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Report No. 161

Chapter V

Changing Scenario in Law Relating to Punitive Measures against Persons Holding Public office

5.1. Of late, many cases relating to arbitrary/misuse of power by public functionaries have drawn the kind attention of the Hon'ble Supreme Court of India. The court held in Common Cause (a registered society) v. Union of India, (1996) 6 SCC 530 (555) that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land. It held that a Minister in the Central Government is in a position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the government must distribute in a bona fide manner and in conformity with law. The court observed as follows:-

"It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This Court in Lucknow Development Authority v. M.K. Gupta, approved "Misfeasance in public offices" as a part of the Law of Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrongdoing. According to Wade:

"There is, thus a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury."

With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary."

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