parker when in Vatcher v. Paull(1) at page 378 of the
report he spoke of a power exercised for a purpose or with an intention beyond
the scope of or not justified by the instrument creating the power. In legal
parlance it would be a case of a fraud on a power, though no corrupt motive or
bargain is imputed. In this sense, if it could be shown that an authority
exercising a power has taken into account-it may even be bona fide and with the
best of intentions,--as a relevant factor something which it could not properly
take into account, in deciding whether or not to exercise the power or the
manner or extent to which it should be exercised, the exercise of the power
would be bad. Sometimes Courts are confronted with cases where the purposes
sought to be achieved are mixed,-some relevant and some alien to the purpose.
The courts have, on occasions, resolved the difficulty by finding out the
dominant purpose which impelled the action, and where the power itself is
conditioned by a purpose, have proceeded to invalidate the exercise of the
power when any irrelevant purpose is proved to have entered the mind of the
authority (See Sadler v. Sheffield Corporation(2) as also Lord Denning's
observation Earl Fitzwilliam etc. v. Minister of T. & C. Planning(3).
This is on the principle that if in such a
situation the dominant purpose is unlawful then the act itself is unlawful and
it is not cured by saying that they had another purpose which was lawful.
As we said earlier, the two grounds of ultra
vires and mala fides are thus most often inextricably mixed. Treating (1)
 A.C. 372. (2)  1 Ch. 483.
(3)  2 K.B. 284, 307.
741 it as a question of ultra vires, the
question is what is the nature of the power?; has it been granted to achieve a
definite object?-in which case it would be conditioned by the purpose for which
it is vested. Taking the present case of the power vested in Government to pass
the impugned orders, it could not be doubted that it is vested in Government
for accomplishing a defined public purpose viz., to ensure probity and purity
in the public services by enabling disciplinary penal action against the
members of the service suspected to be guilty of misconduct. The nature of the
power thus discloses its purpose. In that context the use of that power for
achieving analien purpose-wreaking the minister's vengeance on the officer
would be mala fide and a colourable exercise of that power, and would therefore
be struck down by the Courts.
In this connection we might cite a dictum of
Lord Lindley in General Assembly of Free Church etc.v. Overtoun(1) when the learned
Lord said at page 695 :
"I take it to be clear that there is a
condition implied' in this as well as in other instruments which create powers,
namely, that the power shall be used bona fide for the purposes for which they
are conferred." Doubtless, he who seeks to invalidate or nullify any act
or order must establish the charge of bad faith, an abuse or a misuse by
Government of its powers. While the indirect motive or purpose, or bad faith or
personal ill-will is not to be held established except on clear proof thereof,
it is obviously difficult to establish the state of a man's mind, for that is
what the appellant has to establish in this case, though this may sometimes be
done (See Edgington v. Fitzmaurice(2)). The difficulty is not lessened when one
has to establish that a person in the position of a minister apparently acting
on the legitimate exercise of power has, in fact, been acting mala fide in the
sense of pursuing an illegitimate aim. We must, however, demur to the
suggestion that mala fide in the sense of improper motive should be established
only by direct evidence that is that it must be discernible from the order
impugned or must be shown from the notings in (1)  A.C. 515, 695.
(2)  29 C.D. 459.
742 the file which preceded the order. If bad
faith would vitiate the order, the same can, in our opinion, be deduced as a
reasonable and inescapable inference from proved facts.
Pausing here, we might summarise the position
by stating that the Court is not an appellate forum where the correctness of an
order of Government could be canvassed and, indeed,. it has no 'Jurisdiction to
substitute its own view as to the necessity or desirability of initiating
disciplinary proceedings, for the entirety of the power, jurisdiction and discretion
in that regard is vested by 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 of the
power granted or is an abuse or misuse of power, the matter is capable of
interference and rectification by the Court. In such an event the fact that the
authority concerned denies the charge of mala fides, or asserts the absence of
oblique motives or of its having taken into consideration improper or
irrelevant matter does not preclude the Court from enquiring into the truth of
the allegations made against the authority and affording appropriate reliefs to
the party aggrieved by such illegality or abuse of power in the event of the
allegations being made out.
Before entering on a discussion of the
question whether the appellant has established that the action of Government
was vitiated by mala fides, we consider it Pertinent to make a few preliminary
observation. In considering the evidence we have kept in view the high position
which the Chief Minister holds in the State and are conscious of the fact that
charges of a personal nature made against such a dignitary are not to be
lightly accepted. We have also borne in mind that charges of personal hostility
are easily and very often made by persons who are subjected to penal or quasi
penal proceedings against those who initiate them, and have therefore made full
allowance for these factors, and we have examined 743 and weighed the evidence
with anxious care. We would only add that the fact that two of our brethren
feel differently on this matter has heightened our responsibility and in the
care to be bestowed in appreciating the evidence. The Constitution enshrines
and guarantees the rule of law and Art. 226 is designed to ensure that each and
every authority in the State, including the Government, acts bona fide and
within the limits of its power and we consider that when a Court is satisfied
that there is an abuse or misuse of power and its Jurisdiction is invoked, it
is incumbent on the Court to afford justice to the individual. It is with these
considerations in mind that we approach the facts of this case.
The allegations in the writ petition filed by
the appellant on this matter may be summarised as follows :
(1) The appellant was requested by the Chief
Minister to perform an operation on his son--Surinder Singh-in April 1960. The
operation was performed. The Chief Minister desired that after the operation
his son should stay under the care of the appellant at Jullundur during his
convalescence. Surinder, however, left the appellant's place and the Chief
Minister became angry for the supposed negligence of the appellant in
permitting this to happen.
(2) The Chief Minister himself and the members
of his family made several requests to the appellant to show undue favours to
certain patients who were recommended to the appellant. These were complied
with, but when subsequently the appellant refused to comply with further
requests the Chief Minister turned hostile.
(3) The Chief Minister's wife had been asking
for medicines to be sent to her by the appellant for the use of herself, and
her relations from the hospital stores of jullundur. The appellant, however,
sent her the medicines, though not from the hospital but buying them himself in
the market. The Chief Minister's wife also wanted some expensive articles like
Singer Sewing machines etc. to be sent to her gratis. This the appellant did
but the refusal to comply with further demands of the same type angered the
(4) One Kirpa Singh was working as the
manager of an automobile concern known as National Motors, Jullundur which was
either directly or indirectly owned by Surinder-the son of the Chief Minister.
The appellant at the instance of the Chief Minister accommodated Kirpa Singh in
his own house and besides provided him with board. This went on for about 7
months but in or about April, 1960 the appellant desired Kirpa Singh to look
out for a lodging and board elsewhere and the latter had to do so. This was a
further cause of irritation and anger for the Chief Minister.
(5) Several matters recited above were in
April 1960 or thereabouts and as a result of the hostility developed by reason
of these the appellant was accused, in September 1960, of showing undue favours
to Akali prisoners who were lodged at the District Jail at Jullundur.
This allegation was false and was later not
(6) The Chief Minister desired to have the
help of the appellant as an expert to instruct the police officers who were
conducting the prosecution in what is known as the Karnal Murder case. The
appellant had given some sort of assurance to the Chief Minister that the
prosecution would succeed. It failed before the Sessions Judge and subsequently
the appeal by the State was dismissed by the High Court of Punjab and finally
an application for special leave was dismissed by this Court.
The Chief Minister became very angry with the
appellant because the assurance given to him that the prosecution would succeed
had been belied and the Chief Minister felt chagrined at the result.
(7) One Dr. Dhillon who was a Junior Medical
Officer in the Punjab Medical Service accompanied the Chief Minister as a
medical attendant in 1956-57. Under the rules the Chief Minister was not
entitled to this type of medical attention. There was some dispute as regards
the 745 salary payable to Dr. Dhillon during the period when he was with the
The appellant was requested to give a false
certificate regarding the services of Dr. Dhillon. The Chief Minister
complained that though several years had passed, Dhillon's salary for the 45
days that he had been with the Chief Minister had not yet been paid to him. The
appellant refused to comply this demand and this was a further source of
irritation and hostility.
The appellant's further case is that as a
result of these incidents or sources of irritation and displeasure of the Chief
Minister, the Chief Minister was thinking of taking some steps against him and
that he got a complaint against him on October 29, 1960 which he sent up for
The charge then made against the appellant
was that on July 5, 1960 he had refused to examine a woman-patient who had come
to the hospital with an out-door chit and that the husband of the woman was
forced to pay a sum of Rs. 16.00 for her examination at his residence. On the
excuse that this complaint had been made, the appellant was transferred from
Jullundur to Amritsar by an order dated December 6, 1960. It was stated by the
appellant that in the State officers were usually transferred only during the
months March or April, so that the education of their children etc.
might not be interrupted by the change of
station, but that his transfer in December was therefore out of the ordinary
and done with a view to inconvenience and humiliate him and deprive him of his
practice at Jullundur. The appellant thus having realised the hostility of the
Chief Minister and not desiring to continue much longer in service, made an
application for leave preparatory to retirement. He was reaching the age of 55
on June 15, 1961 and he applied for leave until that period. His leave was
sanctioned with effect from December 18, 1960 and this was gazetted on January
27, 1961. It is this leave that was revoked by the impugned orders on June 3,
1961 and under these the appellant was placed under suspension and an inquiry
was started later in the matter.
Between these two dates i.e. between December
1960 and June 1961, however, some events happened which 48-2 S. C. India/64 746
are set out in the petition require to be stated. It would be seen that when
the leave preparatory to retirement which was applied for was sanctioned, the
Government had already with them the complaint made on October 29, 1960
relating to the charge that the appellant had improperly demanded a sum of Rs.
16.00 from a patient desiring treatment at the Jullundur hospital. That related
to an incident of July 1960 and was apparently not thought to be serious enough
to justify the refusal of the leave applied for. But after the leave was
sanctioned, in the issue of the Weekly newspaper Blitz dated the 15th January,
1961 there appeared an article in which allegations were made against the Chief
Several of the allegations were those which
we have mentioned earlier as having been made by the appellant in his petition
and stated to be the reasons for the hostility of the Chief Minister. The
appellant however was not named as such in the article. It must however have
been apparent to those acquainted with the matter that it was the appellant
from whom these favours were sought or obtained by the Chief Minister. It is
the case of the appellant that the Chief Minister who was in Delhi at that time
must have been apprised of the contents of the article even on January 13, 1961
and this does not seem improbable because it is common knowledge that copies of
this weekly are available in Delhi even two days before the date it bears. In
the absence of any affidavit from the Chief Minister, and there is none on the
record, it is not possible to say whether the article in the Weekly was or was
not seen by him on the 13th. On that day-January 13, 1961, however, the
Inspector (Vigilance), Jullundur addressed a communication to the appellant
enquiring whether the appellant who had by then gone to Kanpur (it is too he
remembered he was then on leave) would come to Jullundur for clarifying certain
points in relation to an inquiry which had been ordered by the Punjab
Government. It is stated that this was in connection with the complaint
regarding the improper receipt of Rs. 16.00 from a patient who had come to the
hospital for treatment in July 1960. The Vigilance Inspector made some
inquiries of the appellant and examined the records at the hospital in
February, 1961. On March 18, 1961 the appellant's wife 747 wrote a letter to
the 'Blitz' confirming the allegations against the Chief Minister which had
already appeared in that paper in its issue of January 15, 1961 and in the same
month-March 1961 the appellant's wife circulated Members of Parliament and
others with the details of the allegations found in the newspaper. It is the
case of the appellant that these matters occasioned the hostility of the Chief
Minister and that the impugned orders passed in June 1961 were passed not bona
fide for the purpose of conducting an inquiry into his conduct but to harass and
humiliate him and thus wreak vengeance on him for the part that he played in
bringing down the reputation of the Chief Minister by the disclosures. As we
observed earlier, if the appellant is able to establish that the main object
and purpose of the initiation of the inquiry was not in the interest of the
Service or to ascertain any misconduct on the part of the appellant, but that the
dominant motive and purpose was the harassment and humiliation of the appellant
for his refusal to yield to the demands of the Chief Minister or the members of
his family at some stages, and in defaming him openly at the later stage, it
would clearly be a case of mala fides and the impugned orders have to be set
We shall first take up for consideration the
several allegations that have been made and see whether they had been
satisfactorily made out. Before proceeding further it is necessary to state
that allegations of a personal character having been made against the Chief
Minister, there could only be two ways in which they could be repelled.
First, if the allegations were wholly
irrelevant, and even if true, would not afford a basis upon which the appellant
would be entitled to any relief, they need not have been answered and the
appellant could derive no benefit from the respondents not answering them. We
have already dealt with this matter and have made it clear that if they were
true and made out by acceptable evidence, they could not be ignored as
irrelevant ; (2) If they were relevant, in the absence of their intrinsic
improbability the allegations could be countered by documentary or affidavit evidence
which would show their falsity. In the absence of such evidence they could be
disproved only by the party against whom the allegations were made denying the
748 same on oath. In the present case there were serious allegations made
against the Chief Minister and there were several matters of which he alone
could have personal knowledge and therefore which he alone could deny, but what
was, however, placed before the Court in answer to the charges made against the
Chief Minister was an affidavit by the Secretary to Government in the Medical
Department who could only speak from official records and obviously not from
personal knowledge about the several matters which were alleged against the
-Chief Minister. In these circumstances we do not think it would be proper to
brush aside the allegations made by the appellant particularly in respect of
those matters where they are supported by some evidence of a documentary nature
seeing that there is no contradiction by those persons who alone could have
contradicted them. In making this observation we have in mind the Chief
Minister as well as Mrs. Kairon against whom allegations have been made but who
have not chosen to state on oath the true facts according to them.
Before passing on to a consideration of the
details of the several allegations there is one matter to which we ought to
make reference at this stage and that is the admissibility and evidentiary
value of the tape-recorded talks which have been produced as part of his
supporting evidence by the appellant. The learned judges of the High Court
without saying in so many terms that these were inadmissible in evidence, this
being the contention raised by the respondent-State, have practically put them
out of consideration for the reason that tape-recordings were capable of being
tampered with. With respect we cannot agree. There are few documents and
possibly no piece of evidence which could not be tampered with, but that would
certainly not be a ground on which Courts could reject evidence as inadmissible
or refuse to consider it. It was not contended before us the tape-recordings
were inadmissible. In the ultimate analysis the factor mentioned would have a
bearing only on the weight to be attached to the evidence and not on its
admissibility. Doubtless, if in any particular case there is a well-grounded
suspicion, not even say proof, that a tape-recording has been tampered with,
that would be a good ground for 749 the Court to discount wholly its
evidentiary value. But in the present case we do not see any basis for any such
suggestion. The tape-recordings were referred to by the appellant in his writ
petition as part of the evidence on which he proposed to rely in support of his
assertions as regards the substance of what passed between him and the Chief
Minister and the members of the latter's family on the several matters which were
the subject of allegations in the petition. Before the written statement of the
State was filed, the respondent-State made an application to the Court on
August 23, 1961 in which they averred :
"The respondents are not in a position
to give a complete and full reply to the assertions made by the petitioner
without inspecting the original records and without knowing and (sic)
renderings of the so-called tape-recordings mentioned by the petitioner in his
aforesaid petition The applicant, therefore, prays that the petitioner may be
ordered to place on record the renderings of the so called tape-records."
On November 3, 1961 the Court passed an order in which it recorded :
"As regards the renderings of the tape records,
on which the petitioner relies, learned Counsel for the petitioner undertakes
to play the tape-recorder before the respondent within a fortnight from the
date of the putting in of the above renderings on a date suitable to both the
sides." Again on December 14, 1961 the State made an application to the
Court to modify the order dated November 3, 1961 by directing the appellant to
play the tape-records in the office of the Counsel for the State and allow the
State to re-tape-record the tape-recordings produced by the appellant, so that
a correct copy of the tape-records was available to the respondent-State before
filing the written statement. In the applications made by the respondent to the
Court for directions regarding the inspection of the tape-records produced by
the appellant, and seeking the facility for re-recording, it was explicitly
stated that this was for the purpose of the State satisfying itself whether the
voices of the persons whose talks were purported to 750 have been tape-recorded
were truly the voices of those persons. The Court passed an order on January 5,
1962 directing the appellant to file the original tape-records into Court to be
sealed in the presence of both the parties and kept in custody of the Registrar
of the Court, but this was to be after the records were played before the respondent
on January 11, 1962 in the office of the Registrar of the Court.' This order
was given effect to and the State had the re-recorded copies in their
possession to verify the authenticity and correctness of the originals. The
written statement of the State was filed in February 1962 only after they had
thus their own copies of the -records, so that they were in a position to
verify (a) tape whether the voice recorded was that of the person whose voice
it professed to be ; (b) whether there had been any interpolations or omissions
; and (c) whether there had been any other tampering with the records. In the
counter-affidavit filed by the State there was no denial of the genuineness of
the tape-records, no assertion that the voices of the persons which were
recorded in the tape-records were not those which they purport to be or that
any portion of the conversation which would have given a different colour to it
had been cut off. We should however add that there was a vague statement
regarding the tape record of the talk between the Vigilance Inspector and the
appellant with which we shall deal later.
It is in the light of these circumstances and
this history of the proceedings that the evidence afforded by the tape recorded
talk has to be considered in appreciating the genuineness of the talks recorded
and in deciding whether the allegations made by the appellant are substantiated
We shall now take up the allegations in the
order in which they appear in the petition and in which we have set them out
earlier. The first relates to the incident connected with the operation on the
Chief Minister's son Surinder Singh. Now, in regard to this, Surinder has filed
an affidavit in which he has denied that there was any operation performed on
him either by the appellant or by any other. There is no documentary evidence
that the appellant performed the operation which he claims to have performed in
the shape of hospital records. The appellant's explanation for the absence of
any such 751 record was that the operation was necessitated by the nature of
the disease which Surinder had contracted and for this reason the Chief
Minister desired the operation to be performed in secret. Accordingly the
operation was performed not at Jullundur which is a big city where the Chief
Minister and his family were well-known but in a rural dispensary about 50
miles away from his headquarters town.
The main points that were urged by the
learned Attorney General against the appellant's story was : (1) that Surinder
has denied it, (2) that no evidence based on any hospital record had been
produced to substantiate the story, (3) that the exact date on which the
operation was performed was not given, and (4) that the tape-recorded talk
would not substantiate the appellant's case that he performed an operation. It
would be convenient to take the tape-recorded talks first because it is on them
that the appellant relies for corroborating his statement that he did perform
an operation on Surinder at the end of April 1960. There are three
tape-recorded talks which bear on this incident and these are numbered 6, 2 and
11. Talk no. 2 is the most important of them and is a tape-recorded talk on the
trunk-telephone between Mrs. Kairon (the Chief Minister's wife) and the
appellant. In the course of the talk the record shows the lady to have asked :
"Mrs. Kairon : How is the young lad ?
Ans. : Your young lad is alright.
Mrs. Kairon : Have you removed off the
dressing ? Ans. : The dressing has come off. There is no dressing over the
Mrs. Kairon And; there is no discharge etc.
Ans. : There is no discharge now.
Mrs. Kairon Is the wound not raw ? Ans. : No.
Mrs. Kairon Can he walk about now ? Ans. :
Mrs. Kairon : There is no other ulcer inside.
Ans. : No, he is quite alright now.
Mrs. Kairon : The thing is that there can
develop induration of the wound.
752 Ans. : Is it? Mrs. Kairon : There is no
other ulcer inside.
As you said ? Ans. : No. He is quite alright
now." From the internal evidence furnished by this tape-record itself it
is seen that this talk was on May 1, 1960. Talk no. 6 is said to be slightly
earlier in date, being towards the end of April 1960. That too is stated to be
after the operation and is a tape-recorded talk on a trunk-telephone between
Mrs. Kairon and the appellant. This talk was necessitated, according to the
appellant, by the fact that Surinder had left the Circuit house at Jullundur,
where he had been directed to stay during convalesence, even before he was
completely healed and it was the negligence of the doctor in permitting this to
happen that is said to have been one of the causes of the appellant incurring
the displeasure of the Chief Minister. There are portions of this record which
are also relied on to corroborate the appellant that he perfomed an operation
on Surinder and to establish that the denial by Surinder is false :
"Mrs. Kairon : Dr. Sahib, did you test
his (Surinder's) urine.? Ans. : Urine is quite alright.
Mrs. Kairon : When was it tested ? Ans. : It
was done that day.
Mrs. Kairon : Dr. Sahib, it is 8 days now.
Ans. : We got it tested here when he
came." The appellant submitted that the words "that day" which
we have emphasized were a reference to the day on which the operation was
performed. In the course of this talk (No. 6) Mrs. Kairon made inquiries as to
whether her son Surinder was with the appellant and this inquiry was made
because she had information from other sources that he had left Jullundur. When
the appellant was asked about this he said in the tape-recorded talk :
"You see, he has tried to be clever with
Mrs. Kairon : What ? Ans. : This Surinder.
Mrs. Kairon : Oh, you know what Sardar Sahib
He said he did not expect this thing from
753 Dr. P. Singh : From me ? Mrs. Kairon :
Dr. P. Singh : Why.
Mrs. Kairon: That he should go away from you.
Dr. P. Singh: No, not from me. From Circuit
Mrs. Kairon: He got a trunk call booked and
he got engaged in conversation elsewhere and I have found out things from you.
Dr. P. Singh Look what could I do.
Mrs. Kairon He said why did you do it if you
did not have the strength to keep him.
Dr. P. Singh He told me he will stay on for 3
or 4 days.
Mrs. Kairon Sardar Sahib said he did not see
much sense in either of you." The last of the tape-recorded renderings is
that numbered 11 and it purports to record a trunk-call talk between Surinder
himself and the appellant. Portions of it are relied on by the appellant on
both the points (a) that he performed an operation on Surinder, and (b) that
Surinder left his care without his knowledge and thus made him incur the
displeasure of his parents :
"Surinder : Well Dr. Sahib. You better
dictate to me the prescription of that triple dye. I want to apply it.
Ans. : When you come in the evening. You can
take it at that time.
Surinder : No. I want to apply now, in the
morning. Ans. : Then, you should have, taken it yesterday and then
Surinder : Alright, it was a mistake. Now you
tell me. Dr. P. Singh : Otherwise it is alright now ? Surinder : A little bit
of stuff came out of it, sort of blood.
Dr. P. Singh : It would be just a nominal
sort of affair? Surinder : Yes please." The above is in so far as regards
the operation and next as to Surinder leaving the appellant's care we were
referred to the following in the recorded talk :
"Dr. P. Singh : You went away, all on
the quiet.Surinder : I had to come here.
754 Dr. P. Singh : Why ? With me your
understanding was that you will go only after showing me in the evening.
Surinder : I will come to you in the evening.
Dr. P. Singh : No, you will come today, but yesterday
you went away without notice. We came to know of it only when the servant came
and reported that the room is all vacant, and that Sardar Sahib has gone,
giving a go by." The question is whether this last (No. 11) tape-recorded
talk does or does not establish that the appellant's story about his having
operated on Surinder was true. In the first place, Surinder, through the
affidavit that he made, denies that any operation was performed on him by the
appellant or by anyone else, does not deny that the voice recorded in talk no.
11 is his. Besides, Surinder while stating in his affidavit that he was
diabetic, admitted that his urine had been examined by the appellant--a matter
referred to in talk no. 6 between Mrs. Kairon and the appellant. Of course he
did not say in his affidavit that the examination of his urine referred to in
this talk, was that referred to by him in his affidavit but that is not very
material. Nor has he offered any explanation for his statement in talk no. 11
of "a little bit of the stuff coming out". His version, however, as
regards the recorded talks was :
"I heard the tape-records prepared from
the tape records recorded by the petitioner. The renderings are not
intelligible and clear and are denied." If it was not intelligible, (we
need hardly add that we do not agree in this characterization ) how they could
be denied is not clear, nor is one able to appreciate as to why the talk should
be unintelligible to him if they recorded what he spoke. That is so far as
rendering no. 11 is concerned.
But in regard to renderings 2 and 6 which
purport to be a record of the talks between the appellant and Mrs. Kairon there
is no affidavit from Mrs. Kairon denying the authenticity of her voice or of
the talk, as recorded. No doubt, Surinder in his affidavit denies that there
was any talk between the appellant and his mother regarding supply of medicines
and he also states that the tape-records referred to by the petitioner are all
forged, 755 hut in the context the forgery attributed could only relate to that
portion in which Mrs. Kairon is recorded to have asked for medicines. If the
state could get Surinder to file an affidavit in regard to the tape-recorded
talk, we do not appreciate why no affidavit from Mrs. Kairon was filed to give
her version as to whether she really talked with the appellant as recorded, and
if she did so in what respects the record was wrong. In the absence of any such
affidavit or statement by her on oath that the voice recorded in the several
talks and in particular in talks 2 and 6 was not hers or that the record had
been manipulated, we cannot but hold that the records are genuine and that
conversations took place as recorded.
The next question is whether these show that
the appellant performed the operation. We believe we have extracted sufficient
from these talks to show that they do indicate unmistakably that Surinder had
undergone an operation sometime before the beginning of May 1960. The statement
of Surinder, therefore, that he under-went no operation by anyone must
obviously be discarded as untrue and no value can be attached to the denial
contained in the affidavit that he has filed. If really he had undergone an
operation and questions regarding the condition of his wound, the occurrence of
discharge etc. are the subject of talks between Mrs. Kairon and the appellant
in talks 2 and 6 and between Surinder himself and the appellant in talk 11, it
stands to reason, in the absence of any rational or reasonable explanation by
Mrs. Kiaron, that the appellant was the person who had performed that
The question that next falls to be considered
is whether the operation was entrusted to the appellant by the Chief Minister
or not. Apart from the probabilities of the case, the extracts we have made
from the tape-recorded talks no. 2 & 6 and the reference to Sardar Saheb
would indicate that the Chief Minister was concerned in entrusting the
operation to the appellant and the inference is more readily drawn because in
the face of the allegations in the affidavit and the tape-recorded talk between
the appellant neither Mrs. Kairon, nor the Chief Minister has placed her or his
version of the matter before the Court by making any statement on oath. In the
circumstances we have no 756 hesitation in holding that it was at the instance
of the Chief Minister that the appellant undertook the operation on the chief
It was next said that even assuming the above
conclusion were justified, the statement in the tape-recorded talk which
indicated the Chief Minister's displeasure at the conduct Of the appellant in
permitting his son to leave Jullundur before he was completely cured, was in admissable
in evidence for proving what the Chief Minister said to his wife and on that
account we should hold that hostility on the part of the Chief Minister owing
to this incident was not established. It is true that the statement of Mrs. Kairon
as to what the Chief Minister told her would be merely hearsay and would not be
admissible in evidence as a statement of the Chief Minister but the
tape-recorded talk does show that she herself was greatly displeased with the
appellant and it was really to emphasise the displeasure of the family and its
head that the Chief Minister's name was brought in. In the circumstances we do
not consider that the respondents derive any advantage from this technical
objection to the reception of the Chief Minister's statement secondhand. The
leaned Attorney-General also submitted that the exact date of the operation was
not given nor was the place where it was performed set out in the affidavits
and that these detracted from the value of the allegations but we do not
consider that in the face of the recorded talks and the inference deducible
there from that an operation was performed by the appellant sometimes towards
the end of April 1960 very much turn on these factors. In making this statement
regarding the date we have in mind the reference in talk no. 2 to
"tomorrow" as being the 2nd of May.
The next allegation relates to the requests
made by the Chief Minister himself and the members of his family for undue
favours to be shown to certain patients who were recommended for medical
certificates or for special treatment by the appellant at the hospital. This
allegation was denied by the State, but as stated earlier, the denial has
little force because the only persons who were in a position to contradict the
appellant have not come forward to state anything on oath. The allegation has,
therefore,, to be considered with reference to the documentary evidence on
which reliance 757 was placed. They are Exs. B-1 to B-19 which are recommendations
by either the Chief Minister, his sons, his brother or his sister introducing
certain patients to the appellant and suggesting that they be attended to
properly or their requests granted. That anything improper was required to be
done by the appellant or anything contrary to the rules was expected to be done
by him or was suggested is not borne out by these documents. It is the
appellant's submission that of these only two were not complied with-the
request contained in B-2 and B-5 but even as regards this there is no such
specific assertion on the record, nor is it easy to see why the appellant
refused to comply with these requests.
In the circumstances we are unable to hold
that this item of misunderstanding is made out. But we must add that as these
slips or chits were addressed to the appellant, some by the Chief Minister,
others by one or other of his two sons, still others by his brother and one by
Ms sister, they do establish that at the dates which they bear the appellant
was a great friend of the Chief Minister and enjoyed the confidence of the
Chief Minister and the member's of family.
The next item may be considered separately
under two heads;
(1) Supply of medicines to the family of the
Chief Minister at the request of Mrs. Kairon and others, and (2) the supply of
two Singer Sewing machines to Mrs. Kairon. Needless to say that these
allegations have, no doubt, been denied by the State, but there is no denial by
the only persons who could effectively contradict the appellant. As regards the
supply of medicines, the appellant's case is that they were sent by post by
registered packets or parcels and in corroboration of his statement he has
produced six postal receipts of registered packets or parcels despatched to
Sardarni Partap Singh Kairon. These bear dates from 1957 to 1959 and they
indicate that between Re. 1/to Rs. 2/was paid as postal charges for their
transmission. Surely, something must have been sent in these packets or parcels
and received by Mrs. Kairon but there is, on the side of the respondent, no
positive statement as to what these packets contained. It therefore, appears to
us that it is not possible to discard the appellant's statement that these
packets contained medicines despatched to the Chief Minister's wife, for the
use of the members of the family.
It matters 758 little, for the purpose of
this case, whether the medicines were purchased at the cost of the appellant,
as he says, or were taken from the hospital. But whichever happened, it is
clear that articles of some value were despatched from time to time over this
three-year period by the appellant to Mrs. Kairon. The tape-recorded talks do
lend support to the appellant's story that he was required to send medicines
and that he complied with such demands. In talk no. 3 which was with Mrs.
Kairon and is stated to have been in August, 1959 :
"Appellant : I shall get the medicines
delivered to you today.
Mrs. Kairon : Those tablets too and the
Appellant : What are those tablets ? Mrs.
Kairon : in those bottles were brown brown tablets Appellant: I shall send them
Appellant : I shall send you the injections
also. Mrs. Kairon : Alright." Then we have talk no. 1 which purports to be
a record of conversion over the trunk-telephone between Mrs. Kairon and the
appellant and which is said to be in March 1960, but for our present purpose
the date is not very material. We would extract the following from this talk
"Mrs. Kairon : The medicines have been received. Appellant : leave the
question of arrival of medicines ........................
Mrs. Kalron You sent injections.
Appellant : I had sent you those injections.
Mrs. Kairon Yes they were 4 injections.
Mrs. Kairon : Those tablets have not been
received. Appellant : Which tablets.
759 Mrs. Kairon : Those capsules.
Appellant : Those brown.
Mrs. Kairon : Yes.
Appellant : You had not asked for those.
Mrs. Kairon : Well. Does not matter.
Appellant : I will do it now." Lastly,
we have talk no. 2 which appellant had with Mrs. Kairon and is stated to have
been in May 1960 in which the following passages occur :
"Appellant : The medicines that you had
asked for have arrived. When you come you take it.
Mrs. Kairon : You give it to Raghbir Singh
(General Manager, Roadways).
Appellant : You know those injections of B
Complex that, you had asked for.
Mrs. Kairon : Yes.
Appellant : You had asked for the B Complex
injections. Isn't it ? Mrs. Kairon : Yes.
Appellant : I have got those here." In
the face of the support afforded by the documentary evidence and the
tape-recorded talks, coupled with the absence of any denial or explantion of
these matters by the persons who alone could deny them, we feel unable to
attach any value to the affidavit of Surinder denying that any medicine's were
called for or supplied.
The appellant says that when demands of this
type increased he refused further to comply with them, but there is no positive
evidence of any demand which he refused to comply with and thus incur the anger
or displeasure of the Chief Minister. But notwithstanding the absence of that
type of evidence it is clear that until 1959, at least, as is shown by these postal
receipts and even till April-May 760 196--as disclosed by the tape-recorded
talks, the appellant was on the friendliest terms with the Chief Minister and
some explanation has to be forthcoming as to why there was a sudden change of
attitude from May 1960 or there abouts and more particularly after January
1961. It is in the light of this circumstance that the evidence afforded by the
tape recorded talks regarding the operation on Surinder Kairon and of the
article in the Blitz to which reference has already been made assume crucial
The second head of this item relates to the
supply of the sewing machines. We consider that this portion of the appellant's
case has been established beyond reasonable doubt by Exs. C-7 to C-10 which
have all been referred to by Dayal, J. in his judgment and we entirely concur
with him in holding that this allegation has been completely proved.
The learned judges of the High Court
discarded the appellant's case because of the affidavit of Mrs. Sodhi but we
agree with Dayal, J. that this would not explain either C-8 or C-10 which
proved that a wooden case with the words 'Singer Sewing Machine' stencilled or
on a label at the top was sent through the manager of the Punjab Roadways to
Kairon. The statements contained in the
affidavits filed by Sri Pahwa, the Roadways manager as well as by Om Prakash,
Clerk of the Punjab Roadways are most artificial and apart from the
discrepancies as regards the measurements and weight of the wooden box which
was transported by them, and the improbability of their having noted or
remembered the details without any written record then made, they failed to
offer any explanation for the label or stencilling at the top referred to in
Ex. C-9. Besides, the tape recorded conversation no. 3 between Mrs. Kairon and
the appellant in which there is a reference to the colour of the machine that
was sent, makes it clear that the appellant's story of his having sent a
machine to Mrs. Kairon is true. It is somewhat surprising that though Ex. C-7
to C-10 were annexures to the writ petition and the respondents had copies of
the tape-recorded talks with them before they filed their statements, they
contented themselves with filing these affidavits of Sri Pahwa and Om Prakash
and Mrs. Sodhi and abstained from letting the court know what Mrs. Kairon had
to say on the matter. This Sewing Machine incident was in July 1959 and it
shows that up to that date there was com761 plete friendliness between the
Chief Minister and the appellant. The appellant's further allegation that Mrs.
Kairon or the other members of the Chief Minister's family demanded of him the
supply of other costly articles and that his refusal to comply with them
angered the Chief Minister, must be discarded as an embellishment for which
there is no support in the evidence placed before the court.
The next item of the source of hostility
alleged by the appellant is that be sent out of his house Kirpa Singh, the
manager of an automobile concern of the Chief Minister's son-Surinder-in or
about March-April 1960 after having permitted him to stay there for about 7
months. Surinder has filed an affidavit in which he has denied his ownership of
the automobile concern and also that Kirpa Singh was provided with board and
lodging by the appellant at the instance of his father. Kirpa Singh also made
an affidavit to the same effect. Two matters however, stand out prominently.
The first is that it cannot be doubted that Kirpa Singh is a great friend both
of the Chief Minister and his son. Tape-record no. 15 which purports to record
the talk between Kirpa Singh and the appellant brings this out.
It was sought to discount the evidentiary
value of this talk by the circumstance that the appellant had brought about
this talk designedly in order to tape-record the conversation. We do not,
however, agree that it has any such effect. The reality of that talk and the
correctness of the tape-recording is not denied by Kirpa Singh in the affidavit
be filed and if he really spoke the words which that record shows he did the
facts above stated are made out. That Kirpa Singh was the manager of an
automobile concern in jullunder is not in dispute but both Surinder as well as
Kirpa Singh, in their affidavits, have studiously refrained from stating who
the owner of that concern was beyond stating that Surinder is not the owner. We
consider this averment most disingenuous and least frank. That Kirpa Singh was
afforded board and lodging at the appellant's house is also admitted. It was
not suggested that Kirpa Singh was a friend of the appellant otherwise than as
a friend of the Chief Minister and his son. and this tape-record 15 makes
clear. It does not, therefore, stand to reason that the appellant would have
undertaken the cost and in-covenience of providing Kirpa Singh with board and
49-2 S. C. India/64 762 lodging except to oblige the Chief Minister and his son
(2) It is also a fact that Kirpa Singh moved out of the appellant's place at
the end of March 1960 having stayed there from September 1959 (vide Ex. D-1).
The question immediately arises whether this was because of the disinclination
on the part of the appellant to continue to retain him in his house. Having
regard to the other circumstances which have already been mentioned, of the
undercurrent of hostility borne by the Chief Minister which started roundabout
this time, we are inclined to accept as true the appellant's version that he
sent Kirpa Singh out of his house in preference to the story of Kirpa Singh
that he went out of his own accord. If the Chief Minister was obliged by the
appellant providing board and lodging to Kirpa Singh, it would not be a violent
inference to draw that the Chief Minister was angry with the appellant for
having sent Kirpa Singh out.
Some of the other matters set out as those
which led to the hostility of the Chief Minister are also made out, such as for
instance that the appellant's services were utilised by the Chief Minister in
connection with the Karnal murder case (vide talk no. 7 with the Chief Minister
himself) but as we consider them to be of minor significance, we do not propose
to deal with them in any detail, particularly as it would be sufficient to
proceed on the basis of the items earlier discussed.
Next we have the fact that notwithstanding
that on the 29th of October 1960 there was some complaint received by the
department regarding his having improperly taken Rs. 16 from a patient in July
1960, he was granted leave preparatory to retirement as and from December 18,
1960. In other words, the Government had no idea at that date that charges
should be formulated against the appellant and that his retirement should be
postponed for completing such an inquiry. We have then the circumstance that in
all the earlier Confidential Reports relating to the appellant there was
nothing wrong found with him and his conduct and character were not the subject
of any adverse comment. It was only subsequently, long after the close of the
year 1960, that an adverse remark was made against the appellant in respect of
the year 1-4-59 to 31-3-60 and this was communicated to him only late in
February 1961. The appellant 763 complains that this was really an
after-thought and was brought in long after that year was over in order to
afford some justification for the charges that were eventually made against
him. What we have stated earlier regarding the unfriendly feelings which developed
with the Chief Minister from about April-May, 1960 onwards seems to lend some
support to this suggestion.
We have next the circumstance connected with
the article in Blitz which appeared in its issue dated January 15, 1961.
That seems to be the starting point of the
action taken against the appellant, for on January 13, 1961 the Vigilance
Officer sent a communication to the appellant to offer his explanation in
regard to certain charges which were then the subject of inquiry. In the order
dated the 3rd June, 1961 by which the appellant was placed under suspension
there is reference to three inquiries-one dated October 29, 1960, another of
January 11, 1961 and the third dated April 17, 1961. The dates apparently are a
reference to the dates of the several complaints. The order refers to
investigations made by the Vigilance Department into certain complaints against
the appellant but though the bona fides of these inquiries as well as the bona
fides of the action taken under the impugned order were questioned the report
of the Vigilance Inspector was not placed before the Court to enable it to
judge what exactly the complaints were and whether they were the same as the
charges listed in the charge-sheet against the appellant. The above has to be
judged in the context of the feature that there is a tape-recorded conversation
which the appellant had with the Vigilance Inspector (tape-record no. 16) in
the course of which the Inspector appears to suggest that he himself did not
believe in the reality of the complaints. In the counter affidavit filed by the
State it was stated that the Vigilance Inspector "who has been made to
hear a copy of the tape-records in question has reported that the tape-records
are unintelligible and as such it is not possible to compare the renderings
with it. He has therefore reported that the talk, as disclosed in the rendering
took place between him and the petitioner but that the rendering appeared to
have been twisted by the petitioner according to his own liking".
The Vigilance Inspector himself made no
affidavit nor was there any denial even by the State that the voice recorded as
that of the Vigilance 764 Inspector was really his. The tape-recorded talks
have been translated-the originals having been heard by the State officials as
well as by the Inspector and we do not see any Justification for the complaint
that they were unintelligible. There is, therefore, no reason why it was not
possible to say (a) that there was no talk, (b) if there was, what exactly was
its purport, and (c) where and in what respects the tape-recording departed
from the truth either by way of addition or omission. The talk, as recorded, as
already stated would appear to suggest that the Vigilance Inspector did not
believe in the truth of the complaint.
That, however, might not be very relevant for
deciding whether the complaint was true or false but in the face of that
recorded conversation is was certainly necessary for the State to produce the
Inspector's report for countering the case of the appellant that the charges
were invented for the purpose of enabling the State to harass and humiliate
Lastly, it is rather curious that some of the
charges which are to be the subject of enquiry relate to a period long anterior
to June 1961. For instance, charge 2(b) is concerned with an illegal demand and
receipt of sum of Rs. 100/from a patient who came to the hospital on March 13,
1957. Similarly, there are others which had been made earlier but had been
dropped or their falsity had been admitted on earlier occasions but were stated
to have been revived for the purpose of Justifying this inquiry. In the view we
entertain that the action against the appellant was taken because of the
matters we have held proved and because of the charges made against the Chief
Minister in the article in the Blitz it is not necessary to discuss minutely as
to whether the charges could be true or were merely invented.
The facts establish that up to March-April
1960 the appellant was on the best terms with the Chief Minister and the
members of his family. He was going out of his way to oblige the Chief Minister
and do his bidding, though as an officer of the position and status of the
appellant this was hardly conduct which should properly be expected of him.
Possibly , his being kept at Jullunder
without transfer for four years was because of this failing on his part. From
April 1960 onwards we find that there is a change in the attitude of the Chief
Minister. The operation on Surinder and the incidents connected with it and the
sending out of Kirpa 765 Singh relate to this period. This apparently led to
the order for his transfer from Jullunder to Amritsar. Having fallen from
grace, the appellant did not apparently consider it safe to continue in service
and hence applied for leave preparatory to retirement and this was granted.
Immediately he got to know that he had obtained this leave he was apparently
emboldened to make public the improper acts which he himself had done for
pleasing the Chief Minister and curry his favour and the article in the Blitz
was obviously inspired by him. When this came to the notice of the Chief
Minister in the middle of January 1961 stern action followed-first the
Vigilance Inspector's communication of the 13th January followed by the adverse
report against the -appellant for 1960 in February 1961 and the further charges
against him in April 1961 which led to the passing of the impugned orders. In
the circumstances we are satisfied that the dominant motive which induced the
Government to take action against the appellant was not to take disciplinary
proceedings against him for misconduct which 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 by the allegations that he
had made in the article which appeared in the Blitz in its issue dated January
15, 1961 followed by the communication to the same newspapers by the
appellant's wife, in which these allegations were affirmed and in large part we
have found to be true. We therefore hold that the impunged orders were vitiated
by mala fides, in that they were motivated by an improper purpose which was
outside that for which the power or discretion was conferred on Government and
the said orders should therefore be set aside.
We therefore allow the appeal and set aside
the order dated June 3, 1961 revoking the leave granted and placing the
appellant under suspension and the order dated June 29, 1961 directing an
inquiry into the charges against him.
As the appellant has failed to make out the
other point about the orders being contrary to the Service Rules we direct that
there shall be no order as to costs, here and in the High Court.
RAGHUBAR DAYAL J.-This appeal, on a
certificate granted by the High Court of Punjab, is directed against 766 its
order dismissing the appellant's petition under Art. 226 of the Constitution
praying for quashing, by a writ of certiorari or other suitable directions, the
orders of the Punjab Government (1) suspending him; (ii) revoking his leave;
(iii) compelling him to continue in service after he had attained the age of
superannuation, and (iv) ordering a departmental enquiry against him.
The appellant, Sardar Partap Singh, Joined
the Punjab Civil Medical Service, Class 1, in 1947. He joined the service as a
direct recruit on August 21, 1947. His previous service in the Indian Medical
Service from 1934 to 1939, in the Punjab Civil Medical Service from April 1940
to June 1941 and in the Indian Military Service in temporary rank till about
the end of 1945, has no bearing on the terms of his service as a member of the
Punjab Civil Medical Service, Class 1.
The appellant reached the Selection Grade of
the Civil Medical Service, Class I, in January 1955 and was transferred to
Jullunder as Civil Surgeon in April 1956. He remained there till he proceeded
on leave preparatory to retirement sometime in December 1960. His leave was sanctioned
on December 18, 1960, and was notified in the Punjab Gazette dated January 27,
On June 3, 1961, the Governor of Punjab
ordered the suspension of the appellant with immediate effect as the Government
had decided that a departmental enquiry be instituted against him under r. 7 of
the Punjab Civil Services (Punishment and Appeal) Rules, 1952. The Governor
further passed an order under r. 3.26(d) of the Punjab Civil Services Rules.
These rules were issued under the proviso to Art. 309 of the Constitution and
came into force from April 1, 1953. They have been referred to as the 1959
rules in the judgment of the High Court and at the hearing as they were amended
from time to time and were re-printed in 1959.
We shall also refer to them as the 1959
rules. The Governor's order under r. 3.26(d) of these rules was that in view of
the appellant's reaching the age of superannuation on June 16, 1961 he be
retained in service beyond that date till the completion of the departmental
The orders of the Governor were communicated
to the Director, Health Services, Punjab, by the Secretary to the 767
Government in the Medical and Health Department by his letter Annexure J dated
June 3, 1961. The Director, Health Services, communicated these orders to the
appellant by a letter, Annexure 1, dated June 3, despatched under postal
certificate. He further sent a copy of that letter and its enclosures by
registered post to the appellant on June 5, 1961. The registered cover was
further marked 'express delivery'. Copies of this letter were sent to the then
Civil Surgeon, Jullunder, and the Accountant General, Punjab, for information.
On June 10, 1961, notifications about the
Governor's placing the appellant under suspension and fixing his headquarters
at Chandigarh and about his revoking, with effect from June 3, the leave
preparatory to retirement which had been sanctioned to him and retaining him in
service until the enquiry into the charges against him be concluded and a I
final order passed, were published in the Punjab Government Gazette
Extraordinary dated June 10, 1961. The Director, Health Services, Punjab,
forwarded to the appellant, with his letter dated 3/11th of July 1961, a
memorandum dated June 29, 1961, statement of charges and statement of
allegations which he had received from the Secretary to Government, Punjab,
Vigilance Department, for the appellant's submitting' such explanation ,is he
might desire. This letter purported to be with reference to enquiries nos. 70,
3 and 27 dated October 29, 1960, January 11, 1961 and April 17, 1961
respectively against the appellant.
The appellant challenged, by his writ
petition, the legality of the orders of suspension, revocation of leave,
retention in service after the date of superannuation and institution of the
departmental enquiry, on various grounds. The competency of the Governor to make
the orders was questioned. It was alleged that unjustified personal grievances
arose between the appellant and Sardar Partap Singh Kairon, Chief Minister of
Punjab, in or about 1960, that the impugned orders were passed mala fide in the
exercise of power, if any, vested in the respondent, the State of Punjab in the
Ministry of Health, that this was an abuse of power and was intended to feed
the grudge of the Chief Minister against him.
768 The respondent State refuted the
contention that the impugned orders were passed mala fide on account of the
alleged grievances of the Chief Minister and stated that the Government was
competent under rules governing the services of the appellant to pass the
impugned orders and that the appellant's allegations had nothing to do with the
orders suspending him and revoking his leave preparatory to retirement.
The High Court agreed with the contention for
the respondent and dismissed the appellant's petition. On the appellant's
application, it granted the necessary certificate under Art.
133(1)(c) of the Constitution.
The appellant has questioned the correctness
of the impugned orders, broadly speaking, on two grounds. One is that the rules
governing his service did not empower the Governor to pass the impugned orders.
The second is that the impugned orders were passed mala fide as the Chief
Minister, who was in charge of the department of Health, bore ill-will towards
The first contention has been urged before us
in various ways and we deal with the more salient and important aspects urged
to support the contention that the impugned orders could not have been passed
by the Governor in view of the various rules.
It is contended that leave, once sanctioned,
cannot be revoked after the officer has proceeded on leave. He can only be
recalled to duty. The appellant was not recalled to duty as he was not posted
to any post of a civil surgeon.
Rule 8.15 of the 1959 rules reads :
"Leave cannot be claimed as of right.
When the exigencies of the public services so require, discretion to refuse or
revoke leave of any description is reserved to the authority empowered to grant
It follows therefore that the authority
granting leave has the discretion to revoke it. There is no restriction on the
power of revocation with respect to the time when it is to be exercised. It can
be exercised before the officer to whom leave was granted proceeds on leave. It
can also be revoked after he has proceeded on leave. Revocation of leave simply
means cancelling the leave granted.
769 The exigency necessitating the revocation
of leave may arise after the officer has proceeded on leave. Rule 8.3 has no
bearing on the question as it provides that the rules following it govern the
procedure for making applications for leave and for granting leave in India. It
deals with the procedure and not with the right of the officer to leave or with
the power of the necessary authority to sanction or refuse leave or revoke
leave. Rule 8.42 deals with matters incidental to the recall from leave and in
no way affects the discretion of the authority to revoke leave. In fact, recall
to duty must follow the revocation of the leave with respect to the period not
availed of till then.
The next contention is that when a Government
servant proceeds on leave preparatory to retirement, he ceases to hold office
and to be in the employment of Government and that in fact he practically
retires on the date he avails of the leave and consequently no question of his
suspension can arise. This contention, again, has no force. A Government
servant is in service till his service terminates and the service can terminate
only by dismissal, removal or retirement. The date from which a Government
servant is on leave preparatory to retirement cannot be treated as the date of
his retirement from service.
It is also urged that a Government servant on
leave preparatory to retirement cannot be suspended as suspension means a
person's ceasing to work on the post he holds and the public servant on such
leave holds no office or post and therefore he cannot be effectively suspended.
Suspension of a Government servant, during the course of his service, simply
means that no work is to be taken from him during the period of suspension. The
Government servant does not work on a post during the period of his suspension.
If he is actually discharging the duty of a certain office prior to suspension,
the order of suspension would mean that he would cease to work on and discharge
the duties of that post. If at that time he is not working on any post but is
on leave, no question of Ms actually ceasing to work or giving up the discharge
of duty arises, but that does not mean that the order of suspension would be
ineffective. The Government servant, during suspension or on leave, holds a
lien on his permanent post in view of r. 3.13 unless his lien is suspended or
is transferred under the appropriate 770 rule and so has a title to hold that
post when under suspension or on leave.
We may refer to the case reported as Khem
Chand v. Union of India(1) wherein the rule that a Government servant be deemed
to be on suspension during the period between the date of dismissal and the
date of its being set aside, was held valid. Suspension during such period is
analogous to suspension during the period of leave after revocation of leave
for that period.
Another contention is that the order revoking
the leave must precede the order of suspension, and as the order of suspension
was before the revocation of his leave it is bad.
We do not agree with this contention.
Notifications about the suspension and revocation of leave from June 3, 1961,
were issued on June 3, 1961. The order of suspension bears an earlier number
than the order about the revocation of leave. The order in which the two orders
were issued does not affect in substance the validity of the two orders so long
as the Governor had the power to suspend the appellant and revoke his leave.
Orders may be issued in any sequence.
The next contention is that these orders of
June 3 were actually communicated to the appellant after the date of his
retirement and is therefore ineffective. The appellant's date of birth is June
16, 1906. The order of suspension reached the appellant, according to his
statement, on June 19, 1961, though it was dispatched by the Director, Health
Services, Punjab, on June 3, 1961. The envelope containing the letter was
addressed to the appellant by his Kanpur address which he appeared to have
furnished to the office.
The appellant was apparently not at Kanpur
when the letter reached him and the letter took unduly long on being re-directed
to the address where it was delivered to the appellant. There is not sufficient
material on the record to show when it was redirected and what caused this
The Director, Health Services, not only
addressed an ordinary cover under postal certificate to the appellant but also
followed it up by a registered letter on June 5. The Government, not having
received an acknowledgement of the appellant with respect to the receipt of the
orders of suspension etc., published the orders in the Punjab  Supp. I
771 Government Gazette extraordinary dated
June 10. Ordinarly, the notification about these orders would have been
published in the Gazette in due course. They were published in the Gazette
Extraordinary as the Government it appears from the written statement, had the
impression that the appellant was avoiding the receipt of the letter addressed
to him. There was a reason for their anxiety to see that the orders could be
made known to the appellant as he was due to retire from June 16, 1961. The
newspapers also, according to the appellant's own petition, published in their
issues of June 15 about the notification concerning the respondent in the
Gazette Extraordinary. The, orders of the Government ordinarily take effect
from the moment they are issued except when they cannot be effective due to
their nature. An order of suspension of the appellant when he was on leave
could be effective from the moment it was issued.
The appellant was on leave and was not
discharging any official functions. If he had been actually on duty, the order
of suspension would have taken effect from the moment it reached him and from
which moment alone the appellant could have complied with that order by ceasing
to work any further in the discharge of his duties. It is therefore immaterial
whether the publication of the orders in the Gazette Extraordinary amounted to
sufficient notice to the appellant of the various orders and whether the
letters communicating to him the orders reached him after the due date of
retirement. In the present case the orders were effective from June 3, 1961,
and their validity and effect did not depend on the date of communication to
The case reported as Bachhittar Singh v.
State of Punjab(l) is not apposite and does not support the contention. It was
not a case of suspension. In that case a Government servant preferred an appeal
against his dismissal by the Revenue Secretary of Pepsu Government to the state
Government of Pepsu. The Revenue Minister recorded his opinion that instead of
dismissing him he be reverted to his original post. Thereafter, the State of
Pepsu merged with the State of Punjab. The remarks of the Revenue Minister were
not communicated to the appellant.
AIR 1963 S.C. 395.
772 subsequent to the merger, the Chief
Minister, Punjab, dismissed the appeal. This order was communicated to the
appellant. The remarks of the Revenue Minister of Pepsu were held not to be an
order of the State Government and, in the context of that case, it was said at
"Before something amounts to an order of
the State Government two things are necessary.
The order has to be expressed in the name of
the Governor as required by cl. (1) of Art.
166 and then it has to be communicated."
The remarks of this Court in State of Punjab v. Sodhi Sukhadev Singh(1) and
quoted in this case, do not go -so far and lay down that a final decision by
the Council of Minister becomes an order when the Rajpramukh acts upon it by
issuing an order in that behalf to the respondent. The further following
remarks should be construed in the same context:
"Thus it is of the essence that the
order has to be communicated to the person who would be affected by that order
before the State and that person can be bound by that order. For, until the
order is communicated to the person affected by it, it would be open to the
Council of Ministers to consider the matter over and over again and therefore
till its communication the order cannot be regarded as anything more than
provisional in character." These observations therefore refer to an order
made in the circumstances of that case. It is to be noted that in both these
cases, no formal order was at all made by the Government. The impugned orders
in the present case were formally issued by the Governor on June, 1961, and
-were even published in the -Gazette extraordinary on June 10.
They were final orders. Of course, the
Governor could, at any time, pass further orders superseding those orders. The
possibility of a change in the order is not the main basis for considering
whether a certain order is effective or not.
The main contention of the appellant,
however, is that r. 3.26(d ) of the 1959 rules is not applicable to him and
that if it be applicable, his case is not covered by the terms of that rule.
The appellant joined the Punjab Civil Medical AIR 1961 S.C. 493, 512.
773 Service, Class 1, in 1947. At that time
the Punjab Civil Medical Services, Class I (Recruitment and Conditions of
Service) Rules, 1940, hereinafter called the Medical Rules.
were in force. They were made by the Governor
of Punjab in the exercise of powers conferred on him by cl. (b) of sub-s.
(1) and cl. (b) of sub-s. (2) of s. 241 of
the Government of India Act, 1935. Rule 13 of the Medical rules is :
"In respect of leave, pension and other
cognate matters not specifically mentioned in these rules, members of Service
shall be governed by such general rules as may be framed in that regard by the
Governor of the Punjab, under cl. (b) of sub-s. (2) of s. 241 of the Government
of India Act, 1935." The Punjab Civil Services Rules were also made by the
Governor of Punjab under s. 241 of the Government of India Act and came into
force from April 1, 1941. They too were in force at the time the appellant
joined service. Rule 3.26 (d) did not find place in the 1940 rules. The 1959
rules which, as already stated, really came into force in 1953, have this rule.
It reads :
"A Government servant under suspension
on a charge of misconduct shall not be required or permitted to retire on his
reaching the date of compulsory retirement but should be retained in service
until the enquiry into the charge is concluded and a final order is passed
thereon." The contention for the appellant is that the rule with respect
to the retirement of a Government servant relates to a matter cognate to
pensions and that therefore, in view of r.
13 of the Medical rules, matters of his
retirement would be governed by the 1941 rules. We are of opinion that the
question of retirement of a Government servant on superannuation or otherwise
is not a matter cognate to pensions.
Pension follows retirement and may be said to
be incidental to it. Rule 13 of the Medical rules therefore does not govern the
terms of retirement of the appellant. It is r. 17 of the Medical rules which
would govern the matter of his retirement. This rule reads:
"In all matters not expressly provided
for in these rules, the members of the service shall be governed by such
general rules as may have been or may hereafter be 774 framed by Government and
by the provisions of the Government of India Act, 1935." It is clear from
this rule that in the matter of retirement the appellant would be governed by
such eneral rules as might have been made by the Government at the time the
Medical rules were made or as would be made by the Government subsequently. The
latest general rules governing he retirement of Government servants will govern
the retirement of the appellant even if it be assumed that the Medical rules
still govern his conditions of service.
Rule 3.26(d) is therefore applicable to the
The further contention of the appellant is
that this rule applies to a government servant under suspension on charge of
misconduct and therefore to a Government servant against whom a formal
departmental enquiry has been instituted for enquiring into the charges of
misconduct framed against him and that no such charge being framed and no such
departmental enquiry being instituted prior to the order of suspension of the
appellant on June 3, 1961, the order of suspension cannot be treated to be an
order under r.
3.26(d). We do not agree. There is no
Justification to give such a restricted meaning to the word 'charge' in this
The appellant refers to r. 7 of the punjab
Civil Services (Punishment and Appeal) Rules, 1952, hereinafter called the
Punishment and Appeal Rules,This rule reads:
"(1) Without prejudice to the revisions
of the Public Servants (Inquiries) Act, 1850, no order of dismissal, removal or
reduction, shall be passed against a person to whom these rules are applicable,
unless he has been given a reasonable opportunity of showing cause against the
action proposed to be taken in regard to him.
(2)The grounds on which it is proposed to
take such action, shall be reduced to the form of a definite charge or charges
which shall be communicated in writing to the person charged and he shall be
required within a reasonable time to state in writing whether he admits the
truth of all, or any, of the charges, what explanation or defence, if any, he
has to offer and whether he desires to be heard in person. If he so ,desires,
or if the authority empowered to dismiss, 775 remove or reduce him so directs,
an oral enquiry shall be held at which all evidence shall be heard as to such
of the charges as are not admitted." This rule comes into play only after
a prima facie case is made out against a Government servant and not at the state
of a preliminary investigation into accusations made against a Government
servant. But it does not follow that suspension is not permissible till this
stage of making a formal charge arrives. Rule 3.26(d) is of general application
and therefore the expression 'charge of misconduct' in this rule is not to be
interpreted narrowly as meaning 'the charges formally framed and communicated
to the government servant concerned' with the intimation that a formal
departmental enquiry had been initiated against him on those charges. The
appellant's contention does not find any support, as urged, from the last
portion of this rule which reads 'until the enquiry into the charge is
concluded and a final order is passed thereon'. Of course, the enquiry would be
into the charges of misconduct on account of which the Government servant has
been suspended and the suspension will continue till a final order is passed on
The requirements of the last portion of this
rule do not in any way lead to the conclusion that the enquiry into the charges
refers to a formal departmental enquiry into the charges framed and
communicated to the Government servant in accordance with r. 7 of the
Punishment and Appeal rules. We are of opinion that 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 r. 3.26(d).
It was contended that the appellant's
suspension without calling him to explain the charges first, was bad as the
proceedings to suspend him were of a quasijudicial character and therefore
necessitated the Government's obtaining his explanation to the charges of
misconduct before passing the order of suspension. The order suspending the
Government servant pending enquiry is partly an administrative order.
What has been held to be quasijudicial is the
enquiry instituted against the Government servant on the charges of misconduct,
an enquiry during 776 which under the rules it is necessary to have an
explanation of the Government servant to the charges and to have oral evidence,
if any, recorded in his presence and then to come to a finding. None of these
steps is necessary before suspending a Government servant pending enquiry. Such
orders of suspension can be passed if the authority concerned, on getting a
complaint of misconduct, considers that the alleged charge does not appear to
be groundless, that it requires enquiry and that it is necessary to suspend the
Government servant pending enquiry.
Explanation I to rule 2.2(b), Vol. II, 1959
rules, supports the view that there can be suspension of a Government servant
even prior to the issue of charges of misconduct to him, the Explanation being,
"Departmental proceedings shall be deemed to have been instituted when the
charges framed against the pensioner are issued to him, or, if the officer has
been placed under suspension from an earlier date, on such date".
Bachhittar Singh's Case(1) is no authority
for the contention that the initial order of suspension pending enquiry must be
made after obtaining the explanation of the Government servant concerned. That
question did not at all arise for consideration in this case.
In this connection we may also deal with
another contention of the appellant that the 1941 or 1959 rules do not empower
the Government to suspend a government servant pending an enquiry. It is
contended that the suspension contemplated by the rules is the suspension which
comes under r. 7.5, 1941 rules, or under rules 7.5 and 7.6 of the 1959 rules.
These rules do not invest the Government with
the power of suspension, but only provide either for certain periods during a
Government servant's service to be deemed to be periods during which he was
under suspension or during which he be placed under suspension in view of the
various exigencies mentioned in those rules. No such formal rule is to be found
in any of these rules. The power of suspending a Government servant is vested
in the authority which appoints the Government servant in view of s. 16 of the General
Clauses Act, 1897.
A.I.R. 1963 S.C. 395.
777 The other substantial contention for the
appellant in connection with the inapplicability of r. 3.26(d) to his case is
that, under the 1941 rules which governed his service initially, he had a right
to opt for retirement on superannuation and that therefore the 1959 rules could
not adversely affect that right and empower the Governor to retain the
appellant in service after the date of superannuation without the consent of
Rule 1.6 of the 1959 rules provides that
nothing in those rules shall operate to deprive any person of any right or
privilege to which he is entitled by or under any law or by the terms of his
agreement. Rule 5.28, Vol. II, 1941:
"A Government servant in Superior
service who has attained the age of 55 years may, at his option, retire on a
Superannuation pension." The contention of the appellant is that this rule
gives him the right to retire on superannuation pension on attaining the age of
55 years and that therefore he cannot be retained in service after he had
attained that age without his consent, that he cannot be deprived of this right
by the 1959 rules and that therefore r. 3.26(d) could not be applicable to him
after he had attained the age of 55 years.
There is nothing Corresponding to r. 5.28 of
Vol. 11 of 1941 rules in Vol. 11 of the 1959 rules. It appears that r. 5.28 of
the latter volume was cancelled. When the retirement of the appellant, as
already held, is governed by the 1959 rules and not by the 1941 rules, the
right, if any, given by the 1941 rules to the appellant to opt for retirement
could not be said to be a right which comes within r. 1.6 of the 1959 rules as
rule 1.6 preserves such rights to which the Government servant be entitled by
or under any law or by the terms of his agreement. It contemplates such rights
which the law in force gives to the Government servant at the time the 1959
rules are in force. When the 1941 rules do not govern him now, it cannot be
said that he has a right to opt for retirement on attaining the age of 55.
Rule 5.28, aforesaid, is in Vol. 11 of the
1941 rules which embodies the rules relating to pensions and provident fund and
therefore the proper interpretation of that rule would be that it provides for
and permits the grant 50-2 S. C. India/64 778 of superannuation to a government
servant who has opted to retire after attaining the age of 55 years on being
required by the Government, in the exercise of its powers under r. 3.26 of
Volume 1, to continue in service. This is clear from the sequence of rules in
Volume II. Section 4 of Chapter V deals with superannuation pension. Its part I
deals with conditions of grant. This part has got three rules 5.27, 5.28 and
5.29. The other part deals with procedure. Now, r. 5.27 provides that superannuation
pension is granted to a Government servant in superior service entitled or
compelled to retire at a particular age. This rule refers to the Government
servant to whom superannuation pension is granted. Rule 5.28 follows this rule
under the heading 'conditions of grant' and therefore is to be interpreted to
mean that superannuation pension can be granted to a Government servant in
superior service who is retired at his option after he has attained the age of
Assuming however that the appellant had a
right to retire on attaining the age of 55 years in view of this rule or r.
3.26(a), that right is subject to r. 3.26(d)
in as far as this rule provides that no Government servant would be permitted
to retire on his reaching the date of compulsory retirement if he be under
suspension on a charge of misconduct.
It is also contended that r. 3.26(d) applies
to those Government servants whose date of compulsory retirement, i.e., the
date on reaching which they could be retired or permitted to retire, precedes
the date of superannuation on which date they must retire. There is nothing in
this rule or in note no. 3 to r. 3.26 which should make us construe the
expression 'date of compulsory retirement' to be the date on reaching which
they can be retired or permitted to retire prior to the actual date of
superannuation. No such rule was really necessary for such cases as it was not
incumbent on the State to require the officers reaching such an age to retire.
Requiring them to retire at that age was an option with the Government. The
expression 'date of compulsory retirement' in r. 3.26(d) must really refer to
the dates mentioned in the earlier clauses of r. 3.26 and they are those on
which the Government servant attains the age of 55 years or any of the ages
mentioned 779 in clauses (b) and (c) of that rule. Clause (b) provides that
certain Government servants should be required to retire at the age of 60.
Clause (c)(i) provides for the retirement of certain officers on reaching the
age of 55 years and empowers the Government, however, to require them to retire
on reaching the age of 50 years in certain circumstances. The expression
'required to retire would certainly refer to these officers whose cases come
within the previous clauses of r. 3.26 and may also be applicable to Government
servants who may be required to retire under any other rule in particular
circumstances. The width of the rule cannot clearly make the rule inapplicable
to the cases covered by the earlier clauses of r. 3.26.
The expression 'permitted to retire', again,
would refer to cases where the Government servant opts to retire in view of
certain rules providing for his exercising such an option.
The following observations at p. 579 of the
case reported as The State of Bombay v. Saubhagchand M. Doshl(1) do not support
the contention of the appellant. They simply mean that the question under
consideration in that case could arise in those circumstances, the observation
"It should be added that questions of
the above character could arise only when the rules fix both an age of
superannuation and an age for compulsory retirement and the services of a civil
servant are terminated between these two points of time." The question
raised in that case was whether the order of compulsory retirement amounted to
an order of dismissal or removal or not.
We are therefore of opinion that the
appellant had no absolute right to opt for retirement on his attaining the age
of superannuation, that any such option was subject to r. 3.26(d) which applies
to him and that his case comes under that rule as he was on the date of his
compulsory retirement under suspension on charges of misconduct.
It is true that no question of Government
retaining a Government servant in service on Ms attaining the age of 55 years
arises if the officer had once retired on attaining that age. If the Government
desires to have the advantage (1) C.R. 571.
780 of his services after he had retired, the
only course open to the Government is to reemploy him. No such situation
however arises in the present case when the impugned orders suspending the
appellant, revoking his leave subsequent to that date and retaining him in
service after the date of superannuation in view of r. 3.26(d) had been made
prior to the date on which he was to attain the age of 55 years.
It has also been contended that r. 3.26(d)
infringes the fundamental rights of the appellant as a citizen Of India under
Art. 19 and 23 of the Constitution. We do not agree.
Rule 3.26(d) simply provides that the service
which the appellant took up voluntarily and on conditions as be laid down by
the relevant rules would continue in certain circumstances even though the
Government servant has attained the age of superannuation. Further, any restriction
the rule imposes on any alleged fundamental right under cls. (f) and (g) of
Art. 19 is a reasonable restriction in the interests of the general public. The
services to be rendered by the Government servant subsequent to such an age, in
view of r. 3.26(d), is in no sense a service which can be equated with the
expression 'begar' or 'forced labour' in Art. 23. The appellant is not forced
to do any work. He remains under suspension and does no work.
Even if it be assumed that the retention in
Service of the Government servant, in view of the provisions of r. 3.26(d), can
come within the expression 'forced labour' this rule would be valid in view of
Art. 23(2) which provides that nothing in that Article shall prevent the State
from imposing compulsory service for public purposes. We are of opinion that
such retention would be for a public purpose, as it is in the larger interests
of the efficiency of the services that a Government servant should remain
within the control of -the Government so long as the departmental enquiry
against him on a charge of misconduct is not concluded and final orders are not
It was also contended that some of the
charges framed against the appellant, if true, would constitute criminal
offences and that therefore criminal prosecution should have been launched
against him in place of the departmental proceedings. There is nothing in the
rules or the general law which would support this contention. It is for the 781
Government to decide what action should be taken against the Government servant
for certain misconduct. Such a discretion in the Government does not mean that
the provision for the departmental enquiry on such charges of misconduct is in
violation of the provisions of Art. 14.
The service rules apply equally to all the
members of the service i.e., to all persons similarly placed and are not
therefore discriminatory. The Government has the discretion in every case,
considering the nature of the alleged misconduct and other circumstances,
whether a criminal prosecution should be launched or not. The Government is
also free to conduct departmental proceedings after the close of the criminal
proceedings, if instituted.. There is therefore nothing illegal in the
Government instituting the departmental proceedings against the appellant.
Before dealing with the allegation about the
impugned orders being made mala fide, we may deal with certain general points
raised by the appellant.
A grievance has been made that Sardar Pratap
Singh Kairon, the Chief Minister, was not made a party to the proceedings on
the writ petition. The appellant did not implead him in the first instance. It
was after the decision of this Court in R. P. Kapur v. Sardar Pratap Singh
Kairon(1) that the appellant applied for the impleading of the Chief Minister
as the respondent in the petition. That application was rejected by the High
Court as no relief had been claimed against him. The order cannot be said to be
wrong when the only ground mentioned for impleading the Chief Minister as a
party was to make it incumbent on him to file an affidavit, which he was not
legally obliged to, if he was not a party.
A number of affidavits sworn by Mrs. Sodhi,
Pahwa, Yog Raj, Om Prakash, Surendra Singh Kairon and Kirpa Singh were filed on
behalf of the respondent in the Court below. It is now contended that these
affidavits should not have been taken into consideration when no reference to
them has been made in the written statement filed on behalf of the respondent.
No such objection seems to have been raised
in the Court below. The allegations in the petition and the affidavit of the
appellant with respect to matters concerning these persons were not accepted by
the (1)  2 S.C.R. 143.
782 respondent. It was therefore not improper
or irregular or illegal for the State to have secured these affidavits and to
have filed them in Court. In fact, it should have secured affidavit from the
Chief Minister, Mrs. Kairon, the Inspector-General of Prisons and the Vigilance
Inspector about the allegations concerning them. There is therefore no force in
It has been contended that the allegations of
facts made by the appellant in the petition being not specifically controverted
in the written statement and being not denied by the persons most competent to
deny them, should be taken to be established. The contention really refers to
the allegations made against the Chief Minister and his wife and about certain
matters in the tape recorded conversation the appellant had with the I.G. of
Prison and the Vigilance Inspector. The appellant has filed a rendering of the
conversation alleged to have taken place between him and these persons. These
persons have not denied, by their own affidavits, that they did not have the
alleged conversations with the appellant, even though the officers of the
State, on the application of the State, were allowed to listen to the recorded
tape conversation and to prepare their own tape records of the renderings of
the tape recordings filed by the appellant in Court in order to enable the
State to verify the appellant's allegation that the tape-recorded talks were
between the appellant and the persons alleged.
Absence of such affidavits can at best lead
the Court to accept what was alleged to be stated by these persons in the
conversations, but cannot be sufficient to establish what the person talking
states to be the statements of other persons. The tape recorded conversation
between the appellant and the other person talking with him can only be
corroborative evidence of the statement of appellant that the other persons had
made such and such statements, but cannot be direct or primary evidence that
the third person had stated what the other speaker had told the appellant.
The High Court did not rely on the renderings
of the tape recorded conversation in view of the fact that such tape recording
can be tampered with. Tape recordings can be legal evidence by way of
corroborating the statements of a person who deposes that the other speaker and
784 Minister towards the appellant. There is no allegation that the boy
suffered on account of his leaving the appellants house prior to his being
cured completely. There is nothing in the record of the alleged conversation
between the appellant and the wife of the Chief Minister, tape recorded talks
nos. 6 and 2 in April and May respectively, to show that the Chief Minister had
asked the appellant to perform the operation. Any statement attributed to the
Chief Minister, by his wife, even if the talk was with her,is not evidence of
what the Chief Minister had stated, as Sardarni Pratap Singh Kairon has not
been examined. Surendra has denied, in his affidavit, the appellant's
performing any operation on him at the relevant time. In these circumstances,
it is not possible to hold that the Chief Minister did ask such a favour from
the appellant and that even if the appellant's allegation is correct, he felt
so annoyed with the appellant at Surendra's leaving Jullunder for a few days,
be it from the house of the appellant or from the Circuit House, as to break
all such friendship with the appellant as has been alleged by him and swing
over to the other extreme and harbour such grudge against him as to abuse his
position as the Chief Minister, get unjustified enquiries launched against him
and get the impugned orders passed.
Another allegation is that the Chief Minister
himself and his family members, made numerous recommendations asking for undue
favours pertaining to the sphere of the appellant's duties and that when they
went beyond the limits of endurance, the appellant expressed his inability to
comply with some of the extremely unreasonable demands. In support of this
contention, the appellant filed documents of the Bseries, nineteen in number.
None of these documents, by itself, would show that the appellant was asked to
act in a manner which may be said to be not in keeping with the proper
discharge of his official duties. The contents, by themselves, show that the
writers, who included the Chief Minister, his sons Surendra and Girendra and
his brother Jaswant Singh, recommended to the appellant certain persons for
treatment, for admission in the hospital or for grant of medical certificates.
It is not to be presumed that untrue certificates were required to be issued.
The appellant does not state in what manner he 785 acted improperly and why he
did so. The there fact that he was a friend of the Chief Minister would not
justify it. He held a responsible position and is expected to have done his
duty. In case he did not do his duty and thus suffered from a weakness of
character, his conduct can be said to be due to his desire to remain in good
grace with the Chief Minister and thus gain some advantage in the service, be
it promotion, posting at a good station or protection from any adverse action in
case he acted improperly in the discharge of his official duties. There is
nothing in the petition to indicate how and when the Chief Minister and the
appellant became friends. The relationship between the Chief Minister and an
efficient public servant may be a close one, but would not amount to friendship
and therefore the explanation that the appellant showed undue favours for some
time to persons recommended by the Chief Minister and his relations merely on
account of friendship does not appear good and, even if the appellant's
allegation be correct, Ms showing undue favours would not antagonize the Chief
Minister. The appellant has not shown which recommendations he did not comply
with and when such occasions arose. Therefore this allegation does not establish
the Chief Minister's bearing a grudge against the appellant.
The other reason for the Chief Minister's
grievance is said to be the appellant's ceasing to comply with the unreasonable
requests of the family members of the Chief Minister for medicines and other
expensive articles. He does not say which requests and when he did not comply
So long as he complied with those requests,
they would put him in good grace with the Chief Minister and Ms relations.
It is however denied that he did supply such
things. It appears from certain postal receipts filed by the appellant that
certain parcels were sent to Mrs. Pratap Singh Karion in July and October 1957,
March and September 1958 and March 1959. The receipts do not show that these
parcels contained medicines. Tape recorded talks nos. 1, 3, and 4 do refer to
requests for and supplies of medicines by the appellant. It is also alleged
that among the expensive articles supplied were two Singer sewing machines.
Cash memos for the purchase of two Singer sewing machines by Sardar Bahadur
Bagh Singh, father-in786 law of the appellant in July 1959 and October 1959,
have been filed. In July 1959, a wooden box was sent to Mrs.
Kairon through Pahwa who was then the Traffic
Manager of the Punjab Roadways at Amritsar. Om Prakash brought that box from
the appellant's place to Pahwa. Both these persons, Om Prakash and Pahwa, have
filed affidavits. They describe the box to be of such a size that it could not
possibly contain the Singer sewing machine. Om Prakash however had stated in
the receipt, Annexure C. 9, that he had received a box bearing label 'Singer
Sewing Machine' from Dr. Partap Singh.
Tape recorded talk no. 3 in August 1959
records Mrs. Kairon's conversation about receiving a machine and not liking it
on account of its colour and the appellants telling her, that they would deduct
the money in certain contingencies. The State has not filed any affidavit by
her in denial of these statements. The conversation shows that the appellant
supplied a Singer sewing machine to Mrs.
Kairon and that some deduction could be made
in the price in certain contingency. There is no reason to disbelieve the
appellant's statement that he had supplied a Singer sewing machine and
medicines to her. These supplies by the appellant would however ingratiate him
with the ChiefMinister. There is nothing on the record to indicate which
requests for what medicines and articles and when were refused by the appellant
and thus gave cause for grievance to the Chief Minister.
Another reason for the Chief Minister's
harbouring a grievance against the appellant is said to have arisen in April
1960 on account of the appellant's asking the Chief Minister's friend, Kirpa
Singh, whom he had kept as a guest for about 7 months, to leave the appellant's
house. Kirpa Singh was the Manager of National Motors at jullunder. It is
alleged in the petition that this firm was either directly or indirectly owned
by Surendra Singh Kairon or a close relation of his. This allegation is very
vague. Both Kirpa Singh and Surendra Singh have denied Surendra Singh's having
any concern with the National Motors at jullunder.
Kirpa Singh did stay at the appellant's house
in the alleged period. His letter Exhibit D-1, however does not indicate that
he felt annoyed at leaving the appellant's house where he had stayed from
September 787 1959 to the end of March 1960. In fact, Kirpa Singh, by his
letter, expressed his thanks to the appellant. There could therefore be no
reason for the Chief Minister to feel annoyed and bear grudge against the
appellant on account of Kirpa Singh not staying as a guest of the appellant
from April 1960, even though Kirpa Singh was a friend of the Chief Minister and
was kept as guest by the appellant at the instance of Surendra Singh, as appears
from the tape recorded talk no. 15.
The other two reasons for the Chief
Minister's being aggrieved with the appellant relate to what happened subsequent
to April 1960. It is alleged that in September 1960, the Chief Minister sent a
message through the Home Secretary, Punjab, to the effect that he had been over
liberal towards the Akali prisoners in the District Jail.
It is stated in the written statement filed
by the respondent that the District Magistrate, Jullunder, made such a
complaint to the Home Secretary, who happened to be at jullunder and that the
Home Secretary conveyed it to the appellant at a meeting at which the
Inspector-General of Prisons and the Collector were also present. The matter
was closed as a result of what was talked about at the meeting.
Reference has been made in this connection to
the tape recorded conversation the appellant had with the Inspector General of
Prisons in November 1960. It appears from this conversation that exaggerated
information had reached the Chief Minister and made him send the message and
that he was satisfied when the I.G. of Prisons explained the matter to him. A
Chief Minister's sending a message to an officer about certain complaint
received against him cannot be taken to indicate his ill-will against that
officer. He is bound to do so as a part of his, duty.
The next reason is said to be that the Chief
Minister had used the appellant extensively in the Karnal Murder Case, off the
record, when it was the subject matter of an appeal.
The Sessions Judge acquitted the accused in
that case in November 1959 and the High Court dismissed the Government appeal
in May 1960. The appellant did his best to help the prosecution with
instructions in connection with the medico legal matters in the case and stated
to the Chief Minister that the outcome of the case would 788 be favourable.
This is borne out from tape recorded talk no. 17 recorded in April 1960. It is
alleged that the dismissal of the appeal by the High Court and the ultimate
dismissal of the Government petition for special leave to the Supreme Court in
October 1960 displeased the Chief Minister who expressed his displeasure to the
appellant. It can be imagined that the Chief Minister in these circumstances
would sarcastically speak to the appellant about the strong assurances he had
given about the outcome of the case, but it is difficult to hold that that
would make the Chief Minister hostile to the appellant despite the hard work he
had done, at his request, in helping the prosecution with the medico-legal
aspect of the case. It is significant to note that the appellant does not
allege that the Chief Minister expressed his displeasure to him in May 1960,
shortly after the High Court-dismissed the State Appeal.
Another cause for the displeasure of the
Chief Minister is said to be the appellant's inability to comply with the
illegitimate contents of the instructions conveyed to him by the Chief Minister
in December 1956 in connection with Dr. Dhillon's accompanying the Chief
Minister for a number of days as medical attendant. The nature of those
instructions has not been disclosed. What part the appellant played in the
alleged subsequent developments with the Accountant General, Punjab, and which
were unpalatable to the Chief Minister, has not been indicated. The incident
took place in December 1957 and surely, even if true, does not appear to have
affected the alleged friendly relations between the Chief Minister and the
appellant up to April 1960.
We have considered all the reasons set out by
the appellant in his petition for the Chief Minister's bearing grudge against
him from May 1960 onward and are of opinion that they, singly or cumulatively,
fail to establish that the Chief Minister had any grievance against the
The earliest definite incident which,
according to the appellant, annoyed the Chief Minister, took place in the
beginning of April 1960, as Kirpa Singh was made to leave his house at the end
of March 1960. We have held that in view of Kirpa Singh's letter of thanks to
the appellant, there 789 could have been no cause for the Chief Minister to
feel displeased with the appellant. This inference finds support from the fact
that the Chief Minister did not do anything against the appellant soon after
it, but on the other hand, entrusted the appellant to perform an important
operation secretly on his son Surendra in the end of April 1960, which could be
only if he entertained good relations with the appellant till then.
We have also held that the alleged inability
of the appellant to keep Surendra Singh at his place subsequent to the
appellant's performing the operation on him could not have displeased the Chief
Minister as no ill-effect followed. This view, again, finds support from the
fact that the Chief Minister did nothing against the appellant till the end of
October when an enquiry was instituted against the appellant. The alleged
incident about Surendra's leaving jullunder for a few days before he fully
recovered did not therefore lead to any animosity between the Chief Minister
and the appellant.
The High Court, Punjab, dismissed the State
appeal in the Karnal Murder case in May 1960. The appellant is said to have
helped the prosecution at the appellate stage. The Chief Minister could have
had cause for dissatisfaction but, as we have mentioned earlier, the dismissal
of the appeal could not have given rise to such bad feeling in the Chief
Minister against the appellant as to lead to the transfer of the appellant in
October and to institute the enquiry against him.
The recorded conversation between the
appellant and the I.G. of Prisons in November 1960 tends to indicate that the
appellant's relations with the Chief Minister could not have been bad in
November 1960 as he had sought the advice of the I.G. of Prisons about his
reporting to the Government about the attitude of the District Magistrate at
that meeting. If the relations between the Chief Minister and the appellant
were as bad as we are asked to believe, such an idea in connection with the
attitude of the District Magistrate, even if it was improper, could not have
occurred to the appellant at that time when the I.G. of Prisons himself had
told him : 'In my opinion that matter was hushed up'.
790 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 al legation 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 appeuant's
statement in Court, is a coveted station for Civil Surgeons. He had overstayed
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 convenience 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 mala fide.
The appellant's brother-in-law, who was
officiating in the Provincial Civil Service, Executive Branch, was reverted 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
Mm. He proceeded on leave some time in December 1960.
Subsequently, things happened which could
have given cause to the Chief Minister for feeling aggrieved with the
appellant. The Blitz of January 14, 1961 pub791 lished an article under the
caption Punjab's latest scandal:
The sewing machine of Kairon family'.
According to this 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 described the appellant to be the henchman
of the Chief Minister and a handyman for Ms 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 sons,
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, 1961, 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 'alleged 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 792 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 course 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, 1961, 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 15, 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 Chief Minister could 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 793 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, 1961,
which was submitted beyond the usual period for making representation, the
"I am 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 appreclable 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
1961, 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
The tape-recorded conversations between the
appellant and the Chief Minister and his wife were played at a Press Conference
on March 29, 1961, 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 S. C. India'64
794 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 whether these acts
of the appellant and his wife giving cause for grievance to the Chief Minister
between January and April 1961 can be said to have led the Government to take
the steps against the appellant 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',,, wife's letter
published in the Blitz in March 1961 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 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 irresistible
that the appellant and his wife rushed to the Press so prematurely, even if
they could be said to be actuated with laudable motives of bringing improvement
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 795 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 mala 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 service." 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
investigating 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 be 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 796 could have taken adequate action against the
appellant under r. 2.2(b), Vol. 11, 1941 rules, if he was found guilty of grave
misconduct as a result of the departmental proceedings 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 Government 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
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.