Smt. S. R. Venkataraman Vs. Union of
India & ANR [1978] INSC 217 (2 November 1978)
SHINGAL, P.N.
SHINGAL, P.N.
REDDY, O. CHINNAPPA (J)
CITATION: 1979 AIR 49 1979 SCR (2) 202 1979
SCC (2) 491
CITATOR INFO :
D 1980 SC 563 (26) E&D 1991 SC 818 (25)
ACT:
Fundamental Rules-Rule 56(j) (i)-order of
Compulsory retirement in 'public interest'-Nothing on record to justify the
order -Order if should be set aside.
Administrative Law-Administrative action-An
abuse of power-What is- order based on non-existing fact-Effect of.
Words and Phrases- 'Malice in fact' and
'Malice in law'-Explained and distinguished.
HEADNOTE:
The appellant who was working as Joint
Director, Family Planning in the Directorate-General of the All India Radio was
prematurely retired from service. She made a representation, but it was
rejected.
In her writ petition under Art. 226 of the
Constitution she alleged that she had a long and clean record of nearly three
decades but that baseless allegations had been made against her, because of malicious
vendetta of the then Chairman of the Central Board of Film Censors. She also
alleged that the impugned order was arbitrary and capricious and that the
retiring authority had not applied its mind to the record of her case.
The writ petition was dismissed in limine.
On the appeal, the first respondent conceded
that there was nothing on the record to justify the impugned order, and that
the Government was not in a position to support that unfair order.
Allowing the appeal, ^
HELD: (1) There was nothing on the record to
show that the Chairman of the Central Board of Film Censors was able to
influence the Central Government m making the impugned order. It was not
therefore the case of the appellant that there was actual malicious intention
on the part of the Government in making the alleged wrongful order so as to
amount to malice in fact. [205E] (2) Malice in its legal sense means malice
such as may be assumed from the doing of a wrongful act intentionally but
without just cause or excuse or for want of reasonable or probable cause.
[205G] .
Shearer & Anr. v. Shields, [1914] A.C.
508 at p. 813 referred to.
(3) It was not necessary to examine the
question of malice in law as it was trite law that if a discretionary power had
been exercised for an unauthorised purpose, it was generally immaterial whether
its repository was acting in good faith or in bad faith. [205H-206A] 203
Pilling v. Abergele Urban District Council. [1950] 1 K.B.
636: referred to.
(4) The principle which is applicable in such
cases is that laid down by Lord Esher M.R. in 24 Q.B.D. 371 at p. 375, and
followed in (1924) 1 Ch. 48 3. [206C-D] (5) When a public body is prompted by a
mistaken belief in the existence of a non-existing fact or circumstance it will
be an error of fact. That is so clearly unreasonable that what is done under
such a mistaken belief might almost be said to have been done in bad faith.
[206E] (6) When the respondent conceded that there was nothing on record to
justify the impugned order, that order must be set aside for it amounts to an
abuse of the power which was vested in the authority concerned as it had
admitted the influence of extraneous matter. [206H-207A] (7) It will be a gross
abuse of legal power to punish a person or destroy her service career in a manner
not warranted by law by putting a rule which makes a useful provision for the
premature retirement of Government servants only in the "public
interest", to a purpose wholly unwarranted by it, and to arrive at quite a
contradictory result. [206F] (8) An administrative order which is based on
reasons of fact which do not exist must be held to be infected with abuse of
power. [206G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2764 of 1977.
(From the Judgment and order dated 24-11- 76
of the Delhi High Court in C.R.P. No. 1264/76).
M. K. Ramamurthi and Faqir Chand for the
appellant.
P. N. Lekhi and Girish Chandra for the
respondent.
The Judgment of the Court was delivered by
SHINGHAL J., This appeal by special leave is directed against an order of the
Delhi High Court dated November 24, 1976, dismissing the appellant's writ
petition in timing.
The appellant was promoted to the post of
Director in the All India Radio after some thirty years of service under the
Government of India. She was working as Joint Director, Family Planning, in the
Directorate General of the All India Radio, when she was served with an order
dated March 26, 1976, retiring her prematurely from service, with immediate
effect, on the ground that she had already attained the age of 50 years on
April 11, 1972, and the President was of the opinion that her retirement was in
the "public interest".
The appellant made representation on April 6,
1976, but it was rejected on July 1, 1976. She therefore filed a writ petition
in the Delhi High Court under article 226 of the Constitution in which she,
inter alia, made a mention of the hostile attitude of one V. D. Vyas who took
over as Chairman of the 204 Central Board of Film Censors from her on February
11, 1972.
She also made a mention of the adverse
remarks made by Vyas in her service record after she had ceased to work under
him which, according to her, were "totally unfounded, biased, malicious
and without any justification". She stated that "her integrity had
never been considered doubtful 28 years before or 4 years after the period of
21 months she spent under him." It was also contended that some baseless
allegations were made against her because of "malicious vendetta"
carried on by Vyas, and that the order of premature retirement was not in
public interest but was "arbitrary and capricious", and that the
retiring authority had not "applied its mind to the record" of her
case. It was particularly pointed out that as he was confirmed in the post of
Director on April 28, 1973, with retrospective effect from July 10, 1970, any
adverse remark in her confidential report before that date could not
legitimately form the basis of the order of her premature retirement. The
appellant also pointed out that the order cast a stigma on her conduct,
character and integrity and amounted to the imposition of one of the major
penal ties under the Central Civil Services (Classification, Control and Appeal)
Rules, 1965.
It is not in controversy, and has in fact
been specifically stated in the order of premature retirement dated March 26,
1976, that the appellant was retired in the "public interest" under
clause (j) (i) of rule 56. of the, Fundamental Rules. That rule provides as
follows,- "(j) Notwithstanding anything contained in this rule the
appropriate authority shall, if it is of the opinion that it is in. the public
interest to do so have the absolute right to retire any Government servant by
giving him notice of not less than three months in writing or three months' pay
and allowances in lieu of notice.
(i) If he is in Class I or Class II service
or post and had entered Government service before attaining the age of thirty
five years, after he has attained the age of fifty years." It is also not
in dispute that the power under the aforesaid rule had to be exercised in
accordance with the criteria and the procedure laid down in office memorandum
No. F.33/13/61- Ests (A), dated 23rd June, 1969, of the Ministry of Home
Affairs, Government of India. It is however the grievance of the appellant that
her premature retirement was not made in accordance with the requirements of
the rule and the memorandum, but was ordered because of malice, and was
arbitrary and capricious as the Government did not apply its mind to her
service record and the facts and circumstances of her case. It has been specifically
pleaded that the power under F.R. 56(j)(i) has not been exercised "for the
furtherance of public interest" and has been based on "collateral
grounds". The appellant has pointed out in this connection that her
service record was examined in March, 1976, by the Departmental Promotion
Committee, with which the Union Public Service Commission was associated, and
the Committee considered her fit for promotion to the selection grade subject
to clearance in the departmental proceedings which were pending against her,
and that she was retired because of bias and animosity. Our attention has also
been invited to the favourable entry which was made in her confidential report
by the Secretary of the Ministry.
Mr. Lekhi, learned counsel for the Union of
India, produced the, relevant record of the appellant for our perusal. While
doing so he frankly conceded that there was nothing on the record which could
justify the order of the appellant's premature retirement. He went to the
extent of saying that the Government was not in a position to support that
unfair order.
We have made a mention of the plea of malice
which the appellant had taken in her writ petition. Although she made an
allegation of malice against V. D. Vyas under whom she served for a very short
period and got an adverse report, there is nothing on the record to show that
Vyas was able to influence the Central Government in making the order of
premature retirement dated March 26, 1976. It is not therefore the case of the
appellant that there was actual malicious intention on the part of the
Government in making the alleged wrongful order of her premature retirement so
as to amount to malice in fact. Malice in law IS, however, quite different.
Viscount Haldane described it as follows in Shearer and another v. Shield,(1)
'A person who inflicts an injury upon another person in contravention of the
law is not allowed to say that he did so with an innocent mind; he is taken to
know the law, and he must act within the law. He may, therefore be guilty of
malice in law, although, so far the state of his mind is concerned, he acts
ignorantly, and in that sense innocently." Thus malice in its legal sense
means malice such as may be assumed from the doing of a wrongful act
intentionally but without just cause or excuse or for want of reasonable or
probable cause.
It is however not necessary to examine the
question of malice in law in this case, for it is trite law that if a
discretionary power has been exercised for an unauthorised purpose, it is
generally immaterial whether (1) [1914] A.C. 808 at p. 813.
206 its repository was acting in good faith
or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele
Urban District Council(1), where a duty to determine a question is conferred on
an authority which state their reasons for the decision, "and the reasons
which they state show that they have taken into account matters which they
ought not to have taken into account, or that they have failed to take matters
into account which they ought to have taken into account, the court to which an
appeal lies can and ought to adjudicate on the matter." The principle
which is applicable in such cases has thus been stated by Lord Esher M.R. in
The Queen on the Prosecution of Richard West brook v. The Vestry of St.
Paneras(2). " If people who have to
exercise a public duty by exercising their discretion take into account matters
which the Courts consider not to be proper for the guidance of their
discretion, then in the eye of the law they have not exercised their
discretion." This view has been followed in Sedlar v. Sheffield
Corporation.(3) We are in agreement with this view. It is equally true that
there will be an error of fact when a public body is prompted by a mistaken
belief in the existence of a nonexisting fact or circumstance. This is so
clearly unreasonable that what is done under such a mistaken belief might
almost be said to have been done in bad faith; and in actual experience, and as
things go, these may well be said to run into one another.
The influence of extraneous matters will be
undoubted where the authority making the order has admitted their influence. It
will therefore be a gross abuse of legal power to punish a person or destroy
her service career in a manner not warranted by law by putting a rule which
makes a useful provision for the premature retirement of government servants
only in the ''public interest", to a purpose` wholly unwarranted by it,
and to arrive at quite a contradictory result. An administrative order which is
based on reasons of fact which do not exist raust therefore be held to be
infected with an abuse of power.
So when it has been conceded by Mr. Lekhi
that there was nothing on the record which would justify the impugned order
dated March 26, 1976, of the appellant's premature retirement under clause (j)
(i) of (1) [1950] 1 K.B. 636.
(2) 24 Q.B.D. 371 at p. 375.
(3) [1924] 1 Ch 483.
207 Rule 56 of the Fundamental Rules, and
that the Government was not in a position to support that unfair order, that
order must be set aside, for it amounts to an abuse of the power which was
vested in the authority concerned. The appeal is allowed with costs and it is
ordered accordingly.
N.V.K, Appeal allowed.
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